Janet S. Dowling
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Michael A. Hurst
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
January 25, 2001
The evidence as to what happened next comes solely from Funks testimony at
trial. Funk te
stified that Defendant began chasing the Tyler truck through Warrick
County rural roads. The Tyler truck stopped at the intersection of Eble
and Youngblood roads and Defendant also stopped his car. The driver-side door
of the truck opened slightly, and Jay leaned out of the truck to
look at Defendant. At that point, Defendant grabbed his SKS assault rifle,
exited the car, and began firing several shots at the Tyler truck.
Defendant got back into the car, drove around a corner, stopped his car
and got out. Defendant walked towards the Tyler truck and returned a
few minutes later. Defendant threatened Funk stating, You breathe a word of
this and Ill kill you. (R. at 23,980-80.)
Defendant and Funk then drove directly back to Mossbergers house. Mossberger testified
that Defendant held a knife with red smears on the blade, by his
(Defendants) face and said, Jay, Kathy, and Brandy are no more. (R.
at 24,674-75.) Mossberger also testified that Defendant washed his knife in the
kitchen sink and that Defendant instructed him to [d]o something with the SKS;
get rid of it; make it gone. (R. at 24,678.)
offered similar testimony, stating that he observed Defendant hand the gun to [Mossberger];
told him to get rid of it. (R. at 23,982.) The
next day, Mossberger buried the SKS assault rifle and ammunition in the woods.
Early Friday morning, March 29, police officers discovered the Tyler truck. Inside
the truck, the police officers found victims John Jay Tyler, Kathy Tyler, and
Brandy Southard dead from gu
nshot and stab wounds. The police officers also
discovered bullet holes in the truck and found spent shell casings scattered across
the width of Youngblood Road. Forensic testing revealed that the fatal bullets
matched those fired from the SKS assault rifle belonging to Defendant. The
spent shell casings matched the ammunition discovered in Southard and Napiers mobile home.
Other testing revealed Funks shoe prints were at the mobile home, directly
below the broken window. Although the knife used in the killings was
not recovered, Defendant owned a similar knife that could have caused the victims
injuries. On that Friday night, Defendant contacted police about the murders and
gave a written statement indicating that Brandy Southard had received a threat from
one Jimmy Knight.
On Saturday, March 30, while at home, Defendant voluntarily gave a taped statement
icers Michael Hildebrand and Gary Gilbert and consented to a police search.
In his taped statement, Defendant admitted to having seen and talked to
the victims on March 28th at around 9:30 or 10:00 p.m. at a
local Circle S store. Defendant also stated that afterwards, he went to
Mossbergers house and then went straight home.
On Sunday, March 31, Mossberger retrieved the SKS assault rifle and ammunition, placing
the SKS in the house and the ammunition in his garage. Police
officers arrived at Mossbergers house to question him, and he explained the events
that occurred on the day of the killings. Mossberger also showed the
officers the SKS assault rifle, but not the ammunition. The same day,
irected the officers to Funks apartment in Hatfield. Police officers questioned
both Mossberger and Funk and took Funk into custody for further questioning at
the Warrick County Security Center. Funk was released on or about April
1. On April 3, 1996, Defendant surrendered himself to the Owensboro Police
The State charged Defendant with Burglary,
and three counts of Murder
each of Jay Tyler, Kathy Tyler, and Brandy Southard. The State also
sought the death penalty, alleging as aggravating circumstances that Defendant intentionally discharged a
firearm from a vehicle,
committed at least one of the murders by lying
and committed multiple murders.
The trial commenced on September 23, 1996. On May 8, 1997, after
deliberating for a
pproximately three hours, the jury found Defendant guilty of Burglary, Theft,
and all three counts of Murder. On May 19, 1997, the trial
court conducted the penalty phase and the jury recommended that the death penalty
be imposed based upon the multiple murder aggravator.
The trial court held
a sentencing hearing on June 16, 1997. The trial court followed the
jurys recommendation and sentenced Defendant to death.
We will recite additional facts as necessary.
In a July 16, 1996, deposition, defense counsel asked Funk if, while traveling
from Evansville on March 29 (the day after the murders), he spoke to
his friend Utzman regarding the events su
rrounding the triple murder. Funk denied
ever having had such a conversation with Utzman. And when first asked
by police officers about any such conversation, Funk had similarly denied it.
At trial, Funk, as an eyewitness to the multiple murders, was one of
the States key witnesses. The State called Funk to the stand to
testify about the circumstances surrounding the murders, but never questioned Funk about such
a conversation with Utzman. On cross-examination, defense counsel attempted to impeach Funk
with inconsistencies between his cross-examination trial testimony, his deposition testimony, and his initial
statements to police. In this regard, defense counsel succeeded in getting Funk
to admit that he had indeed discussed the murders with Utzman, and thus
he had lied in his deposition and to the officers. Defense counsel
did not question Funk about the contents of his discussion with Utzman; the
defenses goal here apparently was only to make out Funk as a liar
for having denied any such discussion took place.
In response, the State sought to rehabilitate Funks testimony by demonstrating that what
Funk had told Utzman on March 29 was consistent with Funks trial testimony.
It did so by calling Utzman as a witness. Utzman
testified that he had a conversation with Funk on March 29 and that
in the course of this conversation, Funk said, I took the wrong
ride. I was there when it happened.
(R. at 25,636-37) (emphasis
added). Defense counsel immediately objected on grounds that Funks out-of-court statements made
to Utzman were inadmissible hearsay. The State replied that Utzmans testimony was
admissible under Indiana Evidence Rule 801(d)(1)(B), and because the statements were not offered
to prove the truth of the matter asserted, but rather offered to rehabilitate
Funks testimony. The trial court overruled defense counsels objection without explanation.
Over defense counsels continuing objection, the State was then allowed to elicit more
imony from Utzman about the March 29th conversation. Utzman further testified that
Funk told him that when Defendant returned to the car after the shooting,
Defendant asked Funk, Did you see how many people was in [the truck]?,
(R. at 25,646) (emphasis added). Utzman testified that Funk replied, No.
(Id.) After defense counsels immediate objection to this testimony, the trial
court sustained the objection to that specific question. (R. at 25,646-47.)
Utzman testified further that Funk said to him, after it was over,
they got back in the car and they took the gun to someones
house. (R. at 25,647) (emphasis added). Defense counsel objected on the
grounds of hearsay but the trial court allowed the testimony.
Defendant makes several challenges with respect to certain statements made by Utzman r egarding Funks out-of-court statements. He specifically argues that Utzmans testimony constituted inadmissible hearsay and did not fall under the non-hearsay evidentiary rules. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. See Ind. Evidence Rule 801(c). Generally, hearsay is inadmissible. See Ind. Evidence Rule 802. However, a statement is not hearsay if it meets the requirements of Indiana Evidence Rule 801(d). Under Indiana Evidence Rule 801(d)(1)(B), a statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (1) consistent with the declarants testimony, (2) offered to rebut an express or implied charge against the declarant or recent fabrication or improper influence or motive, and (3) made before the motive to fabricate arose. See Evid. R. 801(d)(1)(B). Trial court rulings on the admissibility of arguable hearsay statements are reviewed for abuse of discretion. See Wright v. State, 690 N.E.2d 1098, 1106 (Ind. 1997), rehg denied.
Defendant first contends that Funks statement regarding the content of Defendants pu
Did you see how many people was in [the truck]?, was inadmissible double
hearsay. However, the record clearly indicates that the trial court immediately sustained
Defendants objection as to this particular question. As such, Defendant cannot now
claim error on appeal.
Defendant also contends that other testimony from Utzman regarding Funks out-of-court statements, I
took the wrong ride. I was there when it happened, and after
it was over,
they got back in the car and they took the
gun to someones house constituted inadmissible hearsay. Appellants Br. at 38-40 (emphases
in original). He argues that this testimony was not saved by Evidence
Rule 801(d)(1)(B) because (1) there was no charge of recent fabrication; and (2)
Funk was an admitted accomplice at the time the murders occurred and so
he had a motive to fabricate before he made statements to Utzman.
Defendant also claims that Utzmans testimony as a whole improperly bolstered the credibility
of Funk who would otherwise have been [the States] weakest witness. Appellants
Br. at 40; Reply Br. at 15.
Defendant concedes that Funk testified at trial and was subject to cross-examination regarding
See Appellants Br. at 39 (citing R. at 24,171, 24,320-31,
24,459, 24,488-89). He also acknowledges, Although there were inconsistencies between Funks testimony
and [Funks prior out-of-court] statements to Utzman, this fact does not render the
prior statements inadmissible for purposes of Evid. R. 801(d)(1)(B). Id. (citing Willoughby
v. State, 660 N.E.2d 570 (Ind. 1996)). Most of Funks prior out-of-court
statements made to Utzman were consistent with Funks trial testimony in that they
place blame on Defendant as the perpetrator while they portray Funk as a
person having a much less significant role.
