ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CECELIA J. MCGREGOR JEFFREY A. MODISETT
Goshen, Indiana Attorney General of Indiana
DAVID HOFFMAN JAMES A. GARRARD
South Bend, Indiana Deputy Attorney General
SUPREME COURT OF INDIANA
RICKY JOYNER, )
) Supreme Court Cause Number
v. ) 20S00-9804-CR-225
STATE OF INDIANA, )
APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Gene R. Duffin, Judge
Cause No. 20C01-9406-CF-044
ON DIRECT APPEAL
October 4, 2000
After a trial by jury Ricky Joyner was convicted of murder in the
strangulation death of co-worker Sandra Hernandez. In this direct appeal Joyner contends
his jury was biased, his consent to search his home and car was
invalid, he was denied the opportunity to present a meaningful defense, and the
evidence was not sufficient to sustain the conviction. We disagree with each contention
and therefore affirm.
On March 2, 1992, Sandra Hernandez left her three and a half-year-old son
with her parents and met Joyner for dinner. Hernandez never returned for
her son and was never seen alive by her parents again. The
following day Hernandez parents filed a missing persons report with the Elkhart Police
Department. In response to a request by an Elkhart police officer, Joyner
drove to police headquarters and spoke with investigating officer Steve Ambrose. After
Joyner signed a consent form, officers searched his apartment and car seizing a
black plastic trash bag among other things.
Over a month later a farmer discovered Hernandez decomposed body in a hay
field in LaGrange County. The body was partially clothed lying face down
on the ground, and a plastic trash bag which was tied in a
knot around the neck covered the bodys head. Expert testimony revealed that
the trash bag was cut from the same roll of polyethylene film as
a trash bag seized from Joyners apartment. A later autopsy revealed that
Hernandez died as a result of either strangulation, choking, or suffocation. Approximately
a year later Joyner was arrested and charged with murder. Thereafter a
jury convicted him as charged. This direct appeal followed. Additional facts
are set forth below where relevant.
Joyner contends the trial court failed to ensure an unbiased jury. This
contention is based on Joyners claim that (a) the trial court allowed several
references to race throughout the trial, (b) the trial court failed to excuse
a juror and grant a mistrial when the juror informed the court that
she had been threatened by a co-worker concerning her jury service, and (c)
the trial court failed to interrogate the jury collectively to determine if any
juror had discussed the case with third parties.
A. References to race
Joyner is African-American and Hernandez is Hispanic-American. Although the record is not
altogether clear, apparently the jury pool was composed solely of members who were
white with the exception of one African-American woman.
See footnote During
voir dire both
the prosecutor and defense counsel questioned jurors individually and collectively concerning their views
on race. For example, asking if anyone had a problem with the
fact that Joyner was African-American, the prosecutor commented:
He has every right you and I have as Caucasians; every right that
a Hispanic American has; every right that the Chinese Americans have; every right
the Japanese Americans have. Every right the American citizen has the Defendant
has. And you have no right to hold it against him because
of his race, color or creed. As I said before, his rights
are your rights [sic].
R. at 605. In a colloquy between defense counsel and one potential
juror the following exchange took place:
Q. [Defense counsel] The Defendant in this case, as you can see, is an
African-American gentleman; is that a problem for you?
A. [Juror] Thats fine.
Q. [Defense counsel] is that a problem for you at all?
A. [Juror] I have African-American students. I have Spanish American students. I
found them to all be children and unique, and I dont care what
color they are.
R. at 832-33.
See footnote In like fashion the prosecutor as well as defense
counsel asked potential jurors about their views on the legal system, and high
profile cases, including the widely publicized O.J. Simpson trial. The record also
shows that the State called Hernandez mother to testify. During cross examination defense
counsel asked if she would have been happy knowing her daughter had gone
to dinner with a black man, to which she responded no. R.
at 922.See footnote
B. Refusal to discharge a juror and declare a mistrial
Characterizing this case as racially charged Joyner complains that the foregoing references tainted
the jury. Concerning the cross-examination testimony of Hernandez mother, the error if
any was of Joyners own making. It was Joyner who posed a
question about the mothers views on her daughters dating habits. A defendant
may not invite error and then complain on review.
