ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KATHERINE A. CORNELIUS JEFFREY A. MODISETT
Marion County Public Defenders Attorney General of Indiana
Office, Appellate Division
Indianapolis, Indiana KATHRYN JANEWAY Deputy Attorney General
SUPREME COURT OF INDIANA
MICHAEL G. ALBRECHT, )
) Supreme Court Cause Number
v. ) 49S00-9901-CR-55
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION 6
The Honorable Jane Magnus Stinson, Judge
Cause No. 49G06-9706-CF-080729
ON DIRECT APPEAL
October 19, 2000
A jury convicted Michael Albrecht for the 1992 murder of his wife Cynthia
for which he was sentenced to sixty years imprisonment. In this direct
appeal, Albrecht raises six issues for our review which we rephrase and reorder
as follows: (1) did the State fail to preserve and provide the
defense with exculpatory evidence; (2) did the trial court improperly exclude evidence related
to Albrechts defense; (3) did the trial court improperly admit evidence offered by
the State; (4) was Albrecht tried by a fair and impartial jury; (5)
did the trial court err in its instructions to the jury; and (6)
was the evidence sufficient to support the conviction? We affirm.
Facts and Procedural History
Cynthia and Michael Albrecht worked for different owners participating in the Championship Auto
Racing Teams (CART) series. During the 1992 CART season the Albrechts began
experiencing marital difficulties. As a result, Cynthia moved out of the marital home
and thereafter filed for divorce. On October 26, 1992, one day before
the divorce was scheduled to become final, Cynthia returned home from the final
CART race of the season. She had made plans to meet a
male friend in Florida later that week. However, after making a telephone
call at approximately 9:30 p.m., Cynthia disappeared. Her naked and decapitated body
was discovered several weeks later in a field in Northern Indiana.
On June 4, 1997, after a five-year criminal investigation, the State charged Albrecht
with Cynthias murder. One of the States key witnesses at trial was
William Filter, a long-time friend of Michael Albrecht. He had initially provided Albrecht
with an alibi for the evening Cynthia disappeared. However, Filter later changed
his story and told police that Albrecht had planned to murder Cynthia after
their marriage soured. The plan included decapitating Cynthia to make identification of
her body difficult. A jury convicted Albrecht of murder, and the trial
court sentenced him to sixty years in prison. Albrecht filed a motion
to correct error raising many of the issues he presents to us on
appeal. The trial court denied the motion. This appeal followed.
Additional facts are set forth below where relevant.
In his motion to correct error Albrecht sought a new trial complaining that
the State failed to preserve and provide him with the interview notes of
an FBI agent. According to Albrecht, the States action denied him due
process of law and the right to a fair trial. The essential
facts are these. The FBI assisted Speedway police in investigating Cynthias death.
Working out of Milwaukee, Wisconsin, agent Daniel Craft interviewed several friends and
relatives of Albrecht. In this appeal, Albrechts claim focuses on the notes
taken during Crafts two interviews of Albrechts wife of a previous marriage.
During the interviews, Craft made handwritten notes and thereafter reduced the notes to
a summary report. In response to Albrechts discovery request for notes, notations
or any memoranda of oral statements, the State provided the summary reports.
However, the State did not provide Albrecht with the handwritten interview notes.
The record shows that Craft placed the notes in the FBIs Milwaukee case
file, which was supposed to be forwarded to the Indianapolis office. Apparently,
the FBI failed to forward the notes to Indianapolis, and in 1995, three
years after the interviews took place, the notes were destroyed according to normal
FBI procedure. At trial the State called Craft as a rebuttal witness.
During his testimony, Craft referred to a portion of his interview with
Albrechts former wife that was not mentioned in his summary report. Specifically,
Craft testified that Albrechts former wife, Kathleen, told him that she was a
light sleeper and would do anything to get Albrecht back.
See footnote Albrecht contends
the now missing interview notes would have impeached Crafts trial testimony by demonstrating
that Craft was mistaken about his recollection of the interview.
Adopting the United States Supreme Courts decision in
California v. Trombetta, 467 U.S.
479 (1984), this Court has declared that the scope of the States duty
to preserve exculpatory evidence is:
limited to evidence that might be expected to play a significant role in
the suspects defense. To meet this standard of constitutional materiality, evidence must
both possess an exculpatory value that was apparent before the evidence was destroyed,
and be of such a nature that the defendant would be unable to
obtain comparable evidence by other reasonably available means.
Holder v. State, 571 N.E.2d 1250, 1255 (Ind. 1991) (quoting Trombetta, 467 U.S.
at 488-89 (footnote and citation omitted)). The notes at issue here do
not meet the standard of constitutional materiality as Albrecht has not shown that
the handwritten interview notes played a significant role in his defense. More
specifically he has not demonstrated that the notes possessed an exculpatory value.