Defendant contends that the second criterion of the prior consistent statement rule was
not met because the State did not offer Funks statement to rebut a
recent fabrication. At trial, defense counsel argued, We have not
said, nor have we ever said that there is a recent fabrication.
We . . . argue that any fabrication here has been from the
outset, not one that has been recent. Appellants Br. at 39; Reply
Br. at 14; R at 25,641. However, the prior consistent statement rule
is not limited to rebutting a charge of recent fabrication. The rule
also encompasses efforts to rebut an express or implied charge of improper motive.
In this appeal, Defendant expressly argues that Funk had a motive to
fabricate to provide substantive evidence of [Defendants] guilt. Appellants Br. at
40 (emphasis added). And at trial, defense counsel initiated questions regarding the
March 29th conversation between Funk and Utzman in an effort to impeach Funk.
It appears that this line of questioning sought to establish not only fabrication
but also improper motive, i.e., a motive to shift blame on Defendant.
The State properly offered to rebut this charge by utilizing Utzmans testimony. The
second requirement of the prior consistent statement rule has been met.
The central issue is the third criterion of the rule the
of the claimed motive to fabricate. We agree with the United States
Supreme Court in Tome v. United States which held that under Federal Evidence
Rule 801(d)(1)(B), a declarants consistent out-of-court statements may be admitted to rebut a
charge of recent fabrication or improper motive only when those statements were made
before the charged recent fabrication or improper influence or motive. 513 U.S.
150, 167 (1995).See footnote The rationale behind the pre-motive rule is that if
the consistent out-of-court statements were made before the motive to fabricate arose, we
are assured that the statements were not contrived as a consequence of that
motive. Id. at 158. Here, Defendant argues that because Funk
was an admitted accomplice, Funks improper motive to fabricate arose at the moment
the triple murder occurred on March 28. Defendant further contends that
because Funk uttered the statements to Utzman the next day, March 29, Funk
made the statements after his motive to fabricate arose. As such, Defendant
argues, the statements failed to meet the Tome temporal requirement and thus, were
improperly admitted as hearsay.
This Court visited this issue in
Sturgeon v. State, 719 N.E.2d 1173 (Ind.
1999). In Sturgeon, a unanimous opinion authored by Chief Justice Shepard, we
evaluated prior Indiana case law concerning the temporal requirement contained in the prior
consistent statement rule and categorized the cases under two separate scenarios: (1)
where the declarant was the defendant or equally culpable to the defendant in
the crime, such as a co-defendant, and (2) where the declarant was involved
before and after but not during the crime. See Sturgeon, 719 N.E.2d
at 1179. Under the first category, we acknowledged that [w]here the
declarant was the defendant or co-defendant, we have been willing to conclude that
a motive to fabricate likely arises immediately upon the commission of the crime.
Id. (emphasis added) (citing Bouye v. State, 699 N.E.2d 620, 624-25 (Ind.
1998); Thompson v. State, 690 N.E.2d 224, 232 n.8 (Ind. 1997)).
In identifying the second category in Sturgeon, we said, Where the declarant became
involved in the crime after it was committed . . . the role
of timing is not as clear. Id. (emphasis added).
In short, there is no bright-line rule for determining whether or when a
motive to fabricate has arisen even if the declarant was (1) equally culpable
as the defendant, such as a co-defendant; (2) i
nvolved after the crime (as
was the case in Sturgeon); or (3) arguably involved before, during, and
after the crime like the declarant in this case. Determining the existence
of a motive or when it arose is a fact-sensitive inquiry. Id.
at 1178. In Cline v. State, 726 N.E.2d 1249 (Ind. 2000),
this Court also addressed the timing issue, and noted a significant passage from
We acknowledge the possibility of a motive to fabricate on [the declarants] part
since he knew he could be charged in connection with the murder and
since he participated in certain criminal acts surrounding the murder. However,
is no evidence tending to implicate [the declarant] in [the] murder and therefore
no evidence that he had a motive to lie about [the defendants] involvement
when questioned. Without concrete evidence to that effect, we cannot conclude the
trial court abused its discretion in admitting [the declarants] prior consistent statement.
Id. at 1253 (quoting Sturgeon, 719 N.E.2d at 1180) (emphasis added). As
we determined in Sturgeon and reaffirmed in Cline, we will not override a
trial courts decision to admit a prior consistent statement where there is no
evidence tending to implicate the declarant in the crime.
In this case, although Funk was involved before, during, and after the murders
occurred, the question of whether or not a motive to fabricate arose still
remains a fact-sensitive inquiry. We find no substantial evidence here tending
to implicate Funk in the triple murder which would lead to a conclusion
that he had a motive to lie. Police officers testified that they
did consider Funk a suspect at the time they questioned him on March
31. Funk testified that he feared prosecution because he accompanied Defendant throughout
the crime spree of the burglary of Napier and Southards m
obile home and
the pursuit of the victims in a car-chase, which ultimately led to the
killings. However, Brian Mossberger, a friend of both Defendant and Funk, offered
testimony which strongly implicated Defendant rather than Funk as the perpetrator. Further,
Defendant owned the SKS assault rifle used to commit the killings. Forensic
evidence revealed that the bullets used to kill the victims matched those shot
from the murder weapon belonging to Defendant. We also find it significant
that (1) the State never charged Funk of murder, (2) Funk did not
receive any prosecutorial benefit in exchange for his testimony; and (3) Funk
made the statements to Utzman the day immediately following the killings, which was
two days before he was questioned by police.
Our extensive review of the evidence indicates that Funk had a limited role
in the circu
mstances surrounding the murders. Therefore, we find that Funk had
no motive to fabricate within the meaning of Evidence Rule 801(d)(1)(B) when he
uttered the statements to Utzman about the events surrounding the crime. We
hold that the trial court did not abuse its discretion in overruling Defendants
At trial, the court instructed the jurors that they were allowed to take
notes of the testimony, but admonished that note taking should not distract them
from observing the credibility of the witnesses and listening to the evidence presented.
Like other members of the jury, jury foreman Michael Fox took notes
in open court of his daily observations of the trial without objection from
defense counsel. Then in the evenings, Fox took his courtroom notes home
with him and typed a narrative version of the trial on his personal
computer. By the end of the trial, Juror Fox had prepared a
430-page typed notebook
supplemented with a 50-page timeline marking the sequence of events.
When it came time for jury deliberation, Fox took the notebook into
the jury room and relied on it a few times. Fox also
discussed some of the notebooks contents with other jurors but none of the
jurors actually read the notebook themselves.
Neither the trial court nor the parties had knowledge of Juror Foxs typed
notes during the guilt-determination phase or penalty phase, or that Juror Fox had
transcribed the notes at home. It was not until a September, 1997,
post-trial investigation that defense counsel discovered Juror Foxs notebook. Defense counsel then
filed a supplemental motion to correct error, alleging that these events constituted newly
discovered evidence of juror misconduct. Counsel argued that Defendants constitutional right to
a fair trial and impartial jury were violated when [the jury] was exposed
xtraneous and prejudicial materials during guilt-innocent phase deliberations. Defts Suppl.
Mot. To Correct Errors, at 2. In October, 1997, the trial court
held a hearing on the matter and denied, without explanation, an original and
the supplemental motion to correct error.
A party may file a motion to correct error when there is newly
discovered evidence such as a
lleged juror misconduct. See Ind. Trial Rule 59(A);
Mitchell v. State, 726 N.E.2d 1228, 1238 (Ind. 2000), rehg denied. When
reviewing a trial courts denial of a motion to correct error on newly
discovered evidence, our review is deferential and we will reverse only upon a
showing of an abuse of discretion. See Slaton v. State, 510 N.E.2d
1343, 1347 (Ind. 1987). The Defendant bears the burden of proving that
the newly discovered evidence warrants a new trial. See Mitchell, 726 N.E.2d
Defendant makes several challenges with respect to Juror Foxs notebook. He first
contends that the notebook constituted extraneous information that unduly influenced other jurors.
llants Br. at 90, 92. In a related argument, Defendant claims that
when Juror Fox typed a narrative version of the trial and time-line at
home, he had improperly deliberated, re-evaluated, and analyzed the evidence. Id. at
83. Defendant maintains that such conduct violated the courts instructions for jurors
not to reach conclusions until [they] have heard all the evidence, the argument
of counsel, and final instructions. Id. at 87-90. Defendant argues that
these events constituted juror misconduct that deprived him of his fundamental right to
a fair trial under the state and federal constitutions. Id. at 93;
Reply Br. at 36.
