ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Philip R. Skodinski Karen M. Freeman-Wilson
South Bend, Indiana Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
Gregory dickens, jr., )
Appellant (Defendant Below ), )
v. ) No. 71S00-9911-CR-00646
STATE OF INDIANA, )
Appellee (Plaintiff Below ). )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable William H. Albright, Judge
Cause No. 71D01-9708-CF-00375
August 28, 2001
Appellant Gregory Dickens appeals his conviction for murder and sentence of life without
parole for shooting a police officer. He presents six issues:
Whether admitting evidence that he possessed a handgun two days before the crime
violated Rule 404(b);
Whether he was forced to testify in violation of his Fifth Amendment rights
when the trial court restricted evidence about another suspect;
Whether the admission of a photograph of him was unfairly prejudicial;
Whether the trial court improperly allowed opinion testimony;
Whether statements of identification retold by the police constituted improper hearsay; and
Whether the States peremptory strikes against African-Americans were racially motivated in violation of
Dickens Equal Protection rights.
Facts and Procedural History
On August 24, 1997, sixteen-year-old Dickens was riding bikes with Quinton Price, known
as Paulie. While patrolling the area, Officer Scott Hanley advised Corporal Paul
Deguch by radio that Dickens was riding a valuable bicycle that he suspected
was stolen. Later on that evening, Deguch spotted Dickens and Paulie and
approached them in his patrol car. Paulie rode off, while Dickens
rode up to the nearest house, 1024 Talbot Street, alighted from the bike,
and went up on the porch. Deguch shined his spotlight onto the
porch, exited his car, and followed Dickens onto the porch as Dickens was
knocking on the door. Dickens shot Corporal Deguch in his head and
shoulder and killed him.
The State charged Dickens with murder and sought the death penalty because the
victim was a law enforcement officer. A jury found Dickens guilty, and
recommended life imprisonment without parole, which the trial court imposed.
Evidence of Handgun Possession
Dickens argues that the testimony that he possessed a gun two days before
the shooting violated the prohibition in Rule 404(b)
See footnote against evidence of prior bad
acts. He contends that no exception applies and that evidence of a
propensity to carry a gun is unfairly prejudicial.
Rule 404(b) protects against conviction based on past actions (the so called forbidden
Hicks v. State, 690 N.E.2d 215, 218-19 (Ind. 1997)), rather than facts
relevant to the matter at issue. While prior acts are not permissible
to show propensity, they may be allowed for other purposes. Rule 404(b)
lists some other purposes, but this list is illustrative only. Hardin v.
State, 611 N.E.2d 123, 129 (Ind. 1993). In fact, extrinsic act evidence
may be admitted for any purpose not specified in Rule 404(b) unless precluded
by the first sentence of Rule 404(b) or any other Rule. Thompson
v. State, 690 N.E.2d 224, 233 (Ind. 1997)(citing Hardin, 611 N.E.2d at 129);
see generally 12 Robert Lowell Miller Jr., Indiana Evidence § 404.235 (2d ed.
1995 & Supp. 2000).
When evidence is challenged under Rule 404(b), the trial court should determine:
(1) whether the evidence is relevant to a matter at issue rather than
just the defendants propensity to commit the crime and (2) whether the probative
value outweighs the prejudicial effect. Hicks, 690 N.E.2d at 221. We
review the trial court ruling for an abuse of discretion. Id. at
Evidence of Another Suspect
Here, the evidence that Dickens was seen carrying a gun on his person
just two days before the shooting was relevant. The shooting took place
on an empty porch where Dickens was unlikely to have found a gun.
Dickens recent act of carrying a gun therefore goes to opportunity.
The trial court did not err in concluding that the probative value of
this evidence outweighed its prejudicial effect.
The trial court granted the States motion in limine to restrict the defense
from introducing evidence of another suspect, Shawn Bailey, without first presenting direct evidence.
