Attorneys for Appellant
Kevin P. McGoff
Alicia A. Gooden
Kiefer & McGoff
Indianapolis, IN
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Michael McLaughlin
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
RANDALL L. HUBBARD,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 55S00-9808-CR-428
)
)
)
)
)
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APPEAL FROM THE MORGAN CIRCUIT COURT
The Honorable James E. Harris, Judge
Cause No. 55C01-9612-CF-271
ON DIRECT APPEAL
January 16, 2001
SULLIVAN, Justice.
Defendant Randall L. Hubbard was convicted of murder and robbery
after shooting two employees of a VFW post in the back of their heads and
taking about $600 from the post. Defendant’s challenge to the trial
court’s instructions on accomplice liability fails because there was
sufficient evidence to support it. We also reject his request that we
abandon our long-held rule against the admissibility of polygraphs tests.
We have jurisdiction over this appeal because the longest single
sentence exceeds 50 years. Ind. Const. art. VII, § 4; Ind. Appellate Rule
4(A)(7).
Background
The facts most favorable to the verdict show that on the morning of
November 27, 1996, an employee of a Martinsville VFW post arrived at work
and found two of his co-workers dead. Both had been working the previous
evening and both had been shot from behind with a nine millimeter handgun.
Police subsequently determined that about $600 had been stolen from the
post.
Defendant was arrested and tried for the murders and the robbery. A
local bartender testified that Defendant was carrying a nine millimeter
handgun on the night of the murders. One Dean Burpo testified that when
Burpo left the post around midnight, Defendant was alone with the two
victims. Burpo also testified that one of the victims was preparing to
close the post and was counting out the night’s earnings. After the
murders, several witnesses saw Defendant in two Martinsville bars. He had
recently changed clothes and taken a shower. Several witnesses testified
that he was carrying a large sum of money although he had been penniless
earlier in the evening.
At trial, Defendant argued that one Gary Thacker, a former co-worker
of Defendant’s, had committed the murders while Defendant was merely a
bystander. Several witnesses testified that Defendant had told them that
he was at the post during the killings but that he was there only in order
to give Thacker a ride. These witnesses also testified that Defendant had
told them that Thacker shot the victims. Defendant said that Thacker
spared his life in order to implicate him, threatened him not to tell
anyone about the killings, and gave him money.
Defendant was charged on December 1, 1996, with two counts of
Murder,[1] two counts of Felony Murder,[2] and one count of Robbery.[3] On
May 6, 1998, a jury convicted Defendant on all counts, with judgment being
entered on the two murder counts and the robbery count. The trial court
sentenced Defendant to two consecutive terms of 60 years for the murders
and a term of 45 years for the robbery.
Discussion
I
Defendant contends that the trial court committed reversible error by
instructing the jury on accomplice liability.[4] We review the grant of a
jury instruction for abuse of discretion. See Benefiel v. State, 716
N.E.2d 906, 914 (Ind. 1999) (“Jury instruction lies largely within the
discretion of the trial court. On appeal, such issues are reviewed for
abuse of discretion.”) (citations omitted), cert denied, 121 S. Ct. 83
(2000); Smith v. State, 668 N.E.2d 661, 662 (Ind. 1996) (“Instructing the
jury is a matter assigned to the sound discretion of the trial court, and
we review a trial court’s decisions only for an abuse of discretion.”).
Moreover, an improper instruction will merit reversal only if it “so
affects the entire charge that the jury was misled as to the law in the
case.” White v. State, 547 N.E.2d 831, 835 (Ind. 1989).
In reviewing a challenge to a jury instruction, “this Court considers
whether the instruction correctly states the law, whether there was
evidence in the record to support the giving of the instruction, and
whether the substance of the tendered instruction is covered by other
instructions ... .” Sherwood v. State, 702 N.E.2d 694, 698 (Ind. 1998).
Defendant argues under the second prong that the evidence was insufficient
to support the trial court giving the accomplice liability instructions.[5]
The State finds the requisite evidence in testimony that Defendant was at
the VFW post when the murders were committed, had returned to the post to
give Thacker a ride, and was spotted later that evening with an amount of
cash similar to the amount taken from the post. Appellee’s Br. at 12-14.
