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Hubbell v. State

Court: Indiana Supreme Court
Date filed: 2001-09-05
Citations: 754 N.E.2d 884
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ATTORNEYS FOR APPELLANT

Sean G. Thomasson
Roderick D. McGillivray
Columbus, Indiana




ATTORNEYS FOR APPELLEE

Karen M. Freeman-Wilson
Attorney General of Indiana

Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________


                                   IN THE



                          SUPREME COURT OF INDIANA

__________________________________________________________________

JASON HUBBELL,                    )
                                  )
      Appellant (Defendant Below), )
                                  )
            v.                    )     Indiana Supreme Court
                                  )     Cause No. 03S00-9912-CR-714
STATE OF INDIANA,                 )
                                  )
      Appellee (Plaintiff Below).       )
__________________________________________________________________

                  APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT
                    The Honorable Stephen Heimann, Judge
                        Cause No. 03C01-9908-CF-1191
__________________________________________________________________


                              ON DIRECT APPEAL

__________________________________________________________________

                              September 5, 2001

BOEHM, Justice.
      Jason Hubbell was convicted of murder  and  criminal  confinement  and
sentenced to seventy-five years imprisonment.  In  this  direct  appeal,  he
raises ten issues, which we restate as eight.   Hubbell  contends:  (1)  the
trial court erred  by  not  dismissing  the  grand  jury’s  indictment;  (2)
evidence of the location of the  victim’s  body  and  cellular  phone  calls
violated the alibi statute; (3) the trial court  abused  its  discretion  in
admitting physical and testimonial evidence; (4) the admissions of his post-
polygraph statements violated his right to cross-examine witnesses; (5)  the
trial court abused its discretion  in  admitting  a  witness’  pretrial  and
trial identification of Hubbell;  (6)  the  State  committed  several  Brady
violations; (7) he was  denied  his  right  to  counsel  by  frequent  moves
throughout the Department of Corrections; and (8) he was entitled to  a  new
trial based on cumulative error.   We  affirm  the  judgment  of  the  trial
court.

                      Factual and Procedural Background

      Sharon Myers left for work at the Arvin plant early on the morning  of
May 13, 1997.  She never arrived.  Another employee of Arvin, Sherry  Young,
saw a man and a woman leaving the Arvin plant as she arrived  at  work  that
same morning.  The woman looked similar to Myers.  The man had one  hand  on
the woman’s neck or back, and the two entered a white van and drove away.
      The police came to the plant later that morning  to  look  for  Myers.
Young had “mentally” made note of the license  plate  number  and  gave  the
police the number and a description of  the  van.   The  police  traced  the
license plate number to a white van owned by  Hubbell.   Hubbell  worked  at
the Arvin plant with Myers and had called in sick on  May  13.   Young  then
identified a picture of the van as the one she had seen  that  morning,  and
later that day identified Hubbell when police presented him to her.
       In November 1997, skeletal remains were found  in  a  marsh  area  in
Johnson County and identified as Myers’ through dental records.  An  autopsy
showed a fracture in the hyoid bone[1] which, together with the  size  of  a
ligature found around Myers’ neck, indicated that the  cause  of  death  was
manual strangulation.  Acrylic fibers found near the  body  were  consistent
with fibers found in Hubbell’s van.  Grass fragments found in the search  of
the van were  consistent  with  grass  samples  from  the  marsh.   The  FBI
obtained fingerprints from the van and also shot several rolls  of  film  of
fingerprints that might or might not  be  different  from  the  fingerprints
taken.  No prints from Myers were identified, and the authorities  lost  the
rolls of film.
      On August 31, 1998, Hubbell was  indicted  by  a  grand  jury  on  the
charges of murder and criminal confinement.  On September 28, Hubbell  filed
a notice of alibi, which he amended  on  October  15.   The  State  did  not
respond.  At trial, the State introduced parts of Hubbell’s statements  made
following a polygraph examination.   The  State  also  introduced  testimony
from a jail inmate that Hubbell admitted the killing to  him.   Hubbell  was
convicted of both charges after  a  four-week  jury  trial  in  October  and
November of 1999.  The trial court sentenced him  to  sixty-five  years  for
murder and ten years for confinement, to be served consecutively.