Roach v. State,
695 N.E.2d 934, 941 (Ind. 1998). This issue is waived. In
like fashion Joyner has waived any alleged error concerning comments made
during voir dire. Defense counsel as well as the State questioned prospective
jurors concerning their views about Joyners race and the race of the victim.
Waiver notwithstanding, Joyners claims fail on their merits. First, we disagree with
Joyners assertion that this case was racially charged or that references to race
were made throughout the trial. Other than making the bald assertion, Joyner
does not direct our attention to any portion of the record supporting the
notion that the issue of race or ethnicity permeated the trial. Our
independent review of the record fails to disclose any such notion as well.
Second, it is clear to this Court that the references to race
were essentially confined to voir dire examination. The purpose of voir dire
is to determine whether a prospective juror can render a fair and impartial
verdict in accordance with the law and the evidence. Bradley v. State, 649
N.E.2d 100, 106 (Ind. 1995). In this case, the references to race
were obviously designed to gauge the impartiality of potential jurors and ensure that
if selected the jurors would base their verdict on the evidence presented at
trial and not be persuaded one way or the other by the race
of the victim or the defendant. We find no error here.
The record shows that in an in camera proceeding on a Monday morning
before trial resumed, a juror informed the judge that she been threatened over
the weekend. Specifically, the juror recounted that while at work on the
preceding Saturday she was approached by two male co-workers. One of the
co-workers told the juror that unless she voted not guilty, he would tell
the judge that the juror had been discussing the case. Apparently the
co-workers were acquaintances of Joyner. The juror advised the judge that she
in fact had not been discussing the case, and after speaking with her
supervisor she decided to report the incident to the court. The juror
assured the court that the comments of her co-worker did not in any
way affect her ability to serve on the jury, and despite the comments
she could still be fair and impartial to both the State and the
defendant. R. at 1469. The juror also commented that other jurors
may have been approached over the weekend as well.
Joyner moved to excuse the juror and moved for mistrial. His
mistrial motion was premised on the fact that once the juror was excused
there would exist an eleven person jury,
See footnote and that he was not inclined
to agree to a trial of less than twelve jurors.
Code 35-37-1-1(b) (providing for a trial of less than twelve jurors where the
defendant and prosecutor so agree). The trial court refused to excuse the
juror and denied Joyners motion for mistrial. The trial resumed, and at
the end of the day Joyner moved the court to question each juror
to determine whether anyone had discussed the case over the weekend. The
trial court granted the motion and conducted an in camera interview with the
individual jurors. Each juror assured the court that he or she had not
discussed the case with anyone.
Article 1, Section 13 of the Indiana Constitution guarantees to a defendant the
right to an impartial jury. Thus, a biased juror must be dismissed.
Harris v. State, 659 N.E.2d 522, 525 (Ind. 1993). Joyner acknowledges
the jurors statement that despite her co-workers comments she could still be impartial.
Nonetheless he contends bias can be inferred from the circumstances.
Although not making the specific claim, Joyners argument implicates a challenge for cause.
See Ind. Code § 35-37-1-5(a)(11) (a person called as a juror may
be challenged for
cause for, among other things bias or prejudice for or against the defendant.).
Whether to excuse a juror for cause rests within the sound discretion
of the trial court. Wisehart v. State, 693 N.E.2d 23, 55 (Ind.
1998). We will sustain the trial courts decision unless it is illogical
or arbitrary. Id. A jurors bias may be actual or implied.
McCants v. State, 686 N.E.2d 1281, 1284 (Ind. 1997); Block v. State,
100 Ind. 357, 362 (1885). Implied bias, which also allows removal of
a juror for cause, is attributed to a juror upon a finding of
a relationship between the juror and one of the parties, regardless of actual
partiality. See, e.g., Haak v. State, 417 N.E.2d 321, 323 (1981) (bias
implied where jurors spouse was hired as a deputy prosecutor on the first
day of trial by the office that was prosecuting the case despite jurors
statement that she did not think the relationship would make it difficult for
her to render an impartial verdict).
