ATTORNEYS FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
DENNIS E. ZAHN STEVE CARTER
JAMES H. VOYLES Attorney General of Indiana
Voyles, Zahn, Paul, Hogan & Merriman
Indianapolis, Indiana TIMOTHY W. BEAM
Deputy Attorney General
DARIN WILLIAMS, ) ) Appellant-Defendant, ) ) vs. ) No. 54A01-0012-PC-453 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION FOR PUBLICATION
Whether Darin was denied his right to effective cross-examination of witness Joe Couch.
Whether Darin is entitled to a new trial based upon newly discovered evidence.
Whether Darin's convictions for attempted murder and robbery constitute double jeopardy.
In his second point, defendant argues that he has a right to a
new trial because there is newly discovered evidence. Specifically, defendant claims that
he has the right to present for the jury's consideration two statements attributed
to his deceased father. Defendant claims those statements reveal that his father
is responsible for the victim's shooting and that they are admissible under the
Rules of Evidence.
(R. 660-61). Reasoning that jurors cannot impeach their verdict unless they were
exposed to "improper, extrinsic material during" deliberations, (R. 661), the trial court determined
that, with two exceptions, none of the alleged jury misconduct amounted to "extraneous
prejudicial information" or "outside influences for purposes of the exception provided for inquiry
into [the] validity of [the] jury's verdict." (R. 664-65). The trial
court determined that a juror reporting to the other jurors that he had
driven the routes and that Darin "could have done it," (R. 665), constituted
extraneous information. However, the juror's actions and report that Darin had time
to commit the crime did not prejudice Darin because it was cumulative of
evidence presented at trial and because other substantial and independent evidence of his
guilt existed. The trial court also determined that an alternate juror's statement
imploring the jurors to "hurry" because she had a commitment constituted extraneous information.
The trial court concluded that the statement would not have influenced "the
average juror" and was harmless. (R. 669).
The trial court analyzed the two statements attributed to Michael Williams in light of the law regarding newly discovered evidence and the trial rules concerning the admissibility of out-of-court declarations under Ind. Evidence Rule 804. The trial court determined that the statements allegedly made by Michael Williams lacked indicia of trustworthiness or reliability for the following reasons: 1) the statements were not made in close proximity to commission of the crime, 2) Michael Williams did not exonerate his son in the suicide note, 3) Michael Williams had testified at trial and in his deposition that he did not go to Teresa's house on the day of the shooting, and 4) "[a] disturbed and depressed father contemplating suicide might well have made these statements without believing them to be true. After the trial, the father knew his son was going to prison and likely felt some responsibility for his son's situation and wished to help him out . . . ." (R. 675). The trial court determined that the statements were not admissible and that "even if admitted at trial probably would not produce a different result." (R. 677).
On September 21, 1999, the trial court entered a sentencing order stating, in pertinent part:
The court finds that the defendant should be sentenced to the Indiana Department of Corrections for a period of fifty (50) years on Count I [attempted murder] with no fine but court costs assessed in the amount of $125.00. The court further finds that the defendant should be sentenced to the Indiana Department of Corrections for a period of thirty (30) years on Count IV [robbery] with no fine but court costs assessed in the amount of $125.00. The court further finds that the convictions on Count[s] II [battery with a deadly weapon] and III [aggravated battery] should be merged into the conviction for the attempted murder charge and the court will not sentence the defendant on Counts II and III.
(R. 680). The court ordered the sentences to be served consecutively.
Darin commenced a direct appeal of his conviction in October 1999. In order to present additional evidence not in the record, on February 23, 2000, Darin filed a petition with this court requesting suspension of his direct appeal and remand to the trial court for a hearing on newly discovered evidence with the right to reinstitute the appeal upon conclusion of the trial court proceedings. On February 28, 2000, this court granted Darin's petition.
On March 29, 2000, Darin filed his petition for postconviction relief. The postconviction petition alleged 1) prosecutorial misconduct with regard to arguments made in the State's closing statement as to the telephone records submitted at the close of the State's case-in-chief; 2) improper or extrinsic influence on the jury; and 3) newly discovered evidence with regard to additional affidavits indicating "that someone other than the Defendant committed the crimes charged . . . ." (Postconviction R. at 9). After a hearing on postconviction relief, the trial court denied Darin's request for relief.
(b) The jury continued to discuss the case among themselves, even after a specific
admonishment by the Court to refrain from doing so, including showing notepads to
one another. [R. 599, 600, 601, affidavits of Day, Stark, and Callom].
