ATTORNEY FOR APPELLANT
Mark S. Lenyo
South Bend, Indiana
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
GRANDON REED, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 71S00-9911-CR-654
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jerome Frese, Judge
Cause No. 71D03-9804-CF-156
ON DIRECT APPEAL
June 8, 2001
Grandon Reed was convicted of the felony murder of Brian Cichocki and sentenced
to sixty-five years imprisonment. In this direct appeal, he contends that: (1)
Reed was denied his Sixth Amendment right of confrontation when the trial court
refused to compel the deposition of prosecution witness Brandon Williams; (2) the trial
court abused its discretion when it refused to permit Reed to impeach Williams
with a videotaped interview between prosecutors and Williams; (3) the trial court erred
in admitting the hearsay statements of Takiya Posey where Posey was not called
as a witness by the State; and (4) the evidence was insufficient to
support the conviction.
We conclude that the trial court abused its discretion in refusing to allow
Reed to impeach Williams with his prior inconsistent statements and that this error
prejudiced Reed. We reverse the conviction and remand for a new trial.
Factual and Procedural Background
On April 22, 1998, at approximately 9:00 p.m., a man wearing a black
ski mask, black leather gloves, and a tan or cream colored coat entered
Archies Place, a barbecue restaurant in South Bend, pulled a black gun, and
demanded money from the cashier, Tamika Fultz. As Fultz gathered the money
from the register, she noticed that the outside door remained open. Because
the door normally closed itself, she assumed that a second person was holding
it open. After Fultz handed approximately $500 to the gunman, the gunman
suddenly turned and shot Brian Cichocki, a customer who was waiting for his
takeout order. Fultz dialed 911 and police were dispatched at 9:18 p.m.
Cichocki suffered a gunshot wound to his left shoulder and died of
severe blood loss later that night. Ballistics tests and a shell casing
retrieved from the scene revealed that the lethal bullet was fired from a
Brandon Williams, seventeen years old, lived a few blocks away from Archies Place.
The day after the robbery, police questioned Williams after receiving a tip
that he had been involved in the crime. Williams initially denied any
involvement, but later that day admitted that the prior evening he had accompanied
Reed to Archies Place. Williams said that he held the door as Reed
unexpectedly robbed Fultz and shot Cichocki.
Reed, who had just turned eighteen, was picked up by police and interviewed
by Officer Richmond. In the course of the interview, Reeds mother, Darla
Pfeifer, arrived at the police station. Although Pfeifer was not allowed to
speak with Reed at that time, she signed a consent form allowing police
to search her house. Police discovered a nine-millimeter AB-10 or Baby Tec
9 handgun and bullets in the garage. They also found two black
ski masks, a pair of black knit gloves, a tan coat, and a
green jacket in Reeds room. Reed was arrested based on the fruits
of the search. Ballistics tests later showed that the gun seized in
the garage was not the weapon used to kill Cichocki.
Pfeifer was present as the police searched her home. After the AB-10
was found in her garage, she halted the search and returned to the
station where she was allowed to speak with Reed in the interview room.
The police routinely videotape everything that occurs in the interview room and
captured the conversation between Reed and Pfeifer. Reeds interrogation by police was
on the same tape, immediately before and after his conversation with Pfeifer.
Although the portion of the tape containing the Reed/Pfeifer conversation is largely unintelligible,
Pfeifer can be heard instructing her son to shut up and just be
quiet. Reed and Pfeifer can also be heard discussing the AB-10.
When Pfeifer asked Reed if the gun had been used in a shooting,
Reed replied that the gun has never been fired. Pfeifer asked Reed
if he shot Cichocki, to which he replied that he didnt shoot anybody.
Immediately following the conversation between Reed and Pfeifer, police placed Reed under
B. Pretrial Maneuvers
Six months later, on August 20, 1998, Williams entered into a plea agreement
with the State. In return for his agreement to testify truthfully against
Reed, the two counts of robbery and one count of felony murder against
Williams were dropped and he was allowed to plead guilty to assisting a
criminal, a Class C felony.
Reed first attempted to depose Williams on December 2, 1998. When it
became clear that Williams would not voluntarily give a deposition, Reed filed a
motion to compel. After hearing argument on December 4, 1998, the trial
court denied that motion. The court took the view that because Williams
guilty plea had not yet been unconditionally accepted by the court, Williams was
still in jeopardy and could stand on his privilege against self-incrimination. On
April 29, 1999, after learning that Williams had submitted to a lengthy videotaped
interview with prosecutors, Reed renewed his motion to compel a deposition. On
May 7, 1999, a brief hearing was held on the renewed motion.
