ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Dennis A. Vowels Jeffrey A. Modisett
Evansville, Indiana Attorney General
Janet Brown Mallett
Deputy Attorney General
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Carl A. Heldt, Judge
Cause No. 82C01-9802-CF-181
June 30, 2000
The defendant-appellant, Tommy James Rubalcada, was convicted of conspiracy to commit robbery
See footnote and
felony murderSee footnote for the February 1998 death of Brian Jamison. On direct
appeal, the defendant alleges the following errors: (1) his review of the
police investigative file concerning the victim was restricted; (2) his wife was permitted
to testify against him; (3) his cross-examination was limited; and (4) a prosecution
witness received a plea bargain which was not disclosed at trial. We
Record at 167.
We consider together the defendant's claimed violations of his rights to due process and compulsory process. Claims such as those raised by the defendant here have traditionally been evaluated by the U.S. Supreme Court under the broader protections of the Due Process Clause of the Fourteenth Amendment. Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40, 57 (1987). The compulsory process clause provides no greater protections than those afforded by due process, and a due process analysis is appropriate for determining whether compulsory process rights have been violated. Id.
It is well settled that the Due Process Clause requires the government to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment. Id. at 57, 107 S.Ct. at 1001, 94 L.Ed.2d at 57 (citing United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215, 218 (1963). The same analysis applies to both exculpatory and impeachment evidence. Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490, 505 (1995). Evidence is material only "'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Id. at 433-34, 115 S.Ct. at 1565, 131 L.Ed.2d at 505 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494 (1985) (opinion of Blackmun, J.); id. at 685, 105 S.Ct. at 3385, 87 L.Ed.2d at 496 (White, J., concurring in part and concurring in judgment)).
In Ritchie, the U.S. Supreme Court reversed that portion of the Pennsylvania Supreme Court's decision that would have allowed defense counsel to examine all of the government's confidential information. Instead, the Court in Ritchie remanded to the trial court for in camera review of the government's information to determine whether the evidence at issue was favorable to the defendant and material to either guilt or punishment. Id., 480 U.S. at 60-61, 107 S.Ct. at 1002-03, 94 L.Ed.2d at 59-60. A defendant's right to discover exculpatory evidence, however, does not include the authority to search through the government's files unsupervised. Id. at 59, 107 S.Ct. at 1002, 94 L.Ed.2d at 58. The Ritchie Court required that the government files be submitted to the trial court, which "would be obligated to release information material to the fairness of the trial." Id. at 60, 107 S.Ct. at 1003, 94 L.Ed.2d at 59. The Court held that the defendant was entitled to have the government file "reviewed by the trial court to determine whether it contains information that probably would have changed the outcome of his trial." Id. at 58, 107 S.Ct. at 1002, 94 L.Ed.2d at 58.
In contrast to Ritchie, the trial court in this case did conduct an in camera review prior to trial and determined that the intelligence matters the defendant sought were not relevant to the issues presented in the case and did not have "any apparent exculpatory benefit to the defendant." Record at 167.
We review the trial court's ruling, based on its in camera inspection of
government investigative materials, for an abuse of discretion in denying access to material,
exculpatory, or impeachment evidence. See Pilarski v. State, 635 N.E.2d 166, 172
(Ind. 1994); United States v. Plescia, 48 F.3rd 1452, 1457 (7th Cir. 1995).
As noted by the Seventh Circuit Court of Appeals, when a criminal
defendant seeks access to confidential government files, appellate courts "rely particularly heavily on