Joyner does not allege actual bias on the part of the juror, and
his reliance on implied bias is misplaced. The relationship here was not
between the juror and anyone involved in this action. See, e.g., McCants,
686 N.E.2d at 1284 (no bias where one of States witnesses worked at
the same university as one of the jurors); compare Mooberry v. State, 157
Ind. App. 354, 358, 300 N.E.2d 125, 128, (1973) (bias established in rape
trial where two members of the jury were acquainted with the victim).
Rather, the relationship existed between the juror and a co-worker who was neither
a witness in this case nor involved in this action in any manner.
On the facts presented we can find no bias implied or otherwise.
The trial courts decision not to excuse the juror for cause was not
illogical or arbitrary. In turn the trial court properly declined to declare
C. Collective interrogation
Joyner also complains that rather than questioning the jurors individually in camera to
determine whether anyone had discussed the case over the weekend, the trial court
should have employed the procedures outlined by this Court in Lindsey v. State,
260 Ind. 351, 295 N.E.2d 809 (1973). Among other things the Lindsey
procedure anticipates an in-court collective interrogation where there has been a suggestion that
the jury has been exposed to improper and prejudicial publicity. Id. at
824. The procedure has been extended to include extrajudicial comments made to
jurors. Daniels v. State, 264 Ind. 490, 346 N.E.2d 566 (1976).
Here, the trial court employed the precise procedure that Joyner requested. If
there was error, then Joyner invited it. This issue is waived.
Waiver notwithstanding, Joyners claim still fails. Pursuant to Lindsey, once presented with
the possibility of extrajudicial comments made to a juror, the trial court must
first make a threshold determination of whether there is an actual likelihood of
prejudice. If the risk of prejudice appears substantial, as opposed to imaginary
or remote then the court must interrogate the jury collectively to determine who,
if any, has been exposed and take additional remedial action. Id. at 824;
see also Gregory v. State, 540 N.E.2d 585, 589 (Ind. 1989) (quoting Lindsey,
260 Ind. at 359, 295 N.E.2d at 824). Absent a showing in
the first instance that the supposed extrajudicial comments actually raised a risk of
substantial prejudice, the trial court has no responsibility to engage in a collective
interrogation. Here, the record shows that no juror had discussed the case,
and with the exception of one additional juror, no juror had even been
approached by anyone commenting on the case.
See footnote The trial court could very
easily have determined there was no risk of substantial prejudice necessitating an in-court
interrogation of the jury. Thus, the trial court did not err in
failing to conduct a collective in-court interrogation. In conclusion, we reject Joyners
contention that he was tried by a biased jury.See footnote
Joyner next asserts the trial court erred by admitting over his objection certain
items seized from his car and apartment along with related expert testimony.
Specifically Joyner refers to a blanket containing fibers matching those found under Hernandez
fingernails and a trash bag matching the one found tied around Hernandez neck.
The items were seized as a result of a consent to search
which Joyner contends was not valid.
The facts are these. The day after Hernandez parents filed a missing
persons report, Joyner drove unaccompanied to the Elkhart Police Department and spoke with
Officer Steve Ambrose. After recounting that he had last seen Hernandez when
he took her home
following dinner and signing a statement to that effect, Joyner left the station.
The next day
Joyner again went to the station unaccompanied to speak with Officer Ambrose.
Although not placing Joyner under arrest, the officer read Joyner his
which Joyner acknowledged by signing. The record is not clear whether he
actually signed a Miranda waiver. In any event the following exchange occurred
[Officer ]: I have a couple of things to ask you today . .
. . We need to start looking for anything, just looking for
anything. Looking in peoples cars and stuff. Would you have a
problem with us looking through your car?
[Joyner]: No, not really, but . . . no, not really.
[Officer]: O.K. What it is I will show you a piece of paper,
its called a Waiver of Search and Seizure.
[Joyner]: I know about that already.
[Officer]: Oh, you do?
[Joyner]: Yeah. I know the law pretty good.
[Officer]: Its something that you will sign that just says, hey, I dont have
a problem with them looking through my car.
[Joyner]: No, I dont. I know what you are saying.