Generally, a verdict may not be impeached by evidence from jurors who returned
See Fox v. State, 457 N.E.2d 1088, 1092 (Ind. 1984).
However, extrinsic or extraneous material brought into deliberation may be grounds for impeaching
a verdict where there is a substantial possibility that such extrinsic material prejudiced
the verdict. See Ind. Evidence Rule 606(b); Mitchell, 726 N.E.2d at 1238;
Bockting v. State, 591 N.E.2d 576, 579 (Ind. Ct. App. 1992), transfer denied.
The burden is on the defendant to prove that material brought into
the jury room was extrinsic. The burden then shifts to the State
to prove it harmless. See Taylor v. State, 681 N.E.2d 1105, 1110
It is now well-settled Indiana law that jurors are permitted to take notes
during the course of a trial subject to the discretion of the trial
court and its duty to ensure that jurors pay attention to all the
evidence in the case.
See Chambers v. State, 422 N.E.2d 1198, 1204
(Ind. 1981); Smith v. State, 272 Ind. 34, 36, 395 N.E.2d 789, 790
(1979); Dudley v. State, 255 Ind. 176, 182, 263 N.E.2d 161, 164 (1970).
This Court has further determined that a juror who records notes at
home is a closely related matter to a juror who takes notes in
the courtroom so long as no communication to or from another person has
occurred. Gann v. State, 263 Ind. 297, 300-1, 330 N.E.2d 88, 91
(1975). Thus, we have determined that both circumstances taking notes during
trial and transcribing notes at home are appropriate provided that the juror
pays attention to the evidence presented during trial and does not seek out
any outside or extrinsic influences aimed to taint the notes.
The trial court properly instructed the jurors not to reach any conclusion before
all the ev
idence had been presented and final instruction given. But as
a practical matter, jurors cannot be prevented from reflecting upon witness testimony and
other evidence after they leave the courtroom each day. In this case,
it is undisputed that Juror Fox used his courtroom notes to compile and
organize a narrative version of the trial and a corresponding time line on
his home computer. However, there is no evidence demonstrating that Fox himself
was exposed to extrinsic or outside influences, such as reading newspaper articles, watching
a television program, researching on the Internet, or communicating to or from another
person while compiling the notebook at home. At a post-trial hearing on
the matter, Juror Fox testified that because he was under Court order not
to watch T.V. local T.V., radio, or read the newspaper he sat at
the computer all evening typing his notes. (R. at 32,530). Foxs
testimony indicated that he did seek out extrinsic material but only after the
trial had ended for purposes of editing, updating and revising his notebook.
In order for jury misconduct to warrant a new trial, the defendant
must show that the misconduct was gross and that it probably harmed the
defendant. See Carr v. State, 728 N.E.2d 125, 131 (Ind. 2000).
We find that Defendant has not made a showing of gross misconduct.
See, e.g., id. at 131 (holding no jury misconduct where, during the defendants
trial, a juror accumulated newspapers but refrained from reading them until the trial
had ended at which time the juror compared the news stories with her
own trial notes.)
Without any evidence of extrinsic influence on Juror Fox during the course of
the trial, we think that when he brought the notebook into jury deliberations,
the contents of it were like those of any other juror-made notebook in
this case a reflection of a jurors personal observations of the trial,
thoughts, and mental processes. In this case, the compiling and organizing of
a notebook on a personal computer at home was a closely related matter
to taking notes during the trial because the notebook, while elaborate in length
and detail, was not tainted by extrinsic influences. Thus, the notebook itself
when brought into the jury room did not amount to extraneous material.
The fact that these perceptions regarding the trial were recorded at home and
on a computer does not change our view because no outside information was
sought or employed.
We find that Juror Fox did not disregard the trial courts instructions.
The trial court i
nstructed the jurors that they were allowed to take notes
during the trial but gave no directive prohibiting re-writing, compiling, or organizing the
notes at home. The trial court repeatedly instructed the jurors that they
should listen to the evidence as it came from the witnesses, keep an
open mind at all times, not form an opinion during the trial, and
not reach a conclusion before hearing all the evidence, arguments of counsel, and
the courts final instructions. We find no evidence in the record that
Juror Fox did not follow these instructions.
Defendant argues further that the trial court improperly disregarded Indiana precedent which permitted only limited or minor note taking during a trial. Appellants Br. at 82-84; Reply Br. at 34, 36 (citing Miresso v. State, 163 Ind. App. 231, 323 N.E.2d 249 (1975); Dudley, 255 Ind. at 182, 263 N.E.2d at 164; Smith, 272 Ind. at 36, 395 N.E.2d at 790). See footnote With our increasing familiarity with juror note taking, we believe the necessity of restricting jurors to limited or minor note taking has diminished. In any event, the cases cited by Defendant did not encompass the complexities of this case: the trial spanned over eight months during which the jury heard the testimony of 158 witnesses and observed 966 exhibits. This evidence presented at trial, along with numerous motions filed with the court, created a record of proceedings consisting of over 33,000 pages. It is likely that even very limited note taking would produce a substantial volume of material in such circumstances. Indeed, at least three other jurors in this case composed ten to twelve handwritten notebooks and used them during deliberations. The making of a lengthy notebook, especially where Defendant claimed no error to with respect to the note taking of other jurors, did not constitute gross misconduct or irregularity on the part of Juror Fox.
Defendant also contends that Foxs notebook was tantamount to an unofficial transcript wrongfully
brought into the jury room, and that the notebook resembled a pseudo exhibit,
which like other exhibits, should have been withheld from the jurors. Appellants
Br. at 84-85. Defendant also argues that the notebook amounted to evidence
not supported by the record and that he did not have the opportunity
to test the reliability and accuracy of the notebooks content.
88. We reject this argument for the same reasons set forth supra.
A jurors notes, typed or handwritten, organized or not, reflect the jurors
own mental process and personal observations of the testimony and other evidence presented
at trial. A jurors view of a case is not evidence, does
not function as an exhibit, and is not comparable to an unofficial transcript.
Finally, we find there is no evidence in the record that Juror Fox
used the notebook inappr
opriately during deliberation. While in the jury room, Fox
referred to his notebook only a few times for his own recollection.
Although Fox discussed some of the information in the notebook with other jurors,
no other members of the jury read the notebook themselves. Furthermore, Defendant
did not seek and the trial court did not give any instruction prohibiting
jurors from sharing or reviewing each others notes. Accordingly, we have no
basis for concluding that Juror Foxs use of the notebook during deliberations unduly
influenced the other jurors.
The trial court did not abuse its discretion in denying Defendants supplemental motion
rrect error. See, e.g., Hailey v. State, 521 N.E.2d 1318, 1321
(Ind. 1988) (holding that the trial court did not abuse its discretion in
refusing to grant a new trial where a juror reviewed his notes during
deliberation and discussed them with other members of the jury).
Under Indiana Evidence Rule 701, when a non-expert provides an opinion, the witnesss
stimony in the form of opinions or inferences is limited to those opinions
or inferences which are (a) rationally based on the perception of the witness
and (b) helpful to a clear understanding of the witnesss testimony or the
determination of a fact in issue. It is within the trial courts
discretion to determine whether a witness is qualified to give an opinion.
See Angleton v. State, 686 N.E.2d 803, 812 (Ind. 1997) (citing Kent v.
State, 675 N.E.2d 332, 338 (Ind. 1996)), rehg denied.
On appeal, Defendant argues that this testimony was improperly admitted as speculation b
the Sergeant had no personal knowledge that Defendant cleaned his car after the
commission of the crimes. See Appellants Br. at 43. In support
of his argument, he points to the testimony of one witness, Serologist Susan
Laine, who stated that Defendants car was not clean, see id. at 43
(quoting R. at 28,791-93), and that other crime technicians testified that photographs taken
before the vehicle was processed show dirt, debris, and other material, see id.
(quoting R. at 27,662-63). Defendant claims that in light of this physical evidence,
Andersons opinion [was] not rationally based on his perceptions, as required by Indiana
Evidence Rule 701(a), and he further maintains that Sergeant Andersons opinion was conjecture
and not helpful to the jury. Id. at 43. The State
responds arguing that Sergeant Andersons testimony was based on his experience searching hundreds
of cars, as well as evidence that the interior of the car was
damp or wet, and was therefore, properly admitted. Appellees Br. at 19.
We agree with the State.