Holder, 571 N.E.2d at 1255. Exculpatory is defined as [c]learing or tending
to clear from alleged fault or guilt; excusing. Samek v.
State, 688 N.E.2d 1286, 1288 (Ind. Ct. App. 1997) (quoting Blacks Law Dictionary
566 (6th ed. 1990)). Even assuming the notes could have in some
way impeached Crafts trial testimony, such impeachment would have hardly risen to the
level of clearing Albrecht of Cynthias murder. Furthermore, Albrecht provides no basis
for us to conclude that Crafts notes would have shown whether Kathleen actually
made the statements or that Crafts recollection of the interview was incorrect.
Craft testified that the summary reports, which did not mention the statements, were
a reliable and complete account of the interview. Albrecht used the reports
to impeach Crafts recollection of the interviews. Thus, he accomplished the task
for which he now claims the notes were necessary.
At most, the notes may have been potentially helpful to Albrechts case as
additional evidence. However, the States failure to preserve useful evidence violates the
Fourteenth Amendment only when the defendant can show bad faith on the States
part. Arizona v. Youngblood, 488 U.S. 51, 58 (1988); Vermillion v. State,
719 N.E.2d 1201, 1206 (Ind. 1999), rehg. denied;
see also Killian v.
United States, 368 U.S. 231, 242 (1961) (declaring that where the pre-trial destruction
of an FBI agents notes, which were transferred to other documents that were
made available to the defense, was done in good faith as part of
a normal practice, their destruction would not be impermissible nor deprive a defendant
of any right). Here, Albrecht has made no showing of bad faith.
He was not denied due process of law nor the right to
a fair trial.
Albrecht asserts the trial court improperly excluded evidence related to his defense, namely:
the results of a witnesss polygraph examination, evidence that a witness worked
as a confidential informant, and the deposition testimony of an absent witness.
A. The polygraph examination
Matthew Kernal had dated Cynthia on at least one occasion and was initially
identified by police as a possible suspect in her death. At the
request of police, Kernal took a polygraph exam, and some of his responses
showed signs of deception. Albrecht attempted to get the results before the
jury, but the trial court ruled they were not admissible.
As a general proposition a trial court is given wide discretion in determining
the admissibility of evidence. However, it has no discretion to admit evidence
of a polygraph examination absent a waiver or stipulation entered into by both
parties. Wright v. State, 593 N.E.2d 1192, 1194-95 (Ind. 1992). Here,
the State did not agree to the admission of Kernals polygraph results.
Therefore, the trial court properly excluded the evidence. Further, Albrechts claim that
the States failure to consent to admission of the results denied him a
fair trial is unavailing. The State is not required to stipulate to
the admission of polygraph results. Hestand v. State, 491 N.E.2d 976, 979
(Ind. 1986). We find no error here.
B. Evidence that Kernal worked as a confidential informant
Speedway Police led the investigation into Cynthias murder. Albrecht argues that evidence
should have been admitted to show that police did not thoroughly investigate Kernal
because of their association with him as a confidential informant. The essential
facts are these. During the course of trial, defense counsel received a
telephone call from a man claiming Kernal worked with Speedway Police as a
confidential informant in a case involving the caller. One of Albrechts main
defense strategies was to call into question the departments diligence in thoroughly investigating
the murder and other potential suspects, including Kernal. Albrecht questioned Kernal outside
the presence of the jury about his alleged work as an informant.
Kernal denied knowing the caller or working as an informant. Instead, he stated
that he once helped a friend who worked as an informant by riding
around with him and identifying potential drug dealers. Kernal also did not
recall working with Speedway Police and said that he never received favorable treatment
from police for helping his friend. After hearing Kernals testimony, the trial
court precluded Albrecht from presenting evidence on the topic, stating that it found
no evidence to link the information to this case. We agree.
Only relevant evidence is admissible, and relevant evidence is any evidence having any
tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would
be without the evidence. Jester v. State, 724 N.E.2d 235, 240 (Ind.
2000) (quoting Ind. Evidence Rule 401). Albrecht failed to show the relevance
of his proffered evidence regarding Kernal. Kernal denied working as an informant
and more specifically, working with Speedway Police. Albrecht did not attempt to
have the caller testify or present any other evidence on the issue.
Thus, although Kernal testified that he had once assisted his friend, Albrecht offered
no evidence that Kernal actually worked as an informant or received favorable treatment
from Speedway Police. Albrecht presented no evidence linking Kernals aid of the
informant with this case. The trial court did not abuse its discretion.