                          I. Grand Jury Indictment

      Hubbell first argues that, because there were police officers  present
during the grand jury proceedings, he was  prejudiced  and  the  indictments
should be dismissed.  Before trial, Hubbell moved to dismiss the grand  jury
indictment.  The trial court denied Hubbell’s motion after a hearing on  the
matter.
      Indiana Code section 35-34-2-4 prescribes the conduct  of  grand  jury
proceedings and allows for a limited number of people, including  witnesses,
clerks, and the prosecuting attorney’s  staff,  to  be  present  during  the
proceedings.  In Indiana, there is no per se rule presuming  prejudice  when
unauthorized persons appear before  the  grand  jury,  or  even  when  those
persons participate in the interrogation of witnesses.  Fair v.  State,  266
Ind. 380, 390, 364 N.E.2d 1007, 1012 (1977).   To  obtain  dismissal  of  an
indictment, the  defendant  must  show  that  his  substantial  rights  were
prejudiced.  In this case, Hubbell  contends  that  there  were  two  police
officers present during the grand jury proceedings.   The  first,  Detective
Ken Hardwick, was present during the  testimony  of  Hubbell’s  wife,  Robyn
Hubbell.  Hubbell claims that Hardwick made gestures indicating  that  Robyn
was being untruthful and consulted  with  the  prosecuting  attorney  during
Robyn’s  testimony.   Hubbell  also  claims  that  another  detective,  Mark
Gorbett, acted similarly when Hubbell’s  alibi  witness,  Heather  Hilliard,
testified.  Finally, he contends that two other witnesses before  the  grand
jury were harassed.
      At the hearing on the  motion  to  quash  the  indictment,  the  State
submitted an affidavit from Gorbett claiming  that  although  officers  were
present, none of them took any  actions  indicating  untruthfulness  by  the
witnesses.  Robyn testified that although her demeanor was affected  by  the
police officers, the content of her testimony remained the same.  The  trial
court then ruled:
      At this time as it relates to the Motion to Quash or Motion to Dismiss
      the Grand Jury Indictment, I’m going to find that  the  defendant  has
      not proven by a preponderance of the  evidence  that  his  substantial
      rights have been prejudiced and I’m going to deny the Motion to Quash.


It is for the trial court to evaluate the  truthfulness  of  the  witnesses.
We cannot conclude on this record that the finding of absence  of  prejudice
was error.

                             II.  Alibi Statute

      The indictment in this case stated that  Hubbell  was  in  Bartholomew
County on May 13, 1997.  Hubbell contends that  the  trial  court  erred  by
admitting evidence of Myers’ body, which was found in  Johnson  county,  and
cellular phone calls that were made from outside  Bartholomew  County.   The
basis of this contention is his notice of alibi defense claiming he  was  in
Bartholomew County on those  dates.   The  State  did  not  respond  to  the
notice.  Under the alibi statute, Indiana Code  section  35-36-4-3,  if  the
State does not respond to a  notice  of  alibi  defense,  the  court  is  to
exclude “evidence offered by the  prosecuting  attorney  to  show  that  the
defendant was at a  place  other  than  the  place  stated  in  .  .  .  the
indictment.”  This Court has refused to adopt a rule excluding all  evidence
of events occurring outside the time and spatial limits raised by  a  notice
of alibi defense.  Woods v. State, 250 Ind. 132, 143, 235  N.E.2d  479,  485
(1968).  Testimony describing events outside these limits is  admissible  if
it circumstantially proves commission  of  a  particular  crime  within  the
limits.  Id.  Evidence of Myers’ body was not used  to  prove  that  Hubbell
committed a crime in Johnson County, for example, body  dumping.   See  Ind.
Code §§ 23-14-54-1 to 2, 23-14-54-5  (1998).   Rather,  it  was  offered  as
circumstantial evidence supporting the claim that  he  committed  crimes  in
Bartholomew County.[2]
      Similarly, the cellular phone calls were not offered to establish that
Hubbell was outside of Bartholomew County.  At trial, David Ebney, a  former
operations manager for Blue Ridge Cellular, testified  that  the  signal  of
the Indianapolis cellular phone tower overlapped  into  Bartholomew  County.
The trial court also admitted Hubbell’s cellular phone  bill,  which  showed
that he made two phone calls on  May  13,  1997  through  a  cellular  tower
located north of Bartholomew County.  However, there was no  testimony  that
calls from the cellular tower outside of Bartholomew County must  have  been
made outside of Bartholomew County.  The jury was left with unconnected  and
incomplete testimony on that point.  In short, the evidence of the  location
of the body and calls was not used to prove that the  “defendant  was  at  a
place other than the place stated  in  the  indictment.”   Accordingly,  the
trial court did not err in admitting this evidence.