Despite the ruling, defense counsel sought to cross-examine an investigating officer about another
suspect during the States case-in-chief. The court sustained an objection. The
defense later put Dickens on the stand, and he testified that Shawn Bailey
was the shooter. Dickens claims that the trial courts rulings impinged on
his Fifth Amendment right to not testify.See footnote
Evidence which tends to show that someone else committed the crime makes it
less probable that the defendant committed the crime and is therefore relevant under
Joyner v. State, 678 N.E.2d 386, 389 (Ind. 1997).
We review admissibility determinations for an abuse of discretion. Id. at 390.
In Joyner, the evidence regarding the other suspect included a hair sample and
testimony from witnesses that placed the murder victim and defendant alive and in
different places after the alleged crime. Id. at 389. Here, the
evidence regarding Shawn Bailey is far more tenuous.
See footnote Dickens claims this evidence
indicates that two people were on the porch that night (i.e. himself and
Shawn Bailey). (Appellants Br. at 19.) Furthermore, the police initially considered Bailey
a suspect (R. at 3432-33), although they did not have any actual evidence
that Bailey was the shooter.
The trial court was warranted in concluding that these facts do not make
it less probable that Dickens committed the crime. Under the
the evidence was properly kept out until after the States case-in-chief.
Likewise, the trial court did not violate Dickens Fifth Amendment rights when it
decided that if Dickens had evidence of Baileys involvement he should provide it
himself. The defense chose to bring out the information regarding Bailey as
a suspect during its own case-in-chief through testimony of officers as well as
from Dickens. We think the defendants decision to testify and attempt to
cast Shawn Bailey as the shooter was not compelled within the meaning of
the Fifth Amendment.
Photograph Claim Waived
Dickens claims the trial court erred in admitting a photograph of Dickens and
a friend making alleged gang signs, stating that it was unfairly prejudicial.
(Appellants Br. at 20; R. at 3919 (States Exh. 64A).) Dickens attorney
objected to the photograph as duplicative, without any mention of unfair prejudice.
(R. at 2919.) A party may not object on one ground at
trial and raise a different ground on appeal. Brown v. State, 728
N.E.2d 876, 878 (Ind. 2000). This issue is waived.
Dickens claims that the court erred in permitting Detective Michael Samp to give
an opinion about which witnesses were in a better position to observe the
crime. Indiana Evidence Rule 701(a) requires that opinion testimony of a lay
See footnote be rationally based on [his] perception, meaning simply that the opinion must
be one that a reasonable person normally could form from the perceived facts.
ONeal v. State, 716 N.E.2d 82, 89 (Ind. Ct. App. 1999) (citing
13B Robert Lowell Miller, Jr., Indiana Evidence 196 (1996)).
Detective Samp was present at the crime scene following the shooting. He
later learned of the locations of the neighbors who witnessed the shooting.
The detectives first-hand familiarity with the crime scene as well as his knowledge
concerning the location of the witnesses make his opinion rationally based on [his]
perception. Evid. R. 701(a).
For that matter, the witnesses themselves all testified as to their location.
If there was any error in allowing Detective Samps opinion, it was harmless,
because the jury had sufficient information to determine independently who had the best
view of the crime.
Dickens urges that witnesses statements of identification presented by police officers and on
videotape were inadmissible hearsay. (Appellants Br. at 22.) The State points
out that some statements of identification are not hearsay, by definition. Ind.
Evid. R. 801(d). Statements of identification are not hearsay if they are
made shortly after perceiving the person,
See footnote and the declarant is available for cross-examination
concerning the statement at trial.
Id. at 801(d)(1)(C); see also Gates v.
State, 702 N.E.2d 1076, 1077 (Ind. 1998); Robinson v. State, 682 N.E.2d 806,
810 (Ind. Ct. App. 1997). Here, all the statements qualified as statements
of identification and all the declarants were available at trial for cross-examination.
The statements therefore are not hearsay.