Sergeant Andersons testimony regarding the state of Defendants vehicle was rationally based on
his perceptions. Sergeant Anderson had been a member of the Indiana
State Police for thirteen years and in law enforcement for 20 years; had
been trained and continued to train in photography, fingerprint techniques, firearms evidence .
. . trace evidence, serology, drugs, physical matches, . . . and
forensic entomology; and he had worked as a crime scene technician for over
eight years. (R. at. 27,735-36.) Sergeant Anderson testified that over the
course of eight years, he had investigated hundreds of crime scenes, covering well
over a 100 every year. (R. at 27,743.) Sergeant Ander
provided further testimony regarding his investigation of Defendants vehicle:
Its extremely unusual not to find something indicative of someone having been [in
a car]. Hair is the best example as any. Everyone loses
hair . . . But not finding hair in the vehicle was very
unusual to me; not finding fiber was unusual . . . . I
remember taking my hands across the floorboardin the front of the vehicle, specifically
emember, and it felt damp. And I thought that to be
sort of unusual as well. But at any rate, I suppose anything
is possible, but it was very unusual to me that we found nothing
in that vehicle.
(R. at 27,743-44.)
We find that Sergeant Andersons conclusion that Defendants car had been cleaned was
ationally based on his perceptions of finding a damp floorboard and discovering no
hair evidence in Defendants car, and rationally based on his observations of numerous
investigations of other vehicles. Furthermore, Evidence Rule 701 speaks to only
those opinions or inferences rationally based on the witnesss own perceptions, not those
of others. Thus, the claimed contradictions between the testimony of Anderson and
the serologist and other technicians are immaterial under the structure of this rule.
Weighing the credibility of witnesses and drawing inferences and conclusions there from
is within the jurys province. See Taylor v. State, 681 N.E.2d 1105,
We also find that Sergeant Andersons testimony was helpful to the determination of
a fact in issue. The reason Defendants car was free from serological
evidence such as hair and blood was an important factual issue for the
jury to decide. Even though Sergeant Andersons testimony was in conflict with
photographs of dirt and debris found in the car, this did not render
his opinion conje
cture. The opinion was based upon his experience with many
crime scene investigations and offered a plausible explanation for the condition of the
Defendant also argues that Sergeant Andersons opinion was inadmissible under Indiana Ev
704(b) because the testimony indicated he had cleaned his car with the intent
of deceiving police. Indiana Evidence Rule 704(b) provides in relevant part, Witnesses
may not testify to opinions concerning intent . . . in a criminal
case. However, Defendant did not object to this testimony as constituting an
opinion concerning intent. As such, this claim is not available here.
During the trial, the coroner testified that his duties consisted of investigat[ing] all
deaths and determin[ing] the manner and cause of death, (R. at 20,204); however
he was not qualified to render an expert opinion concerning the
the victims death. He also testified that when he arrived at the
crime scene, he observed the bodies physical condition, noting the degree of rigor
in the victims joints and the body temperatures. The coroner
testified further that shortly after he examined the bodies, Dr. John Heidingsfelder, a
forensic pathologist, arrived on the scene and they discussed the coroners personal observations
regarding the condition of the bodies. Over Defendants continuing objection, the coroner
was allowed to offer his opinion that the time of death could not
have occurred before 9 p.m., nor could it have occurred after 2 a.m.
(R. at 20,337A.) The basis of Defendants objection was that the
coroner lacked the qualification of an expert on the timing of death.
Any error in allowing the testimony of the coroner was harmless. We will reverse only if the improper opinion testimony prejudiced the defendant. See Taylor v. State, 689 N.E.2d 699, 706 (Ind. 1997). The coroners opinion was merely cumulative of other properly admitted testimony concerning the timing of the victims death. Dr. Heidingsfelder was the physician who performed the autopsy on all three victims. Defendant agreed that Dr. Heidingsfelder was a qualified expert in the field of forensic pathology and the trial court ruled as such. When the prosecuting attorney asked Dr. Heidingsfelder his expert opinion as to the time of death, Dr. Heidingsfelder testified, without objection from Defendant, that the victims died sometime after they were last seen alive that night . . . 9:00 or 10:00 p.m., (R. at 22,522), and prior to 2:00 in the morning, (R. at 22,521). Accordingly, we find that Defendant suffered no prejudice. See, e.g., Hughes v. State, 508 N.E.2d 1289, 1296-97 (Ind. Ct. App. 1987) (ruling that in light of properly admitted expert opinion testimony by a certified physician concerning the cause of the victims death, any error in the admission of an opinion by a second-year resident regarding the cause of death was harmless), transfer denied. Accord Tope v. State, 477 N.E.2d 873, 876 (Ind. 1985) (recognizing in a post-conviction proceeding that contradictory testimony of a non-expert coroner and forensic pathologist on the issue of timing of death would not have resulted in a different trial outcome warranting a new trial), rehg denied.
During the trial, State witness Troy Napier testified that he rented a garage
repair shop where he and Defendant worked on cars together. While he
was incarcerated in a Gibson County jail b
etween February, 1996, and April, 1996,
Napier thought there was no telephone service at the garage. However, a
few months after his release in April, 1996, Napier received a bill for
telephone and calling card service at the garage. Napier had neither requested
telephone service at the garage nor asked for a calling card to be
issued. Napier identified the telephone bill which was introduced as a States
Defendant objected to the admission of the telephone bill on grounds that the
State was at
tempting to show that he had installed the phone in Napiers
name and without Napiers permission. Defendant argued that the State was alleging
that he had committed forgery in violation of a court order in limine
excluding evidence of prior bad acts or wrongs unrelated to the March 28,
1996, murders. Defendant also objected because the billing statement contained no name
or address, it was incomplete. Based on the latter grounds, the trial
court sustained the Defendants objection to the admission of the exhibit. The
next day, the prosecuting attorney again questioned Napier about the billing statement.
Defendant again objected, arguing that the court had already ruled on the matter.
The trial court sustained the objection as to the admission of
the exhibit, but allowed Napier to testify regarding his payment of the bill
and request for service cancellation.
Defendant contends on appeal that although the trial court sustained the objection as
to the admission of the telephone bill, the States follow-up questioning the next
day was [an] attempt to show that [Defendant] had a phone installed in
Napiers name through misrepresentation, and without any means or intention of paying the
bill, Appellants Br. at 47 (citing R. at 22,850-59). Because this case
involved the murder of three of [Defendants] friends, evidence of how [Defendant] treated
another friend was harmful and served to advance the impermissible inference.
at 50. Therefore, Defendant argues, the admission of the billing statement was
in violation of a court order in limine to exclude character evidence under
Indiana Evidence Rule 404(b).
Defendants objections to the billing statement were sustained. The limited questioning that
followed related only to Napiers own acts in canceling the service and seeking
to have the charges cancelled. There was no evidence admitted as to
Defendants prior acts in this regard.
It is improper for a prosecutor to suggest that a defendant shoulders the
burden of proof in a criminal case.
See Dobbins v. State, 721
N.E.2d 867, 874 (Ind. 1999). However, a prosecutors improper statements suggesting a
defendants failure to present witnesses may be cured by the trial court advising
the jury that the defendant was not required to prove his innocence or
to present any evidence. See Chubb v. State, 640 N.E.2d 44, 49
(Ind. 1994) (Preliminary instruction given to the jury just a few hours before
prosecutorial impropriety occurred adequately cured prosecutors comments regarding the defendants failure to call
witnesses.), rehg denied; Pettiford v. State, 506 N.E.2d 1088, 1090 (Ind. 1987) (Both
preliminary and final instructions given to the jury overcame prosecutors statements on the
defendants failure to present witnesses.).
In the instant case, the trial court admonished the jurors shortly after Defendants
objection, advising them that Defendant had no burden to prove his innocence or
to present any evidence. D
efendant attempts to distinguish his case from Chubb
and Pettiford by arguing that the admonishment failed to cure the impropriety because
the trial court stated the prosecutor may be correct. See Appellants Br.
at 63 (quoting R. at 21,186). We find the admonishment to be
adequate. In addition, the trial court properly read preliminary instructions and final
instructions advising the jury that Defendant was to be presumed innocent of the
crimes charged and that the State bore the burden to prove Defendant guilty
of each essential element of the crimes charged beyond a reasonable doubt.
Both instructions also informed the jury that Defendant was not required to prove
his innocence or to present any evidence. We presume that the jury
followed these instructions. The State made only one comment suggesting that Defendant
had an opportunity to call a witness and made no additional statements on
the matter after Defendants objection and the jury admonishment. Like our rulings
in Chubb and Pettiford, we find that any misconduct here was de minimus
and overcome by the courts preliminary instructions and final instructions, if not the
courts immediate jury admonishment. The prosecutors statement did not have a probable
persuasive effect on the jury.
