ATTORNEY FOR APPELLANT
Alan K. Wilson
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
ANTIONE KEITH BARBER, )
Appellant (Defendant Below), )
v. ) Supreme Court
) Cause No. 18S00-9808-CR-434
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE DELAWARE SUPERIOR COURT
The Honorable Richard A. Dailey, Judge
Cause No. 18D02-9612-CF-81
ON DIRECT APPEAL
September 3, 1999
A jury convicted Antione Barber of murder. He was sentenced to fifty-five years
imprisonment. In this direct appeal Barber raises three issues for our review: (1) whether the
trial court erred in permitting the prosecuting attorney to make statements about reasonable
doubt during voir dire; (2) whether the trial court erred in giving a jury instruction that did
not permit the jury to define reasonable doubt for itself; and (3) whether the trial court
erroneously admitted hearsay testimony. We affirm the trial court. Factual and Procedural Background
On the evening of November 21, 1996, King David Preston died as a result of
multiple gunshot wounds in Michael Horton's apartment in Muncie. The day before, Preston
and three others had robbed Antione Barber, John Ivy and Donovan Lewis at gunpoint in
Tanisha Love's apartment, also in Muncie. Barber and Ivy were charged with the murder
and tried separately. Several witnesses to the robbery and subsequent events testified at trial.
Love testified that, on the evening of November 20, 1996, she returned to her
apartment from a trip to the store and discovered Preston and three others shouting and
pointing guns at Barber, Ivy and Lewis, who were standing up against the wall. Barber, Ivy
and Lewis were ordered to remove their clothing, and it was then thrown outside. Shortly
thereafter, as Preston and the others left Love's apartment, one of them cut the tires on Ivy's
car parked nearby.
Donnica Hall testified that as she arrived outside Love's apartment the same evening,
she saw saw several men run out of Love's apartment, one of whom cut the tires on Ivy's car.
When Hall entered the apartment, Barber and Lewis had only their boxer shorts on and Ivy
was naked. After Hall returned the men's clothing, she and the three who had just been
robbed left Love's apartment and later that night filed a police report. Barber or Ivy then
asked Hall to give them a ride to Dayton, Ohio. She complied, and also drove them back to
Muncie later that night. Over an objection by Barber, Hall testified that during the trip back
to Muncie Ivy stated that he wanted to find out if the men who robbed them were still at
Love's apartment to get them.
According to Love, Barber, Ivy and a third unidentified person returned to Love's
apartment at 4:00 a.m. the morning after the robbery. The three men questioned Love about
her involvement in the robbery, threatened her and physically assaulted her. They left
Love's apartment at approximately 6:00 p.m. to look for the men who robbed them. All
three had guns.
Samuel Powell testified that at 8:30 p.m. on November 21, 1996, he encountered
Barber, Ivy and a third man standing by a car outside of Horton's apartment. They asked
him who was inside the apartment. Powell responded that he did not know and that no one
had answered his knock. As Powell walked away from the apartment, he saw Barber and Ivy
enter the apartment.
Michael Horton testified that Preston arrived at his apartment at 7:30 p.m. on the
evening of the murder. When Barber entered his apartment about an hour later, Horton went
across the hall to a neighbor's apartment and on the way passed Ivy, who was standing
outside the apartment door. From inside his neighbor's apartment, Horton heard someone
who sounded like Preston say I ain't got your money. Gunshots followed. After Horton
called the police, he returned to his apartment, saw Barber and Ivy leaving the apartment, and
found Preston lying on the floor of the apartment.