Reed argued that Williams had waived his Fifth Amendment rights by videotaping an
interview with the prosecutor on April 23, 1999. The court rejected that
argument and also stated that it had no power to order the State
to extend use immunity or seek use immunity from a court before the
State wishes to do so. The motion was denied. At that
time there appears to have been no request to compel production of the
videotape. In the context of debating whether Williams had waived any Fifth
Amendment rights, the prosecutor claimed the interview was privileged as plea negotiations.
The trial court agreed, stating that any statements . . . by Brandon
Williams were under plea discussions and not discoverable nor usable against him unless
they were for perjury down the road. Reed asked that this order
be certified for interlocutory appeal and that request was also denied. A
copy of the videotaped interview with prosecutors was turned over to Reed at
some point before trial, but the record does not indicate when or why.
The State finally requested use immunity for Williams on July 2, 1999,
immediately before he took the stand to testify.
A second videotape was also the subject of a pretrial motion by Reed.
Reed moved to suppress the videotaped conversation between Reed and Pfeifer and
also filed a motion in limine to prevent the State from admitting the
AB-10 into evidence or discussing it at trial. On June 29, 1999,
after the jury had been chosen, a hearing was held. The record
of the hearing indicates some confusion over whether the hearing was limited to
the motion to suppress the videotape or whether it also addressed the motion
in limine to exclude the gun and other items. After it became
clear that the trial court intended to rule on both motions immediately after
the hearing, Reed attempted to argue that the AB-10 should not be admitted
as evidence or discussed at trial because it was clearly not the murder
weapon and bore no relationship to the crime. The prosecutor countered that
during the videotaped conversation with his mother, Reed says information that would indicate
that he knows that the weapon used at Archies was a different weapon
and it would show relevance that Mr. Reed is familiar with the Tec
9. The trial court ultimately denied the motion to suppress and denied
the motion in limine as to the AB-10.
C. Williams Testimony at Trial
At the time of the crime, both Reeds mother, Pfeifer, and his girlfriend,
Takiya Posey, worked at Cardinal Nursing Home, approximately 1 mile from the Reed/Pfeifer
home. According to Williams, on the morning of the crime he and
Reed rode their bicycles to Cardinal to pick up Pfeifers car. He
said the pair found Pfeifer at work, got the car keys from her,
and took the car from the nursing home parking lot. Reed then
drove the pair in Pfeifers car to an unknown location on the southeast
side of South Bend where Williams purchased a Tec 9 handgun from a
man known only as Terry. Cardinals payroll records indicate that Pfeifer did
not work that day. Pfeifer was not asked by either party whether
the records were correct.
Williams testified that Reed stopped by his home on the evening of the
crime and suggested that they get a bite to eat at Archies Place.
Williams had last seen his newly purchased gun on the ledge in
his basement room. Reed and Williams walked to Archies Place, which took
approximately five minutes. As Williams held the door for Reed to walk
into the restaurant, Reed suddenly pulled his ski mask over his face and
said, Get down. Give me the money. After about thirty seconds,
with Reed still in the store, Williams released the door and started to
run home. En route, he heard a gunshot. Reed, carrying a
handgun that looked like a Tec 9, caught up with Williams and the
two then walked to Williams house. No words were spoken. Reed
set the gun down on the coffee table in Williams room and the
two then went to Reeds house. Around 10:30 or 11:00 p.m., Williams
returned to his own home, placed the gun in a blue bookbag, and
disposed of it in a trash can in the alley behind the house
where Michelle Thomas, a friend and neighbor of Williams, and Teresa Glasper, Thomas
roommate, lived. The next day, he retrieved the bag from the trash
can and paid a visit to Thomas and Glasper, accompanied by Posey.
After chatting with the women, he then returned the bag to the trash
can in the alley.
D. The Other Evidence
Fultz testified that an unidentified gunman robbed her and shot Cichocki and that
she assumed another person held the door open. Fultz also testified that
the gunman wore a tan or beige jacket and black ski mask, but
was not asked whether the tan coat and black ski masks found at
Reeds home matched those worn by the gunman.
Over Reeds repeated objections, the gun, bullets, ski masks, tan jacket, and green
jacket seized at Pfeifers home were discussed in testimony by the police.
Either photos or the actual items were also admitted as evidence.
