ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kathleen M. Sweeney Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Robin Hodapp-Gillman
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
MITCHELL LUDY, ) Supreme Court No.
Defendant-Appellant, ) 49S02-0303-CR-99
)
v. ) Court of Appeals No.
) 49A02-0202-CR-112
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale J. Bradford, Judge
Cause No. 49G03-0102-CF-036177
________________________________________________
On Petition To Transfer
March 6, 2003
DICKSON, Justice.
The defendant, Mitchell Ludy, was convicted of criminal deviate
conduct, criminal confinement, and two counts of battery. In a memorandum
decision, the Court of Appeals affirmed. The defendant petitions for
transfer, in part challenging the following jury instruction:
A conviction may be based solely on the uncorroborated testimony of
the alleged victim if such testimony establishes each element of any
crime charged beyond a reasonable doubt.
Appellant's App. at 105. We grant transfer and hold that the giving of this
instruction is error.
The trial objection to this instruction was that it is "an appellate
standard . . . rather than something that the jury needs to be instructed
about." Tr. at 204.[1] On appeal, the defendant acknowledged that the
instruction was upheld in Lottie v. State, 273 Ind. 529, 532-33, 406 N.E.2d
632, 636 (1980), but urged revision in light of the criticism of the
instruction presented in Carie v. State, 761 N.E.2d 385 (Ind. 2002)
(Dickson, J., dissenting from denial of transfer). On transfer, the
defendant invites the Court to reconsider its position.
The challenged instruction is problematic for at least three reasons.
First, it unfairly focuses the jury's attention on and highlights a single
witness's testimony. Second, it presents a concept used in appellate
review that is irrelevant to a jury's function as fact-finder. Third, by
using the technical term "uncorroborated," the instruction may mislead or
confuse the jury.
Instructions that unnecessarily emphasize one particular evidentiary
fact, witness, or phase of the case have long been disapproved. Dill v.
State, 741 N.E.2d 1230, 1232 (Ind. 2001). See also Perry v. State, 541
N.E.2d 913, 917 (Ind. 1989); Patrick v. State, 516 N.E.2d 63, 65 (Ind.
1987); Coleman v. State, 465 N.E.2d 1130, 1133 (Ind. 1984); Fehlman v.
State, 199 Ind. 746, 755, 161 N.E. 8, 11 (1928). "[A]n instruction directed
to the testimony of one witness erroneously invades the province of the
jury when the instruction intimates an opinion on the credibility of a
witness or the weight to be given to his testimony." Pope v. State, 737
N.E.2d 374, 378 (Ind. 2000) (quoting Fox v. State, 497 N.E.2d 221, 225
(Ind. 1986)). See also Abbott v. State, 535 N.E.2d 1169, 1172 (Ind. 1989)
("An instruction to cautiously scrutinize the testimony of a codefendant is
improper because it invades the province of the jury by commenting on the
competency or the weight to be given to the testimony of any particular
witness.").
When reviewing appellate claims that the evidence is insufficient to
support the judgment, reviewing courts frequently confront cases in which
most or all of the facts favorable to the judgment derive from the
testimony of a single person, often the victim of the crime. In discussing
this issue, our appellate opinions observe that a conviction may rest upon
the uncorroborated testimony of the victim. See, e.g., Garner v. State,
777 N.E.2d 721, 725 (Ind. 2002); Stewart v. State, 768 N.E.2d 433, 436
(Ind. 2002); Carter v. State, 754 N.E.2d 877, 880 (Ind. 2001); Bowles v.
State, 737 N.E.2d 1150, 1152 (Ind. 2000); Jackson v. State, 735 N.E.2d
1146, 1152 (Ind. 2000); Spurlock v. State, 675 N.E.2d 312, 316 n.4 (Ind.
1996); Thompson v. State, 674 N.E.2d 1307, 1311 (Ind. 1996); Wooden v.
State, 657 N.E.2d 109, 111 (Ind. 1995); Brown v. State, 525 N.E.2d 294, 295
(Ind. 1988).
But a trial court jury is not reviewing whether a conviction is
supported. It is determining in the first instance whether the State
proved beyond a reasonable doubt that a defendant committed a charged
crime. In performing this fact-finding function, the jury must consider
all the evidence presented at trial. See 1 Ind. Pattern Jury Instruction –
Criminal § 1.16 (2d ed. 1991 Supp. 1997) ("A reasonable doubt is a fair,
actual, and logical doubt that arises in your mind after an impartial
consideration of all the evidence and circumstances in the case. . . ."); 1
Ind. Pattern Jury Instruction – Criminal § 1.01 (2d ed. 1991)) ("You should
not form or express an opinion during the trial and should reach no
conclusion in this case until you have heard all of the evidence . . . .").
See also Buie v. State, 633 N.E.2d 250, 254 (Ind. 1994) (finding no error
in instruction stating that: "In deciding the question of criminal intent,
the jury should consider all of the evidence given in the case."); Reed v.
State, 491 N.E.2d 182, 186 (Ind. 1986) (finding proper an instruction that
the jury "should consider all of the facts and circumstances in evidence to
determine what evidence is of the greatest weight."); Norton v. State, 408
N.E.2d 514, 532 (Ind. 1980) (approving an instruction because it "cautioned
the jury to weigh all of the evidence, and that, before it could find the
defendant guilty, it must be satisfied of his guilt beyond a reasonable
doubt."); Tewell v. State, 264 Ind. 88, 97, 339 N.E.2d 792, 798 (1976)
(finding a preliminary instruction that emphasized that the jury was to
consider "all the evidence" to be a correct statement of law). To
expressly direct a jury that it may find guilt based on the uncorroborated
testimony of a single person is to invite it to violate its obligation to
consider all the evidence.
