ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Katherine A. Cornelius Karen M. Freeman-Wilson
Indianapolis, Indiana Attorney General of Indiana
Nandita G. Shepherd
Deputy Attorney General
SUPREME COURT OF INDIANA
DWAYNE BROWN, ) ) Appellant (Defendant Below ), ) ) v. ) No. 49S00-0002-CR-93 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
April 17, 2001
Another witness heard gunshots, came outside, and saw the car rolling to a
stop. She found the wounded Moore sprawled across the front seat, and
tried unsuccessfully to revive him. Moore died of multiple gunshot wounds.
The day after the murder, Riddell viewed a six-person photo array but did
not recognize anyone as the man outside the car. Two days later,
he viewed another array and positively identified Brown. He reconfirmed the identification
Brown knew at the time of the shooting that Moore had implicated Browns
See footnote Henri Tunstall, in a murder. (R. at 487, 489, 491.)
Brown pled an alibi, but his witnesses contradicted each other. The shooting
occurred shortly before 3 p.m., across town from where Brown lived with his
girlfriend. Browns neighbor said that Brown was at the neighbors house from
about 3:15 that afternoon until about 6:30 that evening. (R. at 745,
754.) Browns girlfriend said that neither she nor Brown left their house
between 3:15 and 6:30. (R. at 802, 817, 819, 822.) The
girlfriends mother testified that she and her daughter went out shopping at 4:15
that afternoon. (R. at 882-83, 889-90.)
A jury found Brown guilty of murder and of carrying a handgun without
a license.See footnote The court sentenced Brown to sixty-five years on the murder
In the statement, Brown admitted that in early August 1998 he saw a
probable cause affidavit naming Morris Moore as an eyewitness to Tunstalls July 14th
shooting of John Schaefer. Brown claimed that he did not recognize the
witness name when he saw it on the affidavit because he knew Moore
then only as Marquise.
See footnote Brown also stated that he was present when
Schaefer was shot and that Marquise, not Tunstall, was the shooter. During
cross-examination, the defense sought to establish that it is not unusual to know
someone by a nickname. To make this point, defense counsel elicited testimony
from the police officer that Moore also went by the nickname Q.
The gist of this defense was: There was no reason for me
to kill this man
because I knew him as Marquise or Q and
believed the witness against my sister was someone named Moore.
The prosecutor responded by calling Tunstalls attorney, who confirmed that on July 30,
1998, he gave Brown and other family members copies of Tunstalls charging information
and probable cause affidavit. The prosecutor offered both into evidence. The
information listed Moore as a States witness and the affidavit said that Moore
was also known as Q.
The defense then obtained Tunstalls attorneys testimony that Brown had been a potential witness on his sisters behalf. Browns arrest, however, made him effectively unavailable in Tunstalls case. This seemed to imply that the police really arrested Brown to prevent him from testifying for his sister, rather than because they thought he killed Moore.
The prosecutor countered this implication by establishing that after Browns arrest , Tunstall admitted
that she shot Schaefer and pled guilty to involuntary manslaughter. Tunstalls attorney
said that Browns unavailability was not a major factor in Tunstalls decision to
Defense counsel then sought to show that Tunstalls plea did not necessarily prove
that she, not Morris, shot Schaefer. He was thwarted when Tunstalls attorney
asserted attorney-client privilege and said he would advise Tunstall not to testify.
At the defenses request , the court admonished the jury not to consider Tunstalls
guilty plea as substantive evidence in Browns trial.
A. The Motive Evidence. Brown first argues that evidence of the
murder charge against Tunstall should have been excluded as unfairly prejudicial. (Appellants
Br. at 9-14.) Relevant evidence is admissible unless its probative value is
substantially outweighed by the danger of unfair prejudice. Ind. Evidence Rule 403.
A trial court has wide discretion to admit evidence that tends to
prove the defendants motive. Harris v. State, 644 N.E.2d 553 (Ind. 1994)
(evidence that murder defendant had expressed his desire to learn how it felt
to kill was properly admitted) (citing Cornelius v. State, 425 N.E.2d 616 (Ind.
Here, the motive evidence was highly probative of Browns interest in permanently silencing
Moore. The court acted within its discretion in allowing evidence that Brown
knew that his victim was a key States witness to a murder committed
by Browns sister.
B. The Probable Cause Affidavit and Charging Information. Brown next argues
that the charging information and probable cause affidavit in his sisters case contained
irrelevant, gruesome specifics and should have been excluded to avoid guilt by association.
(Appellants Br. at 14-15.) We agree that certain information in those
documents (such as a reference to Tunstalls criminal record and the specifics of
how the shooting occurred) went beyond the details necessary to establish motive.
