Attorneys for Appellant
Brent Westerfield
Indianapolis, IN
Janet S. Dowling
Albuquerque, NM
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Michael A. Hurst
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
JOHN M. STEPHENSON,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 87S00-9605-DP-398
)
)
)
)
)
)
APPEAL FROM THE WARRICK SUPERIOR COURT
The Honorable Edward A. Campbell, Judge
Cause No. 87D01-9604-CF-23
ON DIRECT APPEAL
January 25, 2001
SULLIVAN, Justice.
After an eight-month jury trial with a record of proceedings covering
33,000 pages, Defendant John Matthew Stephenson was convicted of three
murders and sentenced to death. He now appeals his convictions and
sentences, arguing the evidence was insufficient to support the
convictions, the trial court committed reversible error in several
respects, and the death sentence was not appropriate. We find the testimony
of the State’s two key witnesses and additional circumstantial evidence
sufficient to support the convictions. For the reasons set forth in this
opinion, we reject Defendant’s claims that the trial court both improperly
allowed certain hearsay, opinion, prior misconduct evidence, and
photographic evidence and improperly refused evidence of a State’s
witness’s criminal history. We also analyze and reject Defendant’s claims
that his convictions and sentence should be reversed because of alleged
juror misconduct in compiling notes on a home computer, prosecutorial
misconduct in several respects, violations of his right to a speedy trial,
and three violations of his right to be present at all critical stages of
the proceedings. Lastly, we review his challenge to the propriety of the
death sentence and find the sentence to be appropriate.
Background
In large part because Defendant challenges the sufficiency of the
evidence supporting his convictions, we will present the facts in some
detail. In the early evening on March 28, 1996, Defendant John Matthew
Stephenson and his friend, Dale Funk, drove around Warrick County. The two
ended up at the residence of Brian Mossberger, a friend of the Defendant
and an acquaintance of Funk. While there, Defendant and Funk shot off
rounds of firearms with Defendant shooting his own SKS assault rifle.
Defendant and Funk left to go target shooting at a railroad crossing on Red
Brush Road located near Mossberger’s home. Afterwards, Defendant, who was
still accompanied by Funk, drove to the mobile home of Brandy Southward and
her fiancé, Troy Napier. According to Funk’s testimony, they both got out
of the car and walked around the mobile home. Defendant yelled for someone
but after no one answered, Funk returned to the car and Defendant proceeded
toward the mobile home. A few moments later, Funk observed Defendant walk
out the front door carrying a splitting maul.
Defendant and Funk returned to Mossberger’s house. Shortly
thereafter, a pick-up truck briefly pulled into Mossberger’s driveway.
John “Jay” Tyler was the driver of the truck and his wife, Kathy Tyler, and
friend Brandy Southard were the passengers. Mossberger testified that
Defendant said, “There goes Jay and I’ve got to catch him.” (R. at
24,669.) Funk testified that Defendant said, “If you’re coming, come on.”
(R. at 23,969.)
The evidence as to what happened next comes solely from Funk’s
testimony at trial. Funk testified that Defendant began chasing the Tyler
truck through Warrick County rural roads. The Tyler truck stopped at the
intersection of Eble and Youngblood roads and Defendant also stopped his
car. The driver-side door of the truck opened slightly, and Jay leaned out
of the truck to look at Defendant. At that point, Defendant grabbed his
SKS assault rifle, exited the car, and began firing several shots at the
Tyler truck. Defendant got back into the car, drove around a corner,
stopped his car and got out. Defendant walked towards the Tyler truck and
returned a few minutes later. Defendant threatened Funk stating, “You
breathe a word of this and I’ll kill you.” (R. at 23,980-80.)
Defendant and Funk then drove directly back to Mossberger’s house.
Mossberger testified that Defendant held a knife with “red smears” on the
blade, by his (Defendant’s) face and said, “Jay, Kathy, and Brandy are no
more.” (R. at 24,674-75.) Mossberger also testified that Defendant washed
his knife in the kitchen sink and that Defendant instructed him to “[d]o
something with the SKS; get rid of it; make it gone.” (R. at 24,678.)
Funk offered similar testimony, stating that he observed Defendant “hand[]
the gun to [Mossberger]; told him to get rid of it.” (R. at 23,982.) The
next day, Mossberger buried the SKS assault rifle and ammunition in the
woods.
Early Friday morning, March 29, police officers discovered the Tyler
truck. Inside the truck, the police officers found victims John “Jay”
Tyler, Kathy Tyler, and Brandy Southard dead from gunshot and stab wounds.
The police officers also discovered bullet holes in the truck and found
spent shell casings scattered across the width of Youngblood Road.
Forensic testing revealed that the fatal bullets matched those fired from
the SKS assault rifle belonging to Defendant. The spent shell casings
matched the ammunition discovered in Southard and Napier’s mobile home.
Other testing revealed Funk’s shoe prints were at the mobile home, directly
below the broken window. Although the knife used in the killings was not
recovered, Defendant owned a similar knife that could have caused the
victims’ injuries. On that Friday night, Defendant contacted police about
the murders and gave a written statement indicating that Brandy Southard
had received a threat from one Jimmy Knight.
On Saturday, March 30, while at home, Defendant voluntarily gave a
taped statement to Officers Michael Hildebrand and Gary Gilbert and
consented to a police search. In his taped statement, Defendant admitted
to having seen and talked to the victims on March 28th at around 9:30 or
10:00 p.m. at a local Circle S store. Defendant also stated that
afterwards, he went to Mossberger’s house and then went straight home.
On Sunday, March 31, Mossberger retrieved the SKS assault rifle and
ammunition, placing the SKS in the house and the ammunition in his garage.
Police officers arrived at Mossberger’s house to question him, and he
explained the events that occurred on the day of the killings. Mossberger
also showed the officers the SKS assault rifle, but not the ammunition.
The same day, Mossberger directed the officers to Funk’s apartment in
Hatfield. Police officers questioned both Mossberger and Funk and took
Funk into custody for further questioning at the Warrick County Security
Center. Funk was released on or about April 1. On April 3, 1996,
Defendant surrendered himself to the Owensboro Police Department.
The State charged Defendant with Burglary,[1] Theft,[2] and three
counts of Murder[3] of each of Jay Tyler, Kathy Tyler, and Brandy Southard.
The State also sought the death penalty, alleging as aggravating
circumstances that Defendant intentionally discharged a firearm from a
vehicle,[4] committed at least one of the murders by lying in wait,[5] and
committed multiple murders.[6]
The trial commenced on September 23, 1996. On May 8, 1997, after
deliberating for approximately three hours, the jury found Defendant guilty
of Burglary, Theft, and all three counts of Murder. On May 19, 1997, the
trial court conducted the penalty phase and the jury recommended that the
death penalty be imposed based upon the multiple murder aggravator.[7] The
trial court held a sentencing hearing on June 16, 1997. The trial court
followed the jury’s recommendation and sentenced Defendant to death.
We will recite additional facts as necessary.
Discussion
I
Defendant contends that the trial court committed reversible error
when it allowed State witness Alan Utzman to testify concerning the
contents of Dale Funk’s out-of-court statements. The State responds that
Utzman’s testimony was not hearsay because it met the requirements of
Indiana Evidence Rule 801(d)(1)(B).[8]
In a July 16, 1996, deposition, defense counsel asked Funk if, while
traveling from Evansville on March 29 (the day after the murders), he spoke
to his friend Utzman regarding the events surrounding the triple murder.
Funk denied ever having had such a conversation with Utzman. And when
first asked by police officers about any such conversation, Funk had
similarly denied it. At trial, Funk, as an eyewitness to the multiple
murders, was one of the State’s key witnesses. The State called Funk to
the stand to testify about the circumstances surrounding the murders, but
never questioned Funk about such a conversation with Utzman. On cross-
examination, defense counsel attempted to impeach Funk with inconsistencies
between his cross-examination trial testimony, his deposition testimony,
and his initial statements to police. In this regard, defense counsel
succeeded in getting Funk to admit that he had indeed discussed the murders
with Utzman, and thus he had lied in his deposition and to the officers.
Defense counsel did not question Funk about the contents of his discussion
with Utzman; the defense’s goal here apparently was only to make out Funk
as a liar for having denied any such discussion took place.
In response, the State sought to rehabilitate Funk’s testimony by
demonstrating that what Funk had told Utzman on March 29 was consistent
with Funk’s trial testimony. It did so by calling Utzman as a witness.
Utzman testified that he had a conversation with Funk on March 29 and that
in the course of this conversation, Funk said, “I took the wrong ride. I
was there when it happened.”[9] (R. at 25,636-37) (emphasis added).
Defense counsel immediately objected on grounds that Funk’s out-of-court
statements made to Utzman were inadmissible hearsay. The State replied
that Utzman’s testimony was admissible under Indiana Evidence Rule
801(d)(1)(B), and because the statements were not offered to prove the
truth of the matter asserted, but rather offered to rehabilitate Funk’s
testimony. The trial court overruled defense counsel’s objection without
explanation.
Over defense counsel’s continuing objection, the State was then
allowed to elicit more testimony from Utzman about the March 29th
conversation. Utzman further testified that Funk told him that when
Defendant returned to the car after the shooting, Defendant asked Funk,
“‘Did you see how many people was in [the truck]?,’” (R. at 25,646)
(emphasis added). Utzman testified that Funk replied, “No.” (Id.) After
defense counsel’s immediate objection to this testimony, the trial court
sustained the objection “to that specific question.” (R. at 25,646-47.)
Utzman testified further that Funk said to him, “after it was over, they
got back in the car and they took the gun to someone’s house.” (R. at
25,647) (emphasis added). Defense counsel objected on the grounds of
hearsay but the trial court allowed the testimony.
Defendant makes several challenges with respect to certain statements
made by Utzman regarding Funk’s out-of-court statements. He specifically
argues that Utzman’s testimony constituted inadmissible hearsay and did not
fall under the non-hearsay evidentiary rules. Hearsay is an out-of-court
statement offered to prove the truth of the matter asserted. See Ind.
Evidence Rule 801(c). Generally, hearsay is inadmissible. See Ind.
Evidence Rule 802. However, a statement is not hearsay if it meets the
requirements of Indiana Evidence Rule 801(d). Under Indiana Evidence Rule
801(d)(1)(B), a statement is not hearsay if the declarant testifies at the
trial or hearing and is subject to cross-examination concerning the
statement, and the statement is (1) consistent with the declarant’s
testimony, (2) offered to rebut an express or implied charge against the
declarant or recent fabrication or improper influence or motive, and (3)
made before the motive to fabricate arose. See Evid. R. 801(d)(1)(B).
Trial court rulings on the admissibility of arguable hearsay statements are
reviewed for abuse of discretion. See Wright v. State, 690 N.E.2d 1098,
1106 (Ind. 1997), reh’g denied.
Defendant first contends that Funk’s statement regarding the content
of Defendant’s purported question, “‘Did you see how many people was in
[the truck]?,’” was inadmissible double hearsay. However, the record
clearly indicates that the trial court immediately sustained Defendant’s
objection as to this particular question. As such, Defendant cannot now
claim error on appeal.
Defendant also contends that other testimony from Utzman regarding
Funk’s out-of-court statements, “I took the wrong ride. I was there when
it happened,” and “after it was over, they got back in the car and they
took the gun to someone’s house” constituted inadmissible hearsay.
Appellant’s Br. at 38-40 (emphases in original). He argues that this
testimony was not saved by Evidence Rule 801(d)(1)(B) because (1) there was
no charge of recent fabrication; and (2) Funk was an “admitted accomplice”
at the time the murders occurred and so he had a motive to fabricate before
he made statements to Utzman. Defendant also claims that Utzman’s
testimony as a whole improperly bolstered the credibility of Funk who
“would otherwise have been [the State’s] weakest witness.” Appellant’s Br.
at 40; Reply Br. at 15.
Defendant concedes that Funk testified at trial and was subject to
cross-examination regarding the statements. See Appellant’s Br. at 39
(citing R. at 24,171, 24,320-31, 24,459, 24,488-89). He also acknowledges,
“Although there were inconsistencies between Funk’s testimony and [Funk’s
prior out-of-court] statements to Utzman, this fact does not render the
prior statements inadmissible for purposes of Evid. R. 801(d)(1)(B).” Id.
(citing Willoughby v. State, 660 N.E.2d 570 (Ind. 1996)). Most of Funk’s
prior out-of-court statements made to Utzman were consistent with Funk’s
trial testimony in that they place blame on Defendant as the perpetrator
while they portray Funk as a person having a much less significant role.
Defendant contends that the second criterion of the prior consistent
statement rule was not met because the State did not offer Funk’s statement
to rebut a charge of recent fabrication. At trial, defense counsel argued,
“We have not said, nor have we ever said that there is a recent
fabrication. We . . . argue that any fabrication here has been from the
outset, not one that has been ‘recent.’” Appellant’s Br. at 39; Reply Br.
at 14; R at 25,641. However, the prior consistent statement rule is not
limited to rebutting a charge of recent fabrication. The rule also
encompasses efforts to rebut an express or implied charge of improper
motive. In this appeal, Defendant expressly argues that Funk had a “motive
to fabricate” to provide “substantive evidence of [Defendant’s] guilt.”
Appellant’s Br. at 40 (emphasis added). And at trial, defense counsel
initiated questions regarding the March 29th conversation between Funk and
Utzman in an effort to impeach Funk. It appears that this line of
questioning sought to establish not only fabrication but also improper
motive, i.e., a motive to shift blame on Defendant. The State properly
offered to rebut this charge by utilizing Utzman’s testimony. The second
requirement of the prior consistent statement rule has been met.
The central issue is the third criterion of the rule — the timing of
the claimed motive to fabricate. We agree with the United States Supreme
Court in Tome v. United States which held that under Federal Evidence Rule
801(d)(1)(B), a declarant’s consistent out-of-court statements may be
admitted “to rebut a charge of recent fabrication or improper motive only
when those statements were made before the charged recent fabrication or
improper influence or motive.” 513 U.S. 150, 167 (1995).[10] The
rationale behind the pre-motive rule is that if the consistent out-of-court
statements were made before the motive to fabricate arose, we are assured
that the statements were not “contrived as a consequence of that motive.”
