ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DALE W. ARNETT JEFFREY A. MODISETT
Winchester, Indiana Attorney General of Indiana
SARAH E. SCHERRER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
LORENZO REID, )
vs. ) No. 89A01-9806-CR-222
STATE OF INDIANA, )
APPEAL FROM THE WAYNE SUPERIOR COURT
The Honorable Robert L. Reinke, Judge
Cause No. 89D02-9112-CF-111
November 17, 1999
OPINION - FOR PUBLICATION
After a trial by jury, Lorenzo Reid was convicted of murder and attempted robbery
for his role in the shooting death of a liquor store owner. Prior to his own trial, one of Reid's
co-defendants was also tried and found guilty of murder. The State's theory of prosecution
was slightly different in both cases. In this appeal Reid raises three issues for our review
which we consolidate and rephrase as: (1) did the trial court err in allowing the state to
present a different theory of the case in his trial than was presented in the trial of a co-
defendant, and (2) did the state engage in prosecutorial misconduct.
Facts and Procedural History
At around 10:30 p.m. on September 21, 1990, Reid and two other males entered a
liquor store in Richmond and attempted to rob the owner. The owner exchanged gunfire with
the three men and was shot three times during the encounter. He later died. Reid was
charged with murder, felony murder, and attempted robbery. Sometime prior to trial Reid
discovered that in addition to introducing evidence that Reid shot the victim and attempted
to take the victim's money, the State also intended to introduce evidence through witness
Carolyn Webster that Reid drove the getaway car during commission of the crime. As a
result, Reid filed a pleading with the trial court entitled "Motion To Disallow Evidence
Contrary To Proven Evidence." Supp. R. at 35. Therein Reid argued the State should not
be allowed to introduce such evidence because at the trial of a co-defendant, the State had
presented evidence and argued vehemently that the co-defendant drove the getaway car.
According to Reid "it would be untenable for the State to be able to argue different sets of
facts against co-defendants for the same alleged offense." Supp. R. at 35-36. After
entertaining Reid's argument, the trial court denied the motion and also denied Reid's request
for a continuing objection to alleged inconsistent evidence. The trial court advised Reid that
he would have to raise a specific objection at trial otherwise it would be difficult if not
impossible to discern exactly what evidence Reid considered to be contrary or inconsistent.
At trial the State called Carolyn Webster to the stand as Reid anticipated. Among
other things, Webster testified that she knew Reid, that in the late evening hours of
September 21, 1990, she was a passenger in a car driven by the co-defendant in question, that
they were driving through the area where the liquor store was located, that she heard what
sounded like gun shots, saw three men running from the store, one of the men was Reid, that
the three jumped into Reid's car, and that Reid was driving. Reid did not object to Webster's
testimony. Ultimately, the jury convicted Reid as charged. The trial court vacated the felony
murder conviction and sentenced Reid to fifty (50) years for murder and four (4) years for
attempted robbery. The sentences were ordered to run consecutively. This appeal followed.
Additional facts are set forth below. Discussion and Decision
Reid first contends "the State should have been precluded from presenting any
evidence from Carolyn Webster or anyone else who would testify that Lorenzo Reid drove
the getaway car in the alleged crime, or that [the co-defendant] was in another vehicle."
Brief of Appellant at 10. This issue is waived because Reid did not object to the testimony
at trial. Reid's pre-trial pleading was in the nature of a motion in limine. "A motion in limine
is used as a protective order against prejudicial questions and statements being asked during
trial . . . A ruling does not determine the ultimate admissibility of the evidence; that
determination is made by the trial court in the context of the trial itself." Clausen v. State,
622 N.E.2d 925, 927 (Ind. 1993). Absent a contemporaneous objection at trial a ruling on
a motion in limine does not preserve an issue for appeal. Id.; see also Haynes v. State, 411
N.E.2d 659, 666 (Ind. Ct. App. 1980) (objection to alleged improper testimony must be made
at the critical point in the trial when the evidence is offered or when the question is asked).
In this case, Reid's failure to object to Webster's trial testimony waives the issue for review.
Waiver notwithstanding Reid's argument still fails. Reid's argument involves the
doctrine of collateral estoppel. Generally collateral estoppel operates to bar subsequent
relitigation of an issue or fact where that issue or fact was necessarily adjudicated in a former
lawsuit and is then presented in a subsequent lawsuit. Doe v. Tobias, 715 N.E.2d 829, 831
(Ind. 1999) (citing Sullivan v. American Casualty Co., 605 N.E.2d 134, 137 (Ind. 1992)).