the sound discretion of the trial judge to protect the rights of the
accused as well as the government." Id. (quoting United States v. Phillips,
854 F.2d 273, 277 (7th Cir. 1988)).
Because the trial court's determination in denying access to some of the subpoenaed matters referred only to relevance and exculpatory value, but did not expressly refer to impeachment value or materiality, we draw upon the methodology used by the Supreme Court in Kyles in our review of the claim presented. The Court in Kyles, noting that the federal Constitution "is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense," Kyles, 514 U.S. at 436-37, 115 S.Ct. at 1567, 131 L.Ed.2d at 507, stressed that materiality under Bagley requires that suppressed government evidence be "considered collectively, not item by item." Id. at 436, 115 S.Ct. at 1567, 131 L.Ed.2d at 507. The Court then explained that it first evaluates the "tendency and force" of the undisclosed evidence item by item and thereafter, for purposes of materiality, considers the cumulative effect separately. Id. at 436 n.10, 115 S.Ct. at 1567 n.10, 131 L.Ed.2d at 507 n.10. We will, therefore, evaluate the tendency and force of the defendant's specific individual challenges made in this appeal and then consider the cumulative effect to determine materiality collectively. To prevail, the defendant must demonstrate "that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435, 115 S.Ct. at 1566, 131 L.Ed.2d at 506.
The defendant contends that the trial court erred in not ordering the State to produce to the defendant pages 2-5, 10, 11, 13, 14, 16, 17, 24, 26, 32, and 52 of the subpoenaed materials. See footnote With regard to pages 2-5, the defendant claims that these pages contain the names of a number of individualsspecifically, David Harris, who provided Jamison the purchase money for the transaction but was not available for deposition by the defendant based upon a successful motion to quash the subpoena; and Aundre Reese, Vince Moreno, Thomas Pryor, Tammie Thorton, and Brett McBride, all of whom testified at trial for the State. On pages 2 and 3 of the undisclosed pages, these names are listed among "subjects linked [to Jamison] via intelligence." Record at 173-74. The list suggests only that the police had observed these individuals in contact with Jamison. The defendant was aware of the relationships among Jamison and these people, and there was no dispute at trial that these people had contact with Jamison or that Jamison was engaged in drug trafficking.
The defendant next claims that page 10 would have provided evidence that might be used to argue that someone else had a motive to kill Jamison. Page 10 is a criminal intelligence report filed four years before the murder that indicates that an anonymous person reported that Jamison sold marijuana to a 12-year-old boy and had many visitors at his house in the evening. The report says that the reliability of the source and the validity of the information are both unknown. There was no dispute that Jamison engaged in drug trafficking. The potential evidentiary value of this anonymous report about his possible actions four years before his death is minimal.
Page 11 is an unsigned document, dated February 28, 1997, indicating that a person, identified only by a first name, reported that a runner for Jamison was arrested in St. Louis and that, when the runner arrived at the meeting point, Jamison saw police cars hiding nearby and left. The report also notes that the source had given accurate information that George Cobb was arrested in Texas with Jamison. The report does not indicate who received the information or what agency was involved. The defendant claims that his counsel alluded to this information on cross-examination of Aundre Reese. A review of the record shows that counsel asked Reese if he had ever been arrested in St. Louis and Reese denied ever having been in Missouri.See footnote The defendant also notes that page 20 of the undisclosed materials provides Cobb's name and address and indicates he is an associate of Jamison. The relevance and weight of the information on pages 11 and 20 are minimal.
The defendant next asserts errors regarding pages 13 and 14. The handwritten note on page 13 indicates that "all of these subjects were at [Jamison's] apartment last night," record at 184; however, because it is undated, it is unclear when that might have been. The note also says that Jamison was pulled over at a traffic stop and a search of the car revealed nothing. It then states that William Simmons was arrested on an outstanding warrant and that Simmons and Jason York were suspected in an armed robbery that may have occurred "over drugs." Record at 184. Page 14 contains photographs of Simmons. Although York testified at trial under a grant of use immunity, we see nothing substantive in this note with which the defendant might have impeached York or refuted the Deputy Prosecutor's assertion that York had committed no crime. Suspicion of involvement in a robbery does not establish the fact of conviction for use as impeachment. The defendant argues that page 52 ties in with this evidence because it contains a response to an inquiry for a vehicle registration from the Bureau of Motor Vehicles for a car found to be registered to Simmons that was observed parked in a location that the defendant says was near Jamison's residence. The evidentiary value of this information is tenuous at best.