The State played three portions of the videotaped conversation between Pfeifer and Reed
to the jury. The States theory of its relevance was that it
undercut Pfeifers testimony in support of Reeds alibi that at the time of
the crime, Reed was walking Posey home from work. The State contended
that if Pfeifer knew that Reed could not have committed the crime, she
would not have asked him if he had. This appears to assume
that Pfeifer knew the precise timing of the crime and the time she
spoke with Reed on the night of the crime, and we find no
evidence one way or another on that point.
In support of Williams testimony on the chain of events, the prosecution presented
two witnesses. Thomas testified that Williams told her on the morning of
the crime that he wanted to purchase a gun. Glasper testified that
later that afternoon Williams returned to their house with a black gun with
holes on the end. Neither woman testified that she saw Reed that
E. Reeds Defense
At trial, Reed contended that he could not have participated in the robbery
and murder because at or immediately before the time of the crime he
was walking Posey home from her job at Cardinal. Reed presented five
alibi witnesses. Pfeifer testified that Reed left her home on foot at
8:25 or 8:30 p.m. to meet Posey at the nursing home and walk
her home. Cardinals director of human resources testified that Poseys computer-generated timecard
indicated that she clocked out at 8:42 p.m. on the night of the
crime. Two of Poseys co-workers testified that they saw Posey and Reed
at the nursing home between 8:30 and 8:45 p.m. Reeds home is
a few blocks away from Archies Place and slightly less than one mile
from Cardinal. Cardinal and Archies are seven-tenths of a mile apart.
Reed argued that it would not have been possible for him to leave
the nursing home around 8:45 p.m., walk Posey home, walk to Archies Place,
and then participate in a robbery and murder all before the polices arrival
about 9:18 p.m.
After a jury trial, Reed was convicted of the robbery of Archies Place
and the murder of Brian Cichocki. Citing double jeopardy, the trial court
merged the robbery conviction into the felony murder conviction and sentenced Reed to
sixty-five years in prison. Reed filed a motion for a mistrial, arguing
many of the same points raised in this appeal. That motion was
denied and Reed subsequently appealed his conviction to this Court.
I. The Significance of Williams Testimony
Williams testimony was the cornerstone of the prosecutions case against Reed. As
we observed in Birkla v. State, When the prosecution relies upon the testimony
of a coconspirator to obtain conviction of an accused, the coconspirators credibility is
an important issue in the case . . . . 236 Ind.
37, 42, 323 N.E.2d 645, 648 (1975). Here, Williams credibility was not
merely important, it was critical. The State presented no physical evidence tying
Reed to the crime scene and no eyewitnesses identified Reed as the masked
gunman. The gun used in the crime was not Reeds and was
never found. None of the money or personal effects taken from the
victims was recovered or linked to Reed. The States entire case rested
on Williams testimony that he had been involved in the crime and that
Reed was the triggerman. Thomas and Glasper provided testimony that was consistent
with Williams story that he and Reed purchased a handgun on the day
of the crime. The two women also partially corroborated Williams account of
disposing of the handgun later that day. However, no evidence corroborated the
heart of Williams testimonyhis account of the events immediately before, during, and after
the robbery of Archies Place.
II. Sixth Amendment Right of Confrontation
Reed was unsuccessful in his effort to depose Williams. Reed contends that
the trial courts refusal to compel the deposition denied him his Sixth Amendment
right of confrontation.
Bubb v. State noted that, although a defendant has no due process right
to compel the immunization of defense witnesses, the State cannot use its power
of immunization to interfere with the defenses presentation of its case. 434
N.E.2d 120, 124 (Ind. Ct. App. 1982). Williams was not a defense
witness in the case against Reed; indeed, he was the key witness for
the prosecution, but we think the same principles apply. The issue is
whether the States refusal to immunize Williams earlier improperly interfered with Reeds case
and violated the Due Process Clause. The Court of Appeals, borrowing language
from the Third Circuit, outlined a strict test:
[T]he evidentiary showing required to justify reversal on that ground must be a
substantial one. The defendant must be prepared to show that the governments
decisions were made with the deliberate intention of distorting the judicial fact-finding process.
Where such a showing is made, the court has inherent remedial power
to require that the distortion be redressed by requiring a grant of use
immunity to defense witnesses as an alternative to dismissal.
Bubb, 434 N.E.2d at 124 (quoting United States v. Herman, 589 F.2d 1191,
1204 (3d Cir. 1978)); accord United States v. Schweihs, 971 F.2d 1302, 1315
(7th Cir. 1992). Interference with the defendants case or distortion of the
fact-finding process may be established by showing:
(a) prosecutorial overreaching, through threats, harassment, or other forms of intimidation, has effectively
forced the witness to invoke the Fifth Amendment, or the prosecutor has engaged
in discriminatory use of immunity grants to gain a tactical advantage; (b)
the witness's testimony is also material, exculpatory, and not cumulative; and (c) the
defendant has no other way to obtain the evidence.