Following a brief discussion concerning the layout of Joyners apartment, the exchange continued:
[Officer]: How about out there? Would you have a problem with us looking through
that? Your apartment?
[Joyner]: I will have to talk to my lawyer first, but I dont think
that it will be a problem.
[Officer]: You want to talk to your lawyer first? Whos your lawyer?
After a discussion about advice Joyner received from his co-workers, the following colloquy
[Officer]: So, you wouldnt have a problem with us looking through your car?
Would that be O.K.?
[Joyner]: Like I said, Ill talk to my lawyer, but I dont think that
would be a problem.
[Officer]: O.K. . . . how about your apartment, then?
[Joyner]: Ill have to check with my lawyer . . . . I
dont see its a problem but they told me to check first.
After another brief discussion the following exchange:
[Officer]: Who do you need to call then? Lets go ahead and do
[Joyner]: I dont know his number, Ill have to go back to the shop
to get it.
[Officer]: Well, who could you call then? I mean, whos number could I
look up for you to call?
Joyner gave the officer a telephone number and he placed a called.
Joyner then spoke with a co-worker while the officer left the room.
Upon the officers return the following exchange took place after a brief conversation
about Joyners earlier refusal to agree to take a polygraph test:
[Officer]: How about the other things I was talking about?
[Joyner]: She [fellow co-worker] consulted me to be cooperative, if there is something
I feel comfortable with. As far as searching my car and my
house, I guess Ill sign a waiver for that. If yall want
to go through my house and car, fine. Ill sign a waiver
right now. III.
Supp. R. (Videotaped Recording identified as States Exhibit E). Joyner then signed
the consent to search. Id.
Under the Indiana Constitution a person in custody must be informed of the
right to consult with counsel about the possibility of consenting to search before
a valid consent can be given. Torres v. State, 673 N.E.2d 472,
474 (Ind. 1996) (quoting Jones v. State, 655 N.E.2d 49, 54 (Ind. 1995));
see also Pirtle v. State, 263 Ind. 16, 28, 323 N.E.2d 634, 640
(1975) (a person who is asked to give a consent to search while
in police custody is entitled to the presence and advice of counsel prior
to making the decision whether to give such consent.). Giving an arrestee
Miranda warnings before beginning interrogation does not sufficiently inform the arrestee of his
right to consult with counsel before consenting to a search. Jones, 655
N.E.2d at 54.
The record is clear that Joyner was not advised he had a right
to consult with counsel before consenting to a search of his car and
apartment. However, we must determine whether the right to receive the advisement
ever attached. The right can only be said to have attached if
Joyner was in custody when he consented to the search. To determine
whether a defendant is in custody we apply an objective test asking whether
a reasonable person under the same circumstance would believe themselves [sic] to be
under arrest or not free to resist the entreaties of the police.
Torres, 673 N.E.2d at 474 (quoting Jones, 655 N.E.2d at 55). As
we declared in Loving v. State, 647 N.E.2d 1123 (Ind. 1995), [t]he test
is how a reasonable person in the suspects shoes would understand the situation.
Id. at 1125.
The record shows that Joyner drove unaccompanied to the Elkhart Police Department on
at least two occasions. At the time, officers were unsure if a
crime had occurred and were merely investigating a report of a missing person.
Although not specifically advising Joyner of the fact, Officer Ambrose testified at
the motion to suppress hearing that Joyner was free to come and go
as he please[d]. R. at 501. Nonetheless, when the conversation ended
Joyner simply left the Police Department. R. at 502. See Loving,
647 N.E.2d at 1125 (an officers knowledge and beliefs are relevant to the
question of custody when conveyed through words or actions to the person being
questioned). Joyner counters that he was considered a suspect which accounted for
Officer Ambrose giving him Miranda warnings. According to Joyner the officers actions
make it clear that he was not free to leave. We disagree
and find it persuasive that Joyner arrived at the police station on his
own. Even where a person freely and voluntarily accompanies officers to police
headquarters, there is no arrest. Williams v. State, 611 N.E.2d 649, 651
(Ind. Ct. App. 1993). Here, Joyner was not accompanied by police officers.