Id. at 158. Here, Defendant argues that because Funk was an “admitted
accomplice,” Funk’s improper motive to fabricate arose at the moment the
triple murder occurred on March 28. Defendant further contends that
because Funk uttered the statements to Utzman the next day, March 29, Funk
made the statements after his motive to fabricate arose. As such,
Defendant argues, the statements failed to meet the Tome temporal
requirement and thus, were improperly admitted as hearsay.
This Court visited this issue in Sturgeon v. State, 719 N.E.2d 1173
(Ind. 1999). In Sturgeon, a unanimous opinion authored by Chief Justice
Shepard, we evaluated prior Indiana case law concerning the temporal
requirement contained in the prior consistent statement rule and
categorized the cases under two separate scenarios: (1) where the
declarant was the defendant or equally culpable to the defendant in the
crime, such as a co-defendant, and (2) where the declarant was involved
before and after but not during the crime. See Sturgeon, 719 N.E.2d at
1179. Under the first category, we acknowledged that “[w]here the
declarant was the defendant or co-defendant, we have been willing to
conclude that a motive to fabricate likely arises immediately upon the
commission of the crime.” Id. (emphasis added) (citing Bouye v. State, 699
N.E.2d 620, 624-25 (Ind. 1998); Thompson v. State, 690 N.E.2d 224, 232 n.8
(Ind. 1997)).[11] In identifying the second category in Sturgeon, we
said, “Where the declarant became involved in the crime after it was
committed . . . the role of timing is not as clear.” Id. (emphasis
added).
In short, there is no bright-line rule for determining whether or when
a motive to fabricate has arisen even if the declarant was (1) equally
culpable as the defendant, such as a co-defendant; (2) involved after the
crime (as was the case in Sturgeon); or (3) arguably involved before,
during, and after the crime like the declarant in this case. Determining
the existence of a motive or when it arose is a fact-sensitive inquiry.
Id. at 1178. In Cline v. State, 726 N.E.2d 1249 (Ind. 2000), this Court
also addressed the timing issue, and noted a significant passage from
Sturgeon:
“We acknowledge the possibility of a motive to fabricate on [the
declarant’s] part since he knew he could be charged in connection with
the murder and since he participated in certain criminal acts
surrounding the murder. However, there is no evidence tending to
implicate [the declarant] in [the] murder and therefore no evidence
that he had a motive to lie about [the defendant’s] involvement when
questioned. Without concrete evidence to that effect, we cannot
conclude the trial court abused its discretion in admitting [the
declarant’s] prior consistent statement.”
Id. at 1253 (quoting Sturgeon, 719 N.E.2d at 1180) (emphasis added). As we
determined in Sturgeon and reaffirmed in Cline, we will not override a
trial court’s decision to admit a prior consistent statement where there is
no evidence “tending to implicate” the declarant in the crime.
In this case, although Funk was involved before, during, and after the
murders occurred, the question of whether or not a motive to fabricate
arose still remains a fact-sensitive inquiry. We find no substantial
evidence here “tending to implicate” Funk in the triple murder which would
lead to a conclusion that he had a motive to lie. Police officers
testified that they did consider Funk a suspect at the time they questioned
him on March 31. Funk testified that he feared prosecution because he
accompanied Defendant throughout the crime spree of the burglary of Napier
and Southard’s mobile home and the pursuit of the victims in a car-chase,
which ultimately led to the killings. However, Brian Mossberger, a friend
of both Defendant and Funk, offered testimony which strongly implicated
Defendant rather than Funk as the perpetrator. Further, Defendant owned
the SKS assault rifle used to commit the killings. Forensic evidence
revealed that the bullets used to kill the victims matched those shot from
the murder weapon belonging to Defendant. We also find it significant that
(1) the State never charged Funk of murder, (2) Funk did not receive any
prosecutorial benefit in exchange for his testimony; and (3) Funk made the
statements to Utzman the day immediately following the killings, which was
two days before he was questioned by police.
Our extensive review of the evidence indicates that Funk had a limited
role in the circumstances surrounding the murders. Therefore, we find that
Funk had no motive to fabricate within the meaning of Evidence Rule
801(d)(1)(B) when he uttered the statements to Utzman about the events
surrounding the crime. We hold that the trial court did not abuse its
discretion in overruling Defendant’s hearsay objections.
II
Defendant contends that the trial court committed reversible error
when it denied his post-trial motion alleging newly discovered evidence of
jury misconduct. He specifically claims that he was denied the right to
confront witnesses and that he was denied a fair trial by an impartial jury
because, unbeknownst to him, the jury foreman had prepared a notebook on
his home computer and then used this notebook during jury deliberations.
At trial, the court instructed the jurors that they were allowed to
take notes of the testimony, but admonished that note taking should not
distract them from observing the credibility of the witnesses and listening
to the evidence presented. Like other members of the jury, jury foreman
Michael Fox took notes in open court of his daily observations of the trial
without objection from defense counsel. Then in the evenings, Fox took his
courtroom notes home with him and typed a narrative version of the trial on
his personal computer. By the end of the trial, Juror Fox had prepared a
430-page typed notebook[12] supplemented with a 50-page timeline marking
the sequence of events. When it came time for jury deliberation, Fox took
the notebook into the jury room and relied on it a few times. Fox also
discussed some of the notebook’s contents with other jurors but none of the
jurors actually read the notebook themselves.
Neither the trial court nor the parties had knowledge of Juror Fox’s
typed notes during the guilt-determination phase or penalty phase, or that
Juror Fox had transcribed the notes at home. It was not until a September,
1997, post-trial investigation that defense counsel discovered Juror Fox’s
notebook. Defense counsel then filed a “supplemental motion to correct
error,” alleging that these events constituted newly discovered evidence of
juror misconduct. Counsel argued that Defendant’s “constitutional right to
a fair trial and impartial jury were violated when [the jury] was exposed
to extraneous and prejudicial materials during guilt-innocent phase
deliberations.” Deft’s Suppl. Mot. To Correct Errors, at 2. In October,
1997, the trial court held a hearing on the matter and denied, without
explanation, an original and the supplemental motion to correct error.
A party may file a motion to correct error when there is newly
discovered evidence such as alleged juror misconduct. See Ind. Trial Rule
59(A); Mitchell v. State, 726 N.E.2d 1228, 1238 (Ind. 2000), reh’g denied.
When reviewing a trial court’s denial of a motion to correct error on newly
discovered evidence, our review is deferential and we will reverse only
upon a showing of an abuse of discretion. See Slaton v. State, 510 N.E.2d
1343, 1347 (Ind. 1987). The Defendant bears the burden of proving that the
newly discovered evidence warrants a new trial. See Mitchell, 726 N.E.2d
at 1238.
Defendant makes several challenges with respect to Juror Fox’s
notebook. He first contends that the notebook constituted “extraneous
information” that unduly influenced other jurors. Appellant’s Br. at 90,
92. In a related argument, Defendant claims that when Juror Fox typed a
narrative version of the trial and time-line at home, he had improperly
“deliberated, re-evaluated, and analyzed” the evidence. Id. at 83.
Defendant maintains that such conduct violated the court’s instructions for
jurors not to reach conclusions “until [they] have heard all the evidence,
the argument of counsel, and final instructions.” Id. at 87-90. Defendant
argues that these events constituted juror misconduct that deprived him of
his fundamental right to a fair trial under the state and federal
constitutions. Id. at 93; Reply Br. at 36.
Generally, a verdict may not be impeached by evidence from jurors who
returned it. See Fox v. State, 457 N.E.2d 1088, 1092 (Ind. 1984).
However, extrinsic or extraneous material brought into deliberation may be
grounds for impeaching a verdict where there is a substantial possibility
that such extrinsic material prejudiced the verdict. See Ind. Evidence
Rule 606(b); Mitchell, 726 N.E.2d at 1238; Bockting v. State, 591 N.E.2d
576, 579 (Ind. Ct. App. 1992), transfer denied. The burden is on the
defendant to prove that material brought into the jury room was extrinsic.
The burden then shifts to the State to prove it harmless. See Taylor v.
State, 681 N.E.2d 1105, 1110 (Ind. 1997).
It is now well-settled Indiana law that jurors are permitted to take
notes during the course of a trial subject to the discretion of the trial
court and its duty to ensure that jurors pay attention to all the evidence
in the case. See Chambers v. State, 422 N.E.2d 1198, 1204 (Ind. 1981);
Smith v. State, 272 Ind. 34, 36, 395 N.E.2d 789, 790 (1979); Dudley v.
State, 255 Ind. 176, 182, 263 N.E.2d 161, 164 (1970). This Court has
further determined that a juror who records notes at home is a “closely
related matter” to a juror who takes notes in the courtroom so long as no
“communication to or from another person” has occurred. Gann v. State, 263
Ind. 297, 300-1, 330 N.E.2d 88, 91 (1975). Thus, we have determined that
both circumstances — taking notes during trial and transcribing notes at
home — are appropriate provided that the juror pays attention to the
evidence presented during trial and does not seek out any outside or
extrinsic influences aimed to taint the notes.
The trial court properly instructed the jurors not to reach any
conclusion before all the evidence had been presented and final instruction
given. But as a practical matter, jurors cannot be prevented from
reflecting upon witness testimony and other evidence after they leave the
courtroom each day. In this case, it is undisputed that Juror Fox used his
courtroom notes to compile and organize a narrative version of the trial
and a corresponding time line on his home computer. However, there is no
evidence demonstrating that Fox himself was exposed to extrinsic or outside
influences, such as reading newspaper articles, watching a television
program, researching on the Internet, or “communicating to or from another
person” while compiling the notebook at home. At a post-trial hearing on
the matter, Juror Fox testified that because he was “under Court order not
to watch T.V.— local T.V., radio, or read the newspaper” he “sat at the
computer” all evening typing his notes. (R. at 32,530). Fox’s testimony
indicated that he did seek out extrinsic material but only after the trial
had ended for purposes of editing, updating and revising his notebook. [13]
In order for jury misconduct to warrant a new trial, the defendant must
show that the misconduct was gross and that it probably harmed the
defendant. See Carr v. State, 728 N.E.2d 125, 131 (Ind. 2000). We find
that Defendant has not made a showing of gross misconduct. See, e.g., id.
at 131 (holding no jury misconduct where, during the defendant’s trial, a
juror accumulated newspapers but refrained from reading them until the
trial had ended at which time the juror compared the news stories with her
own trial notes.)
Without any evidence of extrinsic influence on Juror Fox during the
course of the trial, we think that when he brought the notebook into jury
deliberations, the contents of it were like those of any other juror-made
notebook in this case — a reflection of a juror’s personal observations of
the trial, thoughts, and mental processes. In this case, the compiling and
organizing of a notebook on a personal computer at home was a “closely
related matter” to taking notes during the trial because the notebook,
while elaborate in length and detail, was not tainted by extrinsic
influences. Thus, the notebook itself when brought into the jury room did
not amount to extraneous material. The fact that these perceptions
regarding the trial were recorded at home and on a computer does not change
our view because no outside information was sought or employed.
We find that Juror Fox did not disregard the trial court’s
instructions. The trial court instructed the jurors that they were allowed
to take notes during the trial but gave no directive prohibiting re-
writing, compiling, or organizing the notes at home. The trial court
repeatedly instructed the jurors that they should listen to the evidence as
it came from the witnesses, keep an open mind at all times, not form an
opinion during the trial, and not reach a conclusion before hearing all the
evidence, arguments of counsel, and the court’s final instructions. We
find no evidence in the record that Juror Fox did not follow these
instructions.
Defendant argues further that the trial court improperly disregarded
Indiana precedent which permitted only “limited or minor” note taking
during a trial. Appellant’s Br. at 82-84; Reply Br. at 34, 36 (citing
Miresso v. State, 163 Ind. App. 231, 323 N.E.2d 249 (1975); Dudley, 255
Ind. at 182, 263 N.E.2d at 164; Smith, 272 Ind. at 36, 395 N.E.2d at
790).[14] With our increasing familiarity with juror note taking, we
believe the necessity of restricting jurors to limited or minor note taking
has diminished. In any event, the cases cited by Defendant did not
encompass the complexities of this case: the trial spanned over eight
months during which the jury heard the testimony of 158 witnesses and
observed 966 exhibits. This evidence presented at trial, along with
numerous motions filed with the court, created a record of proceedings
consisting of over 33,000 pages. It is likely that even very limited note
taking would produce a substantial volume of material in such
circumstances. Indeed, at least three other jurors in this case composed
ten to twelve handwritten notebooks and used them during deliberations.
The making of a lengthy notebook, especially where Defendant claimed no
error to with respect to the note taking of other jurors, did not
constitute gross misconduct or irregularity on the part of Juror Fox.
Defendant also contends that Fox’s notebook was tantamount to an
“unofficial transcript[]” wrongfully brought into the jury room, and that
the notebook resembled a “pseudo exhibit,” which like other exhibits,
should have been withheld from the jurors. Appellant’s Br. at 84-85.
Defendant also argues that the notebook amounted to “evidence” not
supported by the record and that he did not have the opportunity to test
the reliability and accuracy of the notebook’s content. Id. at 88. We
reject this argument for the same reasons set forth supra. A juror’s
notes, typed or handwritten, organized or not, reflect the juror’s own
mental process and personal observations of the testimony and other
evidence presented at trial. A juror’s view of a case is not “evidence,”
does not function as an exhibit, and is not comparable to an unofficial
transcript.
Finally, we find there is no evidence in the record that Juror Fox
used the notebook inappropriately during deliberation. While in the jury
room, Fox referred to his notebook only a few times for his own
recollection. Although Fox discussed some of the information in the
notebook with other jurors, no other members of the jury read the notebook
themselves. Furthermore, Defendant did not seek and the trial court did
not give any instruction prohibiting jurors from sharing or reviewing each
other’s notes. Accordingly, we have no basis for concluding that Juror
Fox’s use of the notebook during deliberations unduly influenced the other
jurors.
The trial court did not abuse its discretion in denying Defendant’s
supplemental motion to correct error. See, e.g., Hailey v. State, 521
N.E.2d 1318, 1321 (Ind. 1988) (holding that the trial court did not abuse
its discretion in refusing to grant a new trial where a juror reviewed his
notes during deliberation and discussed them with other members of the
jury).