Baxter v. State, 727 N.E.2d 429, 433 (Ind. 2000); Moore v. State, 655
N.E.2d 1251, 1253 (Ind. Ct. App. 1995) (quoting Blissett v. Lefevre, 924 F.2d
434, 442 (2d Cir. 1991)).
Reed does not cite
Bubb or Baxter, nor does he do more than
mention this argument in his brief. Nonetheless, the record establishes that the
States continued and vigorous opposition to Reeds efforts to depose Williams and its
refusal to grant use immunity until moments before Williams took the stand at
Reeds trial constituted interference with Reeds case.
The State offers no explanation for the prosecutors continued attempts to block Reeds
motions to compel Williams deposition. We can see none other than an
effort to gain improper tactical advantage. Williams entered into a plea agreement
on August 20, 1998. It is clear from the record that the
State intended to grant Williams use immunity at least as of the videotaped
interview on April 23, 1999, if not much sooner. That was two
weeks before the hearing on Reeds second motion to compel Williams deposition.
The prosecutor delayed her request for immunity until July 2, 1999, the day
that Williams testified at Reeds trial. Indeed, at the second hearing on
Reeds motions to compel Williams deposition on May 7, the State actively argued
against the motion. Williams lawyer was present but said nothing.
At the time that Reed sought to depose Williams, the only clues Reed
had to this key witness testimony were two partially contradictory statements Williams had
made to police the day after the murder. Reed had no way
of knowing whether Williams testimony could or would be exculpatory because he had
no idea what that testimony might be.
At the time of the second hearing on May 7, prosecutors continued to
maintain that a deposition was useless because it would produce only claims of
Fifth Amendment privilege, and also that the now revealed videotape was privileged.
The timing or reasons for release of the tape are not in the
record. We can only speculate that it was done for Brady concerns,
or perhaps in an effort to cure the error in blocking a pretrial
deposition of Williams.
In any event, it is not correct that the taped interview was not
discoverable or usable at Reeds trial. The use of prior inconsistent statements
to impeach a witness is well established.
Chambers v. State, 734 N.E.2d
578, 580-81 (Ind. 2000). Indiana Rule of Evidence 410 and Indiana Code
section 35-35-3-4 provide that statements made in connection with a contemplated plea agreement
may not be used against a defendant if the agreement is not finalized.
Both the rule of evidence and the statute are clear that use
of plea negotiations is prohibited only as to the negotiating accused person, in
this case, Williams. There is simply no privilege insulating Williams dialogue with
the prosecution from discovery or use in Reeds case. United States v.
Testa, 33 F.3d 747, 751 (7th Cir. 1994) (holding that under Federal Rule
of Evidence 410, statements made in the course of plea negotiations are inadmissible
only against defendants who participated in those negotiations); Elmer v. State, 724 A.2d
625, 629 (Md. 1999) (holding that Maryland Rule of Evidence 5-410, a counterpart
to Federal Rule 410 and Indiana Rule 410, does not prohibit the admission
of statements made by a codefendant during the course of plea negotiations against
the defendant as long as the defendant was not a party to the
Release of the videotape to the defense did not cure this situation.
The inability to depose Williams left Reed with no opportunity to expose several
inconsistencies in Williams various accounts. For example, Williams account of his disposal
of the murder weapon at trial was significantly different from the version he
told prosecutors on videotape on April 23, 1999.
At trial, Williams testified
that immediately after the crime he saw Reed holding the Tec 9 that
the two of them had purchased earlier that day. In his original
police interview on April 23, 1998, Williams specifically denied seeing Reed with a
gun that evening, and the videotape did not address that issue.
At the very least, Reed was entitled to access to Williams prior to
trial to have an opportunity to develop and pin down Williams testimony on
these and any other potential points or at least have sworn testimony to
impeach any variances.
In the often quoted but worth repeating phrase from
Williams v. Florida, 399 U.S. 78, 82 (1970):
The adversary system of trial
is hardly an end in itself; it is not yet a poker game
in which players enjoy an absolute right always to conceal their cards until
The prosecutors effort to hide the ball until the day of
trial plainly violated that cardinal principle.
The prosecutors handling of the immunity left the trial court with three alternatives.