Further, Joyner was not detained when he decided to leave. See
Huspon v. State, 545 N.E.2d 1078, 1081 (Ind. 1989) (appellant not in custody
where he was unrestrained and had no reason to believe he could not
leave.). We conclude that a reasonable person in the circumstances Joyner found
himself would believe that he was free to resist the entreaties of the
police. See Torres, 673 N.E.2d at 474. Accordingly, Joyner was not
in custody at the time he consented to a search of his home
and car. Thus, Joyners consent to search is not deemed invalid on
grounds that police did not advise Joyner that he had a right to
consult with counsel before giving consent.
Joyner counters that his right to counsel was nonetheless violated because on three
occasions he requested to speak with an attorney before he would consent to
a search and the requests were not honored. Specifically Joyner asserts
the refusal of the detectives to stop the questioning after the request for
counsel was made on numerous occasions calls for the suppression of any evidence
admitted pursuant to the invalid consents. Brief of Appellant at 21.
Under Miranda when a person in custody asks to be represented by counsel
he is not subject to further interrogation by the authorities until counsel has
been made available to him . . . . Edwards v. Arizona,
451 U.S. 477, 484-85 (1981); Taylor v. State, 689 N.E.2d 699, 704 (Ind.
1997). In this case, because Joyner was not in custody when he
spoke with police, his right to consult with counsel was not violated.
Further, interrogation includes any words or actions on the part of police .
. . that the police should know are reasonably likely to elicit an
incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291,
301 (1980); Loving, 647 N.E.2d at 1125. A consent to search is
not a self-incriminating statement, and therefore a request to search does not amount
to interrogation. United States v. Saadeh, 61 F.3d 510, 515 (7th Cir.
1995); United States v. Smith, 3 F.3d 1088, 1098 (7th Cir. 1993).
On this additional ground we conclude the police did not violate Joyners right
to consult with counsel.
The critical inquiry here is whether Joyners non-custodial consent to search was otherwise
invalid. Generally a search warrant is a prerequisite to a constitutionally proper
search and seizure. Perry v. State, 638 N.E.2d 1236, 1240 (Ind. 1994).
In cases involving a warrantless search the State bears the burden of
proving an exception to the warrant requirement. Short v. State, 443 N.E.2d
298, 303 (Ind. 1982). A valid consent is such an exception.
In turn, a consent to search is valid except where procured by fraud,
or intimidation or where it is merely a submission to the supremacy of
the law. Martin v. State, 490 N.E.2d 309, 313 (Ind. 1986).
Nothing in the record shows that the police intimidated Joyner or engaged in
fraud to procure his consent. The officers request for Joyners consent was
straightforward. Unsure that a crime had been committed, officers of the Elkhart
Police Department were simply investigating a missing persons report and need[ed] to start
looking for anything, just looking for anything. Looking in peoples cars and
stuff. Supp. R. Indeed in his initial response Joyner replied that
he had no problem with consenting to a search of his car.
Nor does the record show that Joyner was under duress, motivated by fear,
or gave his consent out of submission to the supremacy of the law.
Joyner twice went to the police station in an attempt to demonstrate
his supposed cooperativeness in giving information on the whereabouts of the missing Sandra
Hernandez. Even while indicating that he wanted to consult with counsel before
consenting to a search, Joyner consistently said that he did not think it
would be a problem to consent. Not only did Joyner acknowledge his
familiarity with consent forms, but also the record shows that he was aware
that co-workers at his place of employment had signed similar consent forms as
a part of the missing persons investigation. Id. In fact Joyner
spoke with a co-worker before signing the consent form. Id. We conclude
that Joyners consent to search was valid, and as a result the trial
court did not err by allowing into evidence the items seized as a
result of the search as well as the related testimony.
Joyner asserts that he was denied the opportunity to present a meaningful defense.
In support Joyner claims: (a) the trial court did not allow him
to introduce a police report into evidence; and (b) the trial court did
not allow him to recall a witness on grounds that the witness violated
a separation order while at the same time allowing the State to call
a rebuttal witnesses who sat through the proceedings.
Whether rooted directly in the Due Process Clause of the Fourteenth Amendment,
 or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment,
 the Constitution guarantees criminal defendants a meaningful opportunity to present a defense.