The defendant asserts that pages 16 and 17 identify a person who kept two pistol grip shotguns because he was afraid of Jamison and also provide names of other associates of Jamison. These pages are dated February 28, 1997, and present a summary of information provided when the police signed a confidential informant. The defendant asserts that this evidence would have been admissible to show that someone else had a motive to kill Jamison. The defendant makes no showing that any of these individuals are linked to this case. Mere speculation that others may have had a motive to kill Jamison lacks probative value and weight.
The defendant asserts that page 24 would have been admissible because it showed that someone else may have had reason to want Jamison dead. On this page, dated October 23, 1997, the officer states that the informant showed them a residence in Henderson, Kentucky, that was presumed to be Jamison's and stated that Jamison was still involved in transporting large quantities of marijuana and that one of Jamison's associates had been arrested while carrying several pounds of Jamison's drugs. Again, the mere possibility of motive, without more, is of little evidentiary value.
The defendant asserts that page 26 "discloses another of . . . Jamison's drug sale transactions," Brief of Defendant-Appellant at 16; however, nothing on this page suggests a transaction, but rather lists a phone number, Jamison's name, and says: "another big dealer living in behind Schnucks . . . lives across from the St Police," record at 197. It is unclear if this refers to Jamison as another big dealer or someone else. The defendant asserts that page 32See footnote notes the arrest of Jamison and Cobb in El Paso, Texas, on January 21, 1997, and an arrest of an unnamed male carrying marijuana belonging to Jamison in St. Louis at the end of 1996. There is little of substance to this information.
In response to the defendant's claims, the State argues that the undisclosed material could not have placed the defendant's case in a different light and that none of the undisclosed information shows that another person could have committed the crime. It further argues that the evidence at trial established that Jamison was a marijuana dealer and that most of the State's witnesses associated with him also were involved in illegal drug activity. The State urges that the challenged intelligence material "merely shows that Jamison was a drug dealer who may have had enemies, a fact both the State and the defense adduced at trial." Brief of Appellee at 5.
Although the undisclosed pages identified and challenged by the defendant were individually of minimal probative value and weight, we must consider them cumulatively to determine whether this information would have met the materiality requirement. In other words, we determine whether "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles, 514 U.S. at 433-34, 115 S.Ct. at 1565, 131 L.Ed.2d at 505. Considered cumulatively, we see little probability that disclosure would have led to a different result. The evidence at trial established that Jamison was a marijuana dealer and that most of the State's witnesses associated with him were also involved in illegal drug activity. We conclude that the suppressed police intelligence pages did not contain information that could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. We find there is no reasonable probability that the outcome would have been different if this information had been disclosed, and we find no violation of the defendant's due process or compulsory process rights in the trial court's determination.
The defendant also claims that he was denied the right to confrontation because of this undisclosed information. A criminal defendant shows a violation of the Confrontation Clause by establishing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby from showing the jury facts from which it could appropriately draw inferences relating to the witness's reliability. Delaware v. VanArsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674, 684 (1986); Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347, 355 (1974). The Confrontation Clause, however, is not a constitutionally compelled rule of pretrial discovery. Ritchie, 480 U.S. at 52, 107 S.Ct. at 999, 107 L.Ed.2d. at 54. It only guarantees "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Id., 480 U.S. at 53, 107 S.Ct. at 999, 94 L.Ed.2d at 55 (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15, 19 (1985) (emphasis in original). See also VanArsdall, 475 U.S. at 679, 106 S.Ct. at 1435, 89 L.Ed.2d at 683.
