ATTORNEY FOR APPELLANT
Crown Point, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Randi E. Froug
Deputy Attorney General
SUPREME COURT OF INDIANA
DAMIEN RAY FAYSON, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 45S00-9903-CR-189
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable T. Edward Page, Judge Pro Tempore
Cause No. 45G02-9808-CF-00158
ON DIRECT APPEAL
April 5, 2000
Damien Ray Fayson was convicted of murder and sentenced to sixty years imprisonment.
In this direct appeal, he contends that the trial court violated his
constitutional rights established in
Bruton v. United States, and Indiana Code § 35-34-1-11(b).
He also contends that the trial court abused its discretion by permitting
him to be cross-examined outside the scope of his direct examination. We
affirm the judgment of the trial court.
Factual and Procedural Background
Early on the morning of August 9, 1998, Brandon Ford and Jermaine Lowe
were sitting outside the home of Yakkei Wright, Faysons girlfriend. Ford had
dated Wright during the spring of that year. According to Jermaine, Fayson
and a friend drove up to the house and Fayson went inside and
returned with a nine millimeter gun. An argument broke out between Fayson
and Ford but Jermaine believed the dispute had been settled and turned his
attention to a videogame being played in the house. Jermaine then heard
a shot. As Jermaine turned, he saw Fayson bring his hand back
and Fords body fall to the sidewalk. Fayson threatened to kill Jermaine
if he told anyone of the shooting.
Jermaine shook Ford and concluded that he was dead. He then ran
to his house and reported the shooting. Jermaines older brother, James Lowe,
went to the scene and spotted Fords body in a field adjacent to
Wrights house. Two minutes later, Fayson and a friend arrived at the
field. Fayson told James that he had killed Ford and had to
move the body again because the situation was going to get too hot.
Jermaine reported to the police that Fayson had killed Ford. When an
officer went to Wrights house to find Fayson, Wright stated that she did
not know where Fayson was and had not seen him since seven oclock
that morning. She then gave police permission to search her house where
they discovered Fayson asleep on a bed. A bullet casing and pool
of blood were found in front of Wrights house.
An autopsy concluded that Ford died of a gunshot wound to the right
eye. Stippling on Fords skin indicated that the shot had been fired
at close range. The State charged Fayson with murder and Wright with
assisting a criminal. Fayson and Wright were tried together by a jury,
convicted, and sentenced to sixty years and three years imprisonment, respectively.
Fayson first claims that the trial court erred by failing to separate his
trial from Wrights. In
Bruton v. United States, 391 U.S. 123, 124-26
(1968), the United States Supreme Court held that in a joint trial, admission
of one defendants confession that implicates another defendant is a violation of the
second defendants Sixth Amendment right to confront witnesses. The confessing defendant cannot
be required to take the stand, and the result is a denial of
the other defendants right to cross-examine. See id. at 137. Citing
this doctrine, Fayson moved for a severance both before and during the trial
based on police testimony recounting the reasons Wright gave to the police for
lying to them about Faysons whereabouts. In ruling on the pretrial motion,
the trial court concluded that Wrights statements did not incriminate Fayson, and therefore
refused to sever the two trials. At trial, the court admitted testimony
reporting Wrights statements over Faysons objection, but admonished the jury that the testimony
was to be considered only as to Wrights guilt, and was not to
be considered as to Fayson. Fayson contends that this procedure violated Bruton.
On appeal the State correctly contends that a co-defendants statements present a
problem only if they facially incriminate another defendant. See Richardson v. Marsh,
481 U.S. 200, 211 (1987); Brock v. State, 540 N.E.2d 1236, 1240 (Ind.
1989); Smith v. State, 516 N.E.2d 1055, 1060 (Ind. 1987). However, we
do not agree that the statements attributed to Wright failed to meet that
Detective Michael Jackson testified that after Jermaine told him of the murder, he
went to Wrights house in search of Fayson. Jackson testified that Wright
told him that she did not know where Fayson was, but a search
of the house revealed Fayson lying in bed. Jackson testified that he
then asked Wright why she had lied and informed her of the penalties
for concealing information with regards to this homicide or hiding a suspect.
Jackson testified that Wright responded that she didnt want [Fayson] to go to
Wrights explanation may not be as devastating to Faysons case as the prototypical
Bruton problema confession by a co-defendant that details the commission of the crime
and the objecting defendants role in it. Nonetheless, a reasonable juror could
conclude that it implied that Wright had knowledge that Fayson had committed a
crime. Indeed, when arguing in favor of the admissibility of Wrights statements
at trial, the State claimed that Wrights statements prove that she [Wright]
knew or had good knowledge of the fact that the defendant [Fayson] had
committed a felony. Fayson was charged with only one countmurder. The
State itself contended that Wrights statement indicated that she knew Fayson had committed
the murder. Under these circumstances, admitting this statement in the face of
Wrights immunity from cross-examination violated Bruton.