California v. Trombetta, 467 U.S. 479, 485 (1984) (citations omitted). As
the Supreme Court has also observed [t]he right to offer the testimony of
witnesses, and to compel their attendance, if necessary, is in plain terms the
right to present a defense. . . . Just as an accused
has the right to confront the prosecutions witnesses for the purpose of challenging
their testimony, he has the right to present his own witnesses to establish
a defense. Washington v. Texas, 388 U.S. 14, 19 (1976).
A. Introduction of the police report
The record shows Joyner called to the stand Elkhart police officer Arthur Kern.
After questioning the officer at length about a conversation the officer had
conducted with Hernandez brother and a police report the officer prepared memorializing the
conversation, Joyner passed the witness. The State then cross-examined the officer after
which Joyner proceeded to redirect. During redirect examination Joyner sought to introduce
the police report into evidence. The State objected on hearsay grounds and
the trial court sustained the objection.
Hearsay is not admissible unless it falls within a specific exception provided by
law or by the Indiana Rules of Evidence. See Ind. Evidence Rule
802. We first observe that information in police investigative reports may be
admissible if it meets the requirements of Indiana Evidence Rule 803(8) and is
offered by the accused. However, in this appeal Joyner does not challenge
the trial courts ruling on grounds of Rule 803. Rather, he contends
the document was needed to remedy deficiencies in the officers memory and to
demonstrate his bias and that of [the victims brother]. . . .
Brief of Appellant at 36. Joyner argues the police report showed that
Hernandez brother told Officer Kern that he saw his sister alive and not
in Joyners company late in the evening hours on the date the couple
went to dinner. According to Joyner this was an accurate statement and supported
the defense position that someone other than Joyner committed the murder. However,
according to Joyner, neither the brother nor the officer could remember at trial
what the brother had said. Thus, the argument continues, the police report
should have been admitted: (1) to refresh the officers recollection, and (2) to
show that both the officer and the brother were biased against Joyner.
Although asserting bias, Joyner does not elaborate on this point. Nor does
he explore how introduction of the police report would support such a claim.
As for refreshing the officers recollection, contrary to Joyners assertion, the record
shows that when questioned about the statement of Hernandez brother, the officer apparently
testified consistently with assertions contained in the police report. We say apparently
because although marked at trial as a defense exhibit, the report is not
contained in the record. Nonetheless we have carefully examined the record of
Officer Kerns testimony where he talked about his conversation with Hernandez brother and
the police report he prepared as a result. R. at 1692-1695.
Nothing in his direct, cross, or redirect examination suggests that Officer Kern
testified contrary to the information Joyner alleges is contained in the report.
Hence, the predicate for refreshing the officers recollection was not met in the
first instance. See Montgomery Ward, Inc. v. Koepke, 585 N.E.2d 683 (Ind.
Ct. App. 1992) (no error to refuse admission of a document where no
basis existed to refresh witness recollection). Based on the grounds Joyner raises
in this appeal, we conclude the trial court did not err in refusing
to allow the police report into evidence.
B. The separation order
Prior to the presentation of evidence, the trial court granted the States motion
for separation of witnesses declaring [i]f there are any witnesses in the courtroom,
you should leave the courtroom at this time. You are also admonished
not to discuss your testimony nor what occurs in the courtroom with any
other witness. R. at 891. Defense witnesses Jamie Carmen and Michael
Miller violated the order by discussing the case in Carmens home over a
weekend after Carmen had testified at trial on the preceding Friday. Reviewing
newspaper clippings from Joyners first trial, both Carmen and Miller testified outside the
presence of the jury that their memories had been refreshed concerning a blue
or white conversion van someone had seen near the location where Hernandez body
was discovered and the black plastic bag associated with Hernandez killing. The
State filed a motion to prohibit Joyner from recalling Carmen to the stand
and to prohibit Miller from testifying altogether. Although noting that both witnesses
had violated the separation order, the trial court granted the motion with regard
to Carmen but denied it with regard to Miller. Joyner complains the
trial court erroneously excluded Carmens testimony.