(c) The jury discussed, commented upon and considered the fact that the defendant did
not testify. [R. 599, 600, 601, affidavits of Day, Stark, and Callom].
(d) Formed and expressed the opinion that the defendant was guilty even before the
defense began presenting evidence. [R. 599, 600, affidavits of Day and Stark].
Appellant's Brief at 9.
Indiana Evidence Rule 606 provides, in pertinent part:
(b) Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury's attention or (3) whether any outside influence was improperly brought to bear upon any juror. A juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying may not be received for these purposes.
A verdict may not be impeached by evidence from the jurors who returned
it. See Johnson v. State, 700 N.E.2d 480, 481 (Ind. Ct. App.
1998). However, as noted in Evidence Rule 606(b), an exception exists when
jurors are exposed to improper extrinsic matters during deliberations and there exists a
substantial possibility that the extrinsic material prejudiced the verdict. See Stephenson v.
State, 742 N.E.2d 463, 477 (Ind. 2001). The defendant must demonstrate that
the matters are extrinsic. Id. Once the defendant carries that burden,
the burden shifts to the State to demonstrate that the matter is harmless.
After the adoption of Evidence Rule 606(b), courts may "accept juror affidavits stating that deliberations were tainted by improper information or influence, but disregard any statements on the effect of that information or influence on the juror's decision." Griffin, 2001 WL 1021353 at *3. In Griffin, our supreme court observed:
The problem, of course, is how to protect such vital defendants' rights as the right to confront witnesses (which may be violated if a jury considers information that was not in evidence) or the right to an impartial jury, if the best (and often only) witnesses to jury improprieties cannot be heard. The U.S. Supreme Court considered that dilemma over a century ago and held that a juror "may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind." Mattox v. United States, 146 U.S. 149 (1892)(quoting Woodward v. Leavitt, 107 Mass. 453 (1871)). This Court adopted the Mattox approach in Fox v. State, 457 N.E.2d 1088, 1093 (Ind. 1984).
Griffin, 2001 WL 1021353 at *3 (reaffirming Indiana's adherence to the rule in
"[A]n experiment by the jury is improper where it amounts to additional evidence supplementary to that introduced during the trial." Bradford v. State, 675 N.E.2d 296, 304 (Ind. 1996)(quoting Kennedy v. State, 578 N.E.2d 633, 641 (Ind. 1991), cert. denied 503 U.S. 921 (1992)). Darin contends that Juror Emmert's report that he drove the routes and that Darin could have committed the crimes constituted additional extrinsic evidence which was prejudicial for several reasons: 1) the juror's report constituted independent, extraneous matter inasmuch as evidence was presented by the State and Darin as to the driving times and distances; 2) the report by the juror was not subject to cross-examination; and 3) the report by the juror had a probable persuasive effect on the jury.
The State contends that the affidavits do not establish that the juror conducted his own experiment; rather, one affidavit See footnote suggests that through his own life experiences, the juror is aware that driving the routes is possible within the time frames necessary for Darin to have committed the crimes. Cf. Bibbins v. Dalsheim, 21 F.3d 13, 17 (2d Cir. 1994)(juror's opinion was part of the "fund of ordinary experience that jurors may bring to the jury room and may rely upon."). Further, the State urges that if the affidavit establishes that the jury was exposed to extrinsic matter, it is merely cumulative of other properly admitted evidence at trial. Darin's expert did not refute the State's evidence that Darin could have been in the places he was seen and at Teresa's home within the time frames in evidence. According to the State, "[i]n essence, there was no real dispute that Defendant could have shot Teresa and then been at the locations where he was seen later in the morning." Appellee's Brief at 11. Thus, there does not exist a probable persuasive effect on the jury. Finally, the State reminds us that the eyewitness testimony by Teresa confirmed that Darin was the shooter. We agree with the State's analysis.
The affidavits submitted by Darin do not establish conclusively that a juror conducted his own experiment driving the routes and then reported the extrinsic evidence to the jury. Thus, Darin has not established that the jury was subjected to extrinsic material. See Stephenson v. State, 742 N.E.2d at 477.
Moreover, even if Darin had presented evidence to shift the burden to the State, he has failed to demonstrate that the potential misconduct was gross or constituted probable harm to him. See Griffin, 2001 WL 1021353 at *2. The evidence in the record, including Darin's expert's testimony, demonstrates that Darin had sufficient time to be in the places he was seen on the morning of the crimes and to commit the crimes at Teresa's home. Further, Teresa, who had known Darin since 1987 and had been married to him since 1990, identified Darin as the person who inflicted her injuries on November 6, 1998. The evidence renders any possible error harmless.