With hindsight, the more prudent course would have been to redact the extraneous
information, or allow the parties to stipulate to the relevant facts.
Errors of this sort do not warrant reversal, however, unless the defendant can
show prejudice. Guajardo v. State, 496 N.E.2d 1300 (Ind. 1986). In
Guajardo, the State introduced a probable cause affidavit and search warrant into evidence
because the defendant challenged the warrants adequacy. Id. Although the documents
were relevant only to matters determinable by the court, they were shown to
the jury. Id. We recognized that such documents often contain highly
prejudicial statements, but looked to strong identification testimony in concluding that the error
was harmless. Id.
Although the documents at issue here related to a different crime and a different defendant, the risk that irrelevant information will prejudice the defendant is similar. We therefore apply a similar harmless error analysis.
Browns claim of prejudice consists entirely of speculation that he was a victim
of guilt by association with his sister. The State, on the other
hand, presented a strong case. The evidence showed that Brown had reason
to want Moore dead. An impartial witness unequivocally identified Brown and described
Browns presence and activity at the murder scene. Browns alibi witnesses told
conflicting stories. We therefore conclude, as in Guajardo, that any error arising
from the jurys exposure to irrelevant information on Tunstalls charging information and probable
cause affidavit was harmless.
C. Tunstalls Guilty Plea. Brown argues that the defense did not
open the door to testimony by Tunstalls attorney that Tunstall pled guilty to
involuntary manslaughter. (Appellants Br. at 16-19.) A review of the events
at trial shows otherwise. A prosecutor may respond to inferences raised by
the defense, even if that response would otherwise be objectionable. Harris, 644
N.E.2d at 554 (citing Lopez v. State, 527 N.E.2d 1119, 1126 (1988)).
The defense suggested that Brown was actually arrested so that he could not
serve as a witness for his sister. The prosecutor was entitled to
counter as he did, by showing that Tunstall herself admitted killing Schaefer, and
that Browns arrest was not a significant factor in Tunstalls decision to plead
D. Rebutting Tunstalls Guilty Plea. Regardless of whether his attorney opened
the door on this issue, Brown complains that he was unfairly denied the
opportunity to quiz Tunstalls lawyer about whether she was innocent even though she
pled guilty. (Appellants Br. at 20-22.) He argues that his attorney
was improperly prevented from asking questions in the jurys presence that were reasonably
likely to prompt a claim of attorney-client privilege. (Id.)
He is incorrect. Indiana Evidence Rule 501(d)(2) plainly says: In jury cases,
proceedings shall be conducted, to the extent practicable, so as to facilitate the
making of claims of privilege without the knowledge of the jury.
Tunstall had not yet been sentenced when her attorney took the stand in
Browns case, and Brown does not dispute that her attorney properly invoked privilege.
(R. at 676-77, Appellants Br. at 20.) The court followed the
rules of evidence when it ordered defense counsel not to ask questions likely
to produce a legitimate claim of privilege in the jurys presence. (R.
Brown claims that this ruling caused the jury to be misled and prejudiced
by partial information. (Appellants Reply Br. at 2.) This assumes the
jury would have been better informed by hearing questions go unanswered. Brown
cries foul because he could not imply, without proving, that his sister perjured
herself when she admitted in open court that she shot Schaefer. His
claim is baseless.
Defense counsel implied in closing that law enforcement officials ignored or actively concealed
potentially exculpatory information, stating:
We have a bunch of people out there on that day and all we can hear from is Mr. Riddell and [the witness who attempted to revive Moore]. Where are all these other people? I mean, theyre the ones who gave me these crossed out reports, where are they. See footnote How come they treat my witnesses, law enforcement treats my witnesses different than their witnesses?
(R. at 932.) The prosecutor argued in rebuttal:
Its the job of the prosecutor to tell you what the elements of the crime are. Direct evidence, the evidence that came from here, sworn testimony. You all took an oath that you would base your decision on sworn testimony saw here, and not statements and people that didnt come here, and not the unsworn testimony of defense counsel trying to throw other things in here. Our job is similar to being on the road, folks. We simply ask you to listen to the evidence, hear the elements and evaluate it. Heres the road, here are the elements of the crime, does the evidence match that. The role of the defense counsel is to get you off that road however they can. If they can. . .
(R. at 939-40.) Defense counsel interrupted with an objection, which the trial judge overruled by saying His argument is exactly appropriate. (R. at 940.) The prosecutor continued:
Do not be confused or feel sorry, or in any way ignore this evidence because the defense suggests to you, oh, we werent treated fairly. I am absolutely incensed that [defense counsel] suggests to you that evidence was withheld from him and hidden from him. In October of 1998, [defense counsel] had all the addresses for these people. He had an opportunity to interview any witness that he wanted to . . . . This defense counsel suggests to you, not under oath, not taking the stand, that this is what you should know. And yet you know from the evidence that he took statements from Daniel Riddell in October of 1998. He took statements from Detective Martinez in 1998. He wants you to think that there is something unfair about initially blocking out addresses. Why do we block out addresses? Because we dont [want] witness information being given out because we dont want people like this going out and killing our witnesses.