The trial court was correct that it could not compel immunity.
See United States v. Bowling, 239 F.3d 973, 976-77 (8th Cir. 2001).
However, it could exclude Williams testimony, dismiss the prosecution if no deposition was
permitted, or grant a continuance for sufficient time to permit Reed to depose
Williams and prepare a defense. See United States v. Morrison, 535 F.2d
223, 229 (3d Cir. 1976). After the trial court granted immunity to
Williams, Reed needed to renew his request to depose Williams and, if necessary,
move for a continuance in order to preserve the issue. Reed did
not do so. However, the combination of this unpreserved error and the
trial courts refusal to admit the videotape to impeach Williams, as discussed in
Part III, constitutes reversible error.
III. Refusing to Admit the Videotape
Reed contends that the trial court abused its discretion by refusing to allow
him to play the videotape of the prosecutors April 23, 1999, interview with
Williams. The trial courts decision, Reed argues, interfered with his right to
cross-examine Williams and impeach his inconsistent testimony and therefore prejudiced him.
The right to cross-examine witnesses is guaranteed by the Sixth Amendment to the
United States Constitution. It is one of the fundamental rights of our
criminal justice system.
Pigg v. State, 603 N.E.2d 154, 155 (Ind. 1992).
To be sure, this right is subject to reasonable limitations placed at
the discretion of the trial judge. McQuay v. State, 566 N.E.2d 542,
543 (Ind. 1991); accord Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
[T]rial judges retain wide latitude . . . to impose reasonable limits
. . . based on concerns about, among other things, harassment, prejudice, confusion
of the issues, the witness safety, or interrogation that is repetitive or only
marginally relevant. Thornton v. State, 712 N.E.2d 960, 963 (Ind. 1999) (quoting
Van Arsdall, 475 U.S. at 679). It is also true that violations
of the right to cross-examine are subject to harmless error analysis. Van
Arsdall, 475 U.S. at 684; accord Chapman v. California, 386 U.S. 18, 24
(1967) (a conviction will not be reversed if the State can show beyond
a reasonable doubt that the error complained of did not contribute to the
verdict obtained). To determine whether an error is harmless, courts look to
several factors, including the strength of the prosecutions case, the importance of the
witness testimony, whether the testimony was corroborated, the cross-examination that did occur, and
whether the witness testimony was repetitive. Van Arsdall, 475 U.S at 684.
Reed contends that he could not anticipate the substance of Williams trial testimony
because he had access only to a transcript of Williams statements to police
the day after the crime and a videotape of Williams interview with prosecutors
on April 23, 1999.
After Reed concluded his cross-examination of Williams in
the early afternoon of Friday, July 2, 1999, the judge released the jury
for lunch. When the court reconvened at 3:00 p.m., Reed requested permission
to have some portions of the April 23, 1999, videotape marked as evidence
and played for the jury in order to demonstrate that Williams was untruthful
in his testimony in relation to his earlier statement to [the prosecutor].
Reed explained that during the lunch break he had identified a number of
inconsistencies between Williams testimony on direct and cross-examination and his videotaped statement of
April 23. Specifically, Reed alleged that Williams told different stories about his
initial purchase of the murder weapon, his description of his activities on the
afternoon of the crime, and his disposal of the murder weapon.
A comparison between the videotape and the transcript of Williams testimony at trial
reveals that inconsistencies do exist.
In the interview, the prosecutor asked; So
[Reed] tells you there is a firearm for sale. Who did he
tell you had it for sale? Williams replied, I couldnt really tell
you. The prosecutor continued, Did you ever learn the name of the
guy that you bought the gun from? Williams answered no. Yet
at trial, the following dialogue took place on cross-examination:
Q: Who did you buy the gun from?
A: A person on the southeast side.
Q: Okay. What is that persons name?
Q: Now, when you met with the prosecutor on April 23, 1999, you
were asked who you bought the gun from. Right?
Q: You said you didnt know; isnt that right?
A: I guess so.
Q: So was that a lie to Ms. Jourdan?
A: Not necessarily, I dont know him like that. I know him
by Terry. She didnt ask me for a name. She just
asked me did I know him or who he was.
Williams testimony offers a different account of the events directly following the purchase
of the gun than that conveyed to prosecutors in the April 23, 1999
interview. At that time, Williams stated that after purchasing the gun, he
and Reed went directly to his home where Williams placed the gun on
a ledge in his basement. They went to Reeds house for a
while and then drove Pfeifers car back to the Cardinal Nursing Home and
returned the keys to her. They walked to a nearby 7-11 store
and smoked a blunt with a girl who worked there. Williams then
went home and was soon joined by Reed. The two listened to
music together for a while and then decided to go over to Thomas
and Glaspers house, which Williams described as a neighborhood hotspot. While there,
Reed and Williams had a general conversation about guns, but did not specifically
mention the gun purchased that day.