As to the other incidents of jury misconduct alleged by Darin, he contends that "the cumulative misconduct of the jury in this case beginning during the trial and continuing into deliberations was fundamentally prejudicial and violated the defendant's right to due process . . . ." Appellant's Brief at 16. The State urges that Evidence Rule 606 prohibits members of the jury from submitting affidavits regarding matters that occurred during the course of deliberations that concerned the jurors' mental processes in connection with the verdict.
[If] verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication[, then] all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigationto the destruction of all frankness and freedom of discussion and conference.
Koo v. State, 640 N.E.2d 95, 105 (Ind. Ct. App. 1994)(quoting Knight v.
Parke, 595 N.E.2d 280, 281 (Ind. Ct. App. 1992)). The balance of
Darin's contentions of jury misconduct raised within his direct appeal are aimed at
alleged deficiencies in the deliberative process, and are not subject to attack by
the juror's affidavits. "Intrajury influence is not sufficient to overturn a verdict."
Griffin, 2001 WL 1021353 at *4 (including determination that communication by alternate
juror not reversible error).
Darin has failed to present reversible error with regard to his allegations of jury misconduct.
2. Prosecutorial Misconduct
Darin raised prosecutorial misconduct as a ground for error in his petition for postconviction relief. Darin bore the burden in the postconviction court of establishing the grounds for relief by a preponderance of the evidence. See Dowdell v. State, 720 N.E.2d 1146, 1150 (Ind. 1999). Darin appeals from a negative judgment; thus, in order to gain reversal, he must demonstrate that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the postconviction court. Id. We will disturb the postconviction court's ruling only if the evidence is without conflict and leads solely to a conclusion contrary to the result reached by the postconviction court. Id.
Darin contends that the State misrepresented the evidence contained within, and the significance of, the cellular telephone records because cellular telephone representatives told police officers "that a call coming through the Crawfordsville tower did not mean that the caller had to be in Crawfordsville." Appellant's Brief at 22. Darin contends that the failure to give that information to him amounted to withholding exculpatory evidence and the State's arguments that the cellular records document his location at certain times amounted to prosecutorial misconduct. See footnote
The telephone records were introduced without objection by Darin. After the exhibit was passed to the jury, the State immediately rested its case-in-chief.See footnote The State did not offer an explanation of the 81-page exhibit. In an effort to demonstrate that Darin had sufficient time to commit the crimes, during closing argument the State detailed specific times when calls were made to or from Darin's cellular telephone, whether the calls were answered, and the location of Darin's truck during certain calls based upon the cellular tower that transmitted the call as found in the cellular telephone records.
The director of network engineering for the cellular telephone company, Darren Isaac, testified at the hearing on postconviction relief. The following colloquy occurred:
Q. Based upon the kinds of records that Cellular One generates in the normal course of its business, some which you have there in front of you. Is it possible to tell what tower a call comes off of?
Q. When I say come off of, I don't know that that's a word
of art it's just simply my way of.
A. Yes, yes it is. Based on these records you can indicate here,
it's indicated here what the originating cell site or cell tower is.
Q. Because those records reflect an originating cell tower, does that necessarily mean that
a person is at that exact location?
A. No it does not.
Q. If for instance a call were to come, originate at the
Jamestown tower, does that necessarily mean that the person using that cell phone
was in Jamestown?
Q. If I were to represent to you that Mace, Indiana is approximately midway
between Jamestown and Crawfordsville, if a person were in Mace, Indiana could a
call come off either of those towers?
A. A tower is located in a, at a physical address but the tower
itself has antennae which have the capability to cover a radius of area
and each tower varies. It could be anywhere from uh one mile
radius to a fifteen or twenty mile radius. Uh the particular towers
that are in this area, the majority of them are [omni-directional] towers where
there's basically one antenna that covers around, an area around the tower.
Uh so a person could actually be outside of a particular um town
and actually originate a call but not necessarily be in, the tower itself
can be in that town but the individual, because of the coverage of
the antennae could actually be outside of that area. And that coverage
varies on atmospheric condition[s], it varies on terrain, uh as you go up
and down hills and in valley[s], you may be closer to an individual
cell site but there may be a site that's farther away that has
a better line of sight or a better focus to that particular mobile
so it just really varies. It's really a probability question more than anything
A. No not necessarily.
(Postconviction R. 144-45, 151-52).
Penny Stephens, a cellular telephone representative, testified that when police officers requested Darin's cellular telephone records, she explained that the location of the tower does not coordinate with the location of the person making the call.