                          III.  Evidentiary Issues

      Hubbell contends that there were two evidentiary errors  in  his  case
that  require  reversal  because  the  resulting  prejudice  outweighed  any
probative value.  Relevant  evidence  is  admissible  unless  its  probative
value is substantially outweighed by the danger of unfair  prejudice.   Ind.
Evidence Rule 403.  The trial court’s rulings on the admission  of  evidence
under Rule 403 are reviewed for an abuse of discretion.
      A. Hubbell’s Gun and Ammunition
      Hubbell contends that the admission of a handgun found in his home and
bullets found in his van violated Indiana  Evidence  Rule  403.   The  State
argues that because the gun matched bullets  found  in  the  van,  the  jury
could have concluded that the gun was used to coerce  Myers  into  the  van.
Hubbell filed a pretrial motion in limine to exclude this  evidence  arguing
that there was no evidence that a gun was used to commit  this  crime.   The
State argued that Myers left her work “against her will,” presuming  that  a
gun was used to coerce her.  The trial court denied the motion.
      We agree with Hubbell that the introduction of the gun and bullets was
an abuse of discretion.  The State presented  no  evidence  that  Young  was
coerced with a gun to leave her place of employment  and  no  evidence  that
the gun was in any way connected  with  her  murder.   Its  suggestion  that
Hubbell may have used the gun to coerce Myers is no  more  than  speculation
given the absence of any other evidence suggesting  the  use  of  a  weapon.
There also was a danger of unfair prejudice from admission of the gun.   “As
a general proposition, we agree that the introduction of  weapons  not  used
in the commission of the crime and not otherwise relevant to  the  case  may
have a prejudicial effect.”  Lycan v. State, 671 N.E.2d 447, 454  (Ind.  Ct.
App. 1996).
      The highly  attenuated  relevance  of  the  gun  was  insufficient  to
overcome its potential prejudice.  However, any error in  the  admission  of
the gun and bullets was harmless.  “Errors in the admission or exclusion  of
evidence are to be disregarded as harmless  error  unless  they  affect  the
substantial rights of a party.”  Fleener v. State,  656  N.E.2d  1140,  1141
(Ind. 1995); Ind.  Trial  Rule  61.   In  this  case,  the  State  presented
evidence that a man matching Hubbell’s  description  and  driving  Hubbell’s
van left the Arvin parking lot with a woman who looked like  Myers.   Fibers
and grass near Myers’ body matched fibers  and  grass  from  Hubbell’s  van.
Finally, Hubbell confessed to a jail inmate that he murdered  Myers.   Given
this evidence, we cannot say that evidence of the gun and  bullets  affected
Hubbell’s substantial rights.
      B.  Fingerprint Film
      Hubbell also contends that the trial court abused  its  discretion  in
admitting testimony  that  two  rolls  of  film  containing  photographs  of
fingerprints found in Hubbell’s van were destroyed.   The  FBI  conducted  a
search of Hubbell’s van on May 19, 1997.  They found numerous  fingerprints,
but none from Myers.  The FBI also took pictures of other fingerprints  from
the van.  These rolls of film were lost  before  they  could  be  developed.
Hubbell filed a motion in limine to exclude testimony of the lost  rolls  of
film because of the danger that the  jury  would  assume  the  missing  film
contained fingerprints of the victim.  The trial court  denied  this  motion
and, at trial, an FBI agent testified  that,  although  the  film  had  been
destroyed, more fingerprints were found in the van.
      We think admitting the testimony was error.   Unless  there  was  some
basis to suggest the missing fingerprints were Myers’, this testimony  again
raises only speculation.  There was no evidence  suggesting  that  the  lost
photographs  were  of  fingerprints  from  a  source  different   from   the
fingerprints that were not lost.   The  lost  photos  do  not  suggest  that
anyone else, much less Myers, was in the van.  Although the probative  value
of this testimony is minimal, its prejudicial effect was also  low  and  any
error was harmless for the same reason as the gun and bullets.
                  IV.  Hubbell’s Post-Polygraph Statements
      Hubbell also contests the admission of his  statements  from  a  post-
polygraph interview.  On May 19, 1997,  Hubbell  submitted  to  a  polygraph
examination.   Sergeant  Jeff  Williams   questioned   Hubbell   after   the
interview.  The exact questions are not  in  the  record  because  Williams’
notes have been destroyed.  However, in his report, Williams stated:
      During  the  post-test  interview  I  explained  the  results  of  the
      polygraph examination to [Hubbell] to see  if  he  could  furnish  any
      reason for the deceptive responses.  When  I  stated  to  him  that  I
      believed that he was responsible for [Myers’] disappearance he  stated
      that it might be possible but he can’t say that he did it.  He  stated
      that he has prayed to God every night since then  that  it  isn’t  so.
      When I asked him to explain further he states he knows  that  he  does
      things during his episodes that he can’t remember  so  he  always  has
      doubts now about things he could have done.