At trial, Williams testified that he did not put the gun on the
ledge in his basement. Instead, he kept the gun tucked in his
pants. After returning home from purchasing the gun, Williams and Reed split
up and Williams went to visit Thomas and Glasper. Although he did
not directly show them the gun, Williams testified that the women could see
the gun through his clothing. After returning from visiting the two women,
Williams placed the gun on the ledge in the basement.
Williams also offered two different accounts of his activities immediately following the crime.
In the interview, Williams stated that he and Reed first went to
Williams home where Reed left the murder weapon on a coffee table.
The two men then went to Reeds home where Reed spoke with his
mother and girlfriend before Williams and Reed retired to the basement to watch
television. After a news segment on the shooting concluded, they rode Reeds
little brothers bicycles to the local 7-11 to purchase candy and some beverages.
They met a dude named Chris Buggs at the store, sat in
his car and chatted for a while, and then rode the bikes back
to Reeds home. At that point, Williams called it a night and
returned to his own house.
At trial, Williams testified that, immediately after the crime, he and Reed went
to Williams house where Reed left the gun on the coffee table.
They both went to Reeds house where Reed spoke with his mother.
After no longer than a half hour, Williams went home.
Finally, Williams offered two drastically different stories regarding his disposal of the murder
weapon. At trial, Williams testified that, after leaving Reeds home on the
night of the crime, he returned to his own home, placed the gun
in a blue bookbag and disposed of it in a trash can in
the alley behind the house where Thomas and Glasper lived. The next
day, he retrieved the bag from the trash can and, accompanied by Posey,
paid a visit to Thomas and Glasper. After chatting with the women,
he then returned the bag to the trash can in the alley.
But in the videotaped interview, Williams stated that when he returned from Reeds
house on the night of the crime, he listened to music and made
some calls before falling asleep. The next morning, when he woke up
around 11:00 a.m., the gun was still on the coffee table. Sometime
before noon, he threw the gun into a trash barrel behind a house
one or two doors west of the home of Thomas and Glasper.
Williams specifically denied that he ever took the gun out of the trash
barrel after placing it there and denied going to Thomas and Glaspers house
with a bag. The prosecutor asked Williams if he and Posey went
to Thomas and Glaspers house at any time that day and Williams definitively
stated, [Posey] didnt go over there. He repeatedly denied that Posey went
to the house or that she knew either Thomas or Glasper. The
prosecutor expressed some doubt about Williams account: So you want me to believe
that you dumped [the gun] in a barrel out in broad daylight sometime
after eleven and before twelve? Yeah, Williams replied.
The prosecutor objected to playing the entire videotape to the jury on two
grounds. She contended Reed had been supplied a copy of the tape
two months before trial and could have prepared an excised copy. She
also took the position that there are other questions and answers on the
tape which have not been impeached in any way which may in fact
make me akin to a witness. Reed countered that it was impossible
for him to prepare an excised copy of the tape prior to trial
because he had been denied the ability to depose Williams and therefore had
no basis to know how Williams story might have changed between April 23,
1999, and trial.
The trial court denied Reed permission to play the tape, explaining that in
his view Williams had been sufficiently impeached on his inconsistent statements. Reed
then asked for funds to have the tape edited over the weekend so
that he might show the jury the relevant portions of the tape.
The trial court denied this request as well.
Although Reed was able to cross-examine Williams on specific inconsistent statements, that impeachment
was compromised by the trial courts refusal to play the videotape for the
For example, in one exchange, Reed pressed Williams about the significant
differences between the story he told prosecutors on April 23, 1999, and his
testimony at trial concerning his disposal of the murder weapon:
Q: Now, you spoke with [prosecutor] Ms. Jourdan on April 23, 1999; isnt that
Q: And when you spoke to her about what you did with the gun,
you tolddidnt you tell her that you left that gun on the coffee
table all night?
Q: You didnt tell her that?
Q: You didnt tell her that it remained on the coffee table until you
got up the next morning at 11 a.m.?
A: No, because at 11 a.m. I had already left.
Q: Okay. So absolutely youre saying that you did not say that to
A: I dont recall saying that to Ms. Jourdan.