Defendants second claim of prosecutorial misconduct is that the prosecutor improperly a
inadmissible prior bad acts in front of [the] jury in violation of the
trial courts Order on Comprehensive Motion in Limine. Appellants Br. at 63 (quotations
in original). During Defendants cross-examination of a State witness, the prosecutor objected
to Defendants questioning pertaining to the witnesss use of crank. (R. at 23,212.)
To support his objection, the prosecutor argued, Unless I get to ask
these kind of questions concerning the Defendant . . . I do not
know that this line of questioning has any relevance. (R. at 23,213.)
Defendant objected to the prosecutors comment, and out of the jurys presence,
moved for a mistrial on grounds that the statement suggested that Defendant was
involved in drugs.
The court ruled that although the prosecutors comment was serious, it did not
rise to the level of placing the Defendant in grave peril in light
of an appropriate admonishment. (R. at 23,232.) The court then gave an
admonishment instructing the jury to disregard the comment made by the prosecutor and
that comments of counsel were not to be considered as evidence.
The court further granted Defendants request for individual
voire dire on the
matter, asking each juror, Do you believe that you can make your decision
in this case free from any influence from [the prosecutors] comment. (R.
at 23,237.) Each juror replied, Yes. (R. at 23,237-43.)
We are satisfied that the trial courts admonishment cured any harm to Defendant
as to this particular comment. However, Defendant argues further that the prosecutors
questioning of another State witness implied that Defendant was involved in drug trafficking,
and that these repeated su
ggestions of drug use and selling drugs harmed Defendant.
We treat this argument as Defendants third claim of prosecutorial misconduct.
During cross-examination, Defendant asked State witness Detective Marvin Heilman whether in his investigation
he discovered any visible means of income or support for various State witnesses.
Then on re-direct examination, the prosecution posed the same question and also asked
if he had u
ncovered any visible means of income or support for Defendant.
At that point, Defendant objected, arguing that the implication of the prosecutors
question was because [the Defendant] had no documented visible source of income, [he]
must be making his living or income from some unlawful or illegal source.
(R. at 28,568-69.) Therefore, Defendant argued, the prosecutors question was in
violation of the courts order in limine excluding bad character evidence. The
Defendant then moved for a mistrial. The trial court denied Defendants motion,
but sustained Defendants objection without admonishing the jury.
Our reading of the record indicates that the Detective did not answer the
stion in the presence of the jury and the jury heard no
information about Defendants income or job. Further, although the trial court gave
no admonishment, it sustained Defendants objection and the prosecutor complied with the courts
ruling, asking no further questions on the matter. The prosecutors question had
no probable persuasive effect on the jurys decision. And even if
the jury inferred that Defendant had no visible source of income, this information
without more would not have established that Defendants only alternative source of income
arose from selling drugs or any other illegal activity. The prosecutors question
contained no references to selling drugs or drug trafficking or drug business.
Defendants fourth claim of prosecutorial misconduct is that the prosecutor improperly di
conduct of defense counsel in front of the jury. Appellants Br. at
65. During cross-examination, Defendant asked a State witness when the witness first
received any statement that Defendant was directly involved in the murders of the
victims. The prosecutor objected on hearsay grounds but the trial court overruled
the objection. After Defendant repeated the question, the prosecutor interjected another objection
stating, Judge, as picky as we got on my direct examination of this
witness, I think its appropriate to be just as picky in the cross-examination
of this witness. (R. at 23,653-54.) Defendant objected to the prosecutors
comment and moved for a mistrial.
We have recognized that prosecutorial statements attacking the defense counsels integrity and competence
are improper and inconsistent with the Rules of Professional Conduct which require lawyers
to demonstrate respect for the legal system and for those who serve it,
including . . . other lawyers.
Marcum v. State, 725 N.E.2d 852,
858 (Ind. 2000) (quoting Preamable, Ind. Professional Conduct Rules), rehg denied. But
given the brevity of the prosecutors comment here, we find that it did
not have probable persuasive effect on the jurys decision.
Finally, Defendant contends that [g]iven the closeness of the evidence, the prosecutors r
misconduct placed [Defendant] in grave peril. We disagree. Having found that
any prosecutorial impropriety which may have occurred was de minimus or otherwise overcome
by the trial courts admonishments and instructions, we are unable to conclude that
Defendant was placed in grave peril.
This case is comparable to
Schwestak in which this Court upheld a trial
courts decision preventing a defendant from introducing a State witnesss prior burglary conviction
that was more than ten years old. Id. at 963. There,
we reasoned that the defendant did not demonstrate
probative value of this conviction, which [was] more than ten years
old, [was] so high as to overcome the general rule that stale convictions
are not admissible. Defendant d[id] not offer any reason other than that
[the State witnesss] testimony was a very important part of the States case.
Although [the State witnesss] testimony was indeed an important part of the
States case, it certainly was not dispositive. The State introduced ample other
evidence establishing [the] defendants guilt.
Id. at 964. (emphasis added).
Defendant attempts to distinguish his case from
Schwestak by arguing that Mossbergers testimony
was essential to the States case, and dispositive on many issues because Mossberger
was the only witness to testify that Defendant (1) told him to get
rid of the murder weapon and ammunition; and (2) admitted to his role
in the murders by stating that one of the victims should not have
been there. See Appellants Br. at 33. As such, Defendant claims
Mossbergers believability was crucial to the determination of substantive facts surrounding these crimes,
and central to [Defendants] conviction. Id.
Mossbergers prior robbery convictions occurred in 1979, which was approximately seventeen years from
the date the trial began in September, 1996. Therefore, to demonstrate that
the trial court abused its discretion in excluding such evidence, Defendant has the
burden of showing that the pr
obative value of [the] conviction[s], which [are] more
than ten years old, is so high as to overcome the general rule
that stale convictions are not admissible. Schwestak, 674 N.E.2d at 964.
Defendant has not met this burden.
While we recognize the importance of Mossbergers testimony to the States case, we
sagree with Defendant that Mossbergers credibility was a dispositive factor. As to
the facts at issue here, Mossbergers testimony corroborated the testimony of Dale Funk.
As discussed in part I, supra, Funk was the key witness for
the State, who testified that he observed Defendant hand the gun to [Mossberger];
told him to get rid of it. (R. at 23,982.) In
fact, Funk testified that he was an eyewitness to the murders and identified
Defendant as the perpetrator who shot and killed the three victims with an
assault rifle. It does not appear to us that seventeen-year-old robbery convictions
undermine in any meaningful way the credibility of this corroborating testimony. We
do not find the probative value of Mossbergers seventeen-year-old robbery convictions so high
as to overcome the general rule that stale convictions are not admissible.
Defendant also contends that the trial courts mechanistic application of the staleness prov
in Rule 609 violated [Defendants] state and federal constitutional right to cross-examination and
a fair trial. Appellants Br. at 35 (citing U.S. Const. Amends. VI
and XIV and Ind. Const. art. 1, § 13).
[O]ne of the fundamental rights of our criminal justice system granted by
the United States Constitution and the Indiana Constitution is the right of a
defendant to cross-examination.
Pigg v. State, 603 N.E.2d 154, 155 (Ind. 1992)
(citing to Sears v. State, 258 Ind. 561, 563, 282 N.E.2d 807, 808
(1972)). While a Sixth Amendment issue is raised when a defendant is
prohibited from cross-examining a crucial witness for the State on an area of
his credibility, see Crull v. State, 540 N.E.2d 1195, 1198-1200 (Ind. 1989); Delaware
v. Van Arsdall, 475 U.S. 673, 679 (1986); Davis v. Alaska, 415 U.S.
308, 315-18 (1974), the right to cross-examination is not absolute and is not
without limitation, see Van Arsdall, 475 U.S. at 679 (reaffirming that the Sixth
Amendment guarantees an opportunity for effective cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish) (quoting Delaware v.
Fensterer, 474 U.S. 15, 20 (1985)) (emphasis in original).
At issue in this case is whether the trial courts application of Evidence
Rule 609(b) denied Defendant his constitutional right to cross-examine a witness on an
area of credibility. Defendant a
rgues that such application prevented [Defendant] from cross-examining
Mossberger about, and presenting evidence of, impeaching felony convictions which directly correlated with
his propensity to tell the truth. Appellants Br. at 36. We
disagree and find that the trial courts application of Rule 609(b) did not
prevent Defendant from cross-examining Mossberger and attacking his credibility. Defendant conducted a
thorough cross-examination of Mossberger which consisted of at least 500 pages of record.
