Griffin v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Brent Westerfeld Karen M. Freeman-Wilson
Indianapolis, Indiana Attorney General of Indiana

Timothy W. Beam
Deputy Attorney General
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

JAMES R. GRIFFIN, )
)
Appellant (Defendant Below), ) No. 49S02-0101-CR-43
) In the Supreme Court
v. )
)
STATE OF INDIANA, ) No. 49A02-9909-CR-647
) In the Court of Appeals
Appellee (Plaintiff Below). )

ON PETITION FOR REHEARING

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9703-CF-44527

February 22, 2002

SHEPARD, Chief Justice.

We recently affirmed James R. Griffin’s conviction for carjacking.
Griffin v. State, 754 N.E.2d 899 (Ind. 2001). He now seeks rehearing.

A petition for rehearing is a vehicle that affords the reviewing court
the “opportunity to correct its own omissions or errors.” Daviess-Martin
County Rural Tel. Corp. v. Pub. Serv. Comm., 132 Ind. App. 610, 625, 175
N.E.2d 439, 440 (1961). A petitioner may seek rehearing only on points
raised in the original brief. Armstrong v. Hufty, 156 Ind. 606, 55 N.E.
443, 60 N.E. 1080 (1901).

A proper petition does not simply ask the court “generally to re-
examine all the questions in the record, or all the questions decided
against the party filing it.” Goodwin v. Goodwin, 48 Ind. 584, 596 (1874).
Judge Byron Elliott[1] pointed out that claimed errors in the original
decisions must be articulated with precision, and that a party cannot be
regarded “as having stated a point where he does no more than assert, in
general terms, that a ruling was erroneous.” Byron K. Elliott & William F.
Elliott, Appellate Procedure and Trial Practice Incident to Appeals § 557
(1892).

As Judge Arch Bobbitt and Frederic Sipe noted, when a general
rehearing is granted, the case stands before the court as if it had never
been decided. 5 Arch N. Bobbitt & Frederic C. Sipe, Bobbitt’s Revision,
Works’ Indiana Practice § 111.3 (5th Ed. 1979). By contrast, when
rehearing is granted as to a particular point, the original opinion will be
modified as to that point only. Id.

Griffin argues in his petition for rehearing that we did not fully
address his claim (further explained below) that the trial court’s hearsay
ruling violated his federal right to due process. Although Griffin
presented this argument almost in passing, he did cite some federal
authority and made a limited argument about it. (Appellant’s Br. at 14-
18.) We therefore agree that the issue was sufficiently raised and that
rehearing is appropriate to address this issue.

Griffin challenges our conclusion that the trial court properly
excluded testimony by his former attorney that one William Dulin confessed
to the crime. (Pet. Reh. at 1.) The defense put Dulin on the stand,
knowing he would deny having confessed, in order to get the attorney’s
hearsay testimony admitted under the guise of impeachment. Griffin, 754
N.E.2d at 904.

Griffin says we failed to consider Chambers v. Mississippi, 410 U.S.
284 (1973). In Chambers, a murder occurred during a barroom brawl. Id. at
285-86. Four months afterward, Gable McDonald swore in writing that he was
the shooter, but he later repudiated his confession. Id. at 287-88. Three
of McDonald’s acquaintances were prepared to testify that he orally
confessed to them on separate occasions. Id. at 292.

At trial, Chambers’ lawyer called McDonald and introduced the written
confession into evidence. Id. at 291. The State then elicited testimony
about the repudiation, plus a fresh denial by McDonald. Id. Chambers was
denied permission to cross-examine McDonald as an adverse witness based on
Mississippi’s “voucher” rule. Id. at 295. He was also denied the
opportunity to introduce testimony by the three other witnesses to whom
McDonald confessed. Id. at 292.

The U.S. Supreme Court held, “[U]nder the facts and circumstances of
this case” the “exclusion of this critical evidence, coupled with the
State’s refusal to permit Chambers to cross-examine McDonald, denied him .
. . due process.” Id. 302-03 (emphasis added). It emphasized “persuasive
assurances of trustworthiness” of the hearsay statements: (1) three
confessions made spontaneously to close acquaintances shortly after the
murder; (2) other corroborating evidence;[2] (3) the fact that the
statements were against interest; and (4) the fact that McDonald was
available at trial. Id. at 300-02.