Q: And you didnt tell Ms. Jourdan that after you left ator got up
the next morning, that you took that gun in broad daylight, walked across,
and then dumped it in a trash barrel?
A: I dont recall saying that.
Q: And didnt you tell Ms. Jourdanor you didnt tell anything to Ms. Jourdan
about putting it in a book bag; isnt that right?
A: I dont recallwhere are you getting this from?
Q: Well, you gave a videotaped interview to her in which you answered questions.
A review of the videotape reveals that Reeds account of Williams statements was
correct. However, without the benefit of watching the videotape,
the confrontational series
of questions and answers between Reed and Williams appears more as conflicting memories
of a dialogue than a presentation of proof that Williams had come up
with inconsistent accounts.
Given the critical role of Williams testimony, the fact that all other evidence
and testimony against Reed was circumstantial, and the States consistent opposition to Reeds
attempts to depose Williams before trial, Reed was prejudiced by the trial courts
abuse of discretion in refusing to play relevant portions of the videotape for
the jury and thus allowing Reed to conduct a full cross-examination of Williams.
The problems in producing an edited version were largely attributable to the prosecutions
and the trial courts withholding the tape until shortly before trial, and the
inability of the defense to predict what the testimony would be due to
the stonewalling of proper discovery. In concert with the States improper interference
with Reeds attempts to depose Williams before trial, Reeds ability to present a
defense was substantially prejudiced. A new trial is required.
IV. Hearsay Issues
Reed argues that the trial court erred in allowing Michelle Thomas to testify
as to hearsay statements allegedly made by Takiya Posey. Thomas testified that
the day after the crime, a woman claiming to be Reeds girlfriend came
to her house. Over repeated hearsay objections, the trial court allowed the
following set of questions and answers:
Prosecutor: What did she want?
Thomas: She said that she was [Reeds] girlfriend and that
she wanted to retrieve a bag that she said [Williams] left
at my house.
P: What was your response to her?
T: I told her [Williams] didnt leave no bag at my house, that I
told him no.
P: What happened after you told her that?
T: She said that he left it in my back yard.
In response to Reeds objections, the trial court admonished the jury that the
two statements were hearsay and:
That doesnt make it true or not true or anything else. You
cant use it for that purpose. You cant use it to bolster
some other testimony about where a bag may or may not have been
left. It doesnt count towards that. It only counts for what
this witness says she heard as a basis for her doing something or
not doing something or saying something that shes now testifying to.
Thomas proceeded to testify that she watched the woman poke around her backyard
for five to ten minutes, then take a bag out of a trash
barrel behind the house and leave in a car.
Thomas roommate, Teresa Glasper, testified to the same set of events. Glasper
knew Posey and testified that Posey came to the house the evening after
the crime to retrieve the bag that Williams had left in the backyard
earlier that day. Glasper also testified that she watched Posey look around
the yard, take a bag, and then depart in a car. Unlike
Thomas, Glasper did not testify to any statements made by Posey and presented
no hearsay issues. Reed did not object to Glaspers identification of Posey
or her testimony that Posey took a bag from the trash barrel.
Reed did not ask for a mistrial after Thomas testified and the trial
court properly admonished the jury. Therefore any error is waived unless it
constitutes fundamental error. Because Glasper testified to the same set of events,
the evidence is cumulative and therefore not reversible error.
Davidson v. State,
558 N.E.2d 1077, 1089 (Ind. 1990).
V. Insufficient Evidence
Finally, Reed argues that the evidence was insufficient to support his conviction and
that the incredible dubiosity rule should be applied to Williams testimony. Our
standard of review for sufficiency claims is well settled. We do not
reweigh evidence or assess the credibility of witnesses. Rather, we look to
the evidence and reasonable inferences drawn therefrom that support the verdict and will
affirm the conviction if there is probative evidence from which a reasonable jury
could have found the defendant guilty beyond a reasonable doubt.
State, 681 N.E.2d 1105, 1110 (Ind. 1997).
Williams was the only witness to place Reed at the scene of the
crime and identify him as the triggerman. He was not a model
witness. Some of his testimony was improbable and he was impeached by
a number of prior inconsistent statements. However, judging the credibility of witnesses
is the province of the jury and a court will impinge on that
responsibility only in those rare cases where a sole witness presents inherently contradictory
testimony that is equivocal or the result of coercion and there is a
complete lack of circumstantial evidence of the appellants guilt.