This evidence supports the trial court’s instructions. Defendant’s
conduct – indeed, his theory of the case – created at least an inference
that if he did not kill the victims himself, he aided Thacker in the
murders. Defendant was acquainted with Thacker as the two had previously
worked together. Witnesses saw Defendant have a brief conversation with
Thacker early in the evening on the night of the murders. As previously
noted, Defendant came to the VFW post around the time of the murders with
the stated purpose of giving Thacker a ride. Finally, Thacker testified
that Defendant had previously asked Thacker to join him in performing armed
robberies. This evidence is sufficient to support the instructions on
accomplice liability. See, e.g., Echols v. State, 722 N.E.2d 805, 807
(Ind. 2000) (“A defendant’s mere presence at the crime scene is
insufficient to establish accomplice liability. By itself, a defendant’s
lack of opposition to the crime is also insufficient to establish
accomplice liability. Nonetheless, both of these factors may be considered
in conjunction with a defendant’s course of conduct before, during, and
after the crime, and a defendant’s companionship with the one who commits
the crime.”); Wisehart v. State, 693 N.E.2d 23, 51 n.32 (Ind. 1998)
(finding sufficient evidence to support instruction on accomplice liability
where two police officers testified that “‘it was a possibility’ that
[defendant] did not act alone in committing the crime.”); McQueen v.
State, 711 N.E.2d 503, 506 (Ind. 1999) (“With evidence supporting the
inference that either of the McQueens could have been the actual killer
with the other aiding in the crime, we find the trial court justified in
giving an instruction on accessory liability.”).[6]
II
Defendant argues that the trial court committed reversible error when
it excluded the results of a polygraph examination administered to Thacker.
Defendant offered this evidence in his effort to show that Thacker
committed the murders. Defendant’s offer of proof shows that the polygraph
examiner would have testified that he believed Thacker was not “completely
truthful. ... [I]t is unknown to this examiner if Mr. Thacker was involved
in shooting either [victim] or if he is withholding information about this
case.” (R. at 4501, 4524.) Defendant argues that the exclusion of this
testimony violated his federal constitutional right to a put on a defense
and contravened Indiana Rule of Evidence 702. We disagree with both
arguments.
A
First, Defendant asks us to revisit our holding in Perry v. State
that exclusion of polygraph results absent a stipulation does not violate a
defendant’s constitutional right to put on a defense. 541 N.E.2d 913, 915
(Ind. 1989). A reexamination of this approach to polygraph evidence
encounters no constitutional impediment. A criminal defendant does not
enjoy an unlimited constitutional right to offer exculpatory evidence. See
Roach v. State, 695 N.E.2d 934, 939 (Ind. 1998) (“[W]hile the right to
present witnesses is of the utmost importance, it is not absolute.”);
Kellems v. State, 651 N.E.2d 326, 328 (Ind. Ct. App. 1995) (“The right to
present witnesses is of critical importance, but it is not absolute. In
appropriate cases, the right must yield to other legitimate interests in
the criminal trial process.”) (emphasis added) (citing Chambers v.
Mississippi, 410 U.S. 284, 296, 93 S. Ct. 1038, 1046, 35 L.Ed.2d 297
(1973)). Instead, the Constitution requires us to balance the competing
interests at stake:
[W]hen the defendant’s Sixth Amendment right to present a defense
collides with the State’s interest in promulgating rules of evidence
to govern the conduct of its trials, the merits of the respective
positions must be weighed, [and] the State’s interest must give way to
the defendant’s rights if its rules are “mechanistically” applied to
deprive the defendant of a fair trial.
Huffman v. State, 543 N.E.2d 360, 375 (Ind. 1989) (citing Chambers, 410
U.S. at 302), overruled in part on other grounds, Street v. State, 567
N.E.2d 102 (Ind. 1991).
