ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Charles E. Stewart, Jr. Karen M. Freeman-Wilson
Crown Point, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
SUPREME COURT OF INDIANA
SHARNEE ROBERT APPLETON, )
Appellant (Defendant Below ), )
v. ) No. 45S00-9901-CR-00062
STATE OF INDIANA, )
Appellee (Plaintiff Below ). )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Richard W. Maroc
Cause No. 45GO1-9803-CF-00055
January 8, 2001
SHEPARD, Chief Justice.
In appellant Sharnee Appletons trial, one of the States witnesses testified that Appleton
had not even been present at the scene of the crime. The
court permitted the prosecution to impeach this witness by reading line-by-line a prior
inconsistent statement in which the witness described Appletons participation. We hold this
was error, but harmless in this case.
Facts and Procedural History
The facts most favorable to the jury verdict revealed that on the evening
of March 13, 1998, Ruby Haught, Ron Solberg, and others were visiting and
smoking crack with Martha Fitts and John Williams (a.k.a. Country Man) at their
home in Gary. After Sharnee Appleton (Pooh) and his two cohorts confronted
Charmaine Blanchard (Little Mama) outside, the attackers entered the home and continued their
search for a snitch. Believing Solberg was a police informant,
Appleton attacked Solberg and wrapped his head, ankles, and hands with duct tape.
The assailants struck Haught and Mary Cox (whose obnoxious behavior upon arrival at
the home provoked her involvement. They wrapped these two with duct tape
as they had Solberg. Then, the assailants escorted the three victims to
Solbergs van. During the van ride, Solberg freed himself from the duct
tape located a steel rod to use as a weapon, and attacked Appleton.
Appleton fired his pistol wildly, wounding Solberg. Upon realizing
that they were out of bullets, the abductors hastily ignited a fire in
the van and fled. After extinguishing the fire on his clothing, Solberg
discovered Haught dead and Cox severely injured.
Appletons subsequent trial produced convictions on one count of murder, two counts of
attempted murder, and three counts of confinement. The trial court sentenced Appleton
to a prison term totaling 110 years.
Line-by-Line Recitation of Pretrial Statements
Before the trial, Blanchard and Williams gave statements implicating Appleton to the police.
Nevertheless, the witnesses partially repudiated these statements while on the stand:
Blanchard admitted that Appleton participated in some of the events and Williams denied
that Appleton was present at the house during the incident.
During her examination of Blanchard and Williams, the prosecutor read the witnesses direct
quotes from their pretrial statements and inquired about the accuracy of those particular
declarations. Even though the trial court admonished the jury on multiple occasions
not to treat this examination as substantive evidence, Appleton maintains that the court
committed reversible error by allowing this type of questioning.
A trial court possesses broad discretion in ruling on the admissibility of evidence.
Bacher v. State, 686 N.E.2d 791 (Ind. 1997). Moreover, even if
a court errs in admitting evidence, we will not overturn the conviction if
the error is harmless. Ind. Trial Rule 61; Cooley v. State, 682
N.E.2d 1277 (Ind. 1997). An error will be viewed as harmless if
the probable impact of the evidence upon the jury is sufficiently minor so
as not to affect a partys substantial rights. Fleener v. State, 656
N.E.2d 1140 (Ind. 1995).
Indiana courts have struggled a bit over how to treat out-of-court statements made
by a witness before trial. A quarter century ago, this Court declared
that prior out-of-court statements, even those not under oath, could be admitted as
substantive evidence. Patterson v. State, 263 Ind. 55, 58, 324 N.E.2d 482,
484-85 (1975) (overruled, as discussed below). We soon recognized the problems inherent
in this decision, however, and attempted to minimize some harmful side effects.
See Lewis v. State, 440 N.E.2d 1125, 1130 (Ind. 1982) cert. denied, 461
U.S. 915 (1983) (courts should not permit the State to put in substantive
evidence of the witness-declarants version of the facts solely through the admission of
the witness prior statement under the pretext of the Patterson rule); Samuels v.
State, 267 Ind. 676, 679, 372 N.E.2d 1186, 1187 (1978) (condemning unjustifiable extensions
of Patterson and indicating that admission of out-of-court statements as substitute for available
in-court testimony will no longer be permitted).
Eventually, we concluded that the additional requirements and limitations of the Patterson rule
made it unworkable. We therefore overruled it. See Modesitt v. State,
578 N.E.2d 649, 652-54 (Ind. 1991).
In Modesitt, we adhered to the Federal Rules of Evidence and limited the
admission of a prior statement as substantive evidence to certain situations. Id.
at 654; see now Ind. Evidence Rule 801(d). By permitting only those
prior inconsistent statements made under oath to be considered substantive evidence, we hoped
to impress upon a witness the solemnity and importance of his or her
statements and remind the witness that being dishonest may result in a perjury
indictment. Modesitt, 578 N.E.2d at 653. We also attempted to restrain
the practice of calling numerous persons to testify about the same statement given
by a particular witness, thereby preventing a drumbeat repetition of the witnesss original
The goals of Modesitt and Rule 801(d) demonstrate why the trial court erred
in permitting the State to directly examine the witnesses in this manner.