Tillman v. State,
642 N.E.2d 221, 223 (Ind. 1994).
This incredible dubiosity rule does not apply here because Williams testimony did not
rise to the level of inherent contradiction, nor was it equivocal or the
result of coercion. As a result of the trial courts erroneous decision
to limit Reeds ability to cross-examine Williams, a retrial on these charges will
presumably take place. Because the incredible dubiosity rule does not preclude the
jury from judging Williams credibility and the uncorroborated testimony of one witness is
sufficient to sustain a conviction on appeal,
Toney v. State, 715 N.E.2d 367,
368 (Ind. 1999), retrial is not barred on double jeopardy grounds. Thompson
v. State, 690 N.E.2d 224, 237 (Ind. 1997).
We conclude that the trial court erred in refusing to compel the deposition
of Williams and in refusing to allow Reed to play Williams videotaped interview
with prosecutors for the jury. We remand for a new trial.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
A similar right is guaranteed by Article I, Section 13 of the
Indiana Constitution. However, Reed did not raise this argument and we do
not discuss it.
The State represented to the court that the videotaped interview constituted
plea negotiations, not trial preparation. The tape itself makes clear that it
was witness preparation and/or investigation, not plea negotiations. At the beginning of
the interview, the prosecutor stated:
The State of Indiana is prepared to file a request for immunity, use
immunity, which guarantees immunity to Mr. Williams for truthful testimony regarding all the
events of April 22, 1998, and April 23, 1998, with one exception.
That being, should Mr. Williams testify that he personally committed the armed robbery
of Brian Cichocki and or the felony murder of Brian Cichocki based on
the shooting he will not be covered by the immunity.
In the interview with prosecutors, Williams stated that when he returned from
Reeds house on the night of the crime, he relaxed in his basement
bedroom before falling asleep. The next morning, he awoke around 11 a.m.,
picked up the gun from his coffee table and threw it into a
trash barrel behind a house one or two doors west of the home
of Thomas and Glasper. Williams specifically denied taking the gun out of
the trash barrel after placing it there or going to Thomas and Glaspers
house with a bag. At trial, Williams testified that, after leaving Reeds
house on the night of the crime, he returned to his own home,
placed the gun in a blue bookbag and disposed of it in a
trash can in the alley behind Thomas and Glaspers house. The next
day, he retrieved the bag from the trash can and, accompanied by Posey,
paid a visit to Thomas and Glasper. After chatting with the women,
he returned the bag to the trash can.
Footnote: The State did not provide Reed with a transcript of the videotape,
nor did Reed attempt to create a formal transcript prior to trial.
Footnote: The videotape was not admitted into evidence, but identified as Defendants Exhibit
PUB-MTN and included in the record.
The trial courts refusal to allow Reed to play portions of the
videotape to impeach Williams testimony is particularly troubling in light of its handling
of an earlier tape offered by the prosecution. When State witness Officer
Richmond was admitted to the hospital, suffering from chest pains, and was unexpectedly
unable to testify, the State requested that, in lieu of Richmonds testimony, the
trial court play for the jury the hour-long unexpurgated copy of the videotaped
interview between Reed and police made immediately before his arrest. Reed, caught
off guard by this request, argued that portions of the videotape and transcript
were inadmissible. For example, this tape included discussion of Reeds juvenile record
and a statement by Reed: I dont like being around police officers.
Ive been locked up too long, too many times. The trial court
cautioned the prosecutor to be ready with their squash button to prevent the
jury from hearing two specific parts of the videotape, but refused to delay
playing the tape for the jury in order to allow Reed to prepare
an excised copy.
The trial court expressed concern about making the jury wait and stated that
Reed should have raised objections to the admissibility of any statements on the
videotape during the June 29, 1999, suppression hearing. However, a review of
the record makes it clear that
Reeds motion to suppress did not address
his interview by police and there was no discussion of that interview at
the suppression hearing. At the time, Reed had no reason to anticipate
that the interview would be used at trial.
Both the videotape and the transcript were admitted into evidence. The videotape
was shown to the jury and copies of the transcript were provided to
each juror. The record does not indicate which portions, if any, of
the videotape were squashed. [I]n the absence of a strong showing of
state interests to the contrary, discovery must be a two-way street. The State
may not insist that trials be run as a search for truth so
far as defense witnesses are concerned, while maintaining poker game secrecy for its
Wardius v. Oregon, 412 U.S. 470, 475-76 (1973) (holding that, although the
Due Process Clause does not mandate the adoption of discovery procedures in criminal
cases, in the absence of a strong showing of state interests to the
contrary, any discovery procedure adopted must be reciprocal and fair)