Collateral estoppel has been characterized as "offensive" or "defensive" depending on how
a party asserts the prior judgment. The term "offensive" collateral estoppel has been used
to characterize a situation where the plaintiff seeks to foreclose the defendant from litigating
an issue the defendant had previously litigated unsuccessfully in an action with another party.
Doe, 715 N.E.2d at 831. Similarly, the term "defensive" collateral estoppel has been used
to describe those instances where the defendant seeks to prevent a plaintiff from asserting
a claim that the plaintiff previously asserted and lost against another defendant. Tofany v.
NBS Imaging Systems, Inc., 616 N.E.2d 1034, 1037 (Ind. 1993). Indiana no longer requires
mutuality of estoppel and identity of the parties in either the defensive or offensive use of
collateral estoppel in civil cases. Tofany, 616 N.E.2d at 1037; Sullivan v. American Casualty
Co. of Reading Pa., 605 N.E.2d 134, 137 (Ind. 1992). Hence, because a stranger to a prior
litigation may now invoke the doctrine, the use is referred to as "nonmutual collateral
estoppel." In this case, Reid sought to invoke the defensive use of nonmutual collateral
estoppel to foreclose the State's introduction of evidence he claims was necessarily
adjudicated in another lawsuit, namely: the identity of the getaway driver.
Although more commonly used in civil actions, our courts have invoked collateral
estoppel in a variety of contexts in criminal cases. See, e.g., Townsend v. State, 632 N.E.2d
727, 731 (Ind. 1994) (holding that collateral estoppel barred defendant's retrial for battery
when issue of touching in a rude manner had been previously decided adversely to State);
Hutcherson v. State, 380 N.E.2d 1219, 1222 (Ind. 1978) (holding that acquittal on one of four
counts charging delivery of heroin did not bar conviction on other three counts under
doctrine of collateral estoppel where different circumstances and facts surrounded each
transaction); Segovia v. State, 666 N.E.2d 105, 108 (Ind. Ct. App. 1996) (holding that
principles of collateral estoppel, as distinct from double jeopardy protections, barred
defendant's retrial for conspiracy to commit arson following acquittal of felony murder
charge); Williams v. State, 406 N.E.2d 263, 264 (Ind. Ct. App. 1980) (holding that
conviction of accessory following acquittal of principal as permitted by statute is not
precluded on principles of collateral estoppel); Snodgrass v. State, 395 N.E.2d 816, 819 (Ind.
Ct. App. 1979) (holding that the driver of vehicle was not a fact conclusively established in
defendant's first trial for reckless driving in Johnson County so as to preclude relitigation of
issue in defendant's trial for theft of vehicle in Marion County). However, as with our own
state, in the majority of jurisdictions as well as the federal courts, collateral estoppel in the
criminal context involves an earlier prosecution of the same defendant by the same
As indicated earlier, our supreme court has declared that Indiana no longer
requires mutuality of estoppel and identity of the parties in either the offensive or defensive
use of collateral estoppel. In essence, nonmutual collateral estoppel is the law in this
jurisdiction, at least in civil cases. The court has not addressed the defensive use of
nonmutual collateral estoppel in the context of criminal litigation.See footnote
In that regard we find
instructive the rationale of the United States Supreme Court in declining to apply it in those
[I]n a criminal case, the Government is often without the kind of "full and fair
opportunity to litigate" that is a prerequisite of estoppel. Several aspects of our
criminal law make this so: the prosecution's discovery rights in criminal cases
are limited both by rules of court and constitutional privileges; it is prohibited
from being granted a directed verdict or from obtaining a judgment
notwithstanding the verdict no matter how clear the evidence in support of
guilt [cit. omitted]; it cannot secure a new trial on the ground that an acquittal
was plainly contrary to the weight of the evidence [cit. omitted]; and it cannot
secure appellate review where a defendant has been acquitted. [cit. omitted]
. . . .
The application of nonmutual estoppel in criminal cases is also complicated
by the existence of rules of evidence and exclusion unique to our criminal law.
It is frequently true in criminal cases that evidence inadmissible against one
defendant is admissible against another. The exclusionary rule, for example,
may bar the Government from introducing evidence against one defendant
because that evidence was obtained in violation of his constitutional rights.