III
Defendant contends that the trial court committed reversible error
when it allowed opinion testimony from a crime scene technician and the
coroner.
A
During direct examination, the prosecuting attorney asked crime scene
technician and Sergeant David Lee Anderson the reason why, in his opinion,
he could find no hair, blood, or fiber in Defendant’s vehicle when
conducting his investigation. Sergeant Anderson replied, “The only
plausible explanation I can come up with, sir, is someone would have had to
have cleaned that vehicle in order that I wouldn’t be able to find what I
was looking for.” (R. at 27,744.) Defendant objected.
Under Indiana Evidence Rule 701, when a non-expert provides an
opinion, “the witness’s testimony in the form of opinions or inferences is
limited to those opinions or inferences which are (a) rationally based on
the perception of the witness and (b) helpful to a clear understanding of
the witness’s testimony or the determination of a fact in issue.” It is
within the trial court’s discretion to determine whether a witness is
qualified to give an opinion. See Angleton v. State, 686 N.E.2d 803, 812
(Ind. 1997) (citing Kent v. State, 675 N.E.2d 332, 338 (Ind. 1996)), reh’g
denied.
On appeal, Defendant argues that this testimony was improperly
admitted as speculation because the Sergeant had no personal knowledge that
Defendant cleaned his car after the commission of the crimes. See
Appellant’s Br. at 43. In support of his argument, he points to the
testimony of one witness, Serologist Susan Laine, who stated that
Defendant’s car was “‘not clean,’” see id. at 43 (quoting R. at 28,791-93),
and that other crime technicians testified that “photographs taken before
the vehicle was processed show “‘dirt, debris, and other material,’” see
id. (quoting R. at 27,662-63). Defendant claims that “in light of this
physical evidence, Anderson’s opinion [was] not ‘rationally based on his
perceptions,’” as required by Indiana Evidence Rule 701(a), and he further
maintains that Sergeant Anderson’s opinion was conjecture and not helpful
to the jury. Id. at 43. The State responds arguing that Sergeant
Anderson’s testimony was based on his “experience searching hundreds of
cars,” as well as “evidence that the interior of the car was damp or wet,”
and was therefore, properly admitted. Appellee’s Br. at 19. We agree with
the State.
Sergeant Anderson’s testimony regarding the state of Defendant’s
vehicle was rationally based on his perceptions. Sergeant Anderson had
been a member of the Indiana State Police for thirteen years and in law
enforcement for 20 years; had been trained and continued to train in
“photography, fingerprint techniques, firearms evidence . . . trace
evidence, serology, drugs, physical matches, . . . and forensic
entomology”; and he had worked as a crime scene technician for over eight
years. (R. at. 27,735-36.) Sergeant Anderson testified that over the
course of eight years, he had “investigated hundreds of crime scenes,”
covering “well over a 100 every year.” (R. at 27,743.) Sergeant Anderson
provided further testimony regarding his investigation of Defendant’s
vehicle:
It’s extremely unusual not to find something indicative of someone
having been [in a car]. Hair is the best example as any. Everyone
loses hair . . . But not finding hair in the vehicle was very unusual
to me; not finding fiber was unusual . . . . I remember taking my
hands across the floorboard—in the front of the vehicle, specifically
I remember, and it felt damp. And I thought that to be sort of
unusual as well. But at any rate, I suppose anything is possible, but
it was very unusual to me that we found nothing in that vehicle.
(R. at 27,743-44.)
We find that Sergeant Anderson’s conclusion that Defendant’s car had
been cleaned was “rationally based on his perceptions” of finding a damp
floorboard and discovering no hair evidence in Defendant’s car, and
rationally based on his observations of numerous investigations of other
vehicles. Furthermore, Evidence Rule 701 speaks to only those opinions or
inferences “rationally based” on the witness’s own perceptions, not those
of others. Thus, the claimed contradictions between the testimony of
Anderson and the serologist and other technicians are immaterial under the
structure of this rule. Weighing the credibility of witnesses and drawing
inferences and conclusions there from is within the jury’s province. See
Taylor v. State, 681 N.E.2d 1105, 1111 (Ind.1997).
We also find that Sergeant Anderson’s testimony was helpful to the
determination of a fact in issue. The reason Defendant’s car was free from
serological evidence such as hair and blood was an important factual issue
for the jury to decide. Even though Sergeant Anderson’s testimony was in
conflict with photographs of dirt and debris found in the car, this did not
render his opinion conjecture. The opinion was based upon his experience
with many crime scene investigations and offered a plausible explanation
for the condition of the car.
Defendant also argues that Sergeant Anderson’s opinion was
inadmissible under Indiana Evidence Rule 704(b) because the testimony
indicated he had cleaned his car with the intent of deceiving police.
Indiana Evidence Rule 704(b) provides in relevant part, “Witnesses may not
testify to opinions concerning intent . . . in a criminal case.” However,
Defendant did not object to this testimony as constituting an opinion
concerning intent. As such, this claim is not available here.
B
Defendant argues that the trial court committed reversible error “by
permitting the coroner to offer [his] expert opinion on the time of death.”
Appellant’s Br. at 44. He specifically argues that because the coroner
testified that he was not qualified to give an “expert” opinion on the
timing of death, his opinion was improperly admitted in violation of
Indiana Evidence Rule 702.[15] See id. at 43-44.
During the trial, the coroner testified that his duties consisted of
“investigat[ing] all deaths and determin[ing] the manner and cause of
death,” (R. at 20,204); however he was not qualified to render an expert
opinion concerning the time of the victims’ death. He also testified that
when he arrived at the crime scene, he observed the bodies’ physical
condition, noting the “degree of rigor mortis” [16] in the victims’ joints
and the body temperatures. The coroner testified further that shortly
after he examined the bodies, Dr. John Heidingsfelder, a forensic
pathologist, arrived on the scene and they discussed the coroner’s personal
observations regarding the condition of the bodies. Over Defendant’s
continuing objection, the coroner was allowed to offer his opinion that
“the time of death could not have occurred before 9 p.m., nor could it have
occurred after 2 a.m.” (R. at 20,337A.) The basis of Defendant’s
objection was that the coroner lacked the qualification of an expert on the
timing of death.
Any error in allowing the testimony of the coroner was harmless. We
will reverse only if the improper opinion testimony prejudiced the
defendant. See Taylor v. State, 689 N.E.2d 699, 706 (Ind. 1997). The
coroner’s opinion was merely cumulative of other properly admitted
testimony concerning the timing of the victims’ death. Dr. Heidingsfelder
was the physician who performed the autopsy on all three victims.
Defendant agreed that Dr. Heidingsfelder was a qualified expert in the
field of forensic pathology and the trial court ruled as such. When the
prosecuting attorney asked Dr. Heidingsfelder his expert opinion as to the
time of death, Dr. Heidingsfelder testified, without objection from
Defendant, that the victims died “sometime after they were last seen alive
that night . . . 9:00 or 10:00 p.m.,” (R. at 22,522), and “prior to 2:00 in
the morning,” (R. at 22,521). Accordingly, we find that Defendant suffered
no prejudice. See, e.g., Hughes v. State, 508 N.E.2d 1289, 1296-97 (Ind.
Ct. App. 1987) (ruling that in light of properly admitted expert opinion
testimony by a certified physician concerning the cause of the victim’s
death, any error in the admission of an opinion by a second-year resident
regarding the cause of death was harmless), transfer denied. Accord Tope
v. State, 477 N.E.2d 873, 876 (Ind. 1985) (recognizing in a post-conviction
proceeding that contradictory testimony of a non-expert coroner and
forensic pathologist on the issue of timing of death would not have
resulted in a different trial outcome warranting a new trial), reh’g
denied.
IV
Defendant contends that the trial court committed reversible error
when it allowed evidence of Defendant’s uncharged prior bad acts in
violation of the court’s order.
During the trial, State witness Troy Napier testified that he rented a
garage repair shop where he and Defendant worked on cars together. While
he was incarcerated in a Gibson County jail between February, 1996, and
April, 1996, Napier thought there was no telephone service at the garage.
However, a few months after his release in April, 1996, Napier received a
bill for telephone and calling card service at the garage. Napier had
neither requested telephone service at the garage nor asked for a calling
card to be issued. Napier identified the telephone bill which was
introduced as a State’s exhibit.
Defendant objected to the admission of the telephone bill on grounds
that the State was attempting to show that he had installed the phone in
Napier’s name and without Napier’s permission. Defendant argued that the
State was alleging that he had committed forgery in violation of a court
order in limine excluding evidence of prior bad acts or wrongs unrelated to
the March 28, 1996, murders. Defendant also objected because the billing
statement contained no name or address, it was incomplete. Based on the
latter grounds, the trial court sustained the Defendant’s objection to the
admission of the exhibit. The next day, the prosecuting attorney again
questioned Napier about the billing statement. Defendant again objected,
arguing that the court had already ruled on the matter. The trial court
sustained the objection as to the admission of the exhibit, but allowed
Napier to testify regarding his payment of the bill and request for service
cancellation.
Defendant contends on appeal that although the trial court sustained
the objection as to the admission of the telephone bill, the State’s follow-
up questioning the next day “was [an] attempt[] to show that [Defendant]
had a phone installed in Napier’s name through misrepresentation, and
without any means or intention of paying the bill,” Appellant’s Br. at 47
(citing R. at 22,850-59). “Because this case involved the murder of three
of [Defendant’s] friends, evidence of how [Defendant] treated another
friend was harmful and served to advance the impermissible inference.” Id.
at 50. Therefore, Defendant argues, the admission of the billing statement
was in violation of a court order in limine to exclude character evidence
under Indiana Evidence Rule 404(b).
Defendant’s objections to the billing statement were sustained. The
limited questioning that followed related only to Napier’s own acts in
canceling the service and seeking to have the charges cancelled. There was
no evidence admitted as to Defendant’s prior acts in this regard.
V
Defendant contends that the trial court committed reversible error
when it denied his motions for a mistrial. He claims that the prosecutor
engaged in repeated acts of misconduct throughout the trial, which placed
him in grave peril and thereby deprived him of his constitutional right to
a fair trial.
In reviewing a claim of prosecutorial misconduct, we first determine
whether the prosecutor engaged in misconduct, and then determine whether
that misconduct, under all of the circumstances, placed the defendant in a
position of grave peril to which the defendant should not have been
subjected. See Wisehart v. State, 693 N.E.2d 23, 57 (Ind. 1998), cert.
denied, 526 U.S. 1040 (Ind. 1999); Cox v. State, 696 N.E.2d 853, 859 (Ind.
1998), reh’g denied; Wright v. .State, 690 N.E.2d 1098, 1110 (Ind. 1997),
reh’g denied. The “gravity of peril” is measured by the “‘probable
persuasive effect of the misconduct on the jury’s decision, not on the
degree of impropriety of the conduct.’” Wisehart, 693 N.E.2d at 57
(quoting Kent v. State, 675 N.E.2d at 335) (citing in turn Bradley v.
State, 649 N.E.2d 100, 107-8 (Ind. 1995), reh’g denied)). The trial judge
is in the best position to gauge the surrounding circumstances and the
potential impact on the jury when deciding whether a mistrial is
appropriate. See Thomkins v. State, 669 N.E.2d 394, 398 (Ind. 1996); Roche
v. State, 596 N.E.2d 896, 902 (Ind. 1992). Thus, the denial of a mistrial
lies within the sound discretion of the trial court, and will be reversed
only upon a finding of an abuse of discretion. See Canaan v. State, 541
N.E.2d 894, 908 (Ind. 1989), cert. denied, 498 U.S. 882 (1990).
Defendant’s first claim of prosecutorial misconduct is that the
prosecutor improperly suggested that he had a duty to call witnesses and
present evidence. During Defendant’s cross-examination of a State witness,
the prosecutor objected on grounds that the questions were outside the
scope of direct examination, and then stated, “This is a witness that is
available to be called later by the State and by the defense.” (R. at
21,166-67.) Defendant objected to the prosecutor’s comments, and out of
the presence of the jury, argued that such “comments suggested [that] he
had a duty to call witnesses and present evidence.” Appellant’s Br. at 62
(citing R. at 21,167). Defendant then moved for a mistrial. The trial
court denied the motion, but gave the jury an admonishment advising them
that Defendant had no burden to prove his innocence or to present any
evidence.
It is improper for a prosecutor to suggest that a defendant shoulders
the burden of proof in a criminal case. See Dobbins v. State, 721 N.E.2d
867, 874 (Ind. 1999). However, a prosecutor’s improper statements
suggesting a defendant’s failure to present witnesses may be cured by the
trial court advising the jury that the defendant was not required to prove
his innocence or to present any evidence. See Chubb v. State, 640 N.E.2d
44, 49 (Ind. 1994) (Preliminary instruction given to the jury just a few
hours before prosecutorial impropriety occurred adequately cured
prosecutor’s comments regarding the defendant’s failure to call
witnesses.), reh’g denied; Pettiford v. State, 506 N.E.2d 1088, 1090 (Ind.
1987) (Both preliminary and final instructions given to the jury overcame
prosecutor’s statements on the defendant’s failure to present witnesses.).
In the instant case, the trial court admonished the jurors shortly
after Defendant’s objection, advising them that Defendant had no burden to
prove his innocence or to present any evidence. Defendant attempts to
distinguish his case from Chubb and Pettiford by arguing that the
admonishment failed to cure the impropriety because the trial court stated
the prosecutor “‘may be correct.’” See Appellant’s Br. at 63 (quoting R.
at 21,186). We find the admonishment to be adequate. In addition, the
trial court properly read preliminary instructions and final instructions
advising the jury that Defendant was to be presumed innocent of the crimes
charged and that the State bore the burden to prove Defendant guilty of
each essential element of the crimes charged beyond a reasonable doubt.
Both instructions also informed the jury that Defendant was not required to
prove his innocence or to present any evidence. We presume that the jury
followed these instructions. The State made only one comment suggesting
that Defendant had an opportunity to call a witness and made no additional
statements on the matter after Defendant’s objection and the jury
admonishment. Like our rulings in Chubb and Pettiford, we find that any
misconduct here was de minimus and overcome by the court’s preliminary
instructions and final instructions, if not the court’s immediate jury
admonishment. The prosecutor’s statement did not have a probable
persuasive effect on the jury.
