ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLE:
ERIC K. KOSELKE STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
Deputy Attorney General
Deputy Attorney General
SHARON GARLAND, ) ) Appellant (Defendant below ), ) ) v. ) Cause No. 75S00-0011-CR-713 ) STATE OF INDIANA, ) ) Appellee (Plaintiff below ). )
Over the course of Allens counseling at the Center, Sharon and Lloyd became
friends. Sharon told Lloyd that she and her husband David were having
marital problems. Lloyd began counseling Sharon and David, individually and as a
couple. During the summer of 1995, Sharon began visiting Lloyd twice a
Lloyd learned during the counseling that David Garland had molested Sharons brother, who
in turn molested Allen. In the summer of 1996, Lloyd told Allen
that his father needed to be killed, and declared that all child molesters
should be killed. When Lloyd asked Allen if he wanted to be
a part of this plan to murder David Garland, Allen told Lloyd that
he did not think it was a well thought out plan.
About two months before David was killed, Sharon purchased a $50,000 life insurance policy on her husband, and she told her friend Marvin Busse that if David died she would take the money and go to Florida. The weekend before Davids death, while Sharon and David were playing cards with friends, Sharon became angry with David and told him that she would hire somebody to kill him and take the insurance money and go to Florida.
On the evening on January 24, 1996, James Lloyd came to the Garlands trailer. Sharon met with Lloyd outside, and after a few minutes, Allen joined them on the porch. Allen then saw that Lloyd had a gun. Lloyd told Allen that if he didnt want any part of this to stay outside.
Sharon and Lloyd then entered the trailer. Allen heard three or four shots. When Allen went inside, he saw Sharon putting on her shoes. Allen and Sharon then left the trailer and drove down the road to an intersection, where Allen was picked up by a friend. Sharon proceeded to Wal-Mart.
After witnessing the murder of her husband, Sharon shopped in Wal-Mart as if nothing happened. She bought a cappuccino, spoke to a friend, and a relative, bought two pairs of jeans (remarkably, for her husband, whom she had just seen killed) and then returned to the family trailer where she knew Davids body still remained.
The State eventually charged Sharon with murder See footnote and conspiracy to commit murder See footnote . On the conspiracy count, the charging information as amended alleged that Sharon aided, induced, or caused Allen Garland or James Lloyd to kill David Garland.
A jury found Sharon guilty of murder and conspiracy to commit murder. We reversed the judgment, concluding that defense counsels failure to make the proper Bruton objection constituted ineffective assistance of counsel. Garland v. State, 719 N.E.2d 1184, 1186-87 (Ind. 1999). A jury again found Sharon guilty on both counts. The trial court merged the conspiracy count into the murder and sentenced Sharon to fifty-five years executed.
Sharon wanted to present evidence that Lloyd told the Garlands he could erase
any record of Allen Garlands conviction in exchange for $1,200. Sharon says
that when the Garlands confronted Lloyd about returning the money, Lloyd accused the
Garlands of trying to set him up and shot David Garland in retaliation.
She thus wanted to use Joseph to rebut the States accomplice
liability theory that Sharon acted in concert with Lloyd. She says it
would have shown that Lloyd acted alone and had his own motive to
murder David Garland.
The State filed a motion in limine seeking to preclude evidence relating to Stephen Joseph. The trial court granted the States motion based on Evid . R. 404(b):
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Sharon contends that Josephs testimony was admissible under the identity and motive exceptions
of Rule 404(b).
Applicability of Rule 404(b). The traditional office of Rule 404(b) has been
to protect a defendant from being convicted based on unrelated prior bad acts.
The principal risks of unfair prejudice presented by uncharged misconduct evidence are
that the jury will infer that the defendant is a bad person who
should be punished for other, uncharged misdeeds, Williams v. State, 677 N.E.2d 1077,
1081 (Ind. Ct. App. 1997), and that the jury will draw the forbidden
inference that the defendants character is such that she has a propensity to
engage in conduct of the sort charged, and that she acted in conformity
with that character on the occasion at issue in the charge. Rossetti
v. Curran, 80 F.3d 1, 6 (1st Cir. 1996). Early efforts to
use Rule 404(b) as a basis for excluding evidence about prior bad acts
of non-defendants were rejected on grounds that protecting defendants was the rules central
purpose. See e.g., United States v. Morano, 697 F.2d 923, 926 (11th
More recently, courts have begun to apply Rule 404(b) to evidence about the
bad acts of non-parties. Under what has come to be called reverse
404(b), courts have held that a defendant can introduce evidence of someone elses
conduct if it tends to negate the defendants guilt.