And the suppression of that evidence may result in an acquittal. [cit. omitted].
The same evidence, however, may be admissible against other parties to the
crime "whose rights were [not] violated." [cit. omitted]. In such
circumstances, where evidentiary rules prevent the Government from
presenting all its proof in the first case, application of nonmutual estoppel
would be plainly unwarranted.
Standefer, 447 U.S. at 22-24, 100 S. Ct. at 2007-2008. The same considerations expressed
in Standefer are equally applicable to prosecutions in this state. We hold therefore that
nonmutual collateral estoppel has no applicability in criminal cases. The invocation of
collateral estoppel in that context requires mutuality of estoppel and identity of the parties.
However, even assuming nonmutual collateral estoppel were applicable in criminal
cases in this jurisdiction, Reid has not demonstrated he is entitled to its use. The trial court's
decision to disallow the defensive use of collateral estoppel will be reversed only upon an
abuse of discretion. Wilcox v. State, 664 N.E.2d 379, 381 (Ind. Ct. App. 1996). The prime
consideration is whether the party against whom the prior judgment is pled had a full and fair
opportunity to litigate the issue and whether it would otherwise be unfair under the
circumstances to permit the use of collateral estoppel. Sullivan, 605 N.E.2d at 138. The
burden is upon the party asserting collateral estoppel to show he is entitled to its use.
The underlying premise for the defensive use of collateral estoppel is that the plaintiff
asserted a claim in a previous litigation against another defendant and lost. Slutsky v. Crews,
713 N.E.2d 288, 291 (Ind. Ct. App. 1999); see also Hayworth v. Schilli Leasing, Inc., 669
N.E.2d 165, 167 n.3 (Ind. 1996) (Defensive collateral estoppel "forecloses plaintiff from
asserting claim that plaintiff had previously litigated and lost against another defendant.");
Tofany, 616 N.E.2d at 1037 ("[W]hen the defendant seeks to prevent a plaintiff from
asserting a claim which the plaintiff had previously litigated and lost against another
defendant, the use has been termed 'defensive' collateral estoppel."). Here, the State
prosecuted Reid's co-defendant and was successful. Thus, the claim which Reid sought to
foreclose in the instant case, namely, evidence concerning the identity of the driver of the
getaway car, was not a claim the State previously litigated and lost. Essentially, the
defensive use of collateral estoppel does not apply to the facts of this case.
Further, in order to apply the doctrine of collateral estoppel, the court must engage in
a two-step analysis. We must first determine what the first judgment decided, and then
examine how that determination bears on the second case. Segovia, 666 N.E.2d at 107.
Determining what the first judgment decided involves an examination of the record of the
prior proceedings including the pleadings, evidence, charge and any other relevant matters.
Id. The court must then decide whether a reasonable jury could have based its verdict upon
any factor other than the factor of which the defendant seeks to foreclose consideration. Id.
If the jury could have based its decision on another factor, then collateral estoppel does not
bar relitigation. Id. II.
In this case, the only portion of the record from the co-defendant's trial that Reid
provided the trial court and hence this court is a seven-page excerpt from the State's closing
remarks. Thus, even assuming collateral estoppel would otherwise apply in this instance,
Reid has failed to provide a record from which we can determine what evidence was
presented at the co-defendant's trial, and whether the jury in that case could have based its
verdict on any factor other than the co-defendant's involvement as the getaway driver.
Indiana Appellate Rule 7.2 places the burden on the appellant to present a record that is
complete with respect to the issues raised on appeal, and this burden includes a duty to ensure
that the court has a transcript of the appropriate trial proceedings. Reed v. State, 702 N.E.2d
685, 689 (Ind. 1998). Accordingly, Reid has not shown that the trial court abused its
discretion in failing to allow him to invoke the use of collateral estoppel.
Reid next complains the State engaged in prosecutorial misconduct by: (1)
interviewing a defense witness shortly before the witness was scheduled to testify and in
offering to compensate the witness for time he would miss from work, and (2) recording the
witness' statement and not disclosing that fact to the defendant in violation of local rules of
The facts are these. Wayne Willis was listed as a defense witness and had been
interviewed several times by the State as well as the defense. After being subpoenaed by the
defense to testify at trial, Willis contacted the prosecutor's office expressing concern over
missing time from his employment. In the evening hours of the second day of trial, the
Wayne County prosecutor went to Willis' home, and met with Willis, his wife, and son. The
Prosecutor delivered a letter to Willis setting forth the State's agreement to make sure he did
not suffer any loss of income from his employment due to his obligation to appear in court.