Hubbell filed a motion in limine to exclude any evidence of  this  exchange.
The motion was denied and  Williams  testified  to  the  statements  Hubbell
made, with no reference to the polygraph examination.  Hubbell  argues  that
the trial court erred in admitting this testimony because he was  unable  to
cross-examine  Williams  fully  because  evidence  of  the   polygraph   was
inadmissible.  He urges  this  Court  to  “render  inadmissible  any  [post-
polygraph]  statements  which  are  not  admissions,  but  are   speculative
responses to an officer’s question of why the polygraph indicated  deceptive
responses.”
      As  an  initial  matter,  Hubbell  cites  to  no  authority  for  this
proposition.  Although the right to cross-examine  witnesses  is  guaranteed
by the Sixth Amendment to the United  States  Constitution  and  Article  I,
Section 13 of the Indiana  Constitution  and  is  “one  of  the  fundamental
rights of our criminal justice system,” Pigg v. State, 603 N.E.2d  154,  155
(Ind. 1992),  it  “is  subject  to  reasonable  limitations  placed  at  the
discretion of the trial judge.”  McQuay v. State, 566 N.E.2d 542, 543  (Ind.
1991); accord Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).   Requiring
Hubbell to  choose  between  incomplete  questioning  (foregoing  his  Sixth
Amendment rights) and revealing unfavorable polygraph results would  present
an impermissible choice.  But Hubbell gives no reason why a complete  cross-
examination of Williams required reference  to  the  polygraph.   The  trial
court stated:
      With regard to Motion in Limine #6  concerning  the  defendant’s  post
      polygraph statements to Detective Williams; these statements  are  not
      tied so  directly  to  the  polygraph  results  that  they  force  the
      defendant to “invoke the doctrine of  completeness”  and  divulge  the
      fact that a  polygraph  examination  was  performed.   In  the  police
      report, Officer Williams says:  “When I stated to him that I  believed
      that he was responsible for Sharon’s disappearance he stated  that  it
      might be possible but he can’t say that he did it.”  This  portion  of
      the conversation is illustrative of the  post  polygraph  questioning.
      The discussion does not require the divulgence of the polygraph exam.