"The mere fact that certain language or expression [is] used in the
opinions of this Court to reach its final conclusion does not make it
proper language for instructions to a jury." Drollinger v. State, 274 Ind.
5, 25, 408 N.E.2d 1228, 1241 (1980) (quoting Jacks v. State, 271 Ind. 611,
623, 394 N.E.2d 166, 174 (1979)). See also Georgopolus v. State, 735
N.E.2d 1138, 1141 (Ind. 2000); Lambert v. State, 643 N.E.2d 349, 354 (Ind.
1994); Morgan v. State, 544 N.E.2d 143, 148 (Ind. 1989); Perry v. State,
541 N.E.2d 913, 917 (Ind. 1989); Myers v. State, 510 N.E.2d 1360, 1368
(Ind. 1987).
In addition, the meaning of the legal term "uncorroborated" in this
instruction is likely not self-evident to the lay juror. Jurors may
interpret this instruction to mean that baseless testimony should be given
credit and that they should ignore inconsistencies, accept without question
the witness's testimony, and ignore evidence that conflicts with the
witness's version of events. Use of the word "uncorroborated" without a
definition renders this instruction confusing, misleading, and of dubious
efficacy.
For these reasons, we hold that giving this instruction was error.
Noting that the instruction has a substantial history of appellate
approval,[2] we overrule prior decisions inconsistent with our holding
today. This new rule applies to Ludy and others whose cases properly
preserved the issue and whose cases are now pending on direct appeal.
Pirnat v. State, 607 N.E.2d 973, 974 (Ind. 1993).
While the giving of the challenged instruction was error, we must
disregard any error that does not affect the substantial rights of a party.
Ind. Trial Rule 61. In the present case, the victim testified at the
defendant's trial. The victim, age seventeen, had been arrested for
robbery and was being held in the Marion County jail awaiting trial. On
Sunday evening, December 17, 2000, he was in his cell reading his Bible
when he heard the defendant and two other inmates say, "Let's break him in
to our little system" and "Let's break him down." Tr. at 12. The other
inmates then came into the victim’s cell, put him in a choke hold, beat
him, and dragged him to another cell where they beat him further with their
hands and with "shower shoes." They then removed his pants and held his
head down in a toilet, and the defendant inserted a bottle up the victim’s
rectum.
In addition to the victim, the jury heard the testimony of another
inmate present in the cell block at the time of the attack. This witness
testified that as he walked past the victim's cell, he observed the
defendant and two other inmates wrestling with the victim. The witness
reported that "from what I could understand, [the victim] did not want to
wrestle any longer and he tried to get them off of him." Tr. at 62. The
witness proceeded to another cell and then "heard a lot of banging,
wrestling, the sounds of hands hitting bodies and shower shoes and things
like that." Tr. at 63. The witness heard the victim say, "Get off me . .
. I'm tired of this" and then heard "one or another one of them say, 'Get
the hot sauce bottle.' " The witness next heard screaming and then heard
the defendant say "we just stuck a hot sauce bottle in this n****r's ass."
Tr. at 64, 66. The day after the incident, a registered nurse examined the
victim and found bruising, cuts inside his mouth, redness to the white part
of his eye, and scratches on his arms. She testified that his injuries
were consistent with the victim's description of the attack. When a Marion
County officer in the Sexual and Physical Abuse Unit investigated on
December 22, 2000, she found two hot sauce bottles in the cell block trash
container.
The erroneous instruction advised the jury that "[a] conviction may be
based solely on the uncorroborated testimony of the alleged victim."
Clearly the testimony of the victim was not uncorroborated. Furthermore,
aside from the victim's testimony there was substantial probative evidence
establishing the elements of the charged offenses. The instruction error
did not affect the defendant's substantial rights. While the challenged
instruction was erroneous, the error does not require reversal. In all
other respects, the memorandum decision of the Court of Appeals is
summarily affirmed. Ind. Appellate Rule 58(A)(2). The judgment of the
trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] The transcript indicates that this objection was asserted by counsel
for co-defendant Arnold. The trial court ruled that the instruction would
be “given over objection by all defendants,” to which Ludy’s attorney
responded, “Yes, thank you.” Tr. at 205. We conclude that the trial court
understood and treated the objection as made on behalf of Ludy as well as
Arnold.
[2] See, e.g., Burnett v. State, 736 N.E.2d 259, 261 (Ind. 2000);
Madden v. State, 549 N.E.2d 1030, 1033 (Ind. 1990); Hicks v. State, 536
N.E.2d 496, 499 (Ind. 1989); Washburn v. State, 499 N.E.2d 264, 267 (Ind.
1989); Bear v. State, 772 N.E.2d 413, 421 (Ind. Ct. App. 2002); Scott v.
State, 771 N.E.2d 718, 728-29 (Ind. Ct. App. 2002); Maslin v. State, 718
N.E.2d 1230, 1234 (Ind. Ct. App. 1999); Lottie v. State, 273 Ind. 529, 406
N.E.2d 632 (1980); Butcher v. State, 627 N.E.2d 855, 860-61 (Ind. Ct. App.
1994); Mullins v. State, 486 N.E.2d 623, 628-29 (Ind. Ct. App. 1985).