Defendant further acknowledges in his brief that he was able to expose
some of Mossbergers evasiveness, selective memory, and lies. Appellants Br. at 33.
Because Defendant was permitted to cross-examine on Mossbergers credibility in some extended
detail, we find that the exclusion his seventeen-year-old convictions did not amount to
a denial of Defendants constitutional right to cross-examination.
On July 26, 1996, the trial court granted Defendants new request to reschedule
the trial. At a hearing on the matter, the State stated that
there was more to be done but that it was ready to go
to trial. (R. at 8,543.) On August 1, 1996, Defendant again
moved for a continuance. The trial court granted the request
and rescheduled the trial to begin on September 23, 1996, which was the
only available date on the trial courts calendar. On August 22,
1996, Defendant filed another motion to dismiss because he was not brought to
trial within 70 days from the date he filed his motion for a
speedy trial. At a September 17, 1996, hearing, the trial court denied
this motion to dismiss.
Indiana Rule of Criminal Procedure 4(B)(1) provides that [i]f any defendant held in
jail on an indictment or an affidavit shall move for an early trial,
he shall be discharged if not brought to trial within seventy (70) calendar
days from the date of such motion . . . .
The trial court may set a trial date beyond this prescribed time when
there is a continuance or delay by the defendant, court conge
stion, or an
emergency. As such, when a defendant requests a continuance, the elapsed period
between his motion for a continuance and the new trial date is generally
chargeable to the defendant. See Vermillion v. State, 719 N.E.2d 1201, 1204
(Ind. 1999), rehg denied. However, as Defendant correctly points out, we have
found that when a defendant moves for a continuance because of the States
failure to respond to discovery requests, the delay can be attributable to the
State. See Isaacs v. Sate, 673 N.E.2d 757, 762 (Ind. 1996) (citing
Biggs v. State, 546 N.E.2d 1271, 1275 (Ind. Ct. App. 1989)).
At the July 19th pre-trial hearing on the first continuance, Defendant made no
objection to the trial courts decision not to charge the delay against the
State. Rather than raising an objection to the courts ruling, Defendant renewed
the motion for continuance without requesting that the delay be attributed to the
State. A defendant who permits the court, without objection, to set a
trial date outside the 70-day limit is considered to have waived any speedy
trial request. See Goudy v. State, 689 N.E.2d 686, 691 (Ind. 1997).
This waiver notwithstanding, we consider Defendants two other continuances. At the July 26th pre-trial hearing on the second motion for continuance, Defendant argued that laboratory tests for hair comparisons were not completed by the State. However, Defendant conceded that the lab technicians were working as fast as [they] can. (R. at 8,540.) He further acknowledged that new information had recently come to light which required him to ask for additional time to re-depose two or three different witnesses. See footnote Because Defendant needed additional time to prepare for trial, the elapsed time resulting from the second trial continuance was rightfully charged to Defendant. With respect to Defendants third motion for continuance, 54 days of the delay (the period between the date of Defendants third continuance on August 1, 1996, and the date of the trial on September 23, 1996) were attributable to neither the State nor Defendant. The court warned both parties that because of court congestion, the next available trial date on the courts calendar was not until September 23, 1996, and neither party objected to the revised schedule. Defendant did not dispute the trial courts finding of court congestion in his motion for discharge or on appeal. As such, we will presume that the trial courts finding of court congestion is valid, and that no contemporaneous explanation or documentation was needed. See Clark v. State, 659 N.E.2d 548, 552 (Ind. 1995).
Finally, we recognize that in a death penalty case of this magnitude even
the most capable a
ttorneys would be hard pressed to complete all discovery requests
before the tolling of a speedy trial period. This Court recently gave
particular attention to death penalty cases subject to the time constraints of Criminal
Rule 4 in Lowrimore v. State, 728 N.E.2d 860 (Ind. 2000), rehg denied.
In that case, we said, The values of Criminal Rule 4 are
important, but so long as constitutional speedy trial standards are met, these values
must yield to the exigencies created by the death penalty charge if the
two cannot be reconciled. Id. at 866. We believe that principle
also applies to the circumstances presented here. Attorneys on both sides
were under considerable time pressures to prepare a capital case involving the murders
of three victims, the presentation of 158 witnesses, and the introduction of 966
exhibits. Not surprisingly, the record reveals that discovery continued long after the
trial commenced on September 23. While there may have been delays in
the States response to some discovery requests in question because of laboratory delays,
we find no basis to disagree with the States assertion at trial that
it made every effort to comply with discovery orders of the Court.
(R. at 7,490.) In light of the tremendous discovery challenges brought on
by a death penalty case of this scale, we agree with the trial
courts initial finding that both parties made respectable attempts to
comply with court o rders. Defendant is not entitled to discharge.
Defendant cites to three different sources for his right to be present: the
Sixth and Fourteenth Amendments to the United States Constitution and Article 1, §
13, of the Indiana Constitution. In
Ridley v. State, we clarified that
these constitutional sources guarantee a defendants right to be present but that they
are not identical. 690 N.E.2d 177, 180 (Ind. 1997). As such,
we discuss each separately.
On January 6, the judge made a written account of the
communication with the prosecutor. According to the judges report, the prosecutor divulged
that a person other than Defendant had admitted to shooting the Tylers and
Southard. At this time, the State supplied Defendant with two supplemental case
reports disclosing the results of its investigation. The reports revealed that Officer
Heilman learned on December 27, 1996, that Robert Smith told Vanderburgh County Police
that he overheard someone else confess to the murders for which Defendant was
currently being tried. Smith also suggested that the murders were committed in
retaliation for a drug debt owed to Herschel Seifert by the Southards fiancé,
The essence of Defendants argument is that if he had been present during
ex parte proceeding, Smiths story would have been disclosed to him and
he could have presented a meaningful argument at a meaningful time . .
. against the continuance requested by the State. Appellants Br. at 54.
Defendant also maintains that [t]he subject of this ex parte proceeding was
information about a person who overheard someone else confess to the killings for
which [he] was on trial. That information directly contradicted the story told
by Funk, and provided the missing motive behind the killings. Keeping this
information from [him] ultimately hampered his defense. Id. at 55.
We agree with Defendant that he was entitled to know the reason the
prosecutor requested the continuance. It was not appropriate for the trial court
to place Defendant in a position of having to respond to the requested
continuance when the reason for it was secret.
However, we find the
trial courts error in this regard to be harmless. We also hold
that no violation occurred under either
the Sixth Amendment or Due Process Clause of the Fourteenth Amendment.
Defendant was entitled to any information in the States possession concerning anothers co nfession to the murders for which Defendant was being tried. However, Defendant has not shown how his inability to have this information in order to oppose the States continuance request adversely affected his substantial rights. See Fleener v. State, 656 N.E.2d 1140, 1142 (Ind. 1995) (ruling that errors in the application of state evidentiary or procedural law will be found harmless if their probable impact is sufficiently minor so as not to affect the substantial rights of the parties). Defendant acknowledges that only one week after the ex parte communication, the State made available two supplemental case reports disclosing the details of Smiths story. See Appellants Br. at 53 (citing R. at 2,513, 3,647-48, Appendix 30-31.) The judge then properly granted Defendant a continuance allowing him sufficient time to review this newly discovered information, and to pursue any avenues raised by its disclosure and to adjust its strategy accordingly. Dye v. State, 717 N.E.2d 5, 12 (Ind. 1999), cert. denied, __U.S.__ , 121 S. Ct. 379 (2000). The record further indicates that defense counsel deposed Smith before the trial reconvened and that counsel read aloud Smiths sworn testimony in front of the jury. As such, the jury did hear Smiths testimony which directly contradicted Funks inculpatory testimony against Defendant. We conclude that the impact of the ex parte communication was sufficiently minor so as not to have affected the substantial rights of Defendant.
Defendant also contends that the
ex parte communication violated his constitutional rights in
First, Defendant claims his Sixth Amendment right to be present in the courtroom at every stage of his trial was violated. This right is rooted in the Confrontation Clause. Ridley, 690 N.E.2d at 180 (citing Illinois v. Allen, 397 U.S. 337 (1970)). A Confrontation Clause violation occurs when witnesses or hearsay evidence are presented in the defendants absence that affect the defendants opportunity for cross-examination. See Kentucky v. Stincer, 482 U.S. 730, 737-38 (1987). In the present case, the judge-prosecutor ex parte communication did not involve the presentation of witnesses or evidence against Defendant. Defendants right to cross-examine witnesses under the Confrontation Clause was not implicated because no witnesses were present during the meeting held in Defendants absence. See id. Accordingly, we find that there was no Sixth Amendment violation.