I. Voir Dire
A trial judge has broad discretion in determining the propriety of questions posed to
prospective jurors during voir dire and will be reversed on appeal only for an abuse of that
discretion. 16 B William Andrew Kerr, Indiana Practice § 21.5d (1998); Von Almen
v. State, 496 N.E.2d 55, 59 (Ind. 1986). Barber contends that the trial court abused its
discretion by permitting the prosecuting attorney to inform the jury that it must begin
deliberations by determining whether any juror had doubt, thereby shifting the burden of
proof to the defendant during voir dire. The prosecutor's statement was as follows:
What I say is when you go back to deliberate, you just start asking, does anybody
have any doubts? Somebody going to raise their hand, yes. Take that, say what it is
and you put that doubt right in the middle of the table. And you start examining that
doubt. Where did it come from? Why do you have it? Then you ask yourself, does
In response to an objection by Barber that how the jury conducts its deliberations is up to
the jury. . . . this is not [the time] for a statement from the prosecutor about what the law is
or how the jury is to conduct itself, the prosecutor then stated:
It's certainly is time for me to, try to tell them what the law is and how they're going
to apply that. There is no other time for me to do that and this is certainly the
appropriate time to do that. I'm asking them to take. I'm telling them what I believe
the law to be based on the instructions and asking them how they might apply that.
The trial court overruled Barber's objection.
As a general matter, instructing the jury on reasonable doubt is for the trial court. See
Kerr, supra § 22.9(b) (trial court is required to give instructions and to instruct the jury
concerning all matters of law). However, as the State points out, it is permissible for the
prosecutor to ask questions of potential jurors to determine whether they understand
reasonable doubt and are capable of rendering a verdict in accordance with the law. See
Von Almen, 496 N.E.2d at 59. II. Jury Instructions
Moreover, if the jury had any question about who bore the burden of proof, the first
sentence of the reasonable doubt instruction given as a preliminary and final instruction
clearly states that: The government has the burden of proving the defendant guilty beyond
a reasonable doubt. The trial court did not abuse its discretion in permitting the prosecuting
attorney to discuss reasonable doubt with prospective jurors during voir dire. See Grant v.
State, 623 N.E.2d 1090, 1095 (Ind. Ct. App. 1993).
The trial court gave the following instruction to the jury:
The government has the burden of proving the defendant guilty beyond reasonable
doubt. Some of you may have served as jurors in civil cases, where you were told that
it is only necessary to prove that a fact is more likely true than not true. In criminal
cases, the government's proof must be more powerful than that. It must be beyond
a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you firmly
convinced of the defendant's guilt. There are very few things in this world that we
know with absolute certainty, and in criminal cases the law does not require proof that
overcomes every possible doubt. If, based on consideration of the evidence, you are
firmly convinced that the defendant is guilty of the crime charged, you should find
him guilty. If on the other hand, you think there is a real possibility that he is not
guilty, you should give him the benefit of the doubt and find him not guilty.
Barber acknowledges that this instruction was approved by a majority of this Court in
Winegeart v. State, 665 N.E.2d 893, 902 (Ind. 1996). Nonetheless, at trial, Barber objected
to the instruction because the last sentence takes away from [the jury] their obligation to
define reasonable doubt for themselves. In support of this proposition, he argued that there
was 1989 case . . . a Louisiana case that went up to the Supreme Court that said it is up
to the jury to determine what reasonable doubt means. Barber did not provide further
citation at the trial. His objection was apparently based on the United States Supreme
Court's decision in Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328, 112 L. Ed. 2d 339
(1990), which he also cites in his brief on appeal. In that case, the Court struck down an
instruction that defined reasonable doubt in terms of grave or substantial uncertainty
because the instruction suggested that a greater degree of doubt was required for acquittal
than was permitted by the Due Process Clause. Id. at 41. Because the reasonable doubt
instruction given by the trial court does not require more than reasonable doubt for an
acquittal, it does not violate Barber's due process rights as defined by Cage.See footnote
Barber argues in his brief on appeal that the trial court erred in giving the instruction
because the instruction shifted the burden of proof to him in violation of his due process
rights guaranteed by the United States Constitution.See footnote
However, at trial, Barber's objection
was that the instruction infringed on the ability of the jury to define reasonable doubt, not
that it impermissibly shifted the burden of proof. Accordingly, his argument with respect to
shifting the burden of proof is waived. See Ind. Trial Rule 51(C) (No party may claim as
error the giving of an instruction unless he objects thereto . . . stating distinctly the matter to
which he objects and the grounds of his objection.); Bufkin v. State, 700 N.E.2d 1147, 1151
(Ind. 1998) (defendant limited on appeal to the specific objection at trial). III. Admission of Statements by Ivy
Even if Barber's claim that the instruction shifted the burden of proof was preserved,
there would be no error because, as noted above, the first sentence of the instruction clearly
states that the State bore the burden of proof beyond a reasonable doubt. Because the trial
court gave the federal judicial center's pattern instruction on reasonable doubt as
recommended by a majority of this Court in Winegeart, we find no error.