United States v.
Wilson, 307 F.3d 596, 601 (7th Cir. 2002).
We think the cleanest way of thinking of 404(b) in this context is
a little different. First, the text of Rule 404(b) is such that
it governs evidence about acts by defendants, and non-defendants. Second, the rule
acts as an appropriate restraint on admissibility of evidence about events or acts
that are by definition largely extraneous to those for which a defendant is
Language of the Rule. While Rule 404(b) does not define a person,
it does state that [e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action
in conformity therewith. Fed. R. Evid. 404(b) (emphasis added). Facially, Rule 404(b)
is not limited to a defendant, but applies to a person. The
Ninth Circuit pointed out that the evidentiary rules pertaining to character were quite
Rule 404(a) establishes the general rule excluding circumstantial use of character. It provides that evidence of a persons character is not admissible for the purpose of proving action in conformity therewith except for pertinent character traits of an accused, Fed. R. Evid. 404(a)(1), a victim, Fed. R. Evid. 404(a)(2), or a witness, Fed. R. Evid. 404(a)(3), 607, 608, 609. It therefore appears that Congress knew how to delineate subsets of persons when it wanted to, and that it intended a person and an accused to have different meanings when the Rules speak of one rather than the other. Because Rule 404(b) plainly proscribes other crimes evidence of a person, it cannot reasonably be construed as extending only to an accused. See footnote
In 1999, the Seventh Circuit embraced the application of Rule 404(b) to third parties in Agushi v. Duerr, 196 F.3d 754, 760 (7th Cir. 1999). It took guidance from Huddleston v. United States, 485 U.S. 681 (1988), in which the Supreme Court strongly suggested that Rule 404(b) should apply to any actor. See footnote Several states have taken the same view. Relying largely on text, for example, the Utah Supreme Court concluded that it was obligated to define person harmoniously throughout rule 404. See State v. Vargas, 20 P.3d 271, 278 (Utah 2001).
Probative Evidence for the Defense. It is a highly ordinary and appropriate
feature of criminal trials that the person on trial points elsewhere: I
did not do it. Jones did it, and heres my evidence that
he was the perpetrator.
Where a defendant has probative, admissible evidence that
Jones did it, regular due process would admit the evidence. But what
if the defendant has little or no direct evidence that Jones did it?
Can the defendant offer evidence about Jones prior bad acts as proof
that Jones acted in conformity with his demonstrated character by committing the instant
crime? We think the defendant may do so only when the exceptions
of 404(b) apply. This appears to be the prevailing practice in the
federal court circuits.
Using similar principles, New Jerseys intermediate court examined a case bearing similarity to the one before us today. In State v. Williams, 518 A.2d 234 (N.J. Super. Ct. App. Div. 1986), an assault victims statements identifying her attacker were contradictory, and Williams sought to admit testimony about similar crimes committed by someone named Dixon to prove that Dixon must have committed the instant crime. Id. at 236-37. The trial judge barred the evidence, holding that the prior assaults were not so similar as to establish that Dixon was the person who committed the assault for which Williams was on trial. The Appellate Division reversed, declaring itself satisfied that the similarities between the instant crime and the prior offenses were so strong that evidence of Dixons prior bad acts was admissible on the question of identity. See footnote
We think the foregoing cases represent an appropriate view of how the rule
applies, and hold that the admissibility of evidence about prior bad acts by
persons other than defendants is subject to Rule 404(b).
Garlands claim . Our appellant contends that Josephs testimony about Lloyds prior bad
acts was admissible as evidence on identity and motive. If Josephs evidence
was probative on either of these, then it was admissible. If it
was not, then the general policy of Rule 404(b) against character evidence would
apply and the trial court was correct to exclude it.
As for identity, Garland says that the facts are so strikingly similar that
one can say with reasonable certainty that Mr. Lloyd committed both offenses. (Appellant
Br. at 24.) The test, of course, is whether the crimes are
strikingly similar. Davis v. State, 598 N.E.2d 1041, 1047, n.2 (Ind. 1993).