Discriminatory Juror Strikes
There were no African-Americans on Dickens jury. During jury selection, the State
used two peremptory strikes against African-Americans. Another African-American was dismissed for cause
at the defenses request. A fourth African-American served as the first alternate
Dickens challenges the States two peremptory strikes as being racially motivated. Batson
v. Kentucky, 476 U.S. 79 (1986). Peremptory strikes are improper when used
to exclude potential jurors from serving solely because of race. Williams v.
State, 700 N.E.2d 784, 786 (Ind. 1996). Such claims are analyzed like
To establish a prima facie case of racial discrimination in the use of
peremptory challenges, a defendant must first show the trial court: (1) that the
prosecutor used peremptory strikes to remove members of a cognizable racial group from
the jury pool; and (2) that the facts and circumstances raise an inference
that the prosecutor used those strikes to exclude potential jury members from the
jury because of their race. Once the defendant establishes a prima facie
case, the burden of production shifts to the State to tender a race-neutral
Id. (citations omitted).
During jury selection, Dickens first challenged the prosecutors peremptory strike of Ms. Dixon.
The prosecutor disagreed that he needed to state racially-neutral reasons for the
strike before Dickens established a prima facie case. Nonetheless, he explained that
he was concerned about Dixons ability to follow the law concerning the death
See footnote and her ability to understand technical evidence.See footnote
The second challenged strike was of Mr. Warburton-Brown. The prosecutor explained
that Warburton-Brown knew a police officer who was a witness; that his license
had been suspended because of a false drivers application; that he had a
record of charges for unlawful use of a weapon and deceptive practices; and
that he did volunteer work by giving legal, economic, and social advice to
youth.See footnote The prosecutor also stated a vague concern regarding Warburton-Browns involvement with
international studies and Amnesty Internationals position against the death penalty. The prosecutor
later also said the State was concerned that Warburton-Brown had expressed that he
felt the judicial system was unfair towards economically disadvantaged individuals.
Dickens challenges the validity of these reasons at some length. (Appellants Br.
at 26-31.)See footnote Unless a discriminatory intent is inherent in the prosecutors explanation,
the reason offered will be deemed race neutral.
Williams, 700 N.E.2d at
786 (quoting Purkett v. Elem, 514 U.S. 765, 767 (1995)). The trial
court found the reasons to be sufficiently race neutral. We
will uphold the trial courts decision on the matter of discriminatory intent unless
the decision is clearly erroneous. Williams, 700 N.E.2d at 786 (citing Kent
v. State, 675 N.E.2d 332, 340 (Ind. 1996); Lee v. State, 689 N.E.2d
435, 441 (Ind.1997)). We find no clear error.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
Indiana Evidence Rule 404(b) states,
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 . .
Footnote: The court recognized that Dickens own testimony would create direct evidence.
(R. at 2825.)
Footnote: Dickens also claimed the trial court denied him his Sixth Amendment right
to confront and cross-examine witnesses by granting the motion in limine. (Appellants
Br. at 18.) However, Dickens fails to develop this argument. Under
Ind. Appellate Rule 8.3(A)(7), this claim is waived.
Footnote: Two witnesses saw Dickens fleeing in one direction, a third witness claimed
that Dickens ran the opposite direction. (R. at 3442-43.)
Footnote: Detective Samp was not qualified as an expert witness. (Appellants Br.
Footnote: [T]he term shortly is relative rather than precise; the purpose of the
rule is assuring reliability.
Robinson, 682 N.E.2d at 811.
Ms. Dixon said that it would be difficult for her to choose
the death penalty and that she would have to pray to God to
do it. (R. at 2294.)
Footnote: Ms. Dixon failed to complete her questionnaire completely and made a spelling
error. (R. at 2294.)
Footnote: The prosecutor was concerned that Warburton-Brown would be a street lawyer back
in the jury room. Additionally he was concerned that he assists youth
similar in age to Dickens. (R. at 2365-66.)
Footnote: At trial, Dickens lawyer suggested that the State ran only selective background
checks aimed at black members of the venire, (Supp. R. at 42), but
he did not offer evidence to support that contention and does not raise
it on appeal.