Chambers does not, as Griffin claims, stand for the proposition that
the exclusion of hearsay evidence about a single confession, standing
alone, violates federal due process.[3]

Griffin’s case is distinguishable from Chambers for several reasons.
Most importantly, unlike in Chambers, Griffin claims only one evidentiary
error, because he was permitted to attack Dulin’s credibility and
motivation.[4] Moreover, the trial court allowed certain testimony
alluding to Dulin’s alleged confession. The former attorney was not
allowed to answer the question “Did [Griffin] make a confession?”, (R. at
390), but she testified that when she was still on the case she listed
Dulin as a defense witness because he made “statements that would
strengthen [Griffin’s] case,” (R. at 392-93).

The confessions at issue in the two cases are also very different in
terms of reliability. Griffin points to one oral confession made to a
person who, although bound by professional ethics, was serving as his legal
advocate, compared to Chambers’ three confessions to disinterested
acquaintances.[5] Furthermore, the corroborating evidence against Dulin is
meager[6] compared to the eyewitness testimony against McDonald in
Chambers.

The dissent’s more generous application of Chambers would create
serious potential for abuse. Any friend of a defendant with access to the
crime scene, later knowledge of the whereabouts of contraband, or similar
circumstantial connections could confess to a reliable witness that he
actually committed the crime. The friend could then promptly repudiate
that confession, leaving the defendant with a credible witness to finger
someone else but running little or no risk of prosecution and conviction.

In summary, Chambers does not establish that Griffin was denied
federal due process.

Griffin also cites Thomas v. State, 580 N.E.2d 224 (Ind. 1991), but
this too is readily distinguishable. The trial court in Thomas improperly
excluded a jailhouse confession by the original suspect in a robbery, who
described the crime in great detail to as many as twenty people. Id. at
227. As in Chambers, “the sheer number of independent confessions provided
corroboration for each.” Thomas, 580 N.E.2d at 226 (quoting Chambers, 410
U.S. at 300).

Having considered Griffin’s claim, we conclude the trial court should
be affirmed.

Dickson, Sullivan, and Rucker, JJ., concur.
Boehm, J., dissents with separate opinion.

ATTORNEY FOR APPELLANT

Brent Westerfeld
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Karen M. Freeman-Wilson
Attorney General of Indiana

Timothy W. Beam
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

JAMES R. GRIFFIN, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S02-0101-CR-43
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9703-CF-44527
__________________________________________________________________

ON PETITION FOR REHEARING

__________________________________________________________________

February 22, 2002

BOEHM, Justice, dissenting.
Griffin offered the testimony of Lorinda Youngcourt, his former
attorney. Youngcourt, in an offer to prove in question and answer form,
testified that she met with William Dulin in the course of preparing to
defend Griffin in this case, and in that meeting Dulin confessed that he
had committed the carjacking. I think Youngcourt should be viewed as a
disinterested party. I also believe her testimony is corroborated by
enough other evidence that its exclusion deprived Griffin of his Sixth
Amendment right to present witnesses in his defense. Accordingly, I
respectfully dissent from the Court’s conclusion that this testimony is not
sufficiently reliable to be admissible under the basic fairness doctrine
enunciated in Chambers v. Mississippi, 410 U.S. 284 (1973).
Griffin was denied an opportunity to present Youngcourt’s testimony
because Dulin’s confession was deemed hearsay if offered to prove the truth
of Dulin’s statement that he was the perpetrator. The same evidence was
excluded as impeachment of Dulin under the doctrine that impeachment is
improper if the sole basis for calling the witness to be impeached (Dulin)
was to lay the groundwork for otherwise inadmissible impeaching evidence
(Youngcourt’s testimony). Griffin v. State, 754 N.E.2d 899, 904-05 (Ind.
2001).
I agree that Youngcourt’s testimony does not fall within any exception
to the hearsay rule. Her account of Dulin’s confession is not permitted as
a statement against interest under Indiana Evidence Rule 804(b)(3)[7]
because Dulin was not “unavailable” as that term appears in Indiana
Evidence Rule 804(a).[8] Indeed, Dulin was present and testified at
Griffin’s trial. Nor was Youngcourt’s testimony admissible as a prior
inconsistent statement by a witness under Indiana Evidence Rule
801(d)(1)[9] because Dulin’s confession to Youngcourt was not given under
oath. For the reasons given in the Court’s initial opinion, I also agree
that this court correctly applied Indiana precedent which does not permit
Youngcourt’s testimony as impeachment of Dulin if Dulin was called as a
witness solely to obtain his denial of a confession, thereby laying the
groundwork for Youngcourt’s impeaching testimony. Accordingly, I agreed
with the majority and concurred in the original opinion affirming Griffin’s
conviction under Indiana Evidence Rules. I now believe I was incorrect in
that view.
In Hubbard v. State, 742 N.E.2d 919, 922 (Ind. 2001), this Court
recently repeated the admonition from Huffman v. State, 543 N.E.2d 360, 375
(Ind. 1989) (citing Chambers, 410 U.S. at 302), overruled on other grounds
by Street v. State, 567 N.E.2d 102 (Ind. 1991):
[W]hen the defendant’s Sixth Amendment right to present a defense
collides with the State’s interest in promulgating rules of evidence
to govern the conduct of its trials, the merits of the respective
positions must be weighed, [and] the State’s interest must give way to
the defendant’s rights if its rules are “mechanistically” applied to
deprive the defendant of a fair trial.