Darin contends that the State violated the disclosure requirements of Brady v. Maryland, 373 U.S. 83 (1963), by failing to notify him of the exculpatory nature of the evidence regarding interpretation of the cellular telephone records.
In response, the State argues that Darin was given his cellular telephone records and that a cellular telephone representative, John Osborne, was listed as a potential witness. Thus, according to the State, the information was not withheld, and Darin's claim amounts to a contention that the State should have prepared his defense.
"[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith of the prosecution." Brady, 373 U.S. at 87. "To prevail on a Brady claim, a defendant must establish: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence was material to an issue at trial. Minnick v. State, 698 N.E.2d 745, 755 (Ind. 1998), cert. denied 528 U.S. 1006 (1999). "Evidence is 'material' only if there is a 'reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Id., (quoting United States v. Bagley, 473 U.S. 667, 685 (1985), cert. denied 121 S.Ct. 81 (2000)). However, "the State will not be found to have suppressed material information if that information was available to a defendant through the exercise of reasonable diligence." Conner v. State, 711 N.E.2d 1238, 1246 (Ind. 1999), cert. denied 531 U.S. 829 (2000).
Here, the State disclosed the existence of the cellular telephone records (a fact that would have been known to Darin), and disclosed a witness familiar with the records. We cannot say that exculpatory evidence was withheld from Darin. See footnote See Minnick, 698 N.E.2d at 755.
Darin also contends that the State committed prosecutorial misconduct by misrepresenting the evidence contained within the records. See footnote The State contends that any claim of prosecutorial misconduct is waived because Darin failed to object. Thus, according to the State any review of the issue would fall into the category of fundamental error.
In Charlton v. State, 702 N.E.2d 1045, 1051 (Ind. 1998), the court stated:
Fundamental error is a substantial blatant violation of basic principles rendering the trial unfair to the defendant and, thereby, depriving the defendant of fundamental due process. The error must be so prejudicial to the rights of a defendant as to make a fair trial impossible. "For prosecutorial misconduct to be fundamental error, it must be demonstrated that the prosecutor's conduct 'subjected the defendant to grave peril and had a probable persuasive effect on the jury's decision.'" Carter v. State, 686 N.E.2d 1254, 1262 (Ind. 1997) (quoting [Isaacs v. State, 673 N.E.2d 757, 763 (Ind. 1996)]). The gravity of peril turns on the probable persuasive effect of the misconduct on the jury's decision, not on the degree of impropriety of the conduct.
(some citations omitted). The State contends that the arguments by the deputy
prosecutors did not subject Darin to grave peril and did not have a
probable persuasive effect on the jury's decision in light of the eyewitness evidence
placing Darin at the scene of the shooting and robbery. The State
characterizes the deputy prosecutors' statements about the location of the cellular telephone based
upon the tower that intercepted the calls as arguments of "the State's view
of the evidence." Appellee's Brief at 18.
The State is correct that the proper interpretation of the cellular records was available to Darin; however, the State could not knowingly misrepresent the significance of the data. While the deputy prosecutors' arguments regarding the significance of the data appear to have been misinterpretations, we also note that the errors were especially untoward considering the State had at its disposal information, gained by the investigating police officers, that the cellular telephone records with locations of towers from which calls are transmitted do not exactly correlate with the locations of the cellular telephones sending or receiving the calls.
It is the State's role to present, to the best of its ability, the truth. Inaccuracies obfuscate the evidence thereby placing a strain on the jury's function, failing to promote the public's interest with which the State is charged, and possibly, trammeling the rights of the accused. The interpretation of technical data should not be undertaken without full confidence in the interpretation. We think that the State fell short of its obligation to investigate and properly present information with regard to the cellular telephone records. However, without condoning the State's misinterpretations of the data during closing arguments, See footnote we cannot say that the errors in interpreting the data had an impact on the final determination by the jury.
Absent the State's misinterpretation of the data, the jury would have been left with 81 pages of raw data that it may or may not have misinterpreted. In the end, however, the most favorable interpretation Darin could have obtained from the data is that the cellular records did not conclusively pinpoint the location of his cellular telephone during the transmittal and receipt of calls on the morning the crimes were committed.See footnote The State, through numerous witnesses, presented significant evidence to the jury that Darin had sufficient time to commit the crimes at Teresa's home in Crawfordsville and to be present at the various places he was seen on the morning of the crimes.
Darin failed to present evidence that the proper interpretation of the data was material, in that a reasonable probability existed that, had the evidence been properly characterized, the result of the proceeding would have been different. See Minnick, 698 N.E.2d at 755.