(R. at 941-42.) Defense counsel objected, and moved for a mistrial. The court overruled the objection and denied the motion.
The prosecutor resumed, with defense counsel continuing to interject objections. The court
finally ordered defense counsel to sit down, so the prosecutor concluded without further
interruption. Browns final challenge is to the following statement:
What does that tell you about defense counsels role here? He is doing his job. He is an experienced person, but he knows what he is doing, folks, and he is trying to get you off the elements of the crime.
(R. at 948.)
A. Prosecutorial Misconduct. Brown argues that [t]hese attacks on defense counsel denied [him]
a fair deliberation and verdict. (Appellants Br. at 33.) He says
the comments quoted above mischaracterized the roles of the prosecutor and defense.
(Appellants Br. at 34.)
We begin evaluating claims of prosecutorial misconduct by asking whether misconduct in fact
occurred. Maldonado v. State, 265 Ind. 492, 498, 355 N.E.2d 843, 848
(1976). If so, we consider whether the misconduct placed the defendant in
a position of grave peril. Id. We assess grave peril based
on the probable persuasive effect of the misconduct on the jurys decision, not
on the degree of impropriety. 265 Ind. at 499, 355 N.E.2d at
848. An isolated instance that does not rise to the level of
grave peril by itself may become grave peril if repetition evidences a deliberate
attempt to improperly prejudice the defendant. Id.
All attorneys are officers of the legal system and have a duty of
candor toward tribunals. Coy v. State, 720 N.E.2d 370, 373 (Ind. 1999);
Ind. Professional Conduct Rule 3.3 and Preamble. We hold prosecutors to an
even higher standard of conduct. The Comment to Indiana Professional Conduct
Rule 3.8 says: A prosecutor has the responsibility of a minister of
justice and not simply that of an advocate. Defense counsel frequently embrace
this differential in duty.
See footnote As a leading criminal defense lawyer has asserted,
[D]efense counsel has a different agenda that is inherent in the adversary system
itself. Albert J. Krieger,
Friendly Fire and Casualties of the War On
Crime, 30 Loy. L.A. L. Rev. 49, 53 (1996).
Still, despite this actual difference in the ethical obligations of opposing counsel, we
have concluded that permitting the combatants to play on these differences in front
of a jury may jeopardize fairness in criminal trials. In Miller v.
State, 623 N.E.2d 403, 408 (Ind. 1993), we therefore disapproved of the prosecutorial
tactic of reading from Justice Whites concurrence and dissent in United States v.
Wade, 388 U.S. 218, 256-58 (1967) (Law enforcement officers . . . must
be dedicated to making the criminal trial a procedure for the ascertainment of
the true facts; defense counsels role may require conduct that in many instances
has little, if any, relation to the search for truth.).
In Coy, we emphasized the need for limits on the extent to which
prosecutors may portray themselves as seekers of truth while denigrating the role of
defense attorneys. 720 N.E.2d at 373. We also acknowledged the key
role of the judicial officer on the scene, saying: Which [statements] represent
fair or harmless techniques and which are abusive is a call best placed
in the hands of trial judges. Id.
Here, the prosecutor was certainly entitled to respond to defense counsels accusation in closing argument that the State had overlooked or even covered up evidence that could vindicate Brown. It is not so apparent that the prosecutors remarks crossed the line into misconduct that we can say the trial judge abused her discretion. See footnote
B. The Judges Ruling. Brown argues that the judge violated her duty of
impartiality when she overruled a defense objection by saying: His argument is
Judges require broad latitude to run their courtrooms and to maintain discipline and control. Timberlake v. State, 690 N.E.2d 243, 256 (Ind. 1997) (citing Dixon v. State, 154 Ind. App. 603, 290 N.E.2d 731 (1972)). A defendant asserting judicial bias must show that the trial judges actions and demeanor showed partiality and prejudiced his case. Timberlake, 690 N.E.2d at 256 (citing McCord v. State, 622 N.E.2d 504, 511 (Ind. 1993)).
Brown complains about the style of a single ruling, in effect arguing that
the trial judge was too emphatic. Had she said instead, I think
its an appropriate comment, so Ill overrule the objection, there would be little
doubt about her impartiality. As it is, her choice of words did
not display the sort of partiality that would warrant a reversal.
Dickson, Sullivan, and Rucker, JJ., concur.
Boehm, J., concurs in result.