Second, Defendant raises an argument under the Due Process Clause of the Fourteenth
Amendment, contending that the State failed to disclose Smiths story about the alleged
confession which was in direct violation of Brady v. Maryland, 373 U.S. 83
(1963). See Appellants Br. at 54, 56. Due process requires the
State to disclose to the defendant favorable evidence which is material to either
his guilt or punishment. See Brady, 373 U.S. at 87; Kyles v.
Whitley, 514 U.S. 419, 432 (1995). Under Brady, favorable 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.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome. United States v. Bagley, 473 U.S. 667, 682 (1985) (analyzing Brady).
In this case, we find that no Brady violation occurred because Smiths story
was disclosed to Defendant only a week following the ex parte communication and
became known to the jury before the conclusion of the trial. See
Williams v. State, 714 N.E.2d 644, 648-49 (Ind. 1999) (recognizing that if the
favorable evidence becomes known to the defendant before or during the course of
a trial, Brady is not implicated) (citing United States v. Agurs, 427 U.S.
97, 103 (1976)), cert. denied, ___ U.S. ___, 120 S. Ct. 1195 (2000);
Dye, 717 N.E.2d at 12 (same); Braswell v. State, 550 N.E.2d 1280, 1283
(Ind. 1990) (same).
Finally, Defendant argues that his right to be present at every stage of a criminal proceeding under Article 1, § 13, of the Indiana Constitution was violated. But that right only applies to situations where the jurys presence is required. As the jurys presence was not required during the judge-prosecutor communication, the Indiana constitution was not violated. See Ridley, 690 N.E.2d at 181 n.4.
Pendergrass, 702 N.E.2d at 719-20 (quoting Bouye, 699 N.E.2d at 628) (emphases in
original) (citations omitted).
In the instant case, the trial judge erred in not notifying the parties
before communicating to the jury. However, the judge merely denied the jurys
request to listen to Defendants taped stat
ement for a second time and to
review depositions that were already read into evidence; therefore, any error resulting from
this communication was harmless. See Marsillett v. State, 495 N.E.2d 699, 709
(Ind. 1986) (holding that a judge-jury communication outside the defendants presence constituted harmless
error where the judge merely denied the jurys request to replay part of
a transcript); see also Brewer v. State, 605 N.E.2d 181, 184 (Ind. 1993)
(ruling that where a trial court simply denied a jurys request for more
information in the defendants absence, such communication did not result in prejudice to
the defendant and any error was harmless).
Defendant also contends that his absence prevented [him] from being heard by counsel as to the importance of allowing the jury to listen to the taped statement. Appellants Br. at 59. He argues that the subject matter [of the jurys note] was some of the most crucial evidence presented, and that [i]t would be reasonable to conclude jurors might need to refresh their recollections about the most pivotal evidence presented. Id. As we stated in response to an almost identical assertion in Bouye, [c]ontrary to the defendants argument, the prohibition against ex parte communication is not designed to give the defendant an opportunity to provide the jury with more information that might benefit his case, but rather it is designed to prevent the jury from being improperly influenced by the judge. The defendants contention fails. 699 N.E.2d at 628-9.
With respect to Defendants other argument on the right to be present, he
contends that the federal constitutional right to be heard by counsel and to
have counsels assistance [is] implicated by . . . an
ex parte communication
even where the judge ultimately refuses communication. Appellants Br. at 59.
However, Defendant merely cites to the Sixth Amendment
without developing the argument further.
See Ind. Appellate Rule 8.3(A)(7).
Photographs, including those that are gruesome in nature, are admissible if they act
rpretive aids for the jury and have strong probative value. Spencer
v. State, 703 N.E.2d 1053, 1057 (Ind. 1999); Wright v. State, 730 N.E.2d
713, 720 (Ind. 2000) (citing Harrison v. State, 699 N.E.2d 645, 647 (Ind.
1998)). Relevant evidence is evidence that has 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.
Ind. Evidence Rule 401. To exclude photographs from evidence on relevancy
grounds, the defendant must show that their improper influence on the jury substantially
outweighed their probative value to the extent that they were unduly prejudicial.
See Ind. Evidence Rule 403; Spencer, 703 N.E.2d at 1057; Mitchell v. State,
726 N.E.2d 1228, 1237 (Ind. 2000), rehg denied. We review the trial
courts admission of photographic evidence for an abuse of discretion. See Cutter
v. State, 725 N.E.2d 401, 406 (Ind. 2000), rehg denied.
In this case, Defendant attacks the admission of the following three photographs of
Brandy Southard: States Exhibit No. 2995 depicted the rib cage and muscles;
Exhibit No 2998 viewed the inside of the chest after the rib cage
and breast bone were removed; and Exhibit 3003 displayed the heart and aorta.
Defendant also challenges the admission of the following three photographs of Kathy
Tyler: (1) Exhibit No. 2906 showed Kathy Tylers left lung; (2) Exhibit
No. 3072 revealed a windpipe and voice box; and (3) Exhibit No.3036 pictured
the inside of the chest wall after the organs had been removed.
Finally, Defendant takes issue with the admission of the following photographs of John
Jay Tyler: Exhibit No. 3124 and 3127 displayed lungs; Exhibit No. 3148
showed a heart; Exhibit No. 3148 depicted ribs and a breast bone; Exhibit
No. 3154 displayed a liver; Exhibit No. 3146 viewed a chest cavity after
the chest organs had been removed; and Exhibit No. 3151 depicted a
Defendant argues that none of these photos depict the victims bodies in their
natural state after [their] deaths, but instead show [the victims] appearance after the
pathologist has done his work. Appellants Br. at 70. He correctly
points out that photographs showing the victims body in an altered condition,
during or after an autopsy has been performed, are generally inadmissible because they
may impute the work of the pathologist to the defendant. See Turben
v. State, 726 N.E.2d 1245, 1247 (Ind. 2000); Fentress v. State, 702 N.E.2d
721, 722 (Ind. 1998); Allen v. State, 686 N.E.2d 760, 776 (Ind. 1997),
cert. denied, 525 U.S. 1073 (1999); Loy v. State, 436 N.E.2d 1125, 1128
(Ind. 1982); Warrenburg v. State, 260 Ind. 572, 574-76, 298 N.E.2d 434, 435-6
(1973); c.f., Kiefer v. State, 239 Ind. 103, 116-18, 153 N.E.2d 899, 904-05
We do consider these close-up photographs viewing multiple gunshot and stab wounds to
the victims internal organs to be gruesome if not ghastly. But [e]ven
gory and revolting photographs may be admissible as long as they are relevant
to some material issue or show scenes that a witness could describe orally.
Mitchell, 726 N.E.2d at 1237 (quoting Amburgey v. State, 696 N.E.2d
44, 45 (Ind. 1998)).
The photographic evidence complemented the pathologists testimony as well as other ev
at trial and was relevant in rebutting Defendants contention that he neither shot
the victims multiple times with his SKS assault rifle nor stabbed the victims
with a knife. First, the photograph evidence was illustrative of the pathologists
testimony concerning the cause of the victims death. For instance, the pathologist
testified that the high powered rifle bullets used to commit the multiple killings
penetrated the rear of the truck, struck the victims, and traveled through their
bodies. The pathologist also testified that all three victims were shot and
then subsequently stabbed by their assailant. This determination corroborated Funks account of
the timing of the circumstances surrounding the murders. Although Defendant did not
contest the cause of death, the photographs helped to illustrate the pathologists testimony
describing the chest wound from a knife causing Brandy Southards death and the
projection and path of the fatal bullets from a high powered rifle causing
the deaths of Kathy Tyler and John Tyler. Second, other evidence introduced
at trial suggested that Defendant owned a knife similar to the one used
to inflict multiple stab wounds on the victims. Further, forensic testing proved
that the bullets found in the victims bodies came from the same SKS
assault rifle owned by Defendant. And Defendant was seen shooting his rifle
shortly before the murders occurred. The post-autopsy photographs complemented this evidence as
well as Funks testimony.
As previously stated, we agree with Defendant that the post-autopsy photographs were gru
Thus, we presume that they had a prejudicial effect when shown to
the jury. However, the prejudicial effect was not so substantial as to
outweigh their probative value. Accordingly, we find that the trial court did
not abuse its discretion in finding that the probative value of the photographs
outweighed any prejudicial effect on the jury.
See, e.g., Wright, 730 N.E.2d
at 720 (holding no abuse of trial court discretion in allowing photographs at
issue establish the cause of death and the manner in which the crime
was committed and the evidence was particularly probative inasmuch as the defendant attempted
to establish that he was not the perpetrator); Fentress, 702 N.E.2d at 722
(holding no abuse of discretion where trial court allowed the admission of autopsy
photographs depicting the victims shattered skull with the hair and skin pulled back
because the photos showed the force of the blow, which in turn, bore
on the intent to kill); Elliot v. State, 630 N.E.2d 202, 204 (Ind.