C. The deposition testimony of an absent witness
Jerry Dillehay is an acquaintance of Kernal and apparently was unavailable to testify
See footnote During pre-trial discovery, Albrecht took Dillehays deposition in which Dillehay
discussed specific instances of misconduct on the part of Kernal as well as
Kernals reputation for violence. The trial court found evidence of specific acts
of misconduct on the part of Kernal to be inadmissible under the Indiana
Evidence Rules. Also, the trial court excluded evidence of Kernals reputation for
violence in part because Dillehay admitted he had a limited knowledge of Kernal
and thus he had an insufficient basis to form an opinion regarding Kernals
When Albrecht offered the deposition at trial, he provided no argument for its
admissibility, stating Can we just enter the transcript as the record, Your Honor?
. . . Because Dillehays not here so theres no proffer we can
really do. R. at 4172-73. Furthermore, Albrecht even anticipated that the
court would exclude the deposition. Before the court ruled he stated, I
dont think [the judge] is going to let any of it in.
R. at 4151.
Albrecht has similarly failed to present us with a cogent argument demonstrating that
the trial courts ruling was incorrect. Instead of challenging the trial courts
basis for excluding the evidence, he simply argues the evidence was relevant to
show that Kernal had acted violently
toward his girlfriends in the past, and therefore he likely killed Cynthia.
Albrechts failure to present us with a cogent argument supporting his allegation of
trial court error results in waiver of the issue.
See Marshall v.
State, 621 N.E.2d 308, 318 (Ind. 1993).
Waiver notwithstanding, the trial courts decision to exclude the deposition was correct.
The record supports the conclusion that Albrecht was attempting to use evidence of
Kernals character solely for the forbidden purpose of showing action in conformity therewith.
See Ind. Evidence Rule 404(a) (Evidence of a persons character or a
trait of character is not admissible for the purpose of proving action in
conformity therewith on a particular occasion . . . .); see also Evid.
R. 608 (providing that evidence of a witnesss character may be attacked by
opinion evidence only in regards to the witnesss character for truthfulness and may
not be shown by extrinsic evidence of specific acts of misconduct not reduced
to a conviction). There was no error here. The trial court
did not improperly exclude evidence related to Albrechts defense.
Albrecht challenges as error the trial courts admission into evidence of his statements
to police, a tape-recorded telephone conversation between Albrecht and another person, and an
autopsy photograph of his wifes decapitated body. He complains the statements were
not voluntarily given, the telephone conversation violated his right to counsel, and the
prejudicial impact of the photograph outweighed its probative value.
A. Albrechts statements to police
Albrecht gave two statements to an officer of the Speedway Police Department.
The first occurred at the Speedway Police Station on October 28, 1992.
Albrecht claims this statement was inadmissible at trial because the examining officers failed
to give him Miranda warnings. The State counters that no such warnings
were necessary because Albrecht was not in custody at the time. We
agree with the State.
Rights under Miranda apply only to custodial interrogation. Cliver v. State, 666 N.E.2d
59, 66 (Ind. 1996). To determine whether a defendant is in custody
we apply an objective test asking whether a reasonable person under the same
circumstances would believe themselves to be under arrest or not free to resist
the entreaties of the police. Torres v. State, 673 N.E.2d 472, 474 (Ind.
1996) (quoting Jones v. State, 655 N.E.2d 49, 55 (Ind. 1995)). As
we declared in Loving v. State, 647 N.E.2d 1123, 1125 (Ind. 1995), [t]he
test is how a reasonable person in the suspects shoes would understand the
The record shows the first interview was held only two days after Cynthia
was reported missing. In response to a request by investigating officer William
Jones, Albrecht went to the Speedway police station to speak with the officer.
At that point, police were investigating a report of a missing person
and sought background information concerning Cynthia in the hope of determining her whereabouts.
Officer Jones testified at a motion to suppress hearing that he specifically
advised Albrecht that he was not under arrest and was free to leave
at any time. Albrecht counters that Officer Jones believed that he was
a suspect in Cynthias disappearance but did not so advise him. This
fact is not dispositive. The question is whether a reasonable person in
Albrechts situation would believe himself to be under arrest or not free to
resist the entreaties of Officer Jones. Under the facts presented here we
conclude no reasonable person could reach such a conclusion. The trial court properly
admitted the statement into evidence.
The second interview took place in November 1992 while Albrecht was in Fort
Lauderdale, Florida, visiting a relative. Officer Jones flew to Florida and accompanied
Albrecht to a Fort Lauderdale police station. At the motion to suppress
hearing, Officer Jones testified that although he again advised Albrecht that he was
not under arrest and was free to leave, he nonetheless read Albrecht his
Miranda rights before questioning began. The record does not reveal that Albrecht
was presented with or signed a waiver of rights. However, Albrecht did
give an audio-taped statement and according to officer Jones, Albrecht never indicated that
he did not wish to speak with the officer.