Id. Youngcourt’s testimony, although not falling within any of the
hearsay exceptions, was required to be permitted if excluding this evidence
deprived the defendant of his right to a fair trial and specifically the
right to present witnesses in his defense. I think it did.
The majority correctly notes that Chambers identified four factors
when it required admission of testimony of three witnesses who claimed to
have heard confessions to the crime by a third party: (1) whether the
confession was made spontaneously to a close acquaintance shortly after the
murder occurred; (2) whether each statement was supported by other evidence
in the trial; (3) whether the confession was against the third party’s
interest; and (4) whether the third party was present and could be cross-
examined. 410 U.S. 284, 300-01 (1973).
The majority distinguishes Chambers by pointing out that: (1) Griffin
was permitted to attack Dulin’s credibility; (2) the trial court allowed
some testimony alluding to Dulin’s favorable evidence; (3) the confession
was unlike the confession in Chambers because it was not made to a
disinterested acquaintance and because the corroborating evidence was
insufficient; and (4) the confession was made to one person as opposed to
multiple people.
In my view, these factors are not sufficient to distinguish Chambers.
First, permitting Youngcourt to allude to unspecified other evidence “that
would strengthen [Griffin’s] case” is a far cry from letting the jury hear
that someone else admitted to the crime.
Second, there was substantial other evidence corroborating Dulin’s
statement that he committed the crime. Youngcourt’s version is at least
consistent with the account given by Patricia Griffin, who also claimed to
have heard Dulin admit to the crime. Patricia Griffin further testified at
trial that Dulin showed her where the car was after the carjacking. As the
majority noted, she, like Dulin, had given police varying accounts of the
crime, but at trial she testified that Dulin had admitted to committing the
crime.[10] Dulin admitted that he met with Youngcourt after Griffin was
arrested, although he denied making a confession. Furthermore, Dulin
testified that he was dating Patricia Griffin at the time the incident took
place and that he had access to her house where the crime was instigated.
Patricia Griffin also stated that Dulin lived at her house at the time of
the crime. From this, the jury may infer that Dulin was present in the
house when Wright arrived, or even that Patricia and Dulin had set Wright
up with the proposal of easy sex in order to steal his car. Youngcourt
also supplied details that fit with other pieces of evidence. She
specifically recalled Dulin’s statement that he had presented himself to
the victim by the name of “James” and that he would not let Patricia’s
brother James go to prison for a crime he committed. This item,
unimportant in itself, nonetheless lends some credence to her account.
Third, the majority points out that Dulin’s confession was not made
independently to a large number of people. It was, however, made to two
different people, Youngcourt and Patricia Griffin, according to their trial
testimony. This is not the overwhelming number of confessions presented in
Thomas v. State, 580 N.E.2d 224 (Ind. 1991).[11] But in my view it is
enough to require submission of the issue to the jury.
Finally, in coming to its conclusion that Dulin’s confession was not
reliable enough to be admitted over hearsay rules, the majority relies
heavily on the fact that, at the time she met with Dulin, Youngcourt was
Griffin’s counsel. I disagree with the majority’s characterization of
Youngcourt as an interested witness. At the time Youngcourt testified, she
was no longer Griffin’s attorney. Additionally, Youngcourt, as an officer
of the court, would face serious disciplinary consequences in addition to
the sanctions for perjury applicable to other witnesses. Moreover, I see
no reason to suppose that Youngcourt, a public defender, had anything to
gain by giving false evidence. See Green v. Georgia, 442 U.S. 95, 97
(1979) (witness’ testimony regarding an admission from a third party that
defendant was not present during the victim’s murder was permitted for
several reasons including because the witness had no ulterior motive in
making the statement).
In sum, Chambers teaches that hearsay rules may not shield trustworthy
evidence from being admitted at trial. Youngcourt’s testimony seems to me
to be sufficiently reliable and corroborated by other evidence. Its
conflict with other accounts is for the jury to sort out, not for the trial
court or this Court to resolve as a matter of evidentiary ruling. The
Court’s initial opinion noted explanations and denials of Dulin’s
James/William identifications. Griffin, 754 N.E.2d at 904 n.12. That
issue too is for the jury. Applying the four factors emphasized in
Chambers, (1) Dulin’s confession to Youngcourt was supported by other
evidence at Griffin’s trial; (2) the confession was against Dulin’s
interest; (3) Dulin was present and was cross-examined at Griffin’s trial;
and (4) the confession appears to be made within months of the crime,
although not to a close acquaintance. As a result, I believe Youngcourt’s
testimony was required to be admitted to avoid depriving Griffin of his
Sixth Amendment right to present a defense. I would grant rehearing,
reverse Griffin’s conviction, and remand the case to the trial court for a
new trial.