The conversation with Willis was recorded. The following day, prior to Willis' scheduled
trial appearance, the State advised Reid of the conversation as well as the offer to
compensate Willis for loss of employment income. Although the timing of the disclosure
is unclear, at some point Reid was also advised the conversation was recorded. At trial, Reid
called Willis to the stand and questioned him at length concerning the events of September
21, 1990, the day of the murder, including a statement Willis had given the police shortly
after the crime occurred. The State then cross-examined the witness. On re-direct
examination the following relevant colloquy took place:
Q. Mr. Willis, have I gone over this statement with you?
Q. Has anybody gone over this statement with you in the last two or three days?
Q. And who was that?
A. Mr. O'Maley.
Q. Who's Mr. O'Maley?
A. The Prosecutor, Attorney.
Q. Where did he go?
A. Where did he go?
Q. To go over this statement with you?
A. Oh, he came to my house yesterday.
Q. Oh, he did. Did Mr. O'Maley offer you anything of value?
A. No. He said tell the truth.
Q. What about your pay?
Q. For work.
A. Yeah, he - I told him where I work they won't compensate for being off
for being called for stuff like this and he said it's only fair to - he - they
normally don't do it but this is a big case and that they would compensate - you
know, try to get compensation and make up for my time and lost wages.
R. at 1575-76. Reid did not move to strike any portion of the witness' testimony and did not
move for mistrial based on alleged prosecutorial misconduct. In fact, Reid posed no
objection to the witness' testimony at all. Rather, after the jury returned a verdict of guilty,
Reid filed several post trial motions, including a motion to set aside the jury's verdict, a
motion for appointment of a special prosecutor, and a motion to correct errors. Among other
things each of the motions raised alleged prosecutorial misconduct in "bribing" a witness.
Ultimately the trial court denied the motions.
When we review claims of prosecutorial misconduct, we consider first whether the
prosecutor committed misconduct and second, whether the alleged misconduct placed the
defendant in grave peril. Robinson v. State, 693 N.E.2d 548, 551 (Ind. 1998). "The gravity
of the peril is determined by considering the probable persuasive effect of the misconduct
on the jury's decision, rather than the degree of the impropriety of the conduct." Id. Here,
Reid contends that after the Prosecutor interviewed Willis and agreed to compensate him for
the time he would miss from work, Willis' testimony at trial varied substantially from his pre-
Faced with alleged prosecutorial misconduct a defendant is required to object and
request an admonishment. See Brown v. State, 572 N.E.2d 496, 498 (Ind. 1991). If, after
an admonishment, the defendant is still not satisfied, the proper procedure is to move for
mistrial. Id. The failure to request an admonishment or move for mistrial results in waiver
of the issue. Id. Alternatively, if the defendant thinks the misconduct is of such a character
that the damage cannot be repaired by any action of the court, then the defendant must move
to discharge the jury or take such other steps as he may think will secure him a fair trial.
Rexroat v. State, 245 Ind. 688, 690, 201 N.E.2d 558, 559 (1964). If the defendant fails to
take any steps whatever and allows the case to proceed to final determination, then he waives
all questions arising out of the alleged misconduct. Id. In this case, Reid raised no objection
to the alleged prosecutorial misconduct until after the jury reached its verdict of guilty. This
issue is now waived for appellate review.
