Attorneys for Appellant
Kevin P. McGoff
Alicia A. Gooden
Kiefer & McGoff
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Deputy Attorney General
INDIANA SUPREME COURT
RANDALL L. HUBBARD,
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below ).
) Supreme Court No.
APPEAL FROM THE MORGAN CIRCUIT COURT
The Honorable James E. Harris, Judge
Cause No. 55C01-9612-CF-271
ON DIRECT APPEAL
January 16, 2001
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. Defendants challenge to the trial courts 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).
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
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 nights 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 Defendants,
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,
See footnote two
counts of Felony Murder,See footnote and one count of Robbery.See footnote On May 6,
1998, a jury convicted Defendant on all counts, with judgment being entered on
the two murder counts and the ro
bbery 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.
Defendant contends that the trial court committed reversible error by instructing the jury
on accomplice liability.
See footnote We review the grant of a jury instruction for
abuse of discr
etion. 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 courts 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
See footnote 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.
Appellees Br. at 12-14.
This evidence supports the trial courts instructions. Defendants 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 instru
ctions on accomplice liability. See, e.g., Echols v.
State, 722 N.E.2d 805, 807 (Ind. 2000) (A defendants mere presence at the
crime scene is insufficient to establish accomplice liability. By itself, a defendants
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
defendants course of conduct before, during, and after the crime, and a defendants
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.).
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. Defendants offer
of proof shows that the polygraph examiner would have testified that he believed
Thacker was not co
mpletely 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.
First, Defendant asks us to revisit our holding in Perry v. State that
exclusion of polygraph results absent a stipulation does not violate a defendants 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 defendants Sixth Amendment right to present a defense collides with the
States interest in promulgating rules of evidence to govern the conduct of its
trials, the merits of the respective positions must be weighed, [and] the States
interest must give way to the defendants 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
See footnote unconstitutionally pr
him from mounting a defense. The Court disagreed, phrasing its analysis in
terms of balancing interests:
A defendants right to present relevant evidence is not unlimited, but rather is
subject to reasonable restrictions. A defendants 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 accuseds 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
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.
The Court concluded that these interests ou
tweighed the defendants 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 examiners 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 defendants 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,
See footnote its analysis
of the r
eliability of polygraph test results demonstrates that Indianas per se exclusion
is neither arbitrary nor disproportionate to the States 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
See footnote 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
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 States interest in excluding
such results without a stipulation. Defendants limited interest in putting on unreliable
evidence does not outweigh the States interest in ensuring that its trials are
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 courts 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
testimonys 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 Courts longstanding view
that polygraph test results are not sufficiently reliable to warrant admission absent a
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
Ind. Code § 35-42-1-1 (1993)
Id. § 35-42-5-1.
The instructions on accomplice liability were as follows:
[Final Instruction No. 4]
A person is responsible for the actions of another person when, either b
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 pe
rsonally participate in the crime nor does he
have to be present when the crime is committed.
Proof of the defendants failure to oppose the commission of a crime, compa
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 pe
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.)
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.
Defendant argues that because the States 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.
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.
Justice Thomass opinion carried a majority as to the governments interest in
ensuring the reliability of evidence, but only a plurality on the other two
Defendant attempts to distinguish Scheffer on the grounds that the test results
in that case were only offered to bolster [the defendants] credibility, while the
evidence here is offered to support his defense. Appellants 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.
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.