-----------------------
[1] In addition to serving on this Court from 1881 to 1893, Judge Elliott
was the founding dean of the Indiana Law School, a predecessor of the
Indiana University School of Law at Indianapolis.
[2] Other evidence implicating McDonald included: (1) eyewitness testimony
by a friend of McDonald who saw him fire the fatal shot; (2) a witness who
saw McDonald holding a pistol immediately after the shooting; (3) evidence
that McDonald owned a pistol of the type used; and (4) evidence that
McDonald bought another pistol later. Id. at 300.
[3] See Montana v. Egelhoff, 518 U.S. 37 (1996)(no fundamental right to
have jury consider evidence of voluntary intoxication). Justice Scalia,
writing for a four-justice plurality, said:
Chambers was an exercise in highly case-specific error correction. At
issue were two rulings by the state trial court at Chambers’ murder
trial . . . . We held that both of these rulings were erroneous . . .
. Thus, the holding of Chambers – if one can be discerned from such a
fact-intensive case – is certainly not that a defendant is denied a
“fair opportunity to defend against the State’s accusations” whenever
“critical evidence” favorable to him is excluded, but rather that
erroneous evidentiary rulings can, in combination, rise to the level
of a due process violation.
Id. at 52-53. Note, however, Justice O’Connor’s response on behalf of the
four dissenters: “The plurality’s characterization of Chambers as ‘case-
specific error correction’ cannot diminish its force as a prohibition on
enforcement of state evidentiary rules that lead, without sufficient
justification, to the establishment of guilt by suppression of evidence
supporting the defendant’s case.” Id. at 62-63 (internal citation
omitted).
[4] Griffin’s lawyer introduced a booking sheet giving Dulin’s first name
as James, the name the carjacker used, which Dulin denied ever having used.
(R. at 351, 353.) Dulin then admitted he was residing in jail, facing
charges for another crime. (R. at 357.)
[5] The dissent says Patricia Griffin, Dulin’s former girlfriend and the
defendant’s sister, also heard Dulin admit to the carjacking. Ms. Griffin
testified on cross-examination as follows:
Q. I’ll ask you again, Miss Griffin, did Mr. Dulin tell you he committed
any crime?
A. Yes.
Q. Yes?
A. Yes.
Q. Now, a few minutes ago, before this trial started, me and you stood
right back there, did we not? Remember this?
A. Yes.
Q. And we spoke, did we not?
A. Yes.
Q. And did you not tell me Mr. Dulin did not--specifically told you he
did not commit a crime? Is that what you just told me a few minutes
ago?
A. No.
Q. No?
A. No.
Q. What did you tell me?
A. I told you it was him and Rill (sic).
Q. You told me, did you not, he said--he denied committing any crime. . .
. Did you--Are you telling me that you did not sit right there a few
minutes ago--a couple hours ago, at least, and tell me that Mr. Dulin
told you he most assuredly did not commit the crime? Isn’t that true?
A. No.
Q. That’s not true?
A. No.
Q. Where did I go wrong?
A. Unless I’m misunderstanding what you’re saying.
Q. Did I--In fact, I specifically asked you. The specific question I
asked you was, “So you’re telling me Mr. Dulin did not admit to
committing any crime?” You said, “That’s correct.”
A. I misunderstood the question.
(R. at 382-84.)
Ms. Griffin changed her earlier story that Dulin specifically denied
the carjacking, said she heard Dulin admit that he committed some
unspecified crime, and implicated “him and Rill” in the carjacking. Ms.
Griffin did not, however, testify that she heard Dulin admit to the