Defendant’s second claim of prosecutorial misconduct is that the
prosecutor improperly “allude[d] to inadmissible prior bad acts in front of
[the] jury” in violation of the trial court’s “‘Order on Comprehensive
Motion in Limine.’” Appellant’s Br. at 63 (quotations in original). During
Defendant’s cross-examination of a State witness, the prosecutor objected
to Defendant’s questioning pertaining to the witness’s use of “crank.” (R.
at 23,212.) To support his objection, the prosecutor argued, “Unless I get
to ask these kind of questions concerning the Defendant . . . I do not know
that this line of questioning has any relevance.” (R. at 23,213.)
Defendant objected to the prosecutor’s comment, and out of the jury’s
presence, moved for a mistrial on grounds that the statement suggested that
Defendant was involved in drugs.
The court ruled that although the prosecutor’s comment was serious, it
did “not rise to the level of placing the Defendant in grave peril in light
of an appropriate admonishment.” (R. at 23,232.) The court then gave an
admonishment instructing the jury to disregard the comment made by the
prosecutor and that comments of counsel were not to be considered as
evidence. The court further granted Defendant’s request for individual
voire dire on the matter, asking each juror, “Do you believe that you can
make your decision in this case free from any influence from [the
prosecutor’s] comment.” (R. at 23,237.) Each juror replied, “Yes.” (R.
at 23,237-43.)
We are satisfied that the trial court’s admonishment cured any harm to
Defendant as to this particular comment. However, Defendant argues further
that the prosecutor’s questioning of another State witness implied that
Defendant was involved in drug trafficking, and that these repeated
“suggestions” of drug use and selling drugs harmed Defendant. We treat
this argument as Defendant’s third claim of prosecutorial misconduct.
During cross-examination, Defendant asked State witness Detective
Marvin Heilman whether in his investigation he discovered any visible means
of income or support for various State witnesses. Then on re-direct
examination, the prosecution posed the same question and also asked if he
had uncovered any visible means of income or support for Defendant. At
that point, Defendant objected, arguing that the implication of the
prosecutor’s question was “because [the Defendant] had no documented
visible source of income, [he] must be making his living or income from
some unlawful or illegal source.” (R. at 28,568-69.) Therefore, Defendant
argued, the prosecutor’s question was in violation of the court’s order in
limine excluding bad character evidence. The Defendant then moved for a
mistrial. The trial court denied Defendant’s motion, but sustained
Defendant’s objection without admonishing the jury.
Our reading of the record indicates that the Detective did not answer
the prosecutor’s question in the presence of the jury and the jury heard no
information about Defendant’s income or job. Further, although the trial
court gave no admonishment, it sustained Defendant’s objection and the
prosecutor complied with the court’s ruling, asking no further questions on
the matter. The prosecutor’s question had no probable persuasive effect on
the jury’s decision. And even if the jury inferred that Defendant had no
visible source of income, this information without more would not have
established that Defendant’s only alternative source of income arose from
selling drugs or any other illegal activity. The prosecutor’s question
contained no references to “selling drugs” or “drug trafficking” or “drug
business.”
Defendant’s fourth claim of prosecutorial misconduct is that the
prosecutor improperly “discredit[ed] the conduct of defense counsel in
front of the jury.” Appellant’s Br. at 65. During cross-examination,
Defendant asked a State witness when the witness first received any
statement that Defendant was directly involved in the murders of the
victims. The prosecutor objected on hearsay grounds but the trial court
overruled the objection. After Defendant repeated the question, the
prosecutor interjected another objection stating, “Judge, as picky as we
got on my direct examination of this witness, I think it’s appropriate to
be just as picky in the cross-examination of this witness.” (R. at 23,653-
54.) Defendant objected to the prosecutor’s comment and moved for a
mistrial.
We have recognized that prosecutorial statements attacking the defense
counsel’s integrity and competence are improper and inconsistent with the
Rules of Professional Conduct which require lawyers to “‘demonstrate
respect for the legal system and for those who serve it, including . . .
other lawyers.’” Marcum v. State, 725 N.E.2d 852, 858 (Ind. 2000) (quoting
Preamable, Ind. Professional Conduct Rules), reh’g denied. But given the
brevity of the prosecutor’s comment here, we find that it did not have
probable persuasive effect on the jury’s decision.
Finally, Defendant contends that “[g]iven the closeness of the
evidence, the prosecutor’s repeated misconduct placed [Defendant] in grave
peril.” We disagree. Having found that any prosecutorial impropriety
which may have occurred was de minimus or otherwise overcome by the trial
court’s admonishments and instructions, we are unable to conclude that
Defendant was placed in grave peril.
VI
Defendant’s next argument is two-fold. First, Defendant contends that
the trial court committed reversible error when it refused to allow
Defendant to impeach State witness Brian Mossberger with evidence of three
prior robbery convictions that were more than ten years old. Second,
Defendant argues that the trial court’s application of Indiana Evidence
Rule 609(b) and the exclusion of such evidence infringed on his Sixth
Amendment right to cross-examination.
Mossberger, one of two key State witnesses, testified to the events
that occurred on the night of the murders implicating Defendant.[17] In an
effort to attack Mossberger’s credibility, Defendant sought to introduce
impeachment evidence of Mossberger’s three prior robbery convictions, all
of which occurred in 1979. However, the trial court excluded the evidence,
reasoning that Indiana Evidence Rule 609(b) prohibited evidence of
convictions that were more than ten years old.
Generally, a proponent may seek to admit evidence of certain prior
convictions of a witness to attack the credibility of that witness as long
as the prior convictions are not more than ten years old. See Ind.
Evidence Rule 609(a) and (b).[18] Evidence of a prior conviction that is
more than ten years old may be admissible, however, if the proponent
demonstrates that the probative value of the stale conviction evidence
substantially outweighs its prejudicial effect, and the proponent gives the
adverse party sufficient advance written notice of intent to use such
evidence. Evid. R. 609(b). We review a trial court’s ruling under Evid.
R. 609(b) for abuse of discretion. See Schwestak v. State, 674 N.E.2d 962,
964 (Ind. 1996).
This case is comparable to Schwestak in which this Court upheld a
trial court’s decision preventing a defendant from introducing a State
witness’s prior burglary conviction that was more than ten years old. Id.
at 963. There, we reasoned that the defendant did not demonstrate
why the probative value of this conviction, which [was] more than ten
years old, [was] so high as to overcome the general rule that stale
convictions are not admissible. Defendant d[id] not offer any reason
other than that [the State witness’s] testimony was a very important
part of the State’s case. Although [the State witness’s] testimony
was indeed an important part of the State’s case, it certainly was not
dispositive. The State introduced ample other evidence establishing
[the] defendant’s guilt.
Id. at 964. (emphasis added).
Defendant attempts to distinguish his case from Schwestak by arguing
that Mossberger’s testimony “was essential to the State’s case, and
dispositive on many issues” because Mossberger was the only witness to
testify that Defendant (1) told him to get rid of the murder weapon and
ammunition; and (2) admitted to his role in the murders by stating that one
of the victims should not have been there. See Appellant’s Br. at 33. As
such, Defendant claims “Mossberger’s believability was crucial to the
determination of substantive facts surrounding these crimes, and central to
[Defendant’s] conviction.” Id.
Mossberger’s prior robbery convictions occurred in 1979, which was
approximately seventeen years from the date the trial began in September,
1996. Therefore, to demonstrate that the trial court abused its discretion
in excluding such evidence, Defendant has the burden of showing that the
“probative value of [the] conviction[s], which [are] more than ten years
old, is so high as to overcome the general rule that stale convictions are
not admissible.” Schwestak, 674 N.E.2d at 964. Defendant has not met this
burden.
While we recognize the importance of Mossberger’s testimony to the
State’s case, we disagree with Defendant that Mossberger’s credibility was
a dispositive factor. As to the facts at issue here, Mossberger’s
testimony corroborated the testimony of Dale Funk. As discussed in part I,
supra, Funk was the key witness for the State, who testified that he
observed Defendant “hand[] the gun to [Mossberger]; told him to get rid of
it.” (R. at 23,982.) In fact, Funk testified that he was an eyewitness to
the murders and identified Defendant as the perpetrator who shot and killed
the three victims with an assault rifle. It does not appear to us that
seventeen-year-old robbery convictions undermine in any meaningful way the
credibility of this corroborating testimony. We do not find the probative
value of Mossberger’s seventeen-year-old robbery convictions so high as to
overcome the general rule that stale convictions are not admissible.
Defendant also contends that the “trial court’s mechanistic
application of the staleness provision in Rule 609 violated [Defendant’s]
state and federal constitutional right to cross-examination and a fair
trial.” Appellant’s Br. at 35 (citing U.S. Const. Amends. VI and XIV and
Ind. Const. art. 1, § 13).
“[O]ne of the fundamental rights of our criminal justice system
granted by the United States Constitution and the Indiana Constitution is
the right of a defendant to cross-examination.” Pigg v. State, 603 N.E.2d
154, 155 (Ind. 1992) (citing to Sears v. State, 258 Ind. 561, 563, 282
N.E.2d 807, 808 (1972)). While a Sixth Amendment issue is raised when a
defendant is prohibited from cross-examining a crucial witness for the
State on an area of his credibility, see Crull v. State, 540 N.E.2d 1195,
1198-1200 (Ind. 1989); Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986);
Davis v. Alaska, 415 U.S. 308, 315-18 (1974), the right to cross-
examination is not absolute and is not without limitation, see Van Arsdall,
475 U.S. at 679 (reaffirming that the Sixth Amendment “‘guarantees an
opportunity for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense might
wish’”) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)) (emphasis
in original).
At issue in this case is whether the trial court’s application of
Evidence Rule 609(b) denied Defendant his constitutional right to cross-
examine a witness on an area of credibility. Defendant argues that such
application “prevented [Defendant] from cross-examining Mossberger about,
and presenting evidence of, impeaching felony convictions which directly
correlated with his propensity to tell the truth.” Appellant’s Br. at 36.
We disagree and find that the trial court’s application of Rule 609(b) did
not prevent Defendant from cross-examining Mossberger and attacking his
credibility. Defendant conducted a thorough cross-examination of
Mossberger which consisted of at least 500 pages of record. Defendant
further acknowledges in his brief that he “was able to expose some of
Mossberger’s evasiveness, selective memory, and lies.” Appellant’s Br. at
33. Because Defendant was permitted to cross-examine on Mossberger’s
credibility in some extended detail, we find that the exclusion his
seventeen-year-old convictions did not amount to a denial of Defendant’s
constitutional right to cross-examination.
VII
Defendant contends that the trial court violated his statutory right
to a speedy trial under Indiana Criminal Rule 4(B)(1) when it failed to try
him within 70 days of May 15, 1996, the date that Defendant filed his
motion for a speedy trial. He specifically argues that the State’s late
production of discovery material forced him to move for continuances on
three separate occasions and thus the trial court improperly attributed the
elapsed time to him.[19] Defendant therefore argues that his convictions
should be reversed and that he is entitled to discharge.
The chronology of trial events indicate that Defendant filed a speedy
trial motion on May 15, 1996, and the court properly set a trial date for
July 22, 1996 — a time within the 70-day period required by Criminal Rule
4(B)(1).[20] On June 17, 1996, only 34 days into the speedy trial period,
Defendant filed a motion to dismiss on grounds of a Criminal Rule 4(B)(1)
violation. The trial court denied the motion.[21]
Defendant filed three separate requests for continuances over a course
of fourteen days. On July 19, 1996, a few days before trial, Defendant
moved for a continuance requesting a one-week delay and further sought to
charge the delay against the State because the State had not complied with
his discovery requests.[22] At a July 19th hearing, the trial court ruled
against charging the State with the delay, reasoning that both the State
and Defendant “made respectful attempts to comply with the orders of the
Court,” and then denied Defendant’s motion. (R. at 7,491.) Immediately
after the court’s ruling, Defendant again moved for a continuance, a motion
identical to the first except that it did not request that the delay be
charged against the State. The State responded that it was “ready to go to
trial” as scheduled but had no objection to the motion. (R. at 7,492-93.)
The court granted Defendant’s motion to reschedule the trial for July 29,
1996.
On July 26, 1996, the trial court granted Defendant’s new request to
reschedule the trial. At a hearing on the matter, the State stated that
there was more to be done but that it was “ready to go to trial.” (R. at
8,543.) On August 1, 1996, Defendant again moved for a continuance. The
trial court granted the request and rescheduled the trial to begin on
September 23, 1996, which was the only available date on the trial court’s
calendar. On August 22, 1996, Defendant filed another motion to dismiss
because he was not brought to trial within 70 days from the date he filed
his motion for a speedy trial. At a September 17, 1996, hearing, the trial
court denied this motion to dismiss.
Indiana Rule of Criminal Procedure 4(B)(1) provides that “[i]f any
defendant held in jail on an indictment or an affidavit shall move for an
early trial, he shall be discharged if not brought to trial within seventy
(70) calendar days from the date of such motion . . . .” The trial court
may set a trial date beyond this prescribed time when there is a
continuance or delay by the defendant, court congestion, or an emergency.
As such, when a defendant requests a continuance, the elapsed period
between his motion for a continuance and the new trial date is generally
chargeable to the defendant. See Vermillion v. State, 719 N.E.2d 1201,
1204 (Ind. 1999), reh’g denied. However, as Defendant correctly points
out, we have found that when a defendant moves for a continuance because of
the State’s failure to respond to discovery requests, the delay can be
attributable to the State. See Isaacs v. Sate, 673 N.E.2d 757, 762 (Ind.
1996) (citing Biggs v. State, 546 N.E.2d 1271, 1275 (Ind. Ct. App. 1989)).