The United States Supreme Court has recently employed this analysis
to uphold a similar per se exclusion of polygraph results in military
courts. United States v. Scheffer, 523 U.S. 303, 118 S. Ct. 1261, 110
L.Ed.2d 413 (1998). The defendant in that case argued that Military Rule
of Evidence 707 – which explicitly excludes the results of a polygraph
test[7] – unconstitutionally prevented him from mounting a defense. The
Court disagreed, phrasing its analysis in terms of balancing interests:
A defendant’s right to present relevant evidence is not unlimited, but
rather is subject to reasonable restrictions. A defendant’s interest
in presenting such evidence may thus “‘bow to accommodate other
legitimate interests in the criminal trial process.’” As a result,
state and federal rulemakers have broad latitude under the
Constitution to establish rules excluding evidence from criminal
trials. Such rules do not abridge an accused’s right to present a
defense so long as they are not “arbitrary” or “disproportionate to
the purposes they are designed to serve.” Moreover, we have found the
exclusion of evidence to be unconstitutionally arbitrary or
disproportionate only where it has infringed upon a weighty interest
of the accused.
Id. at 308 (citations omitted). The Court then identified the government
interests in excluding polygraph results as “ensuring that only reliable
evidence is introduced at trial, preserving the court members’ role in
determining credibility, and avoiding litigation that is collateral to the
primary purpose of the trial.” Id. at 309.[8] The Court concluded that
these interests outweighed the defendant’s limited interest in presenting
what it deemed to be inherently unreliable evidence:
Although the degree of reliability of polygraph evidence may depend
upon a variety of identifiable factors, there is simply no way to know
in a particular case whether a polygraph examiner’s conclusion is
accurate, because certain doubts and uncertainties plague even the
best polygraph exams. Individual jurisdictions therefore may
reasonably reach differing conclusions as to whether polygraph
evidence should be admitted. We cannot say, then, that presented with
such widespread uncertainty, the [government] acted arbitrarily or
disproportionately in promulgating a per se rule excluding all
polygraph evidence.
Id. at 312. Moreover, the Court made clear that the defendant’s interest
in the polygraph evidence was also undercut by the fact that the defendant
was able to present “all the relevant details of the charged offense from
the perspective of the accused, and the Rule did not preclude him from
introducing any factual evidence.” Id. at 317.
We hold that even if Scheffer is not controlling precedent here,[9]
its analysis of the reliability of polygraph test results demonstrates that
Indiana’s per se exclusion is neither “arbitrary” nor “disproportionate” to
the State’s interest in a fair trial. See id. at 309. Defendant argues
that the reliability of polygraph tests has improved sufficiently since
Perry to warrant their admission into evidence. He cites numerous academic
articles as well as federal cases that have admitted polygraph results.[10]
He also notes that law enforcement officials often rely on polygraph
tests in their investigations. The authority Defendant cites, however,
only goes to show the depth of disagreement as to the reliability of
polygraph tests. As Scheffer pointed out:
[T]here is simply no consensus that polygraph evidence is reliable.
To this day, the scientific community remains extremely polarized
about the reliability of polygraph techniques. Some studies have
concluded that polygraph tests overall are accurate and reliable.
Others have found that polygraph tests assess truthfulness
significantly less accurately – that scientific field studies suggest
the accuracy rate of the ‘control question technique’ polygraph is
‘little better than could be obtained by the toss of a coin’ ... .
Id. at 309-10 (citations omitted). This well-documented disagreement among
the experts undermines the reliability of polygraph test results and
validates the State’s interest in excluding such results without a
stipulation. Defendant’s limited interest in putting on unreliable
evidence does not outweigh the State’s interest in ensuring that its trials
are fair.
B
Defendant next argues that even if the State could constitutionally
exclude polygraph evidence, to do so in this case violates the Indiana
Rules of Evidence. We review a trial court’s evidentiary rulings for an
abuse of discretion. See McGrew v. State, 682 N.E.2d 1289, 1292 (Ind.
1997). Specifically, a polygraph examiner is an expert witness and as such
“the relevant rules require that the expert be qualified to testify, the
trial court be satisfied that the scientific principles upon which the
expert testimony rests are reliable, and the testimony’s probative value is
not substantially outweighed by the dangers of unfair prejudice.” Smith v.