In response to the prosecutor's question Why did they want to find out [if the men
who robbed them were at Love's house]? Hall testified that Ivy stated to get them.
Barber contends that the trial court erred in admitting this statement because it is
inadmissible hearsay. Barber made a continuing hearsay objection to all statements by Ivy,
but made no specific objection to this statement.
Hearsay is an out of court statement offered to prove the truth of a fact asserted in the
statement. Ind. Evidence Rule 801(c). The State argues that the statement, get them, is
not hearsay because it asserts no fact that is susceptible of being true or false citing Craig v.
State, 630 N.E.2d 207, 211 (Ind. 1994), which observed [i]f the statement contains no such
assertion, it cannot be hearsay. Taken in context of the question by the prosecutor,
however, the statement at the very least is an assertion of Ivy's motive in returning to Love's
apartment which is susceptible of being true or false. Accordingly, the statement is not
admissible for this reason.
A statement by a co-conspirator of a party during the course and in furtherance of
the conspiracy is not hearsay and is therefore admissible. Ind. Evidence Rule 801(d)(2)(E).
Barber argues that because the State did not present independent evidence of a conspiracy,
-- i.e., evidence apart from the statement itself -- the statement is not admissible under Rule
801(d)(2)(E). For a statement to be admissible under this rule, the State must demonstrate
that (1) a conspiracy existed between the declarant and the party against whom the statement
is offered and (2) the statement was made during the course and in furtherance of the
conspiracy. See Wright v. State, 690 N.E.2d 1098, 1105 (Ind. 1997); 13 Robert Lowell
Miller, Jr., Indiana Practice § 801.423 (1995). As we recently stated, the independent
evidence requirement is a useful safeguard against abusive use of co-conspirator hearsay,
and [the Court] will continue to apply it to evidence proposed for admission under Rule
801(d)(2)(E). Lott v. State, 690 N.E.2d 204, 209 (Ind. 1997) (discussing pre-evidence rules
requirement of independent evidence).
The trial court in this case did not make a determination as to the existence of a
conspiracy. Moreover, the State did not point to anything beyond the statement itself in
support of the existence of a conspiracy at the time the statement was made and cites none
here. Accordingly, the trial court may have erred in admitting the statement. Even if so,
[e]rrors in the admission or exclusion of evidence are to be disregarded as harmless error
unless they affect the substantial rights of a party. See Fleener v. State, 656 N.E.2d 1140,
1141 (Ind. 1995); Ind. Trial Rule 61. In this case, there is significant, uncontested evidence
of Barber's guilt, including Horton's testimony that within minutes after Barber entered
Horton's apartment, Horton heard gunshots, and returned to his apartment to see Barber and
Ivy leave the apartment and find Preston lying on the floor in a pool of blood. In light of this
evidence, we cannot conclude that the erroneous admission of Ivy's statement affected
Barber's substantial rights. It is not grounds for reversal. Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.
1 Cage does not address Barber's contention that the jury must be permitted to define reasonable
doubt for itself and he points to no other authority for that proposition.
Barber also refers to Article I, § 19 of the Indiana Constitution which speaks of due course of
law not the due process invoked by Barber. Any Indiana constitutional claim is waived for failure to
present a separate cogent argument. See Valentin v. State, 688 N.E.2d 412, 413 (Ind. 1997).
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