Trials should principally proceed on the basis of testimony given in court, not
statements or affidavits obtained before trial.
First, it is important to note that John Williams participated in the trial
as a prosecution witness. During argument on Appletons motion in limine, the
defense questioned the States motive for calling Williams. The State indicated that
Williams would be put on the stand because he talks about and substantiates
things to which the other witnesses testified. (R. at 519.) The
prosecution also acknowledged its intention to impeach Williams. (
Id.) While it was
not barred from doing so just because Williams appeared as a State witness,
Ind. Evidence Rule 607, a party is forbidden from placing a witness on
the stand when the partys sole purpose in doing so is to present
otherwise inadmissible evidence cloaked as impeachment. See United States v. Ince, 21
F.3d 576, 580-81 (4th Cir. 1994); United States v. Kane, 944 F.2d 1406,
1411-12 (7th Cir. 1991); United States v. Gossett, 877 F.2d 901, 907 (11th
Cir. 1989), cert. denied, 493 U.S. 1082 (1990); Impson v. State, 721 N.E.2d
1275, 1281 (Ind. Ct. App. 2000).
Because Williams owned the home where the events began and observed the three
assailants attack the victims, it is reasonable that the State wanted him to
testify for purposes other than impeachment. Although one must wonder whether the
States goals were truly effectuated by Williams testimony, we cannot definitively declare that
the State placed Williams on the stand for the sole purpose of impeaching
Nevertheless, the States method of impeaching Williams left much to be desired.
Under our rules, a party may impeach a witness by extrinsic evidence of
a prior inconsistent statement. Ind. Evidence Rule 613(b). However, once a
witness has admitted an inconsistent prior statement she has impeached herself and further
evidence is unnecessary for impeachment purposes. Pruitt v. State, 622 N.E.2d 469,
473 (Ind. 1993).
In Pruitt, one of the witnesses had given an audiotaped statement to Indiana
State Police detectives. At trial, however, the witness recanted her prior statement
and insisted that she lied when talking to the police. When the
State initially asked the court for permission to play the tape for the
jury, the trial court refused because the witness had already recanted her prior
statement. Id. at 472-73. Nonetheless, as her examination progressed, the witness
claimed that she had been submitted to police duress; therefore, the court ultimately
allowed the jury to hear her pretrial taped statement for the limited purpose
of demonstrating that she had not been subjected to duress. Id. at
473. Although we determined that the court justifiably permitted the State to
present evidence that the witness was not subjected to police duress, we also
held that the court properly prohibited the States initial request to present the
taped statement for impeachment purposes because the witness had already admitted an inconsistent
The attempted impeachment of Williams in this case bears resemblance to the impeachment
of the witness in Pruitt. By reciting excerpts of Williams pretrial statement
and asking Williams if he made these declarations, the State might as well
have played an audiotaped version of Williams statement to the jury. The
trial court judge was wary of this method of questioning, as indicated by
his statement that its the old story, you dont want the prosecutor to
just go sentence by sentence through a statement and read the whole statement
. . . . (R. at 553.) Nevertheless, the court permitted
this style of questions by the State even after Williams testified that Appleton
was not present when the three assailants came to the house. (R.
Once Williams denied Appletons involvement in the events, the State should have made
Williams aware of specific portions of his testimony that were inconsistent with statements
he made prior to trial and given him an opportunity to explain those
inconsistencies. Only one glaring inconsistency existed, however, between Williams testimony and the
portions of Williams pretrial statement that the State recited. Williams previously implicated
Appleton as a participant and then at trial said Appleton was not involved.
(R. at 532-60.) When questioning Williams about this inconsistency, the prosecutors
impeachment inquiry should have concluded when Williams responded that he remembered making the
statement but it was not true because Appleton was not present during the
incident. (R. at 554.)
Six pages of the record are consumed with the State reciting portions of
Williams pretrial statement, the State asking Williams whether he remembers making the statement,
and Williams responding that either he did not remember making the statement or
he lied because Pooh was not present. (R. at 554-59.) We
find it difficult to understand that a legitimate impeachment purpose was served by
the this method of questioning.