Based on this record, we conclude that the  trial  court  was  correct  that
exploring  the  polygraph  examination  was  not   critical   to   Hubbell’s
statements or his ability to cross-examine Williams.

                        V. Eyewitness Identification

      Hubbell next contends that the trial court erred in admitting  Young’s
pre-trial and in-court identifications.   He  contends  that  the  pre-trial
identification was unduly suggestive  and  therefore  tainted  the  in-court
identification.  He further contends that the suggestive  lineup  led  Young
to add further details to her description of Hubbell.   On  the  morning  of
Myers’ disappearance, Young saw a man and a woman get into a  white  van  in
her employer’s parking lot and drive away.   Young  was  able  to  give  the
police the license plate number of the van, and described the man as  having
“blonde hair, probably five nine, six foot.”  Less  than  six  hours  later,
police presented Hubbell to Young in a showup or single person  lineup.   At
the showup, Young thought Hubbell was the man she had seen driving the  van,
although she was not positive.  This testimony  was  corroborated  by  Steve
Prosser, another witness at the showup.  Two police officers testified  that
Young was not positive that Hubbell was the man driving the van.
      At trial, Young testified that she watched the couple walk across  the
parking lot for several minutes and took notice of them  because  they  were
leaving  work  at  an  unusual  hour.   She  also  testified  that  she  was
approximately thirty feet from the van and had a three-quarters view of  the
driver’s face for three seconds.  The  parking  lot  was  well-lit  and  the
driver of the van turned and made eye  contact  with  Young  before  driving
away.  She made a mental note of the license plate number of the  van.   Her
description of the suspect remained  largely  the  same  after  the  showup,
although she did provide more detail on his haircut.
      In Stovall v. Denno, 388 U.S. 293,  302  (1967),  overruled  on  other
grounds by Griffith v. Kentucky, 479 U.S.  314  (1987),  the  United  States
Supreme Court noted  that  a  show-up  procedure  may  be  so  unnecessarily
suggestive and so conducive  to  irreparable  mistake  as  to  constitute  a
violation of due process.  Such a claimed violation is  to  be  examined  in
light of the totality of the circumstances surrounding it.  Id.   A  per  se
rule of exclusion of pre-trial identification evidence involving  suggestive
or unnecessary procedures was rejected in Manson  v.  Brathwaite,  432  U.S.
98, 109-14 (1977).  Instead, due  process  permits  the  admission  of  such
evidence if, under the totality  of  circumstances,  the  identification  is
reliable.  Accord Neil v. Biggers, 409 U.S. 188, 196-201 (1972).   Hubbell’s
claim thus involves a two-step analysis.  Slaton v. State, 510 N.E.2d  1343,
1348 (Ind. 1987).  The first question is whether the initial  identification
procedure was unnecessarily or impermissibly suggestive.  Id.  As  noted  in
Stovall, “The practice  of  showing  suspects  singly  to  persons  for  the
purpose of identification, and not as part of  a  lineup,  has  been  widely
condemned.”  388 U.S. at 302.  This Court has also recognized  the  inherent
suggestiveness of  such  one-on-one  confrontations.   Head  v.  State,  443
N.E.2d 44, 55 (Ind. 1982); Poindexter v.  State,  268  Ind.  167,  173,  374
N.E.2d 509, 512 (1978).  The second inquiry is whether, under  the  totality
of the circumstances,  the  identification  was  reliable  even  though  the
procedure was suggestive.  Slaton, 510 N.E.2d at 1349.   We  have  permitted
such procedures when they occur shortly after the commission  of  the  crime
“because of the value of permitting a witness to view a  suspect  while  the
image of the perpetrator is fresh in the witness’s mind.”  Head, 443  N.E.2d
at 55.  “Likewise, one-on-one confrontations have been  found  proper  where
circumstances  rendered  an  alternative   approach   such   as   a   lineup
impossible.”  Id. at 55-56.
      In this case, we agree with Hubbell that the  “single  person  lineup”
was unduly suggestive.  We also  find  no  exigent  circumstances  requiring
this showup, which occurred six hours after Young had  seen  the  white  van
leaving the parking lot.  Wethington v. State, 560  N.E.2d  496,  502  (Ind.
1990) (showup two hours after robbery was  unduly  suggestive).   Thus,  the
pre-trial identification was erroneously admitted.
      Where  it  is   established   that   evidence   of   an   out-of-court