At the July 19th pre-trial hearing on the first continuance, Defendant
made no objection to the trial court’s decision not to charge the delay
against the State. Rather than raising an objection to the court’s ruling,
Defendant renewed the motion for continuance without requesting that the
delay be attributed to the State. A defendant who permits the court,
without objection, to set a trial date outside the 70-day limit is
considered to have waived any speedy trial request. See Goudy v. State,
689 N.E.2d 686, 691 (Ind. 1997).
This waiver notwithstanding, we consider Defendant’s two other
continuances. At the July 26th pre-trial hearing on the second motion for
continuance, Defendant argued that laboratory tests for hair comparisons
were not completed by the State. However, Defendant conceded that the lab
technicians were “working as fast as [they] can.” (R. at 8,540.) He
further acknowledged that new information had recently come to light which
required him to ask for additional time to re-depose two or three different
witnesses.[23] Because Defendant needed additional time to prepare for
trial, the elapsed time resulting from the second trial continuance was
rightfully charged to Defendant. With respect to Defendant’s third motion
for continuance, 54 days of the delay (the period between the date of
Defendant’s third continuance on August 1, 1996, and the date of the trial
on September 23, 1996) were attributable to neither the State nor
Defendant. The court warned both parties that because of court congestion,
the next available trial date on the court’s calendar was not until
September 23, 1996, and neither party objected to the revised schedule.
Defendant did not dispute the trial court’s finding of court congestion in
his motion for discharge or on appeal. As such, we will presume that the
trial court’s finding of court congestion is valid, and that no
contemporaneous explanation or documentation was needed. See Clark v.
State, 659 N.E.2d 548, 552 (Ind. 1995).
Finally, we recognize that in a death penalty case of this magnitude
even the most capable attorneys would be hard pressed to complete all
discovery requests before the tolling of a speedy trial period. This Court
recently gave particular attention to death penalty cases subject to the
time constraints of Criminal Rule 4 in Lowrimore v. State, 728 N.E.2d 860
(Ind. 2000), reh’g denied. In that case, we said, “The values of Criminal
Rule 4 are important, but so long as constitutional speedy trial standards
are met, these values must yield to the exigencies created by the death
penalty charge if the two cannot be reconciled.” Id. at 866. We believe
that principle also applies to the circumstances presented here.
Attorneys on both sides were under considerable time pressures to prepare a
capital case involving the murders of three victims, the presentation of
158 witnesses, and the introduction of 966 exhibits. Not surprisingly, the
record reveals that discovery continued long after the trial commenced on
September 23. While there may have been delays in the State’s response to
some discovery requests in question because of laboratory delays, we find
no basis to disagree with the State’s assertion at trial that it “made
every effort to comply with discovery orders of the Court.” (R. at 7,490.)
In light of the tremendous discovery challenges brought on by a death
penalty case of this scale, we agree with the trial court’s initial finding
that both parties made respectable attempts to
comply with court orders. Defendant is not entitled to discharge.
VIII
Defendant contends that the following “proceedings were illegally
conducted outside [Defendant’s] and his counsel’s presence”: (1) a
conference between the judge and the prosecutor regarding the State’s
request to delay the trial one week in order to investigate an alleged
confession to the murders made by someone other than Defendant; (2) a
written communication between the judge and jury during deliberations in
the guilt-determination phase; and (3) a jury viewing of the crime scene.
Appellant’s Br. at 50. Defendant argues that his absence and the absence
of his attorneys violated his right to be present at all “critical stages”
of his trial and entitles him to reversal of his convictions.
Defendant cites to three different sources for his right to be
present: the Sixth and Fourteenth Amendments to the United States
Constitution and Article 1, § 13, of the Indiana Constitution. In Ridley
v. State, we clarified that these constitutional sources guarantee a
defendant’s right to be present but that they are not identical. 690
N.E.2d 177, 180 (Ind. 1997). As such, we discuss each separately.
A
Defendant first contends that he was denied his constitutional right
to be present under the federal and state constitutions when the judge and
the prosecutor met with each other in Defendant and Defendant’s attorney’s
absence without notice.
The pertinent facts surrounding the judge-prosecutor ex parte
conference indicate that during the trial on January 2, 1997, prosecutors
met with the trial judge in the judge’s office, outside the presence of
Defendant and his attorneys. Immediately thereafter, counsel on both sides
participated in an in camera hearing in which the State requested a one-
week continuance and the temporary tolling of discovery obligations.
Defendant objected to any continuance but had no basis for the objection
simply because neither the prosecutor nor the judge disclosed the subject
matter of the ex parte communication. Defendant demanded to know the
nature of the communication but the judge denied this request. The
prosecutor argued, without legal authority, that the information was
“privileged and confidential.” (R. at 19,814.) Defendant sought, but was
denied, a mistrial.
On January 6, the judge made a written account of the ex parte
communication with the prosecutor. According to the judge’s report, the
prosecutor divulged that a person other than Defendant had admitted to
shooting the Tylers and Southard. At this time, the State supplied
Defendant with two supplemental case reports disclosing the results of its
investigation. The reports revealed that Officer Heilman learned on
December 27, 1996, that Robert Smith told Vanderburgh County Police that he
overheard someone else confess to the murders for which Defendant was
currently being tried. Smith also suggested that the murders were
committed in retaliation for a drug debt owed to Herschel Seifert by the
Southard’s fiancé, Troy Napier.
The essence of Defendant’s argument is that if he had been present
during the ex parte proceeding, Smith’s story would have been disclosed to
him and he could have presented a “meaningful argument at a meaningful time
. . . against the continuance” requested by the State. Appellant’s Br. at
54. Defendant also maintains that “[t]he subject of this ex parte
proceeding was information about a person who overheard someone else
confess to the killings for which [he] was on trial. That information
directly contradicted the story told by Funk, and provided the missing
motive behind the killings. Keeping this information from [him] ultimately
hampered his defense.” Id. at 55.
We agree with Defendant that he was entitled to know the reason the
prosecutor requested the continuance. It was not appropriate for the trial
court to place Defendant in a position of having to respond to the
requested continuance when the reason for it was secret.[24] However, we
find the trial court’s error in this regard to be harmless. We also hold
that no violation occurred under either
the Sixth Amendment or Due Process Clause of the Fourteenth Amendment.
Defendant was entitled to any information in the State’s possession
concerning another’s confession to the murders for which Defendant was
being tried. However, Defendant has not shown how his inability to have
this information in order to oppose the State’s continuance request
adversely affected his substantial rights. See Fleener v. State, 656
N.E.2d 1140, 1142 (Ind. 1995) (ruling that errors in the application of
state evidentiary or procedural law will be found harmless if their
probable impact is sufficiently minor so as not to affect the substantial
rights of the parties). Defendant acknowledges that only one week after
the ex parte communication, the State made available two supplemental case
reports disclosing the details of Smith’s story. See Appellant’s Br. at 53
(citing R. at 2,513, 3,647-48, Appendix 30-31.) The judge then properly
granted Defendant a continuance allowing him sufficient time to review this
newly discovered information, and to “pursue any avenues raised by its
disclosure and to adjust its strategy accordingly.” Dye v. State, 717
N.E.2d 5, 12 (Ind. 1999), cert. denied, __U.S.__ , 121 S. Ct. 379 (2000).
The record further indicates that defense counsel deposed Smith before the
trial reconvened and that counsel read aloud Smith’s sworn testimony in
front of the jury. As such, the jury did hear Smith’s testimony which
directly contradicted Funk’s inculpatory testimony against Defendant. We
conclude that the impact of the ex parte communication was sufficiently
minor so as not to have affected the substantial rights of Defendant.
Defendant also contends that the ex parte communication violated his
constitutional rights in several respects.
First, Defendant claims his Sixth Amendment right to be present in the
courtroom at every stage of his trial was violated. This right is rooted
in the Confrontation Clause. Ridley, 690 N.E.2d at 180 (citing Illinois v.
Allen, 397 U.S. 337 (1970)). A Confrontation Clause violation occurs when
witnesses or hearsay evidence are presented in the defendant’s absence that
affect the defendant’s opportunity for cross-examination. See Kentucky v.
Stincer, 482 U.S. 730, 737-38 (1987). In the present case, the judge-
prosecutor ex parte communication did not involve the presentation of
witnesses or evidence against Defendant. Defendant’s right to cross-
examine witnesses under the Confrontation Clause was not implicated because
no witnesses were present during the meeting held in Defendant’s absence.
See id. Accordingly, we find that there was no Sixth Amendment violation.
Second, Defendant raises an argument under the Due Process Clause of
the Fourteenth Amendment, contending that the State failed to disclose
Smith’s story about the alleged confession which was in direct violation of
Brady v. Maryland, 373 U.S. 83 (1963). See Appellant’s Br. at 54, 56. Due
process requires the State to disclose to the defendant favorable evidence
which is material to either his guilt or punishment. See Brady, 373 U.S.
at 87; Kyles v. Whitley, 514 U.S. 419, 432 (1995). Under Brady, favorable
evidence is material “only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding
would have been different. A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome.” United States v.
Bagley, 473 U.S. 667, 682 (1985) (analyzing Brady). In this case, we find
that no Brady violation occurred because Smith’s story was disclosed to
Defendant only a week following the ex parte communication and became known
to the jury before the conclusion of the trial. See Williams v. State, 714
N.E.2d 644, 648-49 (Ind. 1999) (recognizing that if the favorable evidence
becomes known to the defendant before or during the course of a trial,
Brady is not implicated) (citing United States v. Agurs, 427 U.S. 97, 103
(1976)), cert. denied, ___ U.S. ___, 120 S. Ct. 1195 (2000); Dye, 717
N.E.2d at 12 (same); Braswell v. State, 550 N.E.2d 1280, 1283 (Ind. 1990)
(same).
Finally, Defendant argues that his right to be present at every stage
of a criminal proceeding under Article 1, § 13, of the Indiana Constitution
was violated. But that right only applies to situations where the jury’s
presence is required. As the jury’s presence was not required during the
judge-prosecutor communication, the Indiana constitution was not violated.
See Ridley, 690 N.E.2d at 181 n.4.
B
Defendant also contends that the trial court erred in violating his
“federal and state constitutional rights to be present and be heard in
person and by counsel at all stages of his trial,” when “the jury and judge
exchanged written communications” during jury deliberations in the guilt-
determination phase. Appellant’s Br. at 51. For this ex parte claim,
Defendant relies upon two sources for his right to be present: the Sixth
Amendment under the United States Constitution and Article 1, § 13, of the
Indiana Constitution.
After retiring for deliberations, the jury sent a written note to the
bailiff who in turn handed the note to the judge. The note read as
follows: “We would like to listen to [Defendant’s] tape 4810. Can we see
the depositions of Brian M. & Dale Funk?” (R. at 3,725.) The trial court
“advised the [b]ailiff to tell the jury that the court could not provide
the items requested [by] them.” (R. at 3,842.) The trial court reported,
“The [j]ury then continued its deliberations and no further requests were
received prior to reaching their verdicts.” (Id.) Both parties were
advised of the judge-jury communication sometime later.[25]
Case law recognizes state constitutional protection for a defendant’s
right to be present when a jury makes a request for any additional guidance
during deliberations. See Pendergrass v. State, 702 N.E.2d 716, 718-20
(Ind. 1998). This Court has repeatedly laid out the procedural guidelines
for a trial court to follow when confronted with such a situation. See id.
at 718-20; Bouye v. State, 699 N.E.2d 620, 628 (Ind. 1998). Under this
procedure, trial court should
“notify the parties so they may be present in court and informed of
the court’s proposed response to the jury before the judge ever
communicates with the jury. When this procedure is not followed, it
is an ex parte communication and such communications between the judge
and the jury without informing the defendant are forbidden. However,
although an ex parte communication creates a presumption of error,
such presumption is rebuttable and does not constitute per se grounds
for reversal. When a trial judge responds to the jury’s request by
denying it, any inference of prejudice is rebutted and any error
deemed harmless.”
Pendergrass, 702 N.E.2d at 719-20 (quoting Bouye, 699 N.E.2d at 628)
(emphases in original) (citations omitted).
In the instant case, the trial judge erred in not notifying the
parties before communicating to the jury. However, the judge merely denied
the jury’s request to listen to Defendant’s taped statement for a second
time and to review depositions that were already read into evidence;
therefore, any error resulting from this communication was harmless. See
Marsillett v. State, 495 N.E.2d 699, 709 (Ind. 1986) (holding that a judge-
jury communication outside the defendant’s presence constituted harmless
error where the judge merely denied the jury’s request to replay part of a
transcript); see also Brewer v. State, 605 N.E.2d 181, 184 (Ind. 1993)
(ruling that where a trial court simply denied a jury’s request for more
information in the defendant’s absence, such communication did not result
in prejudice to the defendant and any error was harmless).
Defendant also contends that his absence “prevented [him] from being
heard by counsel as to the importance of allowing the jury to listen to the
taped statement.” Appellant’s Br. at 59. He argues that the “subject
matter [of the jury’s note] was some of the most crucial evidence
presented,” and that “[i]t would be reasonable to conclude jurors might
need to refresh their recollections about the most pivotal evidence
presented.” Id. As we stated in response to an almost identical assertion
in Bouye, “[c]ontrary to the defendant’s argument, the prohibition against
ex parte communication is not designed to give the defendant an opportunity
to provide the jury with more information that might benefit his case, but
rather it is designed to prevent the jury from being improperly influenced
by the judge. The defendant’s contention fails.” 699 N.E.2d at 628-9.
With respect to Defendant’s other argument on the right to be present,
he contends that the “federal constitutional right[] to be heard by counsel
and to have counsel’s assistance [is] implicated by . . . an ex parte
communication even where the judge ultimately refuses communication.”
Appellant’s Br. at 59. However, Defendant merely cites to the Sixth
Amendment[26] without developing the argument further. See Ind. Appellate
Rule 8.3(A)(7).
C
Finally, Defendant argues that the jury’s view of the crime scene was
illegally conducted outside his and his counsel’s presence.
Over Defendant’s objection, the trial court granted the State’s
request for the jury to view various locations pursuant to Indiana Code §
35-37-2-5, which allows a “jury to have a view of the place in which any
material fact occurred.” In particular, the bailiff accompanied the jury
to see Mossberger’s home; the railroad crossing on Red Brush Road; Napier’s
mobile home where the burglary occurred prior to the murders; and the
intersection of Youngblood and Eble Roads where the commission of the
murders took place. Before the viewing, the trial court’s instructions
advised the jury that the “various locations of the jury viewing [were] not
to be considered as evidence,” (R. at 31,543), and to “remain on bus and on
public right of way at all times,” (R. at 31,545). Both parties agreed to
these instructions.