carjacking, as the dissent asserts.
[6] Dulin lived with Griffin’s sister Patricia at the house where the
carjackers met the victim. (R. at 381, 386.) Patricia testified that
Dulin showed her where the carjacked vehicle was parked on some date after
the carjacking occurred. (R. at 381, 384.)
[7] Rule 804(b) sets out four situations that are not excluded by the
hearsay rule if the declarant is unavailable as a witness. Rule 804(b)(3)
provides the following exception:
A statement which was at the time of its making so far contrary to the
declarant’s pecuniary or proprietary interest, or so far tended to
subject the declarant to civil or criminal liability, or to render
invalid a claim by the declarant against another, that a reasonable
person in the declarant’s position would not have made the statement
unless believing it to be true.
Ind. Evidence Rule 804(b)(3).
[8] Rule 804(a) defines “unavailability of a witness” as situations where
the declarant: (1) is exempt from testifying due to a court ruling that the
testimony is privileged; (2) refuses to testify despite an order from the
court; (3) testifies that he or she has a lack of memory of the subject
matter of the declarant’s statement; (4) is unable to be present or to
testify at the hearing because of death or illness; or (5) is absent from
the hearing and the proponent of the statement has been unable to procure
the declarant’s attendance. Evid. R. 804(a).
[9] Rule 801(d) provides in pertinent part:
A statement is not hearsay if . . . [t]he declarant testifies at the
trial or hearing and is subject to cross-examination concerning the
statement, and the statement is . . . inconsistent with the
declarant’s testimony and was given under oath subject to the penalty
of perjury at a trial, hearing, or other proceeding, or in a
deposition . . . .
Evid. R. 801(d).
[10] The majority and I differ as to the proper reading of Patricia
Griffin’s testimony in the transcript. Immediately before Patricia
Griffin’s testimony quoted by the majority, the following took place:
State: Ma’am, did Mr. Dulin ever tell you that he took Mr.
Wright’s car?
Defendant’s attorney: Your honor, I’m going to—I’m going to object
for Hearsay and beyond the scope.
Court: I think it is hearsay.
State: Well, Your Honor—
Court: But if there’s an exception, I’d be glad to listen to it.
State: Withdraw the question. Well, Your Honor, can we approach?
Court: Sure.
[Counsel Approach the Bench]
State: I’ll ask you again, Miss Griffin, did Mr. Dulin tell you
he committed any crime?
P. Griffin: Yes.
It seems to me that in this context, a fair reading of Patricia Griffin’s
testimony is that she was referring to the carjacking crime during the
State’s questioning. If so, she testified that she heard Dulin admit to
the carjacking.
[11] Thomas involved a bank robbery in which two people were implicated. A
cashier at a liquor store located close to the bank identified one Eric
Nelson as the perpetrator, but the bank tellers picked the defendant out of
a lineup that did not include Nelson. The defendant was arrested for the
crime. Subsequently, Nelson was arrested on different charges and bragged
to some twenty people that he committed the robbery for which the defendant
was to be tried. When the defendant called Nelson as a witness, Nelson
invoked his Fifth Amendment right. Id. at 225. This Court held it was
error for the trial court to exclude testimony of Nelson’s confession
because Nelson had originally been identified as the perpetrator, he had
bragged of the crime to some twenty people, and he described the crime in
great detail. Id. at 227.