identification has been erroneously admitted based on  a  finding  that  the
confrontation procedure  was  impermissibly  suggestive  and  not  otherwise
justified based  on  the  totality  of  the  circumstances,  the  error  may
nonetheless be harmless.  A conviction will not be  reversed  if  the  State
can show beyond a reasonable doubt that the  error  complained  of  did  not
contribute to the verdict obtained.  Chapman v. California, 386 U.S. 18,  24
(1967), cited in Wethington, 560 N.E.2d at 502.  Whether or not Young  could
identify Hubbell conclusively, she did identify his  van  by  license  plate
number and also  reported  a  driver  of  his  general  description.   This,
together with the fiber and grass matches and Hubbell’s confession,  renders
any error in Young’s identification harmless.[3]
                            VI. Brady Violations
      Hubbell claims that his  due  process  rights  were  violated  by  the
State’s failure to disclose  exculpatory  evidence  and  the  trial  court’s
failure to perform an in camera review of  all  the  evidence  to  look  for
additional exculpatory evidence.[4]
      A. Conservation Report
      First, Hubbell contends that the State failed to  produce  a  complete
case report by a conservation officer.  The State produced a  two-page  case
report in response to Hubbell’s motion to produce.  However,  Hubbell  later
learned of  the  existence  of  a  fifteen-page  report  that  contained  an
interview with a witness claiming to see  suspicious  persons  in  the  area
where the body was found.  Hubbell had copies of this report  at  least  ten
months prior to trial.
      Although not explicitly stated, it appears that Hubbell is  contending
that the State’s actions violated Brady v.  Maryland,  373  U.S.  83,  86-88
(1963), and its progeny.  There is no doubt that the State  is  required  to
disclose evidence that is favorable to  the  accused  and  material  to  the
accused’s guilt or punishment.  See Williams v. State, 714 N.E.2d 644,  648-
49 (Ind. 1999), cert. denied, 528 U.S. 1170 (2000).  Evidence  favorable  to
the accused includes impeaching  evidence.   Id.  at  649.   In  this  case,
however, the full conservation report was discovered  at  least  ten  months
prior to the actual trial.  Hubbell had adequate opportunity to  investigate
the witness and alter trial strategy  accordingly.   Brady  applies  to  the
discovery of favorable evidence “after trial.”  See Lowrimore v. State,  728
N.E.2d 860, 866-67 (Ind. 2000); Williams, 714 N.E.2d at 648-49;  accord  Dye
v. State, 717 N.E.2d 5, 12 (Ind. 1999), cert. denied, 531 U.S. 957 (2000)
      B.  Marcus Yano
      Hubbell also contends that he was denied the opportunity  to  discover
a report detailing the exculpatory testimony of Marcus Yano.   At  trial,  a
witness  testified  that  Eddie  Harrison,  Hubbell’s   candidate   as   the
perpetrator of these crimes, had told her he killed Myers.  Harrison  denied
making the statement.  Hubbell requested the entire police  file  on  Myers’
murder prior to his deposition of Detective Dennis  Knulf.   Knulf  appeared
at his deposition with a summary report, which the  State  refused  to  turn
over to Hubbell.  After trial, Yano came to  defense  counsel’s  office  and
signed an affidavit claiming that Harrison was in the Arvin parking lot  the
morning Myers disappeared and that Knulf knew of this.  Hubbell  now  claims
that the summary report contained information leading to Yano  and  that  he
was denied the opportunity to discover this fact.
      Hubbell learned of Yano’s allegations on November 5, 1999,  after  the
guilty verdict, but before the sentencing hearing on  December  3.   He  did
not raise this issue until January 19, 2000,  when  he  filed  an  affidavit
unaccompanied by any motion.  Although Indiana law  has  not  been  entirely
clear on this point, the procedural steps for  raising  a  Brady  issue  are
controlled by Criminal  Rule  16  and  Trial  Rules  59  and  61.   A  Brady
violation is almost always based on  evidence  that  comes  to  light  after
trial.  If so, it is raised by a motion for  a  new  trial  based  on  newly
discovered evidence, or a motion to correct  error.   Pursuant  to  Criminal
Rule 16(A), the defendant must file a motion to correct error  in  order  to
address  “newly  discovered  material  evidence,  including   alleged   jury
misconduct, capable of production within thirty (30) days of final  judgment
which, with  reasonable  diligence,  could  not  have  been  discovered  and