State, 702 N.E.2d 668, 672 (Ind. 1998) (citing Ind. Evidence Rules 403 and
702; Harrison v. State, 644 N.E.2d 1243, 1252 (Ind. 1995)). The trial
court found that while sufficiently reliable, the potential prejudice from
the test outweighed its value. We do not reach this final inquiry because
– as indicated above – we reaffirm this Court’s longstanding view that
polygraph test results are not sufficiently reliable to warrant admission
absent a stipulation.
Conclusion
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code § 35-42-1-1 (1993)
[2] Id.
[3] Id. § 35-42-5-1.
[4] The instructions on accomplice liability were as follows:
[Final Instruction No. 4]
A person is responsible for the actions of another person when,
either before or during the commission of a crime, he knowingly aids,
induces, or causes the other person to commit a crime. To aid is to
knowingly support, help, or assist in the commission of a crime.
In order to be held responsible for the actions of another, he
need only have knowledge that he is helping in the commission of a
crime. He does not have to personally participate in the crime nor
does he have to be present when the crime is committed.
Proof of the defendant’s failure to oppose the commission of a
crime, companionship with the person committing the offense, and
conduct before and after the offense may be considered in determining
whether aiding may be inferred.
[Final Instruction No. 5]
A person who knowingly or intentionally aids, induces, or causes
another person to commit an offense commits that offense, even if the
other person:
(1) Has not been prosecuted for the offense;
(2) Has not been convicted of the offense;
(3) Has been acquitted of the offense.
(R. at 792-93.)
[5] Under the Indiana Code, “[a] person who knowingly or
intentionally aids, induces, or causes another person to commit an offense
commits that offense ... .” Ind. Code § 35-41-2-4 (1993). Defendant does
not argue that the instructions incorrectly stated the law or were
cumulative.
[6] Defendant argues that because the State’s primary theory at trial
was that Defendant acted alone, it could not alternatively seek an
instruction on accomplice liability. However, the trial court could
instruct the jury on accomplice liability as long as the evidence supported
the instruction. See McQueen, 711 N.E.2d at 506 (“Thus, one may be charged
as a principal yet convicted as an accomplice. ... [T]he instruction on
accessory liability does not represent an additional charge or a new theory
of the case.”); Hoskins v. State, 441 N.E.2d 419, 424-25 (Ind. 1982) (“The
evidence which tended to show that the appellant himself did not actually
commit the murders was introduced by Appellant in an effort to show that he
was present and took part in the robbery but did not take part in any
killings. The instructions on confederate liability were properly given by
the trial court. ... One can be charged as a principal and convicted on
proof that he aided or abetted another in committing the crime.”).
Moreover, this tactic by the State did not shift the burden of proof at
trial to Defendant, as he asserts, but merely presented an alternative
theory to the jury.
[7] The comments to Military Rule of Evidence 707 make clear that the
Rule requires the exclusion of all polygraph evidence, even if the parties
stipulate otherwise. Manual for Courts-Martial, United States A22-49 (1998
ed.). See also United States v. Clark, No. 99-0545 (C.A.A.F. August 16,
1999) (holding that Military Rule of Evidence 707 required exclusion of
polygraph evidence even if the parties stipulate to its admission). As
such, the military rule upheld by Scheffer is even more restrictive than
the rule we follow here.
[8] Justice Thomas’s opinion carried a majority as to the government’s
interest in ensuring the reliability of evidence, but only a plurality on
the other two purported interests.
[9] Defendant attempts to distinguish Scheffer on the grounds that the
test results in that case were only offered to “bolster [the defendant’s]
credibility,” while the evidence here is offered “to support his defense.”
Appellant’s Br. at 36. This distinction is unpersuasive, as polygraph test
results are unreliable regardless of whether they are offered as
substantive evidence or for impeachment.
[10] Defendant cites these cases only to show that federal courts have
admitted polygraph results under the Federal Rules of Evidence. He cites
no case that requires the admission of polygraph results as a
constitutional proposition.