Violations of the right of cross-examination do not require reversal
if the State
can show beyond a reasonable doubt that the error did not contribute to
the verdict. See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)
(citing Chapman v. California, 386 U.S. 18, 24 (1967)); see also Smith v.
State, 721 N.E.2d 213, 219 (Ind. 1999) ([V]iolations of the right to cross-examine
are subject to harmless-error analysis.). The same is true of Bruton violations,
which are a species of the denial of the right of cross-examination.
See Wright v. State, 593 N.E.2d 1192, 1198 (Ind. 1992); Morrison v. State,
516 N.E.2d 14, 15 (Ind. 1987).
In this case, there was substantial other evidence that Fayson murdered Ford.
Jermaine was an eyewitness to the crime and testified that he saw Fayson
and Ford argue, that Fayson had a gun, and that he heard a
shot immediately before Faysons hand fell down and Fords body fell to the
ground. Jermaines testimony is corroborated by the coroners report of a single
shot to the head fired at close range. The police found blood
and a bullet casing at the place outside of Wrights house where Jermaines
version put the crime. Finally, and significantly, Fayson admitted to James that
he shot Ford. In the face of this evidence, Wrights statement, given
with an admonishment to the jury, did not contribute to Faysons conviction and
the Bruton violation was harmless.
II. Indiana Code § 35-34-1-11(b)
Fayson also claims that the trial court abused its discretion in refusing separate
trials under Indiana Code § 35-34-1-11(b), which provides:
Whenever two (2) or more defendants have been joined for trial in the
same indictment or information and one (1) or more defendants move for a
separate trial because another defendant has made an out-of-court statement which makes reference
to the moving defendant but is not admissible as evidence against him, the
court shall require the prosecutor to elect: (1) a joint trial at
which the statement is not admitted into evidence; (2) a joint trial at
which the statement is admitted into evidence only after all references to the
moving defendant have been effectively deleted; or (3) a separate trial for the
moving defendant. In all other cases, upon motion of the defendant or
the prosecutor, the court shall order a separate trial of defendants whenever the
court determines that a separate trial is necessary to protect a defendants right
to a speedy trial or is appropriate to promote a fair determination of
the guilt or innocence of a defendant.
. The decision whether to grant a motion for separate trials lies within
the discretion of the trial court and will be reversed only for an
abuse of that discretion. See Averhart v. State, 470 N.E.2d 666, 680
(Ind. 1984); see also Rouster v. State, 705 N.E.2d 999, 1005 (Ind. 1999);
Adams v. State, 490 N.E.2d 346, 349 (Ind. Ct. App. 1986). Indiana
Code § 35-34-1-11(b) specifically requires the trial court to select one of the
three statutory alternatives if a co-defendants statement referring to another defendant is admitted
at their joint trial. In this case, the trial court admitted Wrights
statement referring to Fayson and did not require the State to elect one
of the statutes three options. Failure to comply with the statutory mandate
is an abuse of discretion. However, for the reasons discussed in Part
I., this error was harmless. See Taylor v. State, 469 N.E.2d 735,
737 (Ind. 1984) (violations of Ind. Code § 35-3.1-1-11 (now Ind. Code §
35-34-1-11) are subject to harmless error analysis).
III. Scope of Cross-Examination
Fayson took the stand in his own defense. He contends that the
trial court erred by allowing the State to cross-examine him beyond the scope
of his direct examination. On direct examination, Fayson denied killing Ford and
testified that on the evening of the murder, he went to the movies,
then to his cousins house, and finally to his sisters house where he
slept the night. On cross-examination, the State asked Fayson how long he
had known Ford, Jermaine, and Wright and asked Fayson for more details of
the night of the crime, including the people he was with and at
what time he left his cousins house. The State then asked about
Faysons cousin. At this point, defense counsel objected to the line of
questioning as beyond the scope. The trial court overruled the objection.
The State continued its cross-examination asking Fayson whether his cousin had ever been
to Wrights house:
Q[State]: Did [Faysons cousin] ever go to Yakke[i] Wrights house before?
A[Fayson]: He been over there before.
Q: Did he go over there with you or
A: You talking about during the time August 8th, August 9th?
Q: Any time had [your cousin] gone over to Yakke[i] Wrights house?
A: He came over there for me.
Indiana Evidence Rule 611 states that [c]ross-examination should be limited to the subject
matter of the direct examination and matters affecting the credibility of the witness.
The court may, in the exercise of discretion, permit inquiry into additional
matters as if on direct examination. Trial courts rulings as to the
scope of cross-examination will be reversed only for an abuse of discretion.
See Braswell v. State, 550 N.E.2d 1280, 1282 (Ind. 1990). The evidence
claimed to be outside the scope established only that Faysons cousin had been
in Wrights house at some time, not necessarily the night of the murder.
If error at all, this testimony did not affect Faysons substantial rights
and therefore, provides no basis for reversal. See Ind. Evidence Rule
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.