Defendant specifically argues on appeal that the places viewed by the
jury in Defendant’s absence constituted “evidence.” Defendant maintains
that because he was absent during “presentation of evidence,” his right to
be present was in violation of the Sixth and Fourteenth Amendments of the
United States Constitution, and Article 1, § 13, of the Indiana
Constitution. Appellant’s Br. at 57-58. Defendant did not make a request
to the trial court to accompany the jury during the viewing and was never
barred from doing so. Thus, he cannot now claim error on appellate review
that he was denied his constitutional rights to be present. Nevertheless,
it is well settled Indiana law that a jury’s view of a location is not
evidence, but rather it is intended to aid a jury’s understanding of
evidence presented at trial. See Jackson v. State, 597 N.E.2d 950, 962
(Ind. 1992), cert. denied, 507 U.S. 976 (1993); Johnson v. State, 472
N.E.2d 892, 909 (Ind. 1985); Mears v. State, 455 N.E.2d 603,605 (Ind.
1983). Because neither evidence nor witnesses were presented in
Defendant’s or his counsel’s absence, his rights under the Confrontation
Clause of the Sixth Amendment were not implicated. See part VIII.A, supra.
Furthermore, Defendant merely cites to the Indiana constitution and the
Fourteenth Amendment and did not develop the argument further. App. R.
8.3(A)(7).
IX
Defendant contends that the trial court erred by admitting several
autopsy photographs of the victims’ internal organs because the cause of
death was uncontested and the photographs depicted the bodies in an
“altered” condition and therefore unduly prejudiced the jury. See
Appellant’s Br. at 66. He argues that the photographic evidence had “no
real probative value” and that they only served to inflame the emotions of
the jury. See id. at 70.
Photographs, including those that are gruesome in nature, are
admissible if they act as interpretive aids for the jury and have strong
probative value. Spencer v. State, 703 N.E.2d 1053, 1057 (Ind. 1999);
Wright v. State, 730 N.E.2d 713, 720 (Ind. 2000) (citing Harrison v. State,
699 N.E.2d 645, 647 (Ind. 1998)). Relevant evidence is evidence that has
“any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it
would be without the evidence.” Ind. Evidence Rule 401. To exclude
photographs from evidence on relevancy grounds, the defendant must show
that their improper influence on the jury substantially outweighed their
probative value to the extent that they were unduly prejudicial. See Ind.
Evidence Rule 403; Spencer, 703 N.E.2d at 1057; Mitchell v. State, 726
N.E.2d 1228, 1237 (Ind. 2000), reh’g denied. We review the trial court’s
admission of photographic evidence for an abuse of discretion. See Cutter
v. State, 725 N.E.2d 401, 406 (Ind. 2000), reh’g denied.
In this case, Defendant attacks the admission of the following three
photographs of Brandy Southard: State’s Exhibit No. 2995 depicted the rib
cage and muscles; Exhibit No 2998 viewed the inside of the chest after the
rib cage and breast bone were removed; and Exhibit 3003 displayed the heart
and aorta. Defendant also challenges the admission of the following three
photographs of Kathy Tyler: (1) Exhibit No. 2906 showed Kathy Tyler’s left
lung; (2) Exhibit No. 3072 revealed a windpipe and voice box; and (3)
Exhibit No.3036 pictured the inside of the chest wall after the organs had
been removed. Finally, Defendant takes issue with the admission of the
following photographs of John “Jay” Tyler: Exhibit No. 3124 and 3127
displayed lungs; Exhibit No. 3148 showed a heart; Exhibit No. 3148 depicted
ribs and a breast bone; Exhibit No. 3154 displayed a liver; Exhibit No.
3146 viewed a chest cavity after the chest organs had been removed; and
Exhibit No. 3151 depicted a lower jaw.
Defendant argues that “none of these photos depict the victims’
bodies in their natural state after [their] deaths,” but instead “show [the
victims’] appearance after the pathologist has done his work.” Appellant’s
Br. at 70. He correctly points out that photographs showing the victim’s
body in an “altered condition,” e.g., during or after an autopsy has been
performed, are generally inadmissible because they may impute the work of
the pathologist to the defendant. See Turben v. State, 726 N.E.2d 1245,
1247 (Ind. 2000); Fentress v. State, 702 N.E.2d 721, 722 (Ind. 1998); Allen
v. State, 686 N.E.2d 760, 776 (Ind. 1997), cert. denied, 525 U.S. 1073
(1999); Loy v. State, 436 N.E.2d 1125, 1128 (Ind. 1982); Warrenburg v.
State, 260 Ind. 572, 574-76, 298 N.E.2d 434, 435-6 (1973); c.f., Kiefer v.
State, 239 Ind. 103, 116-18, 153 N.E.2d 899, 904-05 (1958).
We do consider these close-up photographs viewing multiple gunshot and
stab wounds to the victims’ internal organs to be gruesome if not ghastly.
But “‘[e]ven gory and revolting photographs may be admissible as long as
they are relevant to some material issue or show scenes that a witness
could describe orally.’” Mitchell, 726 N.E.2d at 1237 (quoting Amburgey
v. State, 696 N.E.2d 44, 45 (Ind. 1998)).
The photographic evidence complemented the pathologist’s testimony as
well as other evidence introduced at trial and was relevant in rebutting
Defendant’s contention that he neither shot the victims multiple times with
his SKS assault rifle nor stabbed the victims with a knife. First, the
photograph evidence was illustrative of the pathologist’s testimony
concerning the cause of the victims’ death. For instance, the pathologist
testified that the “high powered rifle” bullets used to commit the multiple
killings penetrated the rear of the truck, struck the victims, and traveled
through their bodies. The pathologist also testified that all three
victims were shot and then subsequently stabbed by their assailant. This
determination corroborated Funk’s account of the timing of the
circumstances surrounding the murders. Although Defendant did not contest
the cause of death, the photographs helped to illustrate the pathologist’s
testimony describing the chest wound from a knife causing Brandy Southard’s
death and the projection and path of the fatal bullets from a high powered
rifle causing the deaths of Kathy Tyler and John Tyler. Second, other
evidence introduced at trial suggested that Defendant owned a knife similar
to the one used to inflict multiple stab wounds on the victims. Further,
forensic testing proved that the bullets found in the victims’ bodies came
from the same SKS assault rifle owned by Defendant. And Defendant was seen
shooting his rifle shortly before the murders occurred. The post-autopsy
photographs complemented this evidence as well as Funk’s testimony.
As previously stated, we agree with Defendant that the post-autopsy
photographs were gruesome. Thus, we presume that they had a prejudicial
effect when shown to the jury. However, the prejudicial effect was not so
substantial as to outweigh their probative value. Accordingly, we find
that the trial court did not abuse its discretion in finding that the
probative value of the photographs outweighed any prejudicial effect on the
jury.[27] See, e.g., Wright, 730 N.E.2d at 720 (holding no abuse of trial
court discretion in allowing photographs at issue establish the cause of
death and the manner in which the crime was committed and the evidence was
particularly probative inasmuch as the defendant attempted to establish
that he was not the perpetrator); Fentress, 702 N.E.2d at 722 (holding no
abuse of discretion where trial court allowed the admission of autopsy
photographs depicting the victim’s shattered skull with the hair and skin
pulled back because the photos showed the force of the blow, which in turn,
bore on the intent to kill); Elliot v. State, 630 N.E.2d 202, 204 (Ind.
1994) (holding no abuse of discretion where trial court allowed the
admission of autopsy photos of victim’s heart which was probative to
overcome the defendant’s claim of accidental killing); Jackson, 597 N.E.2d
at 963 (ruling that the trial court properly admitted photographs taken
during the autopsy showing view of victim’s skull and brain because they
were probative to illustrate trauma caused by the blows to her head and
they also served to aide the pathologist’s testimony).
X
Defendant next contends that the evidence presented at trial was
insufficient to support his convictions because Mossberger and Funk’s
testimony on the events surrounding the murders was “incredibly dubious.”
Defendant also claims that the State’s case lacked motive and that there
was no circumstantial evidence connecting him to the murders. See
Appellant’s Br. at 9, 29, 31. He further directs our attention to alibi
witnesses who placed him at their home around the time the murders
occurred, see id. at 9, 29, and to other witnesses who suggested that
another person had allegedly confessed involvement in the murders, see id.
at 29-30. All of this, Defendant’s argument continues, demonstrates that
the State failed to establish the “substantial evidence” of probative value
required to support a conclusion of guilt beyond a reasonable doubt. See
id. at 31.
When reviewing a sufficiency of the evidence claim, we neither reweigh
the evidence nor assess the credibility of witnesses. See Williams v.
State, 669 N.E.2d 1372, 1387 (Ind. 1996), cert. denied, 520 U.S. 1232
(1997). We only consider the evidence most favorable to the jury’s verdict,
along with all reasonable inferences to be drawn therefrom, and will affirm
a conviction if the probative evidence and reasonable inferences drawn from
the evidence could have led the jury to find a defendant guilty beyond a
reasonable doubt. See id.; Davis v. State, 598 N.E.2d 1041, 1045 (Ind.
1992), cert. denied, 510 U.S. 948 (1993).
Defendant first attacks the credibility of Funk and Mossberger by
arguing that both witnesses had “motives to lie” in order to implicate
Defendant as the perpetrator who killed the three victims and to exonerate
themselves. See Appellant’s Br. at 10. We considered a similar
credibility issue questioning testimony of a witness who was with the
defendant when the crime occurred in the capital case of Timberlake v.
State, 690 N.E.2d 243 (Ind. 1997), cert. denied, 525 U.S. 1073 (1999).
There we determined that even though the State did not charge the witness
to the crime as an accomplice, the “potentially self-serving testimony
[was] similar to that of one accomplice testifying against another,”
because “[b]oth situations contain the same credibility concerns.” Id. at
252. Here, the most incriminating evidence against Defendant came
primarily from the testimony of Funk and Mossberger. Like the witness in
Timberlake, neither Funk nor Mossberger was charged as an accomplice. Funk
admitted he was present throughout the crime spree of burglarizing Napier’s
mobile home and during the commission of the murders. And Defendant lists
other examples claiming that Funk had a motive to fabricate: Funk’s
shoeprint was found underneath the broken window of Napier’s mobile home;
Funk admitted that he did not want to go to jail; Funk was jealous of
Defendant’s friendship with one Kathy Morreira, whom Funk had been dating;
Funk told his roommate, Kenny Jennings, that he would “cut out
[Defendant’s] liver” (R. at 29,386, 29,431); and Funk told Morreira that he
implicated Defendant for “all the wrong reasons” (R. at 30,101-02). See
Appellant’s Br. at 11. Defendant also puts at issue Mossberger’s
credibility and his motivation to lie. In particular, he emphasizes that
Mossberger had possession of the murder weapon after the murders occurred
and that Mossberger hid the weapon along with the ammunition in the woods.
Having said that, the testimony of an accomplice is subject to high
scrutiny. We have also concluded that such testimony is alone sufficient
to sustain a conviction. See Timberlake, 690 N.E.2d at 252; see also
Thompson v. State, 671 N.E.2d 1165, 1167 (Ind. 1996), reh’g denied;
Garrison v. State, 589 N.E.2d 1156, 1159 (Ind. 1992); Douglas v. State, 520
N.E.2d 427, 428 (Ind. 1988). We have further stated, “[t]he fact that the
accomplice may not be completely trustworthy goes to the weight and
credibility of the witness’ testimony, something that is completely within
the province of the [jury] and cannot be reviewed on appeal.” Timberlake,
690 N.E.2d at 252.
In this case, the jury was made aware of Funk’s and Mossberger’s
involvement before and after the murders occurred and heard witness
testimony which, Defendant urges, indicated that Funk had other possible
motives to fabricate. But it was still the jury’s prerogative as to how
much weight and credibility to give to Funk’s and Mossberger’s testimony.
See Griffin v. State, 493 N.E.2d 439, 443 (Ind. 1986) (“When a jury is
aware of a witness’ possible motives or bias, [the jury] can use the
information to assess the witness’ credibility.”) (citing Shields v. State,
490 N.E.2d 292 (Ind. 1986), reh’g denied.). Furthermore, contrary to
Defendant’s contention,[28] the record indicates that there was
circumstantial evidence connecting Defendant to the shooting. Defendant
had possession of the murder weapon before the murders occurred. Forensic
testing established that the fatal bullets matched those fired from the SKS
assault rifle owned by Defendant. And the spent shell casings retrieved
from the crime scene and the recovered ammunition were similar to those
discovered in Southard’s and Napier’s mobile home where Defendant had
earlier confiscated ammunition on the day of the murders.
Defendant further challenges the testimony of Funk and Mossberger by
focusing on several inconsistencies between their testimony, and by
highlighting inconsistencies between their previous individual statements
to police and trial testimony. He specifically argues that such
inconsistencies make the testimony “incredible.” However, inconsistencies
in the testimony of two or more witnesses go to the weight of the evidence
and credibility of each individual witnesses’ testimony, see Dobbins, 721
N.E.2d at 875; Timberlake, 690 N.E.2d at 252, and such inconsistencies do
not make the evidence “incredible” as a matter of law, see Kappos v. State,
465 N.E.2d 1092, 1096 (Ind. 1984). Here, the jury was fully apprised of
these inconsistencies and had the opportunity to make credibility
determinations. “[J]udging the credibility of witnesses lies squarely
within the province of the jury and we will not reassess its credibility
determinations.” Ellis v. State, 707 N.E.2d 797, 801 (Ind. 1999) (citing
Gee v. State, 526 N.E.2d 1152, 1153 (Ind.1988)). We find no basis to
reassess the jury’s credibility determinations here.
Defendant argues that the “incredible dubiosity” rule should apply in
his case because his convictions were based on Funk’s and Mossberger’s
testimony which was “highly improbable,” as well as “equivocal,
vacillating, and contradictory.” Appellant’s Br. at 14, 20, 22. “‘Under
this rule, a court will impinge on the jury’s responsibility to judge the
credibility of the witness only when it has confronted inherently
improbable testimony or coerced, equivocal, wholly uncorroborated testimony
of incredible dubiosity.’” White v. State, 706 N.E.2d 1078, 1079 (Ind.