3. Cross-examination of Couch
In his direct appeal, Darin contends that he was denied his right to effective cross-examination of Joe Couch. Although the right to cross-examine witnesses is one of the fundamental rights within our criminal justice system, it is subject to reasonable limitations at the discretion of the trial court. McCarthy v. State, 749 N.E.2d 528, 533 (Ind. 2001)(rejecting per se error when cross-examination of a witness for bias is not allowed); Smith v. State, 721 N.E.2d 213, 218-19 (Ind. 1999). Violations of the right to cross-examine witnesses are subject to the harmless-error analysis. McCarthy, 749 N.E.2d at 534-35; Smith, 721 N.E.2d at 219. "To determine whether an error is harmless, courts look to several factors, including the strength of the prosecution's case, the importance of the witness' testimony, whether the testimony was corroborated, the cross-examination that did occur, and whether the witness' testimony was repetitive." Smith, 721 N.E.2d at 219.
Darin contends that he was denied his right to effective cross-examination of Joe Couch regarding possible bias or favors offered in exchange for his testimony. Prior to trial, the State filed a motion in limine to prevent Darin "from inquiring into or eliciting testimony or presenting evidence . . . [c]oncerning pending charges against the State's witness, Joseph Couch, in Boone County, Indiana alleging offenses of possession of marijuana and carrying a handgun without a permit, as said criminal charges are a result of acts unrelated to the instant case involving Darin Williams and said charges were filed as a result of an incident alleged to involve Mr. Couch after November 6, 1998." (R. 145). At trial, Darin made an offer to prove that Couch agreed to testify for the State in exchange for a benefit, i.e., the return of his handguns, after Couch was arrested on criminal charges in Boone County. Darin asked to explore the question whether Couch expected to receive preferential treatment on his pending charges. Darin contends that the evidence would have been directed to Couch's bias.
In the offer to prove, Couch acknowledged that he gave his formal statement about the conversation with Darin after he was arrested for possession of marijuana and handguns. However, Couch explained that he initially told his story to an intermediary, the brother of a Boone County Deputy Sheriff, two weeks before his January 14, 1999 arrest. Couch noted that although he did not speak directly with the deputy sheriff, he was present when the intermediary called his brother and told him about Couch's conversation with Darin. Couch asserted that on the morning after his arrest, his guns were returned to him when the deputy sheriff confirmed Couch's assertion that Couch had been in communication with his brother about the discussion with Darin. Couch asserted that his motivation for contacting the law enforcement authorities was his treatment at the B&B Tavern on New Year's Eve.
The trial court ruled that the offer to prove demonstrated that Couch had agreed to cooperate with police prior to Couch's January 14, 1999 arrest. The following colloquy occurred:
COURT: Well as far as the Court's concerned what's determinative here is that Mr. Couch went to the authorities earlier than his arrest and he went on his accord and I think you can explore that certainly but, but I'm going to deny the request for Relief from the Motion [in Limine].
MR. GRAY: Thank you Your Honor. One other matter is .
. . I don't want to run afoul of the Court's order .
. . and I don't think its covered by it I don't, I
will not ask him anything about his arrest for these marijuana charges however,
one of the reasons that Mr. Williams asked Mr. Couch not to frequent
his bar anymore was that Mr. Williams was concerned about him selling drugs
inside the bar and . . . I was going to explore that
absent you prohibiting me from doing that?
COURT: Well clearly there's no predicate for that at this point but
if you can develop it why, whatever the reason was he asked him
not to come back that's, I mean that's fine. He testified why
they told him not to come back so I think that's fair game.
On cross-examination of Couch, counsel for Darin thoroughly explored 1) Couch's failure to notify law enforcement authorities about the threat to Teresa before Teresa was shot; 2) Couch's failure to notify authorities about Darin's threat immediately after Teresa was shot; 3) the absurdity of attempting to deter Darin's actions by starting a "rumor" at the bar (R. 1165); 4) Couch's assertion that on New Year's Eve he immediately went to the Jamestown police station to ask if he could be thrown out of a bar for no reason and characterizing the episode as an "invitation" for further inquiry by police as to why Darin banned Couch from the property (R. 1172-73); and 5) the fact that Couch did not have a permit to carry handguns. (R. 1156).
Assuming arguendo that the trial court limited full exploration of possible bias by Couch and erred by doing so, the error was harmless. See McCarthy, 749 N.E.2d at 535-36. The above colloquy and the summary of Darin's cross-examination of Couch demonstrate that Darin was allowed wide latitude in the cross-examination that was permitted. The focus of Couch's testimony, that Darin attempted to hire Couch to kill Teresa, was cumulative of other testimony. Further, the prosecution's case is particularly strong: Teresa's eyewitness testimony and that of other witnesses provide overwhelming evidence of Darin's guilt. Darin failed to present reversible error.