The determination of the remedy for any violation of a separation order
is wholly within the discretion of the trial court. Jordon v. State,
656 N.E.2d 816, 818 (Ind. 1995). We will not disturb the trial
courts decision on such matters absent a showing of a clear abuse of
discretion. Id. This is so even when the trial court is
confronted with a clear violation of a separation order and chooses to allow
the violating witness to testify at trial. Id.
Joyner seems to contend the trial court abused its discretion because Carmens testimony
was critical to his defense. He also argues that neither he nor
defense counsel caused a violation of the order. See Cordrary v. State,
687 N.E.2d 219, 221 (Ind. Ct. App. 1997) (holding it is prejudicial error
to refuse to allow a witness to testify who has violated the courts
witness separation order where the party calling the witness is not at fault
for the violation). On this latter point, Carmen testified that no one
ever told her not to talk about her testimony with any other witness.
R. at 1651. Although the record is unclear, the parties appear
to concede that Carmen was not present when the trial court entered its
separation order and admonished the witnesses. Nonetheless, Joyner acknowledged to the trial
court that it was his responsibility to advise his witnesses not to talk
about the case and to explain the separation order. R. at 1666.
Contrary to his contention in this appeal, Joyner was at least partially
at fault for Carmen violating the order.
In any event, the record shows a defense witness testified that at or
near the time Hernandez was reported missing, he observed a blue van near
the location where Hernandez body was ultimately discovered. According to the witness,
he observed the driver remove from the back of the van what appeared
to be a large black garbage bag. Joyner contends Carmens testimony was
critical because if he were allowed to recall Carmen to the stand, she
would have testified that at the time of Hernandez disappearance she worked for
the same employer as Joyner and Hernandez. According to Carmens proposed testimony
a fellow employee, other than Joyner, had access to a blue/gray company van.
Carmen also would have testified that employees routinely removed company trash bags
and took them home.
We offer no assessment on how critical Carmens testimony may have been to
Joyners defense. However, the record shows that over the States objection Joyner
was allowed to call Mike Miller as a witness. He, too, had
violated the separation order.
See footnote Miller was also employed at the same place
as Carmen, Hernandez, and Joyner. Although he could not pinpoint the exact
time frame, Miller testified that a certain two-tone gray van was available for
employee use. R. at 1725-26. He also testified that it was
the habit of employees to take supplies home including large dark green .
. . if not black garbage bags. R. at 1729. In essence
Miller testified to the same facts that Carmen would have testified had
she been allowed. We conclude the trial court did not abuse its
discretion by refusing to allow Joyner to recall Carmen as a witness.
After Miller testified the defense rested. In rebuttal the State called John
Walton among other witnesses. Walton was the president of the company that
employed Miller, Carmen, Joyner, and Hernandez. Not listed as a witness for
either the State or the defense, Walton had attended much of the trial
as a spectator. Over Joyners objection the trial court allowed Walton to
testify. Joyner claims error. We disagree. The record shows that
Walton was called for the limited purpose of rebutting the testimony of Mike
Miller. It was not possible for the State to anticipate calling Walton
until it learned of Millers proposed testimony.
See Jenkins v. State, 627
N.E.2d 789, 799 (Ind. 1993) (the nondisclosure of a rebuttal witness is excused
when the witness is unknown and unanticipated). The record also shows that
Walton was not present in court during Millers testimony. Indeed defense counsel
conceded as much to the trial court. R. at 1748. We
conclude the trial court did not err in allowing the State to call
Walton as a rebuttal witness. We conclude also that Joyner was not
denied the opportunity to present a meaningful defense.
Joyner last challenges the sufficiency of the evidence. More specifically he contends
there was no direct evidence showing he murdered Hernandez and the circumstantial evidence
was not sufficient. When reviewing a claim of insufficient evidence, we consider
only evidence that supports the verdict and draw all reasonable inferences therefrom.
Richeson v. State, 704 N.E.2d 1008, 1011 (Ind. 1998). We do not
reweigh the evidence nor do we judge the credibility of witnesses. Id.
We uphold a conviction if there is substantial evidence of probative value
from which a jury could have found the defendant guilty beyond a reasonable
It is true there was no direct evidence that Joyner murdered the victim.