In this appeal, Albrecht acknowledges that he was advised of his Miranda rights.
He complains however that Jones knew [Albrecht] had an attorney as early
as the 27th or 28th of October. Jones at no point contacted
[Albrechts] attorney to tell him [Albrecht] would be interviewed. Brief of Appellant
at 40. We first note that this assertion is not only misleading,
but also misplaced. The record shows that at the time of the
interview Albrecht was represented by counsel in a divorce proceeding and apparently Officer
Jones was aware of that fact. Albrecht does not explain why the
officer would contact Albrechts divorce lawyer concerning a criminal matter. More importantly,
as part of the Miranda warnings, Officer Jones advised Albrecht that he had
a right to counsel and the right to remain silent. Albrecht stated
that he understood his rights and proceeded to answer Officer Joness questions.
The record shows that Albrecht never asserted his right to counsel which requires,
at a minimum, some statement that can reasonably be construed to be an
expression of a desire for the assistance of an attorney. Goodner v.
State, 714 N.E.2d 638, 641 (Ind. 1999) (quoting Davis v. United States, 512
U.S. 452, 459 (1994)). By speaking to the officer, Albrecht waived his
rights. Carter v. State, 730 N.E.2d 155, 157 (Ind. 2000) (An express
written or oral waiver of rights is not necessary to establish a waiver
of Miranda rights.). Other than now complaining that counsel was not present
at the second interview, Albrecht makes no other assertion exploring why his waiver
was involuntary. We find no error on this issue. The trial
court properly allowed this statement into evidence as well.
B. Recorded telephone conversation
Anthony Ferrari was a racing-industry friend and acquaintance of Albrecht and Cynthia.
Ferrari spoke to police about statements Albrecht had made regarding Cynthia and Albrechts
desire to harm her. At the request of police, Ferrari called Albrecht,
who was living in Florida at the time, and recorded their conversation.
That conversation, which was admitted at trial over Albrechts objection, recounted many of
Albrechts prior discussions with Ferrari.
Albrecht contends that recording his conversation with Ferrari violated his right to counsel
as articulated by the United States Supreme Court in Massiah v. United States,
377 U.S. 201 (1964). Albrechts reliance on Massiah is misplaced. In
that case, the defendant had been indicted and was on bail when federal
authorities surreptitiously listened to a pre-arranged, non-custodial conversation between the defendant and the
accomplice. The Court held that the defendants Sixth Amendment right to counsel
was violated when authorities deliberately elicited comments from him after he had been
indicted and in the absence of counsel. Id. at 206. Thus,
when authorities in Massiah solicited incriminating comments from the defendant via the accomplice,
judicial proceedings had been initiated against him. That is not the case
here. A defendants Sixth Amendment right to counsel applies only to critical
stages of the proceedings at or after the time that adversary judicial proceedings
have been initiated against the defendant. Dullen v. State, 721 N.E.2d 241,
242 (Ind. 1999), cert. denied, ___ S. Ct. ___, 2000 WL 798245 (Oct.
2, 2000). Here, Albrechts recorded conversation with Ferrari took place on December
4, 1992, well before adversarial proceedings were initiated against Albrecht. As such,
his Sixth Amendment right to counsel was not violated. Furthermore, Albrechts rights
under Miranda were not implicated because he was clearly not in custody when
the call was recorded. See Dye v. State, 717 N.E.2d 5, 14
(Ind. 1999) (Miranda warnings are required only in the context of custodial interrogation.),
rehg. denied, cert. pending. The trial court did not err in admitting
the statement into evidence.
C. Autopsy photograph
Over Albrechts objection, the trial court admitted an autopsy photograph of Cynthia, depicting
her neck and shoulder region where her head had been severed. Albrecht
argues the photograph lacked probative value because Cynthias head was severed after she
We review the trial courts decision to admit photographic evidence for an abuse
of discretion. Cutter v. State, 725 N.E.2d 401, 406 (Ind. 2000), rehg.
denied. Although a photograph may arouse the passions of the jurors, it
is admissible unless its probative value is substantially outweighed by the danger of
unfair prejudice. Id. (quoting Evid. R. 403). A photograph has probative
value and is generally admissible if it demonstrates or illustrates a witnesss testimony.
Wallace v. State, 725 N.E.2d 837, 839 (Ind. 2000); Elliott v. State,
630 N.E.2d 202, 204 (Ind. 1994).
Here, the photograph was admitted during the testimony of the forensic pathologist who
examined Cynthias body. Her body had not been altered by the pathologist,
and the photograph essentially depicted Cynthias body as it was found. Photographs
showing the victim in his or her natural state following death are generally
relevant and admissible. Woods v. State, 677 N.E.2d 499, 504 (Ind. 1997).