4. Newly Discovered Evidence
Darin contends that the trial court abused its discretion by determining that he was not entitled to a new trial on the basis of newly discovered evidence. He argues that the affidavits used at the hearing on the motion to correct error, together with the evidence by witnesses at the postconviction hearing, establish that his father shot Teresa. See footnote
Darin filed a motion to correct error alleging newly discovered evidence before he was sentenced. He initially presented the affidavit of an attorney who performed services for his father, Michael Williams. Cole, the attorney, and Michael Williams allegedly discussed Michael Williams' role in the shooting prior to Darin's conviction.
In Denney v. State, 695 N.E.2d 90, 93 (Ind. 1998), our supreme court observed:
Denials of a motion for a new trial are reviewed for an abuse of discretion.
Under Trial Rule 59(A), to warrant a new trial based on newly discovered evidence, the movant must show that the evidence (1) has been discovered since the trial; (2) is material and relevant; (3) is not cumulative; (4) is not merely impeaching; (5) is not privileged or incompetent; (6) was not discoverable upon due diligence in time for trial; (7) is worthy of credit; (8) can be produced on a retrial of the case; and (9) will probably produce a different result. Motions for a new trial based upon newly discovered evidence are viewed with disfavor. The movant has the burden of showing that the newly discovered evidence meets all nine prerequisites for a new trial.
Id. at 93 (citations omitted). The affidavit regarding Michael Williams' statements to
Cole fails to meet all nine prerequisites.
In Webster v. State, 699 N.E.2d 266, 269 (Ind. 1998), the defendant filed a motion to correct error requesting a new trial on the basis of newly discovered evidence. See footnote The defendant claimed that the newly discovered evidence demonstrated that another person, who was deceased at the time of the trial, had actually committed the crime. Id. at 269. The motion was premised upon affidavits by relatives of the deceased. The court determined that although the trial court did not make specific findings with regard to its denial of the defendant's request for a new trial, the trial court "would have been within its discretion in deciding that 'this newly discovered evidence' was not worthy of credit." Id. The court noted that the witnesses could have come forward prior to the trial, and that the witnesses had connections to the defendant.
Here, we are favored with the trial court's basis for its determination. As explained by the trial court, the statements are not worthy of credit for several reasons, including: 1) Michael Williams did not claim responsibility for the shooting in his suicide note; 2) Michael Williams testified at trial and in a deposition, and stated that he was not at Teresa's home on the day the crimes were committed; and 3) in contemplation of his suicide, Michael Williams may have made statements that could assist his son.
Moreover, production of the evidence by Cole at a retrial probably would not produce a different result. As we have stated, the evidence of Darin's guilt is overwhelming.
Because the newly discovered evidence tendered by Darin did not meet all nine of the prerequisites for granting a new trial, the trial court did not abuse its discretion by failing to grant Darin a new trial on the basis of Cole's affidavit.
Darin also raised newly discovered evidence in the postconviction proceedings. As noted above, he bore the burden in the postconviction court of establishing the grounds for relief by a preponderance of the evidence. See Dowdell, 720 N.E.2d at 1150. Darin appeals from a negative judgment; thus, in order to gain reversal, he must demonstrate that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the postconviction court. Id.
At the postconviction hearing, Darin sought to present the testimony of William Sears regarding a conversation, after Darin's conviction, that Sears had with Michael Williams about the shooting of Teresa. The State's hearsay objection was sustained. Darin urged that the testimony should be admissible pursuant to Evidence Rule 804(b)(3), regarding exceptions to the hearsay rule for unavailable witnesses, and made an offer to prove.
In the offer to prove, Sears stated that he frequented the B&B Tavern and knew Darin and Michael Williams from his business. Sears said he spoke to Darin on the telephone on the Wednesday before the verdict. Darin told Sears that the trial was going well. When Sears spoke to Michael Williams a few days after the verdict, he asked him how Darin could have committed the crimes. Sears stated that Michael Williams told him that he had shot Teresa, and that "the bitch would have been dead if the gun hadn't jammed." (Postconviction R. 169). According to Sears, Michael Williams explained that Teresa "was going to get the farm, the family farm, throw his folks off and he couldn't have that." (Postconviction R. 169). Sears stated that Michael Williams appeared emotionless and stared straight ahead when he told Sears that he shot Teresa, but that he seemed angry when he spoke about the farm. Sears visited Darin after the trial and told him of the conversation with Michael Williams.