Here, the crimes were not even the same. The late Mr.
Garland was shot dead in his trailer, and Joseph was at most the
victim of intimidation in some other place and circumstance. That there were
two threats does not make Garlands killing a signature crime.
As for motive, evidence that (1) the Garlands had a deal with Lloyd,
and (2) because Lloyd did not perform the Garlands demanded their money back,
would provide a potential reason for Lloyd to kill Mr. Garland. Evidence
that Joseph had asked Lloyd for his money back, however, would hardly give
Lloyd a motive to kill Mr. Garland.
We conclude that the trial court was correct to bar Josephs testimony.
II. Sufficient Evidence of Aiding or Inducing Murder?
Second, there is an abundance of evidence that speaks to Sharons companionship with James Lloyd. Sharon admittedly carried on a fairly open relationship with Lloyd since meeting him in 1994 as Allens court-ordered drug counselor. This relationship developed during the period of Allens counseling and continued even after Allens counseling ended. When Lloyd came to the Garlands trailer on the night of the murder, Sharon went out in the cold, barefoot and without a coat, to meet him, after Allen announced Lloyds arrival. It was Sharon who then accompanied Lloyd into the trailer where David was subsequently shot and killed.
The morning after Davids murder, Sharon asked Marvin and Aline Busse, with whom she was staying, to place calls to Lloyd, and Lloyd returned the call within minutes. Lloyd was also present at the funeral home as Sharon made Davids funeral arrangements. The abundance of evidence of Sharon and Lloyds companionship leads to a reasonable inference that Sharon was a party to Lloyds murder of her husband.
Third, nothing in the record suggests that Sharon opposed Lloyds plan to murder her husband. Sharon knew of Lloyds plot no later than the morning of the murder, though from the nature of Sharons companionship with Lloyd, she presumably knew of the plan much earlier. The fact that Sharon accompanied Lloyd into the trailer with knowledge of Lloyds plan to kill David leads to a reasonable inference that Sharon did not oppose Lloyds plan.
Fourth, Sharons behavior before, during, and after the murder is also quite damning. On the weekend prior to Davids murder, Sharon angrily blurted out during a card game that she would hire someone to kill him, take the insurance money, and go to Florida. Her recent purchase of the policy makes that declaration seem more tangible than would otherwise be the case. Sharon also told her friend Kay Bakain that you could murder anybody in Starke County and get by with it cause the cops were all Barney Fifes. (R. at 3027.) Several days after the murder, Sharon met with Lloyd privately. When she returned, Allen asked her, How much do you owe him, $10,000 or $5,000? Sharon responded, I will take care of it all later. (R. at 2910.) These statements and incidents lead to a reasonable inference that Sharon hired Lloyd to kill David.
Considering the four factors in determining accomplice liability, and the substantial evidence the State presented against Sharon, we conclude there was sufficient evidence to convict Sharon of aiding in the murder of her husband David Garland.
Sharon contends the trial judge was prejudiced against her primarily based on the
judges prior rulings against her in the first case before him. However,
prejudice is not derived from judicial rulings. Generally, a trial judges exposure
to evidence through judicial sources is, alone, insufficient to establish bias.
719 N.E.2d at 1181 (citing Paradis v. Arave, 20 F.3d 950, 958 (9th
Cir. 1994), cert. denied, 513 U.S. 1117 (1995)). Moreover, the fact that
a defendant has appeared before a certain judge in prior cases does not
establish the existence of bias or prejudice. Lasley v. State, 510 N.E.2d
1340, 1341 (Ind. 1987) (citing Brim v. State, 471 N.E.2d 672, 674 (Ind.
1984)); Clemons v. State, 424 N.E.2d 113, 117 (Ind. 1981). A showing
of prejudice that calls for a change of judge must be established from
personal, individual attacks on a defendant's character, or otherwise. A defendant cannot
merely assert prejudice on the grounds that the judge has ruled against her
in a prior proceeding.
The ruling on a motion for change of judge is reviewed under the clearly erroneous standard. Sturgeon, 719 N.E.2d at 1182. The law presumes that a judge is unbiased and unprejudiced. Lasley, 510 N.E.2d at 1341. Garland has not overcome that presumption.