Before the photograph was admitted into evidence, the pathologist stated that it
would help him explain his testimony. He then testified that based in
part upon his examination of the neck area, the cause of death was
likely traumatic injury of the neck. We have held that photographs of
a victims corpse in a homicide case are relevant to serve as an
aid to understanding the pathologists findings on the cause of death. Id.
The fact that the pathologist could not state for certain what caused
Cynthias death does not render the photograph inadmissible. Furthermore, the pathologist also
described saw marks discovered in the bone around the wound and the uniform
and regular pattern of the cuts in the skin and muscle, indicating that
a sharp object was used to sever Cynthias head. The photograph was
probative because it allowed the jury to see the wound and to place
the pathologists testimony in context.
Moreover, the evidence of decapitation was relevant to link Albrecht to Cynthias murder
because Albrecht had stated his intention to kill Cynthia and remove her head
so she could not be identified through dental records. See Schmidt
v. State, 255 Ind. 443, 455, 265 N.E.2d 219, 225 (1970) (finding photographs
of victims dismembered body were properly admitted to substantiate evidence that murder was
carried out according to a plan to kill and dismember body). Although
the photograph is certainly gruesome and likely stirred the emotions of the jurors,
its probative value was not substantially outweighed by the danger of unfair prejudice
to Albrecht. The trial court did not err in admitting the photograph
Albrecht contends he was denied a fair trial because two jurors, Marvin and
Yolanda Smith, were brother and sister. Apparently the parties did not learn
of their relationship until after Albrechts trial. During voir dire, neither Albrecht,
the State, nor the trial court asked any of the potential jurors if
they were related to each other. Albrecht argues that the jurors brother-sister
relationship prejudiced his right to be tried by twelve independent and impartial jurors.
Brief of Appellant at 44. He also contends that Marvin and
Yolanda were obligated to disclose their relationship during voir dire even though no
questions regarding familial relationships were raised by the parties or the trial court.
Albrecht was certainly entitled to a fair and impartial jury, and proof that
a juror was biased against the defendant or lied on voir dire may
entitle the defendant to a new trial. Lopez v. State, 527 N.E.2d
1119, 1130 (Ind. 1988). That is not the case here. Yolanda
testified at the hearing on Albrechts motion to correct error that she believed
the parties knew she was related to Marvin because the summonses to appear
for jury duty were delivered to the same address on the same day.
She further stated, Had that [the fact she was the sister of
another potential juror] come up, had the question been raised, I certainly would,
would have given the flag, but he [her brother] has his opinion, I
have my opinion, we were given instructions not to talk about the case.
We did not do that ever. So I didnt see how
it was relevant or that we did anything improper. R. at 4521.
We agree with Yolandas assessment.
See footnote Absent an inquiry during voir dire,
she and her brother were not required to inform the parties of their
Furthermore, Albrecht wholly fails to demonstrate that the jurors relationship prejudiced his right
to a fair trial. At the hearing on Albrechts motion to correct
error, both jurors testified that they did not discuss the case while the
trial was taking place, and Albrecht has cited nothing to show that these
jurors were anything but fair and impartial. A defendant is entitled to
a new trial only upon a showing of bias or serious misconduct upon
the part of the juror which resulted in harm to the defendant.
Lopez, 527 N.E.2d at 1130; Allread v. State, 582 N.E.2d 899, 902 (Ind.
Ct. App. 1991). In this case, Albrecht has made no such
Albrecht next complains the trial court erred in denying three of his tendered
instructions. The instructions covered: (1) circumstantial evidence; (2) the States burden
of proof at trial; and (3) the conduct of the jury during deliberations.
In reviewing the trial courts refusal to provide disputed instructions, we consider
whether the instruction correctly states the law; whether there is evidence in the
record to support the giving of the instruction; and whether the substance of
the tendered instruction is covered by other instructions. Emerson v. State, 724
N.E.2d 605, 608 (Ind. 2000). Although Albrecht claims otherwise, our review of
the record shows that the substance of each of his tendered instructions was
covered by the trial courts own instructions. On this ground alone the
trial court correctly refused to give Albrechts tendered instructions.
Albrecht also challenges the trial courts decision to give its own instruction on
reasonable doubt in addition to an instruction that Albrecht tendered. The record
shows the trial court gave an instruction approved by a majority of this
Court in Winegeart v. State, 665 N.E.2d 893, 902 (Ind. 1996). Reasoning
that the two complemented each other, the trial court also gave the following
instruction tendered by Albrecht:
A reasonable doubt is a fair, actual and logical doubt that arises in
your mind after an impartial consideration of all the evidence and circumstances in
the case. It should be a doubt based upon reason and common
sense and not a doubt based upon imagination or speculation.