1999) (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994) (internal
quotation omitted)). “When a sole witness presents inherently improbable
testimony and there is a complete lack of circumstantial evidence, a
defendant’s conviction may be reversed.” Id. We have recognized that
application of this rule is rare and that the standard to be applied is
whether “‘the testimony is so incredibly dubious or inherently improbable
that no reasonable person could believe it.’” Bradford v. State, 675
N.E.2d 296, 300 (Ind. 1996) (quoting Pardue v. State, 502 N.E.2d 897, 898
(Ind. 1987), reh’g denied.), reh’g denied.
There is no dispute that Funk was the State’s sole eyewitness to the
burglary at Napier’s mobile home and to the commission of the murders.
Although there were discrepancies among Funk’s statements made to police,
his statements made in depositions, and his trial testimony, witness
testimony that contradicts witness’s earlier statements does not make such
testimony “incredibly dubious.” See Davenport v. State, 689 N.E.2d 1226,
1230 (Ind. 1997), reh’g granted in part, 696 N.E.2d 870 (1998). Funk
unequivocally identified Defendant as the perpetrator who shot the three
victims and he did not waver in his identification of Defendant’s assault
rifle used to commit the killings. This part of his testimony was
supported by circumstantial evidence. Furthermore, Funk’s testimony
regarding the circumstances before and after the murders was corroborative
of Mossberger’s testimony as well as other witness testimony.
Defendant also contends that Funk’s testimony was a product of Officer
Heilman’s suggestions given when the Officer first questioned Funk about
the crimes. See Appellant’s Br. at 24-6 (citing R. at 24,410-11, 24,453-
55.) Defendant complains, “Funk’s admissions of susceptibility to
suggestion and guessing reveal a lack of authenticity for his story.” Id.
at 11. However, there is no evidence in the record to suggest that Funk’s
testimony was coerced. During defense counsel’s cross-examination of Funk,
the jury heard the nature of Officer Heilman’s initial questioning of Funk.
We find that a reasonable person could have believed Funk’s testimony, and
reiterate that “‘[i]t is the province of the jury to hear the testimony
given by the witnesses and to assess the truth and veracity of each
witness.’” White, 706 N.E.2d at 1080 (quoting Wear v. State, 593 N.E.2d
1179, 1179 (Ind. 1992)); Davis v. State, 658 N.E.2d 896, 898 (Ind. 1995),
cert. denied, 516 U.S. 1178 (1996).
Finally, to further support his contention that the State failed to
establish the requisite “substantial evidence” to support a conclusion of
guilt, Defendant focuses on the testimony of alibi witnesses and witness
testimony suggesting that other persons admitted involvement in the
murders. See Appellant’s Br. at 28-31.
“The State is not required to rebut directly a defendant’s alibi. It
may disprove the alibi by proving its own case in chief beyond a reasonable
doubt.” Lott v. State, 690 N.E.2d 204, 209 (Ind. 1997). Here, Defendant
directs us to his presentation of alibi witnesses who testified that they
saw Defendant just after 10:00 p.m. on the night of the murders. One of
these witnesses claimed that she had spoken to Defendant. [29] Such
testimony directly conflicted with Funk’s and Mossberger’s testimony that
Funk and Defendant left Mossberger’s house during the 10 o’clock news. The
alibi testimony also contradicted the testimony of Funk’s roommate, Kenny
Jennings. Jennings testified that on the night in question, Defendant and
Funk arrived at Funk’s apartment during the sitcom “Cheers” which aired
between 10:00 and 10:30 p.m. Additionally, the alibi testimony
contradicted Defendant’s initial alibi given to police officers. Our
review of the record indicates that on March 30, 1996, just two days after
the murders occurred, Defendant voluntarily gave a taped statement to
police officers which was later played for the jury. In this statement,
Defendant admitted that he saw and briefly talked to Jay, Kathy, and Brandy
at a local Circle S store between 9:30 and 10:00 p.m. on the night the
murders. Defendant also stated that after seeing the victims, he went to
Mossberger’s house and drank wine, and then went straight home. Thus, the
jury was made aware of such inconsistencies between Defendant’s own stories
regarding his whereabouts on the night in question. We find that it was
within the jury’s purview to believe the testimony of Mossberger and Funk
over the testimony of alibi witnesses tending to exculpate Defendant. See
Carr v. State, 728 N.E.2d 125 (Ind. 2000) (“A jury may choose to disbelieve
alibi witnesses if the State’s evidence renders such disbelief
reasonable.”) (citing Lambert v. State, 516 N.E.2d 16, 19 (Ind. 1987),
reh’g denied.). We will not disturb the jury’s prerogative to weigh the
credibility of witnesses and to weigh the evidence.
Defendant also points to other witnesses’ testimony implicating one
Guy James Knight, rather than Defendant, as the person who committed the
murders. See Appellant’s Br. at 28, 29. One defense witness testified
that Brandy Southard told her that Napier owed Knight money, and that if
Knight was not paid, he was “going to put a bullet in [Southard’s] ass.”
(R. at 29,536.) Another defense witness, Allen Fletcher, testified that he
shared a jail cell with Knight in Vanderburgh County, and stated, “[Knight]
told me that he was the one, after the firing was over, that cut their
throats and stabbed them.” (R. at 29,704.) Police questioned Knight who
said he worked for a local landlord and drug dealer named Herschel Seifert.
Knight told police that he was at home with his girlfriend at the time the
murders had occurred and denied ever threatening Southard. Knight’s
girlfriend, however, confirmed one threat made against Southard.
Defendant presented additional evidence along these lines establishing
the possibility that the killings occurred as a result of a drug hit
ordered by Seifert. However, a jury is entitled to disbelieve the
defendant’s evidence and to believe the State’s evidence. See Bradford,
675 N.E.2d at 299 (determining that where conflicting evidence was
presented, the jury was not required to believe the defendant’s evidence,
and that the jury had every right to believe the State’s evidence instead);
see also Harris v. State, 617 N.E.2d 912, 915 (Ind. 1993) (recognizing that
a jury was entitled to believe or disbelieve evidence presented by State
and the defendant in a criminal trial), overruled on other grounds by
Wright v. State, 690 N.E.2d 1098 (Ind. 1997). The evidence concerning
Knight was presented to the jury. It was well within the jury’s ability as
well as its province to assess the witnesses’ relative credibility and to
believe the State’s evidence over Defendant’s evidence suggesting that
Knight confessed to the murders. Again, we find no reason to reassess the
jury’s credibility determinations.
After considering all the evidence most favorable to the verdict as
well as drawing all reasonable inferences therefrom, we conclude that the
jury could have reasonably concluded beyond a reasonable doubt that
Defendant committed the burglary and the three murders. We also find no
basis to impinge on the jury’s credibility determinations and therefore
decline to apply the incredible dubiosity rule.
XI
We now review whether Defendant’s death sentences are appropriate.
The Indiana Constitution provides that “[t]he Supreme Court shall have, in
all appeals of criminal cases, the power to review and revise the sentence
imposed.” Ind. Const. art. VII, § 4. Although our rules for appellate
review of sentences require that deference be given to the judgment of the
trial court where the sentence is death, those rules “stand more as
guideposts for our appellate review than as immovable pillars supporting a
sentence decision.” Spranger v. State, 498 N.E.2d 931, 947 n.2 (Ind.1986),
cert. denied, 481 U.S. 1033 (1987). Moreover, “this Court’s review of
capital cases under article 7 is part and parcel of the sentencing
process.” Cooper v. State, 540 N.E.2d 1216, 1218 (Ind.1989).
This special review of death sentences is grounded in the Indiana
Constitution, our state’s death penalty statute, and federal death penalty
jurisprudence. Harrison v. State, 644 N.E.2d 1243, 1260 (Ind. 1995), cert.
denied, 519 U.S. 933 (1996). The United States Supreme Court “has
repeatedly said that under the Eighth Amendment ‘the qualitative difference
of death from all other punishments requires a correspondingly greater
degree of scrutiny of the capital sentencing determination.’” Caldwell v.
Mississippi, 472 U.S. 320, 329 (1985) (quoting California v. Ramos, 463
U.S. 992, 998-99 (1983)). Meaningful appellate review of death sentences
plays a crucial role in ensuring that the death penalty is not imposed
arbitrarily or irrationally. Parker v. Dugger, 498 U.S. 308, 321 (1991).
Defendant challenges the appropriateness of his death sentences,
contending that the one aggravator did not outweigh the mitigating
circumstance of the “residual doubt” of his guilt. See Dye v. State, 717
N.E.2d 5, 21 (Ind. 1999) (citing generally Miller v. State, 702 N.E.2d
1053, 1069 (Ind. 1998) (describing residual doubt as “[w]hen a jury finds a
defendant guilty beyond a reasonable doubt, there still may be a measure or
residuum of doubt about the defendant’s guilt”), cert. denied, 528 U.S.
1083 (2000)), cert. denied, ___ U.S. ___, 121 S. Ct. 379 (2000). Defendant
specifically argues that residual doubt exists in his case because two key
State witnesses, Funk and Mossberger, had “compelling reasons to lie;” the
State’s lack of physical evidence connecting him to the murders; and the
fact that his “defense was supported by four alibi witnesses.” Appellant’s
Br. at 78-79. Based upon the residual doubt, he asks this Court to set
aside his death sentences and to enter sentences of life without parole.
Our death penalty statute guides our review of death sentences by
providing standards for governing the trial court’s imposition of death
sentences. Following the completion of the guilt-determination phase of
the trial and the rendering of the jury’s verdict, the trial court
reconvenes for the penalty phase. Before a death sentence can be imposed,
our death penalty statute requires the State to prove beyond a reasonable
doubt at least one aggravating circumstance listed in subsections (b)(1)
through (b)(16) of the statute.[30] See Ind. Code § 35-50-2-9 (1998). In
this case, the State supported its request for the death penalty with the
following aggravating circumstances: (1) that Defendant intentionally
discharged a firearm from a vehicle, see Ind. Code § 35-50-2-9(b)(14)(B)
(Supp. 1995); (2) that Defendant committed at least one of the murders by
lying in wait, see id. § 35-50-2-9-(b)(3); and (3) that Defendant “has
committed another murder, at any time, regardless of whether the defendant
has been convicted of that other murder,” see id. § 35-50-2-9(b)(8). To
prove the existence of these aggravating circumstances, the State presented
no additional witnesses at this stage, but rather relied upon evidence from
the guilt-determination phase of the trial.
The death penalty statute requires that any mitigating circumstances
be weighed against any properly proven aggravating circumstances. In
addition to Defendant’s mitigating circumstances presented during the guilt-
determination phase (the Defendant’s four alibi witnesses testifying that
they saw Defendant around the time the murders had occurred and Defendant’s
witnesses testifying that they overheard Knight admit to involvement in the
murders), Defendant offered the testimony of one witness at the penalty
phase, Pam Patterson, a public information officer at the Indiana
Department of Correction. She testified that the vast majority of multiple
murder offenders held in Indiana jails have not been sentenced to death,
but instead were serving either a term of years or life imprisonment
without parole.[31] The jury found that the State did not meet its burden
in proving beyond a reasonable doubt that Defendant committed the first two
alleged aggravators; however, the jury did find that the State proved
beyond a reasonable doubt that Defendant murdered Jay Tyler, Kathy Tyler,
and Brandy Southard. The jury further determined that this one aggravator
outweighed any mitigating factors, and recommended that the death sentence
be imposed.
Once the jury has made its recommendation, the jury is dismissed, and
the trial court has the duty of making the final sentencing determination
at the sentencing hearing. First, the trial court must find that the State
has proven beyond a reasonable doubt that at least one of the aggravating
circumstances listed in the death penalty statute exists. See Ind. Code §
35-50-2-9(k)(1) (1998). Second, the trial court must find that any
mitigating circumstances that exist are outweighed by the aggravating
circumstance or circumstances. See id. § 35-50-2-9(k)(2). Third, before
making the final determination of the sentence, the trial court must
consider the jury’s recommendation. See id. § 35-50-2-9(e). The trial
court must make a record of its reasons for selecting the sentence that it
imposes. See id. § 35-38-1-3.
In imposing the death sentences in the instant case, the trial court
found that the State proved beyond a reasonable doubt one of the
aggravating circumstances listed in the death penalty statute — that
Defendant committed multiple murders. (R. at 32,436-48.) The record and
the law support this finding.
At the sentencing hearing, Defendant presented one additional
witness, Sister Helen Prejean, who testified to her personal account of
past experiences in consoling death row inmates and also provided testimony
relating to her religious beliefs which underpinned her view against
capital punishment. After hearing Sister Helen’s testimony and considering
Defendant’s final argument to the trial court, the trial court issued its
sentencing order. In the sentencing order, the trial court primarily
reflected upon Funk’s account of the events leading up to the murder,
including the Napier mobile home burglary and Defendant’s car chase of the
victim’s truck throughout Warrick County’s rural roads. The court also
recounted the substance of Funk’s testimony on the commission of the
murders: that when the Tyler truck had stopped, Defendant grabbed his SKS
rifle and began to fire as soon as Jay Tyler opened his door; that when the
shooting stopped, Defendant got back in his car, drove some fifty to
seventy-five feet, stopped the car, and got out; that a few minutes later,
Defendant returned to the car and told Funk, “You breathe a word of this
and I’ll kill you.” The trial court then acknowledged that Defendant
“effectively” attacked Funk’s veracity “on many points.” (R. at 32,441.)
The trial court also considered the testimony of alibi witnesses as well as
the testimony of other witnesses indicating that another person admitted
involvement in the crimes. However, based upon Funk’s testimony and other
evidence introduced during the guilt-determination phase, the trial court
concluded that the State proved beyond a reasonable doubt that Defendant
committed three separate murders in a single incident. See Ind. Code § 35-
50-2-9(b)(8).