produced at trial.”  See also Ind. Trial Rule 59(A).  A  motion  to  correct
error addressing newly discovered evidence “is a mandatory prerequisite  for
an appeal, and a failure to file such a motion will result in  a  waiver  of
the issue” unless the provisions of Trial Rule 60(B)(2) for late  discovered
evidence apply.[5]  4A Kenneth M. Stroud, Indiana Practice § 4.1, at 44  (2d
ed. 1990).  Because Hubbell knew of  Yano’s  affidavit  within  thirty  days
after the judgment and failed to file a motion  to  correct  error,  Hubbell
has waived this issue.
      Requiring a defendant to file a motion  to  correct  error  gives  the
trial  court  an  opportunity  to  rule  on  the  issue  and  may  avoid  an
unnecessary appeal.  Hubbell’s attempt to raise the issue on appeal  without
trial court review, and without a hearing  in  the  trial  court,  puts  the
appellate  court  in  the  unenviable  position  of  attempting   to   weigh
credibility on an undeveloped paper record.  This is a task  for  the  trial
court.  The trial judge has the benefit of a detailed understanding  of  the
other evidence in the case and can best assess any  potential  prejudice  as
well as weigh the credibility of claims of  new  evidence.   For  all  these
reasons, the issue is not preserved on this record.
            VII. Improper Transfers in Department of Corrections
      Hubbell claims that he was denied both his  right  to  be  present  at
important stages of the criminal proceedings and his right to counsel  as  a
result of his frequent transfers by the  Department  of  Corrections.[6]  On
December 9, 1998, Hubbell  was  transferred,  over  his  objection,  to  the
Department of Corrections because its medical facilities  were  better  than
those in the Bartholomew County Jail.   On  August  11,  1999,  Hubbell  was
transferred back to the jail pursuant  to  his  request.   In  the  interim,
Hubbell had spent time at  the  Plainfield,  Pendleton,  and  Michigan  City
correctional facilities.  He claims these frequent moves made it  impossible
for him to attend several court proceedings and impossible for his  attorney
to contact him and discuss important decisions.
      Although Hubbell has the right to be present at significant stages  of
the criminal proceedings, he  has  not  established  that  any  hearings  he
missed, including the one on July 14, 1999, were of critical  importance  to
implicate the Confrontation Clause.  Even if  the  Confrontation  Clause  is
not violated, the right to be present may be guaranteed by the  Due  Process
Clause of the Fourteenth  Amendment,  which  guarantees  the  defendant  the
right to be  present  in  his  own  person  “whenever  his  presence  has  a
relation, reasonably substantial, to  the  fulness  of  his  opportunity  to
defend against the charge. . .  .   [T]he  presence  of  a  defendant  is  a
condition of due process to the extent that a fair and  just  hearing  would
be thwarted by his absence, and to that  extent  only.”   United  States  v.
Gagnon, 470 U.S. 522, 526 (1985) (quoting Snyder v. Massachusetts, 291  U.S.
97, 105-06, 107-08 (1934)).  In sum, “a defendant is  guaranteed  the  right
to be present at any stage of the criminal proceeding that  is  critical  to
its outcome if  his  presence  would  contribute  to  the  fairness  of  the
procedure.”  Kentucky v. Stincer, 482 U.S. 730, 745 (1987).
      The defendant has  the  burden  of  showing  how  his  presence  could
contribute to a more reliable determination of the  fact  at  issue.   If  a
defendant can contribute or gain  nothing  from  attending  the  proceeding,
then his due process  right  is  not  violated.   Id.;  see  also  Hovey  v.
Calderon, 1996 WL 400979, at *10 (N.D. Cal. July  10,  1996).   Hubbell  has
not shown, or attempted to show, how any of these proceedings were  critical
to the outcome of the trial or how his presence would  have  contributed  to
the fairness of the procedure.  Stincer, 482 U.S. at 745.  Accordingly,  his
due process claim fails.  Ridley v. State,  690  N.E.2d  177,  180-81  (Ind.
1997).
      As for the right to counsel, there is no showing  that  the  transfers
were made for  the  purpose  of  preventing  Hubbell  from  conferring  with
counsel, or from preparing his defense.  Nor is  there  any  showing,  other
than Hubbell’s general allegations, that  the  transfers  had  this  effect.
There is therefore no reversible error on this issue.  See  Nagy  v.  State,
505 N.E.2d 434, 436 (Ind. 1987); Hurley v.  State,  446  N.E.2d  1326,  1331
(Ind. 1983).