To prove the defendants guilt of the elements of the crime charged beyond
a reasonable doubt, the evidence must be such that it should convince you
of the truth of it, to such a degree of certainty that you
would feel safe to act upon such conviction, without hesitation, in a matter
of the highest concern and importance to you.
R. at 491, 544.
Albrecht makes two claims: (1) the
Winegeart instruction represents an incorrect statement of
the law on reasonable doubt; and (2) giving both instructions confused the jury
because the firmly convinced language in the Winegeart instruction is inconsistent with the
degree of certainty to act without hesitation language in his own instruction. Therefore,
according to Albrecht, the trial court should have given only one instruction, his
As to the first claim, we have approved of the Winegeart instruction on
numerous occasions and decline Albrechts invitation to revisit the issue here. See
McGregor v. State, 725 N.E.2d 840, 842 (Ind. 2000); Turnley v. State, 725
N.E.2d 87, 89 (Ind. 2000); Williams v. State, 724 N.E.2d 1093, 1094-95 (Ind.
2000); Dobbins v. State, 721 N.E.2d 867, 874-75 (Ind. 1999); Ford v. State,
718 N.E.2d 1104, 1105 (Ind. 1999); Barber v. State, 715 N.E.2d 848, 851-52
(Ind. 1999); Williams v. State, 714 N.E.2d 644, 650 (Ind. 1999), cert. denied,
120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000); Young v. State,
696 N.E.2d 386, 390 (Ind. 1998); Tobias v. State, 666 N.E.2d 68, 69
(Ind. 1996). We therefore reject Albrechts claim that the instruction represents an
incorrect statement of the law.
As for Albrechts second claim, we do not agree that giving both instructions
tended to confuse the jury as to the States burden of proof.
The Due Process Clause of the Fourteenth Amendment protects an accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to constitute
the crime with which he is charged. Winegeart, 665 N.E.2d at 896
(quoting In re Winship, 397 U.S. 358, 364 (1970)). The test for
determining the constitutionality of a reasonable doubt instruction is whether there is a
reasonable likelihood that the jury applied the instructions to convict based upon constitutionally
insufficient proof of guilt. Id. at 897-98 (quoting Victor v. Nebraska, 511
U.S. 1, 6 (1994)). Simply because the language of the instructions differs,
it does not necessarily follow that the definitions are inconsistent or conflicting.
Although we maintain our belief that the first instruction is the better
of the two and requires no supplement to fully inform the jury about
the concept of reasonable doubt, id. at 902, Albrecht has not convinced us
that providing supplementation in the form of the second instruction tended to confuse
or mislead the jury. As we observed in Winegeart, [w]hile the federal
constitution requires that juries be instructed on the necessity that the defendants guilt
be proven beyond a reasonable doubt, it does not require the use of
any particular form of words. Id. at 896 (quoting Victor, 511 U.S.
at 5). Rather, the instructions taken as a whole must correctly express
the concept of reasonable doubt to the jury. Id. (quoting Victor, 511
U.S. at 5). Viewing the courts instructions as a whole, we conclude
that there is not a reasonable likelihood that the jurors applied the instructions
to convict Albrecht based upon constitutionally insufficient proof of guilt. The
trial court did not abuse its discretion in instructing the jury on reasonable
Last, we address Albrechts contention that the evidence was insufficient to support his
conviction. In reviewing a sufficiency of the evidence claim, we do not
reweigh the evidence or assess the credibility of the witnesses. Brown v.
State, 720 N.E.2d 1157, 1158 (Ind. 1999). 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. Id.
Albrecht argues that the evidence was not sufficient to convict him because the
testimony of William Filter, the States key witness, was inconsistent, incredible, uncorroborated, and
coerced by threat of prosecution and incarceration by the State. His claim
amounts to an invocation of the incredible dubiosity rule. See Tillman v.
State, 642 N.E.2d 221, 223 (Ind. 1994); Gaddis v. State, 253 Ind. 73,
80-81, 251 N.E.2d 658, 661-62 (1969). Under this rule, a court
will impinge on the jurys responsibility to judge witness credibility only when confronted
with inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity.
Tillman, 642 N.E.2d at 223. Application of this rule is
limited to cases, such as Gaddis, where a sole witness presents inherently contradictory
testimony which is equivocal or the result of coercion and there is a
complete lack of circumstantial evidence of the appellants guilt. Id.
In such an action, an appellate court may reverse the judgment of the
trial court. Id.