Once Williams admitted that he made a police statement prior to trial that
was inconsistent with his testimony regarding Appletons involvement in the incident, impeachment was
complete. Williams had admitted himself a liar. Reciting segments of Williams
pretrial statement was thus superfluous. See United States v. Soundingsides, 820 F.2d
1232, 1240-41 (10th Cir. 1987) (no rational basis for introducing prior inconsistent statement
where witness does not deny making the inconsistent statement). The only purpose
such recitation could have would be to get the details of Williams former
statement before the jury as substantive evidence, the very thing we decided to
prohibit in overruling Patterson.
As we indicated above, the State also improperly questioned Blanchard during certain portions
of its direct examination of her. We give less treatment to the
States questioning of Blanchard, because almost all of her incriminating statements of Appleton
were made during appropriate examination. Furthermore, some reference to Blanchards pretrial statement
was warranted. For example, Blanchard testified that she was unsure whether Appleton
and the two other assailants duct taped anybody. (R. at 475.)
In her prior statement to the police, however, she said the attackers wrapped
Solbergs hands, feet and head with duct tape. (R. at 487-88.) After
being made aware of the statement, she recalled that the attackers had in
fact taped Solberg. (Id.)
On the other hand, nearly six pages of the record are consumed by
the State reading line-by-line excerpts from Blanchards pretrial statement. A couple of
Q: Now do you ever recall telling the Gary Police Department, the
detectives, about, They kept messing with Ron. Then they pushed
Ruby by me and went back to messing
with Ron. I got you now. I got you now.
. . . .
Q: Do you remember telling the Gary Police Officers, Then Pooh
was asking Mary who she was, but she wouldnt
answer him. Ruby was laying on the floor, blood
was coming out her mouth and nose, and she was twitching?
(R. at 487-89.) These statements covered topics not addressed in Blanchards trial
testimony. They were therefore not inconsistent with Blanchards testimony, and it was
inappropriate for the prosecution to recite them.
Despite Williams denial of Appletons presence at the crime scene and Blanchards denial
that Appleton participated in certain events, their testimony was substantially similar to Solbergs.
(R. at 331-40, 465-75, 538-43.) Thus, even though the jury heard
evidence they should not have during the States line-by-line recitation of the witnesses
pretrial statements, essentially the same evidence was properly before the jury through Solbergs
testimony. As we indicated previously, the error in admission of evidence will
typically be harmless where the hearsay evidence is merely cumulative of other evidence
properly admitted. Cooley, 682 N.E.2d at 1282. While the error was
harmless in this instance, it might lead to reversal under different facts.
II. Sufficiency of the Evidence
To address Appletons sufficiency claim, we recite the facts in greater detail than
we did above. On the evening of March 13, 1998, Haught, Solberg,
and others were gathered at the home of Fitts and Williams to smoke
crack. As Blanchard arrived, Appleton and two other men, who had just
pulled up together in front of the house, accosted Blanchard about talking to
the police. (R. at 330-31, 465.) While Appleton vocally confronted Blanchard,
the other two men physically attacked her from behind. The men hit
and kicked Blanchard until Appleton removed them and commanded them to cease.
Following the altercation, the two assailants and Appleton, who pulled Blanchard up the
stairs by her hair, entered the house. After an initial dispute with
Ruby Haught, Appleton, relying upon Blanchards assertion, accused Ron Solberg of being a
police informant. Despite Solbergs denial, Appleton stripped, searched and struck him.
Then, Appleton wrapped Solbergs head, ankles and hands with duct tape and the
men struck Solberg twice in the head and once in the ribs with
an unidentified object.
As Haught arose from her position on the couch, one of the men
attempted to hit her with a stick. Appleton blocked the attack, directed
his accomplice not to hit Haught, and proceeded to strike Haught himself.
At about this time, Mary Ann Cox came to the house to purchase
some crack and encountered the assailants beating up Haught. Cox had been
drinking and she became embroiled in the conflict because of her inability to
cooperate with the attackers.
Appleton instructed the other two men to duct tape Haught and Cox in
the same fashion that he had secured Solberg. The men struck Cox
and unrelentingly beat Haught after the women were wrapped with duct tape.
The assailants eventually led the victims outside and placed them in Solbergs van,
which was parked in front of the house. Before departing with the
victims, one of the men warned Williams and Blanchard that if anybody told
anything about what had happened, then they would be killed. (R. at
Because Appleton had already told Solberg that he was going to be killed,
(R. at 339), Solberg used the time while being transported in his van
to develop a survival plan. The men had positioned Solberg out of
their sight in the back of the van; therefore, he was able to
free himself from the duct tape unnoticed by his abductors. Solberg located
a steel walking stick that he intended to use to attack the men.