Evidence Rule 804 defines the circumstances when a declarant is unavailable, and provides exceptions for certain statements that would be otherwise inadmissible pursuant to the hearsay rule. One such exception, as argued by Darin, exists for statements against interest:
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. . . .
Here, Michael Williams committed suicide six days after the conclusion of Darin's trial. Sears contended that his conversation with Michael Williams occurred after the trial. Considering the short period between Darin's conviction and Michael Williams' suicide, it is reasonable to conclude that Michael Williams contemplated the suicide at the time of the conversation with Sears, and, as noted by the postconviction court, may have desired to assist his son by claiming responsibility. Further, Michael Williams' statement, made to a business associate in contemplation of his suicide and to exonerate his son, cannot be characterized as "so far contrary" to Michael Williams' interest "that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." See Evid.R. 804(b)(3). Darin failed to demonstrate that the evidence leads unerringly and unmistakably to a conclusion opposite that of the postconviction court. See Dowdell, 720 N.E.2d at 1150.
Also, at the postconviction hearing, Darin presented testimony by Kristin Tyler, a former server at the B&B Tavern, regarding a conversation she had with Michael Whittaker. Whittaker testified at Darin's trial that Darin attempted to hire Whittaker to kill Teresa. At the postconviction hearing, Tyler testified that she had a conversation with Whittaker at the B&B Tavern "about a week or so after [Teresa] had been shot." (Postconviction R. 178). She stated Whittaker had told her that Michael Williams, not Darin, had approached him about killing Teresa. Tyler stated that she did not tell anyone about the conversation because she did not believe that Darin or Michael Williams could have been involved. She testified that she told Shawna Harshbarger about the conversation after she learned that Whittaker testified at trial that Darin asked him to kill Teresa.
As noted above, Darin bore the burden in the postconviction court of establishing the grounds for relief by a preponderance of the evidence. See Dowdell, 720 N.E.2d at 1150. Darin appeals from a negative judgment; thus, in order to gain reversal, he must demonstrate that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the postconviction court. Id.
One of the nine prerequisites to a new trial based upon newly discovered evidence is that the evidence "is not merely impeaching . . . ." See Denney, 695 N.E.2d at 93. Tyler's testimony was directed solely at impeaching the credibility of one of the witnesses at Darin's trial. As such, Tyler's testimony did not present evidence upon which to grant a new trial or to determine that the postconviction court's determination is opposite to that presented by the evidence.
5. Double Jeopardy
In his direct appeal, Darin alleged that his convictions for both attempted murder and robbery as a class A felony violate Indiana's tenets of double jeopardy. The State agrees that because the charging information elevating robbery to a class A felony depends upon the exact same conduct, i.e., shooting Teresa in the head, as the attempted murder conviction, the robbery conviction must be reduced to a class B felony.
"[A] defendant cannot be convicted of both murder and robbery as a Class A felony when 'both the murder conviction and the enhanced robbery conviction are based on the same bodily injury to the [same] victim.'" Grace v. State, 731 N.E.2d 442, 446 (Ind. 2000)(quoting Hampton v. State, 719 N.E.2d 803, 808 (Ind. 1999)). In Grace, the court ordered the trial court to vacate the robbery conviction as to the murder victim. Grace, 731 N.E.2d at 446. In Hampton, the court reviewed the double jeopardy analysis explained in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). Quoting Richardson, the court stated: "if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense. Id. at 49 (emphasis in original)." Hampton, 719 N.E.2d at 809. The Hampton court determined that a reasonable possibility existed that "[t]he same evidence that supported the murder conviction, the act of stabbing, may have also been used to convict Defendant of robbery as a Class A felony." Id. The Hampton court reduced the defendant's robbery conviction to a class C felony noting:
Robbery as a Class C felony was charged in the State's Information and is a lesser included offense for which Defendant can be convicted. Robbery as a Class B felony, which was not charged by the State, is not necessarily a lesser included offense of robbery as a Class A felony. Thus, it is proper to reduce Defendant's conviction for robbery to a Class C felony rather than to a Class B felony.
Id. at n.1.
We conclude, however, that the robbery conviction must be reduced to a class C felony, as a lesser included offense. As in Hampton, it is apparent that the jury relied upon evidence of the injuries to Teresa during the shooting to sustain the class A robbery designation. No other evidence of injury was presented.