In support of his contention, Albrecht cites a series of events that
he claims led to a dramatic change in Filters account of the events
surrounding Cynthias death. Filter and Albrecht had been friends for approximately twenty
years. R. at 2718. On several occasions during the lengthy criminal
investigation into Cynthias murder, Filter provided an alibi for Albrecht, telling police that
he was with Albrecht on the night Cynthia disappeared. R. at 2747,
2766-69, 2774-76, 2784-85. However, when police contacted Filter again in August
1997, they told him that they did not believe his story and informed
Filter that he could be charged with assisting a criminal and face jail
time. R. at 2788-89. Police also told Filter that he
could be arrested and jailed until resolution of the case if he could
not afford bail, which could amount to $100,000. R. at 2757-58, 2788-91.
Filter contacted an attorney, who arranged a meeting with police. R.
at 2759. Before the meeting, police provided Filter and his attorney
with a copy of the probable cause affidavit it had generated against Albrecht.
R. at 2793, 2806-08. When confronted with this information and the
threat of prosecution and possible jail time, Filter told police that his previous
statements were untrue and that he had been covering for Albrecht, who killed
Cynthia. R. at 2743, 2799, 2809-10. Filter recounted this story at
trial wherein he described in detail his communications and contact with Albrecht regarding
Albrechts desire to kill Cynthia and ultimately Albrechts confession to Filter that he
had in fact killed her.
See footnote R. at 2727-2750. Both his statement
to police and trial testimony were given under a grant of use immunity
by the State. R. at 2715, 2717, 2764, 2800, 2833-34.
Albrecht argues Filters testimony at trial was coerced by threat of prosecution and
imprisonment by police and therefore was unworthy of credit and insufficient to sustain
the conviction. In further support of his claim, Albrecht also contends that
Filters testimony was unreliable because he changed his story only after reading the
probable cause affidavit given to him by police and subsequently provided police only
with information found in that document. The thrust of this portion of
Albrechts claim is that police gave Filter the information for which they needed
corroboration and he simply told them what they wanted to hear to avoid
Although Albrecht raises legitimate issues regarding Filters credibility, these issues were fully presented
to the jury at trial. Albrecht extensively cross-examined Filter about the change
in his story and the forces that Albrecht believed played a factor in
Filter ultimately implicating Albrecht in Cynthias death the threat of prosecution and
jail time. R. at 2766-2801. The jury was also made aware
that although Filter faced charges for assisting a criminal, he was testifying under
a grant of use immunity and would receive a sentence recommendation from the
State if prosecuted and convicted. R. at 2715, 2717, 2764, 2800, 2833-34.
Albrecht also pointed out that many of the details in Filters story
could be found in the probable cause affidavit. R. at 2806-19.
Therefore, Albrechts contention that Filter only changed his story to avoid imprisonment and
his assertion that Filters testimony was unworthy of credit were placed squarely before
the jury for consideration. Nevertheless, in carrying out its role as the
trier of fact, the jury apparently found Filters testimony to be worthy of
See Ellis v. State, 725 N.E.2d 411, 412 (Ind. 2000) ([I]t
is within the jurys province to assess the credibility of all witnesses and
weigh the evidence . . . .). The extent to which threats
may have, in some degree, affected a third partys testimony goes to the
weight to be given the testimony by the trier of fact. See
Barnes v. State, 269 Ind. 76, 84, 378 N.E.2d 839, 844 (1978); Cain
v. State, 594 N.E.2d 835, 840 (Ind. Ct. App. 1992), rehg. granted on
other grounds; McIntyre v. State, 460 N.E.2d 162, 166 (Ind. Ct. App. 1984).
We cannot say that the jurys credibility assessment in this case was, as
a matter of law, improper. In response to Albrechts attacks at trial,
Filter held firm in his assertion that he was testifying truthfully. R.
at 2763-64, 2810, 2848-49, 2871-72. Filter also explained the impact of the
affidavit on his statement and testimony. He told the jury that he
finally changed his story and told the truth when, after briefly examining the
affidavit, he realized that other information had surfaced that supported what Albrecht had
been telling him regarding Cynthias murder. R. at 2848-49. He appeared
to believe facts were beginning to surface about Cynthias murder and decided to
come clean. Id. In sum, Filters testimony was not incredibly dubious.
It was therefore up to the jury to evaluate Filters testimony and
assess his credibility in light of the circumstances presented by Albrecht. We
will not substitute our judgment for the jurys as to Filters credibility.
Further, the jury need not have relied solely on Filters statement to convict
Albrecht. In addition to Filters testimony, other evidence tended to support the
jurys conclusion that Albrecht murdered Cynthia. Albrechts former employer, Antonio Ferrari, testified
that Albrecht contacted him about trying to hire someone to do something permanent
to Cynthia and that the person could be paid from the $50,000 in
life insurance proceeds. R. at 2625-2631, 3039. A life insurance policy
for Cynthia did in fact exist, naming Albrecht as the beneficiary. R.
at 3081, 3117-20. Albrecht continued to make payments on the policy after
he and his wife separated, and he filed a claim for the benefits
approximately six months after Cynthias body was discovered. R. at 3049, 3081,
3143-49. He ultimately received $52,000 from the policy. R. at 3111.