When the van stopped, Solberg delivered a blow with the stick that knocked
Appleton (who was sitting in the seat in front of Solberg) on his
back. In response to this surprise attack, Appleton wildly fired his small
automatic pistol wounding Solberg with two bullets, one in his upper right arm
and one in his back. Appleton then put the gun to
the back of Solbergs head and pulled the trigger; however, the gun clicked
and nothing happened.
The assailants realized that they were out of bullets, so they doused Solberg
and the van with gasoline and ignited a fire. Solberg successfully extinguished
the fire on his body by rolling on a quilt that he found
in the back of his van. The van fire persisted, so as
soon as he heard emergency vehicle sirens, Solberg exited the vehicle.
Alighting from the van, he discovered that his abductors had apparently rolled up
a piece of paper, lit it, and stuffed it in the gas tank.
Solberg threw the paper in the wet snow and checked on the
other victims, Cox and Haught, who were laying in the front of the
van. Cox had two bullets in her head, which caused her to
lose her right eye and three-quarters of the vision in her left eye.
Haught died from a gunshot wound to her head and two more
to her torso.
The next day, the police visited Solberg and Cox in the hospital to
determine whether the victims could recognize any of the assailants in a photo
lineup. Coxs injuries prevented her from seeing the pictures. Solberg, however,
made a possible identification that Appleton was one of his abductors. During
trial, Solberg positively identified Appleton as one of the individuals who participated in
We consider Appletons sufficiency claims through the prism of our standard of review.
This Court does not resolve conflicts in the evidence or judge the
credibility of the witnesses. See Fielden v. State, 437 N.E.2d 986 (Ind.
1982). We view the evidence most favorable to the verdict and will
affirm the trial courts verdict if the probative evidence and the reasonable inferences
drawn therefrom could have permitted a reasonable trier of fact to find the
defendant guilty beyond a reasonable doubt. See Glover v. State, 253 Ind.
536, 255 N.E.2d 657 (1970).
Appletons claim focuses on the reliability of the States witnesses. (Appellants Br.
at 13-14.) He claims that the States evidence lacks probative value, because
only Solberg testified that Appleton was one of the assailants and the States
witnesses were under the influence of drugs the night the events transpired.
Appletons assertion that Solberg was the only witness to testify that Appleton was
one of his attackers is tenuous. Disregarding any testimony by Blanchard and
Williams that was elicited by inappropriate line-by-line examination, Solberg, Blanchard, and Williams all
testified consistently concerning how the events began. (R. at 330-36, 462-67, 538-41.)
Although Williams denied that Appleton was involved in the crimes, Blanchard admitted
that Appleton was a participant in the attack upon Cox, Haught, and Solberg.
In fact, Blanchards testimony that Appleton directed the other attackers to stop
hitting her and prevented one attacker from beating up Haught substantially corroborated Solbergs
testimony that Appleton was the leader. (R. at 338-39, 465, 470.)
Thus, it was reasonable for the jury to consider testimony by Solberg and
Blanchard corroborating Appletons participation in the events.
In addition to Blanchards appropriate testimony, Solberg identified Appleton in two separate photo
arrays. As he testified in court, Solberg qualified these as possible identifications
because although the face looked right . . . the body size looked
different. (R. at 378, 425-27.) Solberg explained that a heavy coat
Appleton wore the night of the crimes caused this discrepancy. Solberg also
unquestionably identified Appleton as his attacker at trial, stating I recognize his face;
I was standing three feet from him. (R. at 428.) Solbergs
testimony alone would be sufficient to prove that Appleton perpetrated these crimes.
Furthermore, assessing the impact of drug use on the witnesses capacity to observe
and testify is the jurys job, not ours. We refrain from encroaching
upon the jurys duty to evaluate the credibility of the witnesses unless the
witness offers inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible
dubiosity. Lott v. State, 690 N.E.2d 204 (Ind. 1997). That a
witness might be impaired at the time of the crime should not cast
such a shadow on his or her testimony as to render it incredibly
The jury apparently concluded that Solbergs actions demonstrated his clear-headedness. After all,
even if Solberg was impaired at the time of the incident, he was
evidently lucid enough to drive an automobile, craft a survival plan, battle with
his assailants, extinguish a bodily fire, and prevent the van from being incinerated.
The events described by Solberg were not inherently improbable, nor do they
operate counter to natural laws or human experience. Thacker v. State, 556
N.E.2d 1315 (Ind. 1990).
Juries are expected to resolve conflicts in the testimony of various witnesses, and
a jury could certainly have determined that the evidence was sufficient to find
Appleton guilty of the crimes beyond a reasonable doubt.
We affirm the judgment of the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
Most of Blanchards testimony indicating that Appleton participated in the events at
the house was elicited by simple questions and answers rather than through line-by-line
recitation of her pretrial statement. (R. at 459-93.) Accordingly, we will
focus primarily on the States examination of Williams.