The trial court found three non-statutory mitigating factors[32]
which were listed in the presentence report: (i) in 1995, the Indiana
legislature offered a sentence of Life Without Parole as an equal
alternative to the death penalty; (ii) the majority of offenders held in
Indiana prisons who have committed multiple murders were not sentenced to
death; and (iii) Defendant demonstrated that he could safely be imprisoned
if a sentence of Life Without Parole were imposed. (R. at 32,444-45; see
also Defendant’s Presentence Report at 5-6.) The court assigned “low
weight” to these three mitigation factors. (R. at 32,444.) The trial court
also showed “great respect” for Sister Helen Prejean’s position against the
death penalty, and even acknowledged that the “vast majority of religious
organizations in the Unites States favor the abolition of the death
penalty” (R. at 32,444), but declined to consider the “very significant
moral issue as a mitigation circumstance in the sentencing process,” (id).
In accordance with our death penalty statute, the trial court found
that the non-statutory mitigating circumstances were outweighed by the
multiple murder aggravator for all three counts of murder. The trial court
also gave consideration to the jury’s recommendation, the presentence
report, and Defendant’s independent report. We find that the trial court’s
sentencing order complies with the requirements imposed by the death
penalty statute and case law.
Based on our review of the record and the law, we agree with the
trial court’s conclusion that the State proved beyond a reasonable doubt
the (b)(8) aggravating circumstance promulgated in the death penalty
statute. As discussed in Part IX, supra, during the guilt-determination
phase of the trial, Defendant repeatedly attacked the veracity of Funk’s
and Mossberger’s testimony, presented testimony that someone else could
have committed the murders, and offered the testimony of four alibi
witnesses. Yet both the jury and the trial court found the testimony of
Funk and Mossbeger to be more credible than the Defendant’s witnesses and
other exculpatory evidence. The witness testimony offered by Defendant and
the inconsistencies in Funk’s testimony persuaded neither the trial court
nor the jury of Defendant’s innocence. We are also not persuaded. We
agree with the trial court that the aggravating circumstance outweighs the
non-statutory mitigating circumstances. We find that residual doubt does
not provide a basis for revising Defendant’s sentences to life without
parole, and therefore conclude that the death penalty is appropriate for
Defendant’s murder of John “Jay” Tyler, Kathy Tyler, and Brandy Southard.
Conclusion
We affirm Defendant’s convictions and the imposition of the death
sentences.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code § 35-43-2-1 (1993).
[2] Id. § 35-43-4-2(a).
[3] Id. § 35-42-1-1(1).
[4] Id. § 35-50-2-9(b)(14)(B) (Supp. 1995). In 1996, the Indiana
legislature re-designated subsection (b)(14) to subsection (b)(15) for
crimes committed after June 30, 1996. See P.L. 228-1996 § 1.
[5] Id. § 35-50-2-9(b)(3).
[6] Id. § 35-50-2-9(b)(8).
[7] The jury determined that Defendant committed the multiple murder
aggravator under Indiana Code § 35-50-2-9(b)(8), allowing for the
imposition of the death penalty.
[8] A statement is not hearsay under Evid. R. 801(d)(1)(B)
if [t]he declarant testifies at trial or hearing and is subject to
cross-examination concerning the statement, and the statement is . . .
consistent with the declarant’s testimony, offered to rebut an express
or implied charge against the declarant of recent fabrication or
improper influence or motive, and made before the motive to fabricate
arose.
Id.
[9] On direct examination, Utzman testified to the following out-of-
court statements made by Dale Funk about the shooting:
[Prosecutor]: And on the way back [from Evansville], did you
and Dale [Funk] have any conversation?
[Utzman]: Yes, we did.
[Prosecutor]: What did you talk about?
[Utzman]: Ah, he was looking scared and nervous about ALCOA,
and I asked him what was wrong with him.
[Prosecutor]: Did he say he was looking scared and nervous
about
ALCOA? I didn’t mean to interrupt you.
[Utzman]: And I asked him what was wrong, and he said that he
took the wrong ride. And I really didn’t understand
what he was saying at the time. But I said, “What do
you mean,” you know, and he said, “Well, I took the
wrong ride. I was there when it happened.” And I
didn’t know what he was talking about.
[Defense counsel]: Show objection to the question, Your Honor.
It’s hearsay
(R. at 25,636-37) (emphases added).
[10] This was the position of the five-justice majority as expressed
in an opinion written by Justice Kennedy and joined by Justices, Stevens,
Scalia, Souter, and Ginsburg. Chief Justice Rehnquest, and Justices
O’Conner, and Thomas, and Breyer would have allowed “relevant” consistent
out-of-court statements admitted even after the motive to fabricate arose.
Tome, 513 U.S. at 169 (Breyer, J. dissenting).
[11] Defendant similarly relies upon our decisions in Bouye and
Thompson to lend support to his argument that Funk, as an “admitted
accomplice,” had an improper motive to fabricate at the time of the
murders. However, we also found that these two precedents do not “require
us to find a motive to fabricate, automatically, at the time the crime
occurred or where the declarant has been questioned by the police in
connection with the matter.” Sturgeon, 719 N.E.2d at 1178.
[12] Apparently, Juror Fox was a former reporter and wanted to use the
notebook as a “springboard for a creative writing project,” such as a book
or a journal. (R. at 32,523, 32,535.)
[13] The trial court held a post-trial hearing concerning Juror Fox’s
notebook. Fox testified before the court and explained that after the
trial had ended, he explored the circumstances surrounding the case by
reading newspaper articles and interviewing officers who testified at
trial. Fox stated that while pursuing his research on the case, he had
destroyed “more than half” of the original notebook by updating and
revising the notebook. Fox testified that he did not have a copy of the
original notebook on file, saved on a floppy disk, or saved on his computer
hard-drive. Because the original notebook could not be produced or re-
produced at the post-trial hearing, the notebook admitted at the trial
level and reviewed by this Court is not the same notebook taken into jury
deliberation.
[14] The principal concern addressed by theses cases was whether note
taking distracted jurors from hearing all the testimony and paying
attention to the credibility and demeanor of witnesses and whether the
jurors relied too much on their notes rather than their memory. These
cases held that at least limited or minor note taking could serve to keep
the minds of jurors from wandering during trial.
[15] Indiana Evidence Rule 702 allows testimony by experts where
specialized knowledge will assist the trier of fact and the expert is
qualified by knowledge, skill, experience, training or education. Whether
or not an expert witness meets these requirements and should be allowed to
testify is within the sound discretion of the trial court. See Roach v.
State, 695 N.E.2d 934, 939 (Ind.1998), reh’g granted on other grounds, 711
N.E.2d 1237 (Ind. 1999).
[16] According to forensic pathologist Dr. Heidingsfelder, “rigor
mortis is the stiffening that takes place in human skeletal muscle after
death. It actually begins at the time of death [and] becomes perceivable
or noticeable at about five (5) or six (6) hours after death.” (R. at
22,449-50.)
[17] According to Mossberger’s testimony, Defendant went to
Mossberger’s house, held a knife by his (Defendant’s) face, and said, “Jay,
Kathy, and Brandy are no more.” (R. at 24,674-75.) Mossberger also
testified that Defendant instructed him to “[d]o something with the SKS;
get rid of it; make it gone.” (R. at 24,678.) Mossberger said that he
complied with Defendant’s demand and buried the assault rifle and
ammunition in the woods the next day. (R. at 24,752-53, 24,770, 24,798-
99.)
[18] Indiana Evidence Rule 609(a) states:
For the purpose of attacking the credibility of a witness, evidence
that the witness has been convicted of a crime or an attempt of a
crime shall be admitted but only if the crime committed or attempted
is (1) murder, treason, rape, robbery, kidnapping, burglary, arson,
criminal confinement or perjury; or (2) a crime involving dishonesty
or false imprisonment.
[19] Defendant also claims that he was compelled to choose between his
constitutional right to a fair trial and his constitutional right to a
speedy trial. However, he does not develop this claim further. See Ind.
Appellate Rule 8.3(A)(7).
[20] Crim. R. 4(B)(1) provides:
If any defendant held in jail on an indictment or an affidavit shall
move for an early trial, he shall be discharged if not brought to
trial within seventy (70) calendar days from the date of such motion,
except where a continuance within said period is had on his motion, or
the delay is otherwise caused by his act, or where there was not
sufficient time to try him during such seventy (70) calendar days
because of the congestion of the court calendar. Provided, however,
that in the last-mentioned circumstance, the prosecuting attorney
shall file a timely motion for continuance as set forth in subdivision
(A) of this rule. Provided further, that a trial court may take note
of congestion or an emergency without the necessity of a motion, and
upon so finding may order a continuance. Any continuance granted due
to a congested calendar or emergency shall be reduced to an order,
which order shall also set the case for trial within a reasonable
time.
[21] It is well established that when a motion for discharge for a
Criminal Rule 4 violation is made prematurely, it is properly denied. See
Bell v. State, 622 N.E.2d 450 (Ind. 1993); Perry v. State, 471 N.E.2d 270,
273 (Ind. 1984). As such, the trial court in this case properly denied
Defendant’s motion to dismiss which was prematurely filed 34 days into the
speedy trial period.
[22] In his first motion for continuance, Defendant argued, inter
alia, that as of July 19, 1996, the State had not allowed Defendant access
to the murder weapon. Defendant further claimed that the State had yet to
complete its analysis of hair, blood, and fiber samples for Defendant’s
independent review and inspection. On July 24, 1996, Defendant requested a
court order instructing the State to release the murder weapon and shell
casings for testing by a defense expert. The trial court granted the
motion, ordering the State to either release such evidence to Defendant’s
agents or make it available for testing at the Warrick County Security
Center. The State promptly complied with the court order.
[23] Defense counsel stated:
We received additional information [on July 25th] that is going to
require the re-deposing of at least two (2) witnesses, and perhaps
three (3), based on information that was not divulged in the first
deposition . . . I think the State is aware of what I’m speaking of .
. . it’s not something that [the State] contrived or done[sic]
willfully . . . but [the depositions] just have to be done. And we’re
in a situation with that, trying then to move into a mode to prepare
the final motions that are going to have to be . . . filed.
(R. at 8,541.)
[24] We express no opinion on the amount of detail the prosecutor was
required to disclose in support of the requested continuance. In certain
continuances, it will be appropriate for a party when requesting a
continuance to ask the court to review supporting documentation in camera.
[25] Our review of the record indicates that the court reporter and
lead defense counsel engaged in a conversation in which the court reporter
informed counsel that the jury had requested Defendant’s taped statement to
police. (R. at 3,772-73, 3,790, 3,808-09.) However, defense counsel
neither objected nor asserted his concerns before the trial court. (Id.)
The facts are in dispute, however, as to whether the court reporter
informed counsel about the jury’s request for the depositions of Funk and
Mossberger. The court reporter provided a sworn affidavit dated September
4, 1997, which states in relevant part:
That whenever Mr. Long returned to the Courthouse after being
notified that the Jury in the above-captioned cause of action had
reached a verdict, but before counsel for the State had arrived and
before the verdict was received from the Jury, [defense counsel] asked
if the Jury had requested any exhibits during their deliberation. I
advised him [that] the Jury had requested Defendant’s taped statement,
and the depositions of Brian Mossberger and Dale Funk. . . . [Defense
counsel] stated he did not believe the State would have had a case
without his client’s statement, and [defense counsel] did not indicate
any objection to me or the judge as to the way the matter was handled.
(R. at 3,809) (emphases added).
In contrast, Defendant claims that the court reporter only informed
him of the jury’s request to listen to Defendant’s taped statement, and it
was only after he read the State’s response to Defendant’s motion to
correct errors that he learned of the jury’s request to see the
depositions. The record of proceedings is unclear as to when or how the
State was advised about the communication.
[26] For a discussion of a defendant’s right to be present under the
Sixth and Fourteenth Amendments under the federal constitution in the
context of a judge-jury ex parte communication, see Pendergrass, 702 N.E.2d
at 718-19 n.3.
[27] Having found that, collectively, these post-autopsy photographs
were properly admitted during the guilt-determination phase, we decline
Defendant’s invitation to address whether such evidence subsequently unduly
prejudiced the jury during the penalty phase. See Appellant’s Br. at 68
(arguing that post-autopsy photographs which “depict removed organs and
body parts should be reviewed under the principles of proportionality
outlined” in Bivins v. State, 642 N.E.2d 928 (Ind. 1994), because “evidence
from the guilt phase is incorporated into and considered by the jury in the
penalty phase” (citing Ind. Code § 35-50-2-9(d)).
[28] Defendant contends that there was “absence of circumstantial
evidence” and no physical evidence connecting him to the murders because no
blood, hair, or fiber, was found in his car or on his clothes, see
Appellant’s Br. at 27 (citing to R. at 27,298, 28,865, 28,935), and his
fingerprints were absent from the Tyler truck, the murder weapon, and the
ammunition case, see id. (citing R. at 24,298, 21,498, 28,865, 28,775,
28,935). Defendant also points out that neither shoe prints nor tire
tracks placed him at the crime scene. See id. (citing R. at 28,935.)
[29] The alibi witnesses included Julie Girtman and Caroline Pevelak,
and their mother, Emily Girtman. Julie and Emily offered testimony
indicating that on the night the murders, they were watching the 10:00
evening news on television when Defendant pulled into their driveway.
Julie testified that she went outside to speak to Defendant for about 25
minutes. During this time, her sister, Cindy Pevelak, drove up and noticed
Defendant and her sister Julie engaged in conversation. Julie and Emily
testified that when Julie returned from talking to Defendant, the 10:00
p.m. program had ended and the sitcom show “Cheers” came on.
[30] We note that at the time the murders occurred, the effective
statutory aggravators upon which Defendant could have been sentenced to
death or life imprisonment without parole were listed in subsections (b)(1)
through (b)(14). See Ind. Code § 35-50-2-9 (Supp. 1995). The legislature
has since then promulgated two more statutory aggravators under subsection
(b). See P.L. 228-1996, § 1; P.L. 261-1997 § 7.
[31] The public information officer offered the following testimony:
[Defense Counsel]
Q: How many men on death row in the State of Indiana are on death
row for committing multiple murder?
[Public information officer]
A: Twenty-three (23)
Q: . . . [H]ow many men are in our state prisons, not on death
row, who have committed multiple murder?
A: As of 5/14/97, there were one hundred eighty-five (185).
(R. at 31,859.)
[32] According to Indiana Code § 35-50-2-9(c)(8) (1998), a trial court may
find mitigating “[a]ny other circumstances appropriate for consideration.”