When Ferrari informed Albrecht that he would be unable to help him,
Albrecht told Ferrari that he would do it himself. R. at 2629.
Albrecht also contacted his brother in Florida expressing his anger toward Cynthia
and attempted to hire someone to rough up Cynthia. R. at 2480-82.
See Shane v. State, 716 N.E.2d 391, 398 (Ind. 1999) (finding
the defendants expression of animosity toward the victim and discussions about killing the
victim supported murder conviction despite other erroneously admitted evidence). Further, Albrecht made
somewhat frequent trips to Milwaukee, Wisconsin, and was in Milwaukee during a part
of the weekend Cynthia disappeared. R. at 2743, 3758, 3774, 3803, 3860,
3864. Cynthias body was found in a field in Northern Indiana near
I-65, Albrechts route between Indianapolis and Milwaukee. R. at 2130, 2133, 2677.
Although this evidence standing alone may not have been adequate to convict
Albrecht, when considered together and with Filters testimony, the evidence was more than
sufficient for the jury to conclude beyond a reasonable doubt that Albrecht murdered
his wife Cynthia.
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
Crafts report and testimony at trial indicated that during the first
interview, Kathleen stated that she was barely awake when Albrecht returned to her
home early Monday morning at approximately 2:00 a.m. after spending the evening with
Filter, and that Albrecht let himself in with a key. Kathleen, however,
testified at trial that she was awakened at 2:00 a.m. by Albrecht knocking
on her door because his key would not work, and that she had
to get out of bed and let him inside. In Crafts report,
Kathleen was unsure of the time Albrecht returned, but at trial she was
certain it was 2:00 a.m. Also, Craft testified that Kathleen told him
she still loved Albrecht and would do anything to get him back.
His report stated that Kathleen desired to get back with [Albrecht] . .
. . R. at 4300.
Footnote: Albrecht cites
Brady v. Maryland, 373 U.S. 83 (1963), in support
of his claim. Although closely related to the principles of evidence preservation
announced in Trombetta and Youngblood, Brady is not directly on point. Brady
applies in situations where a defendant discovers after trial that the prosecution suppressed
material,exculpatory information. United States v. Agurs, 427 U.S. 97, 103 (1976).
Brady has no application . . . where the alleged exculpatory evidence no
longer exists but its content was nonetheless revealed through testimony at trial.
Noojin v. State, 730 N.E.2d 672, 676 n.1 (Ind. 2000) (citing Williams v.
State, 714 N.E.2d 644, 649 (Ind. 1999), cert. denied, 120 S. Ct. 1195,
145 L. Ed. 2d 1099 (2000)). The notes in this case were
negligently destroyed well before trial and testimony as to their existence and content
was presented during trial. Further, there was no evidence of suppression by
the State. Therefore, Brady is inapplicable here.
Neither party has addressed, at trial or on appeal, whether Albrecht
met the unavailability requirements of Indiana Evidence Rule 804 or Indiana Trial Rule
32 regarding the admission of Dillehays deposition. Therefore, we will not address
the issue in this opinion.
In addition, as the trial court noted in denying Albrechts motion
to correct error, Yolanda and Marvin both filled out Albrechts lengthy, detailed jury
questionnaire, which was slightly modified by the trial court. Although the questionnaire
did not include an inquiry regarding relationships between jurors, according to the trial
court Yolanda and Marvin provided several significant common answers. R. at 709.
However, Albrecht did not question them about their common answers, e.g., same
last name, recent death of grandmother, common place of worship, and soon-to-be brother-in-law
and fiancé was a correctional officer.
Albrechts tendered instruction was criticized, but not found to be constitutionally inadequate,
by a majority of this Court in
Winegeart, 665 N.E.2d at 898.
Two members of our Court found the criticized instruction to be an appropriate
description of reasonable doubt. Id. at 904-05 (DeBruler, J., concurring in result,
joined by Shepard, C.J.).
At trial, Filter testified that Albrecht had initially asked him to
kill Cynthia, and when he declined Albrecht said he would do it himself
and that his first wife Kathleen, who lived in Milwaukee, would provide an
alibi. R. at 2728, 2734-37, 2741. Filter stated that he agreed
to be an additional alibi witness for Albrecht. R. at 2737-39, 2741,
2746-47, 2755. Filter also testified that Albrecht had confided in him the
plan to murder Cynthia, telling him that Cynthias head would have to be
severed so her body would not be easily identified through dental records.
R. at 2731-2744, 2811-12. Filter told the jury that Albrecht confessed to
following through with his plan to kill Cynthia. R. at 2743.