                           VIII.  Cumulative Error

      As a final point, Hubbell suggests that even if each of the  foregoing
individual errors was harmless, their cumulative effect  requires  reversal.
The State responds that a number of trial irregularities that do not  amount
to error standing alone do not  collectively  amount  to  reversible  error.
See Reaves v. State, 586 N.E.2d 847, 858 (Ind. 1992); Stonebraker v.  State,
505 N.E.2d 55, 61 (Ind. 1987).  Assuming, for the  sake  of  argument,  that
under some circumstances the cumulative effect of trial errors  may  warrant
reversal even if each might be deemed harmless in isolation,  in  this  case
it is clear in light of the evidence of guilt  that  no  prejudice  resulted
from any of the erroneous rulings, individually or  cumulatively.   Thompson
v. State, 728 N.E.2d 155, 163 (Ind. 2000).
                                 Conclusion
      The judgment of the trial court is affirmed.

      SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] The hyoid bone is “a bone or complex of bones situated at  the  base  of
the tongue and supporting the tongue and its  muscles.”   Merriam  Webster’s
Collegiate Dictionary 569 (10th ed. 1993).
[2] The same is true of evidence of grass fragments found on the underside
of Hubbell’s van.
[3]  For  the  same  reasons,  any  error  in  admitting  Young’s   in-court
identification of Hubbell was also harmless.
[4] In his reply brief, Hubbell  claims  he  was  “denied  his  Due  Process
Rights based upon a pattern of conduct on the part  of  the  State  and  its
agents that deprived  Defendant  of  his  ability  to  effectively  discover
relevant and/or exculpatory evidence the State had in either its  actual  or
constructive possession.”  Brady violations are a  species  of  due  process
violations and as such are  addressed  above.   To  the  extent  Hubbell  is
making a separate claim, he  argues  that  the  trial  court  erred  by  not
reviewing all the evidence  in  camera  to  determine  whether  Hubbell  had
access  to  all  exculpatory,  material  evidence.   We  find  no  authority
requiring trial courts to  perform  such  an  extensive  task  and  are  not
inclined to order them to do so.
[5] Trial Rule 60(B)(2) allows a party to file  a  motion  for  relief  from
judgment within one year after the judgment for “newly discovered  evidence,
which by due diligence could not have been discovered in time to move for  a
motion to correct errors under Rule 59.”
[6] Hubbell also contends that Indiana Code sections 35-33-11-1 and  2  were
violated, thus violating his due process rights.  He  has  not  alleged  any
specific harm from a violation of these statutes, nor has he presented  this
Court with any authority as to why a violation of these statutes  should  be
cause to vacate these convictions.  See Parr  v.  State,  504  N.E.2d  1014,
1018 (Ind. 1987).