However, circumstantial evidence alone is sufficient to sustain a conviction. Kriner
v. State, 699 N.E.2d 659, 663 (Ind. 1998). The record shows that
two days after Hernandez was reported missing, Joyner was observed with a number
of scratch marks on his body. The record also shows that during
the same time period Joyner reported that someone had burglarized his apartment gaining
entry by breaking a window. Police investigating the reported burglary noted that
the window had been broken from the inside. The State called as
a witness Daniel Wayne Oliver, Joyners cellmate while awaiting trial. Although Joyner
did not tell Oliver that he actually murdered Hernandez, he did share other
incriminating information. According to Oliver, Joyner admitted breaking his own window.
When asked if Joyner said why he did so, Oliver recounted that Joyner
told him he wanted to be able to say that someone had broken
into his apartment in case the police found something when conducting the search.
R. at 1155. Joyner also told Oliver that after he took
Hernandez to dinner, the couple drove around drinking, his hormones took over, they
then went to Joyners apartment, and thats where the scratches took place.
R. at 1158. Further, Joyner told Oliver that thereafter he was riding
around with Hernandez body in his car wondering what to do and decided
to take the body to LaGrange County so that police could not trace
the body back to him in Elkhart County. R. at 1158.
According to Oliver, Joyner also said that he wrapped the body in a
garbage bag. R. at 1160. In addition to the foregoing testimony
the State also called two forensic witnesses with expertise in the area of
physical comparison examinations. After explaining the manufacturing process, both witnesses testified that
the plastic bag covering the victims head and the trash bag found lining
a trash can in Joyners apartment were at one time a part of
the same roll of manufactured polyethylene film. One of the witnesses specifically
testified that the bags were physically connected to each other until they were
cut and separated apart from each other. They were consecutive plastic bags
. . . end-to-end. R. at 1297. We conclude that the
circumstantial evidence in this case was sufficient to sustain Joyners murder conviction.
We affirm the trial courts judgment.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
This is the second time this case has come before us.
In the first appeal we reversed Joyners murder conviction and remanded for
a new trial on grounds that the trial court erroneously excluded evidence supporting
Joyners defense that the murder was committed by another person.
v. State, 678 N.E.2d 386, 390 (Ind. 1997).
This potential juror was properly discharged because of her expressed views
concerning members of the Hispanic community. R. at 604. Joyner claims
no error in this regard.
Footnote: The record shows the juror was seated without objection. R.
Footnote: Joyner also complains that on direct examination Hernandez mother referred to
him as a black man correcting the prosecutor who referred to him as
African-American. We find nothing untoward here. Both references are commonly used
Footnote: The record shows that by this point in the trial, the
two alternate jurors had been discharged.
Footnote: When questioned, this juror advised the trial court that a person
also approached her at work and said I just want you to know
that I am following the case and I think hes innocent. R.
at 1633. The juror stated that she did not respond but turned
around and walked away. R. at 1634. When asked by the
trial court Do you feel that influences you either way - either for
or against the State of Indiana or for or against the Defendant? the
juror responded not at all. I felt she was really stupid to
even say anything. R. at 1634.
In further support of his claim, Joyner points to certain comments
the trial court made to another juror. The record shows that during
one of the
in camera interviews discussed supra, the trial court acknowledged
that the juror was planning to leave for a scheduled trip on a
Thursday morning. Noting that the juror should make different travel plans, the
trial court commented [w]ell probably get to the jury on Thursday so you
should be okay to leave on Friday. Just so you dont have
to wait until the last minute to change your plans. R. at
1632-33. Joyner argues that this comment improperly influenced the juror by disregarding/implying the
length of deliberations, to the detriment of the Defendant. Brief of Appellant
at 16. Joyner cites no authority to support this proposition and we
find none. In any event there is nothing in the record to
support the notion that the comments influenced the juror in her deliberations.
Miller acknowledged that he was not supposed to talk with any
other witnesses concerning his testimony, but did so anyway. R. at 1734.
The trial court allowed Miller to testify reasoning that the defense
was not at fault for the violation. No issue has been raised
in this appeal concerning the trial courts ruling on this point.