Further, the circumstances here indicate that Darin did not commit the robbery in conjunction with the attempted murder, but rather that the robbery arose in an effort to disguise the nature of the shooting. Accordingly, the cause is reversed and remanded for a reduction of the conviction for robbery as a class A felony to robbery as a class C felony. Also, the cause must be remanded for resentencing based upon the lowered felony.
We affirm in part, reverse in part and remand.
FRIEDLANDER, J., concurs.
BAKER, J., concurs in part and dissents in part with separate opinion.
BAKER, Judge, concurring in part and dissenting in part.
I concur with the majority in all respects except one: whether Williamss robbery conviction must be reduced to a class C felony. I agree with the majority that convicting Williams of attempted murder and robbery as a class A felony violates constitutional protections against double jeopardy. However, the jury could have convicted Williams of robbery, as a class B felony, and attempted murder without violating his double jeopardy protections. First, the factual allegations in the charging information were sufficient to put Williams on notice to defend against the charge of robbery as a class B felony. The information charged that Williams knowingly took property from Teresa, by using force on her, by striking her in the back of the head with a metal projectile or projectiles. Second, the jury was instructed that it could convict Williams of robbery as a class B felony.
In Hampton v. State, our supreme court reduced the defendants conviction for robbery from a class A felony to a class C felony. 719 N.E.2d 803, 809 (Ind. 1999). It found that Hamptons murder and class-A-felony robbery convictions were based on the same bodily injury to the victim. Id. at 808. The supreme court did not reduce the robbery conviction to a class B felony because robbery as a class B felony was not charged by the State and is not an inherently lesser-included offense of class-A-felony robbery. Id. at 809 n.1 (citing Kingery v. State, 659 N.E.2d 490, 495 (Ind. 1995)).
In the instant case, the charging information did not specifically cite robbery as a class B felony. But this does not end the inquiry. According to our supreme court, Indiana law recognizes two types of included offenses. First, an inherently included offense is one that a criminal necessarily commits, by statutory definition, in the course of committing a greater offense. Smith v. State, 445 N.E.2d 998, 999 (Ind. 1983). Second, the factual allegations of a charging informationabsent the statutory definitionmay support a conviction for a lesser-included offense. Maynard v. State, 490 N.E.2d 762, 763 (Ind. 1986).
In Maynard, the State charged the defendant with inflicting physical injury while in commission of a robbery. Quoting the charging information, our supreme court presented the factual allegations that the defendant:
did . . . by violence and putting [the victim] in fear, take from [the victim] . . . personal property . . . and, while engaged in committing the robbery aforesaid, did then and there unlawfully and feloniously inflict a physical injury, . . . by striking [the victim] with a Tire Iron[.]
490 N.E.2d at 763 (alterations and omissions in original). After trial, the
defendant was convicted of robbery while armed with a deadly weapon. Maynard
argued that his conviction for robbery while armed with a deadly weapon was
not a lesser-included offense of inflicting physical injury while in commission of a
robbery. Our supreme court reasoned that, although the charging information did not
recite the statutory definition armed with a deadly weapon, the word tire iron
was sufficient to put defendant on notice of the charge. Id. at
The same result obtains here. As the majority correctly notes, class-B-felony robbery is not by statutory definition a lesser-included offense of class-A-felony robbery. However, the charging information contained facts that put Williams on notice of a potential class-B-felony robbery conviction. The information charged that Williams knowingly took property from Teresa, by using force on her, by striking her in the back of the head with a metal projectile or projectiles. From these factual allegations, the jury could have convicted Williams of taking property from his victim by use of force while armed with a deadly weapon.
Likewise, the jury instructions were sufficient to convict Williams of class-B-felony robbery. In Kingery v. State, our supreme court reduced the defendants robbery conviction from a class A felony to a class C felony. 659 N.E.2d 490 (Ind. 1995). Our supreme court noted that Kingery could have been convicted of class B felony robbery had the jury been provided an instruction for class-B-felony robbery. Id. at 496. Double jeopardy did not prohibit Kingerys conviction of robbery as a class B felonywhile armed with a deadly weaponeven though he was convicted of robbing and murdering the same victim. Id.
In the instant case, the jury was provided an instruction on convicting Williams of class-B-felony robbery:
If the State further proved beyond a reasonable doubt that the defendant committed the crime while armed with a deadly weapon or the crime resulted in bodily injury to any person other than the defendant, you should find the defendant guilty of robbery, a Class B felony.
R. at 182. Because Williams was armed with a deadly weapon, double
jeopardy protections do not prohibit convicting Williams of class-B-felony robbery and attempted murder.
Therefore, I vote to remand the cause to reduce the robbery conviction
from a class-A to a class-B-felony conviction and for appropriate resentencing.