Waiver notwithstanding we address Reid's claim on the merits. The thrust of Reid's
complaint is that in several pretrial statements Willis told police that he was in the presence
of three men who fit the description of the liquor store murderers. According to Reid the
time frame in which this activity occurred meant that Reid could not have been one of the
three men. Reid argues that after the prosecutor offered to compensate Willis for his loss of
employment income, Willis changed his testimony concerning the time frame. Reid's
argument is unavailing. First, in Willis' pre-trial statements the time frame in question
ranged from between 8:30 p.m. and 10:30 p.m. In his trial testimony, the time frame ranged
from between 8:30 p.m. and 11:00 pm. They are not materially different. More importantly,
in a hearing conducted nearly two weeks before trial, Willis testified about the time frame
and gave the same testimony that he later gave at trial. Indeed at the pre-trial hearing Reid
cross-examined Willis on this point attempting to show that his statements, given shortly
after the crime occurred, more accurately reflected the true account of events, as opposed to
his pre-trial hearing testimony occurring some three years after the fact. Thus, assuming for
the sake of argument only that the prosecutor engaged in misconduct by compensating Willis
for the time he missed from work, Reid has not shown that this conduct placed him in grave
Equally unavailing is the notion that Reid was placed in grave peril by the prosecutor's
failure to produce Willis' recorded statement. The record shows that the State resisted
producing the statement claiming work product privilege. In response to Reid's various post-
trial motions, the trial court ordered the State to produce the tape recorded statement for an
in camera review. After review the trial court rejected the State's claim and ordered the State
to turn the recorded statement over to Reid. Apparently the State complied. We say
"apparently" because although the record is silent on this point, Reid does not contend the
State failed to comply with the trial court's order. In this appeal Reid argues he was denied
a fair trial by the State's failure to disclose the tape because he was not allowed time to
prepare for Willis' trial testimony.
It is true that pretrial discovery is designed to promote justice and to prevent unfair
surprise by allowing the defense adequate time to prepare its case. Phillips v. State, 550
N.E.2d 1290, 1299 (Ind. 1990). It is also true that a willful or deliberate violation of a
discovery order may not only impair the lawyer's ability to prepare for trial, but may also
substantially impair her ability to counsel her client properly, which may be regarded as a
violation of the accused's right to counsel. Long v. State, 431 N.E.2d 875, 877 (Ind. Ct. App.
1982). In this case however, Reid has not demonstrated how his ability to prepare for trial
was impaired by the State's failure to produce the recorded statement. Indeed, he has not
even included the statement as part of the record on appeal. In any event as we have already
indicated, Reid knew well in advance of trial that Willis' trial testimony would not be exactly
the same as the pre-trial statements Willis had given the police. Reid had ample opportunity
to explore this matter. He was not denied the opportunity to prepare adequately for trial.
STATON, J., and NAJAM, J., concur.
See, e.g., Standefer v. United States, 447 U.S. 10, 24, 100 S. Ct. 1999, 2008, 64 L. Ed. 2d 689
(1980) (holding that nonmutual collateral estoppel was not applicable in criminal context so as to preclude
prosecution of an aider and abettor where a jury had already acquitted the principal); Ashe v. Swenson, 397
U.S. 436, 446-47, 90 S. Ct. 1189, 1196, 25 L. Ed. 2d 469 (1970) (holding that collateral estoppel barred the
State from relitigating an issue in a second prosecution against the same defendant); United States v. Lahey,
55 F.3d 1289, 1296 (7th Cir. 1995) (citing Standefer in holding that defendant's guilty verdict was not barred
under collateral estoppel where co-defendant had been acquitted); United States v. O'Hara, 960 F.2d 11, 14
(2nd Cir. 1992) (holding that the bar to nonmutual collateral estoppel in criminal cases applies whether the
first judgment was by directed or jury verdict); and similar holdings in Kott v. State, 678 P.2d 386, 393
(Alaska 1984); State v. Edwards, 136 Ariz. 177, 188, 665 P.2d 59, 70 (Ariz. 1983); State v. Allee, 740 P.2d
1, 10 (Co. 1987); People v. Franklin, 167 Ill. 2d 1, 13, 656 N.E.2d 750, 755 (Ill. 1995); Potts v. State, 430 So.
2d 900, 903 (Fla. 1982); Commonwealth v. Cerveny, 387 Mass. 280, 285, 439 N.E.2d 754, 757 (Mass. 1982);
State v. Dean, 246 Neb. 869, 877, 523 N.W.2d 681, 690 (Neb. 1994) (overruled on other grounds); People
v. Berkowitz, 50 N.Y.2d 333, 343, 428 N.Y.S.2d 927, 933, 406 N.E.2d 783, 789 (N.Y. 1980); State v. Brooks,
337 N.C. 132, 147, 446 S.E.2d 579, 589 (N.C. 1994).
2 Another panel of this court has recently approved the defensive use of nonmutual collateral estoppel
in a criminal case. See Jennings v. State, 714 N.E.2d 730 (Ind. Ct. App. 1999), trans. denied.
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