The record is clear that Jamison was involved in illegal drug transactions and that many of the State's witnesses' relationships with Jamison centered on these illegal drug transactions. In fact, the State presented much of this evidence. Thus, we understand the defendant's claim to be that, because he was denied information that these witnesses were being investigated by police agencies, he was denied the opportunity to show the witnesses' bias or motivation to testify. We disagree. The defendant's cross-examination was not limited because he lacked this information, and he was able to adequately address the relationship between the witnesses and Jamison, including their involvement in illegal drug transactions. The defendant has not met his burden of showing that he was denied an opportunity to conduct otherwise appropriate cross-examination. We find no violation of his right to confrontation.
Record at 873.
Not every communication between spouses is protected by virtue of the marital relationship; "[o]nly those communications passing from one marriage partner to the other because of the confidence resulting from their intimate marriage relationship receive such protection." Rode v. State, 524 N.E.2d 797, 799 (Ind. Ct. App. 1988). As this Court explained over one hundred years ago, "if what is said or done by either has no relation to their mutual trust and confidence as husband and wife, then the reason for secrecy ceases." Beyerline v. State, 147 Ind. 125, 130, 45 N.E. 772, 774 (1897), quoted in Rode, 524 N.E.2d at 799. The communication that the defendant claims to be privileged was a threat to do violence to her if she disclosed what she knew of his criminal actions. Such communications do not enhance the mutual trust and confidence of the marital relationship that the privilege is intended to protect. See Carlyle, 428 N.E.2d at 12 (no privilege for the defendant's threats to kill wife if she did not corroborate his description of murder); Van Donk v. State, 676 N.E.2d 349, 351 (Ind. Ct. App. 1997) (where husband injured wife, her testimony regarding the infliction of these injuries was admissible because disclosure not made in reliance upon the marital relationship). The defendant's threats were not privileged communications.
The defendant further contends that his wife's testimony should have been excluded because its prejudicial impact outweighed its probative value. Ind. Evidence Rule 403. Such matters are within the sound discretion of the trial court. We find no abuse of discretion.
We find that the trial court did not err in permitting the defendant's wife to testify that the defendant threatened to kill her if she disclosed details of his criminal activities.
Record at 801-03. More than four months after the trial in this
case, Moreno entered a plea agreement under which he pled guilty to count
I, conspiracy to commit robbery, and was sentenced to twenty years, and under
which he pled guilty to count II, robbery, and was sentenced to thirty-five
years to be served concurrently with the sentence for count I. The
State dismissed count III, murder.
A prosecutor must disclose to the jury any agreement made with a witness and any promises, grants of immunity, or rewards offered in return for testimony. Lott v. State, 690 N.E.2d 204, 211 (Ind. 1997); McBroom v. State, 530 N.E.2d 725, 729 (Ind. 1988). As the U.S. Supreme Court has observed, "'[t]he jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend.'" Wright v. State, 690 N.E.2d 1098, 1113 (Ind. 1997) (quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217, 1221 (1959)). The prosecutor's duty of disclosure arises when there is a confirmed promise of leniency in exchange for testimony, but preliminary discussions are not subject to mandatory disclosure. Wright, 690 N.E.2d at 1113; Lopez v. State, 527 N.E.2d 1119, 1129 (Ind. 1988); Aubrey v. State, 478 N.E.2d 70, 74 (Ind. 1985). When a witness hopes for leniency in exchange for his testimony and the State neither confirms nor denies that hope, there is no concrete agreement requiring disclosure. McCord v. State, 622 N.E.2d 504, 509 (Ind. 1993). The witness's expectations, coupled with evidence of a deal after the in-court testimony of the witness, are insufficient to require that a disclosure be made. Id.; Abbott v. State, 535 N.E.2d 1169, 1172 (Ind. 1989).
The State fully disclosed the terms of the agreement offered to the witness before his testimony: a sentence of forty-five years for a guilty plea on the murder charge. The witness testified that he had not accepted that offer. At the time of trial, no concrete agreement existed between Moreno and the State. Although Moreno may have hoped for the more lenient terms ultimately received, there is no indication that the State confirmed his hope that a lesser term might be offered after he testified. The defendant has not met his burden of showing that the State did not disclose its agreement with Moreno.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.