1994) (holding no abuse of discretion where trial court allowed the admission of
autopsy photos of victims heart which was probative to overcome the defendants claim
of accidental killing); Jackson, 597 N.E.2d at 963 (ruling that the trial court
properly admitted photographs taken during the autopsy showing view of victims skull and
brain because they were probative to illustrate trauma caused by the blows to
her head and they also served to aide the pathologists testimony).
When reviewing a sufficiency of the evidence claim, we neither reweigh the evidence
ssess the credibility of witnesses. See Williams v. State, 669 N.E.2d
1372, 1387 (Ind. 1996), cert. denied, 520 U.S. 1232 (1997). We only consider
the evidence most favorable to the jurys verdict, along with all reasonable inferences
to be drawn therefrom, and will affirm a conviction if the probative evidence
and reasonable inferences drawn from the evidence could have led the jury to
find a defendant guilty beyond a reasonable doubt. See id.; Davis v.
State, 598 N.E.2d 1041, 1045 (Ind. 1992), cert. denied, 510 U.S. 948 (1993).
Defendant first attacks the credibility of Funk and Mossberger by arguing that both
witnesses had motives to lie in order to implicate Defendant as the perpetrator
who killed the three victims and to exonerate themselves. See Appellants Br.
at 10. We considered a similar credibility issue questioning testimony of a
witness who was with the defendant when the crime occurred in the capital
case of Timberlake v. State, 690 N.E.2d 243 (Ind. 1997), cert. denied, 525
U.S. 1073 (1999). There we determined that even though the State did
not charge the witness to the crime as an accomplice, the potentially self-serving
testimony [was] similar to that of one accomplice testifying against another, because [b]oth
situations contain the same credibility concerns. Id. at 252. Here, the
most incriminating evidence against Defendant came primarily from the testimony of Funk and
Mossberger. Like the witness in Timberlake, neither Funk nor Mossberger was charged
as an accomplice. Funk admitted he was present throughout the crime spree
of burglarizing Napiers mobile home and during the commission of the murders.
And Defendant lists other examples claiming that Funk had a motive to fabricate:
Funks shoeprint was found underneath the broken window of Napiers mobile home;
Funk admitted that he did not want to go to jail; Funk was
jealous of Defendants friendship with one Kathy Morreira, whom Funk had been dating;
Funk told his roommate, Kenny Jennings, that he would cut out [Defendants] liver
(R. at 29,386, 29,431); and Funk told Morreira that he implicated Defendant for
all the wrong reasons (R. at 30,101-02). See Appellants Br. at 11.
Defendant also puts at issue Mossbergers credibility and his motivation to lie.
In particular, he emphasizes that Mossberger had possession of the murder weapon
after the murders occurred and that Mossberger hid the weapon along with the
ammunition in the woods.
Having said that, the testimony of an accomplice is subject to high scrutiny.
We have also concluded that such testimony is alone sufficient to sustain
See Timberlake, 690 N.E.2d at 252; see also Thompson v.
State, 671 N.E.2d 1165, 1167 (Ind. 1996), rehg denied; Garrison v. State, 589
N.E.2d 1156, 1159 (Ind. 1992); Douglas v. State, 520 N.E.2d 427, 428 (Ind.
1988). We have further stated, [t]he fact that the accomplice may not
be completely trustworthy goes to the weight and credibility of the witness testimony,
something that is completely within the province of the [jury] and cannot be
reviewed on appeal. Timberlake, 690 N.E.2d at 252.
In this case, the jury was made aware of Funks and Mossbergers involvement
before and a
fter the murders occurred and heard witness testimony which, Defendant urges,
indicated that Funk had other possible motives to fabricate. But it was
still the jurys prerogative as to how much weight and credibility to give
to Funks and Mossbergers testimony. See Griffin v. State, 493 N.E.2d 439,
443 (Ind. 1986) (When a jury is aware of a witness possible motives
or bias, [the jury] can use the information to assess the witness credibility.)
(citing Shields v. State, 490 N.E.2d 292 (Ind. 1986), rehg denied.). Furthermore,
contrary to Defendants contention,
the record indicates that there was circumstantial evidence connecting
Defendant to the shooting. Defendant had possession of the murder weapon before
the murders occurred. Forensic testing established that the fatal bullets matched those
fired from the SKS assault rifle owned by Defendant. And the spent
shell casings retrieved from the crime scene and the recovered ammunition were similar
to those discovered in Southards and Napiers mobile home where Defendant had earlier
confiscated ammunition on the day of the murders.
Defendant further challenges the testimony of Funk and Mossberger by focusing on several
nconsistencies between their testimony, and by highlighting inconsistencies between their previous individual statements
to police and trial testimony. He specifically argues that such inconsistencies make
the testimony incredible. However, inconsistencies in the testimony of two or more
witnesses go to the weight of the evidence and credibility of each individual
witnesses testimony, see Dobbins, 721 N.E.2d at 875; Timberlake, 690 N.E.2d at 252,
and such inconsistencies do not make the evidence incredible as a matter of
law, see Kappos v. State, 465 N.E.2d 1092, 1096 (Ind. 1984). Here,
the jury was fully apprised of these inconsistencies and had the opportunity to
make credibility determinations. [J]udging the credibility of witnesses lies squarely within the
province of the jury and we will not reassess its credibility determinations.
Ellis v. State, 707 N.E.2d 797, 801 (Ind. 1999) (citing Gee v. State,
526 N.E.2d 1152, 1153 (Ind.1988)). We find no basis to reassess the
jurys credibility determinations here.
Defendant argues that the incredible dubiosity rule should apply in his case because
nvictions were based on Funks and Mossbergers testimony which was highly improbable,
as well as equivocal, vacillating, and contradictory. Appellants Br. at 14, 20,
22. Under this rule, a court will impinge on the jurys responsibility
to judge the credibility of the witness only when it has confronted inherently
improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. White
v. State, 706 N.E.2d 1078, 1079 (Ind. 1999) (quoting Tillman v. State, 642
N.E.2d 221, 223 (Ind. 1994) (internal quotation omitted)). When a sole witness
presents inherently improbable testimony and there is a complete lack of circumstantial evidence,
a defendants conviction may be reversed. Id. We have recognized that
application of this rule is rare and that the standard to be applied
is whether the testimony is so incredibly dubious or inherently improbable that no
reasonable person could believe it. Bradford v. State, 675 N.E.2d 296, 300
(Ind. 1996) (quoting Pardue v. State, 502 N.E.2d 897, 898 (Ind. 1987), rehg
denied.), rehg denied.
There is no dispute that Funk was the States sole eyewitness to the
burglary at Napiers m
obile home and to the commission of the murders.
Although there were discrepancies among Funks statements made to police, his statements made
in depositions, and his trial testimony, witness testimony that contradicts witnesss earlier statements
does not make such testimony incredibly dubious. See Davenport v. State, 689
N.E.2d 1226, 1230 (Ind. 1997), rehg granted in part, 696 N.E.2d 870 (1998).
Funk unequivocally identified Defendant as the perpetrator who shot the three victims
and he did not waver in his identification of Defendants assault rifle used
to commit the killings. This part of his testimony was supported by
circumstantial evidence. Furthermore, Funks testimony regarding the circumstances before and after the
murders was corroborative of Mossbergers testimony as well as other witness testimony.
Defendant also contends that Funks testimony was a product of Officer Heilmans suggestions
given when the Officer first questioned Funk about the crimes. See Appellants
Br. at 24-6 (citing R. at 24,410-11, 24,453-55.) Defendant complains, Funks admissions
of susceptibility to suggestion and guessing reveal a lack of authenticity for his
story. Id. at 11. However, there is no evidence in the record
to suggest that Funks testimony was coerced. During defense counsels cross-examination of
Funk, the jury heard the nature of Officer Heilmans initial questioning of Funk.
We find that a reasonable person could have believed Funks testimony, and
reiterate that [i]t is the province of the jury to hear the testimony
given by the witnesses and to assess the truth and veracity of each
witness. White, 706 N.E.2d at 1080 (quoting Wear v. State, 593 N.E.2d
1179, 1179 (Ind. 1992)); Davis v. State, 658 N.E.2d 896, 898 (Ind. 1995),
cert. denied, 516 U.S. 1178 (1996).
Finally, to further support his contention that the State failed to establish the
bstantial evidence to support a conclusion of guilt, Defendant focuses on the
testimony of alibi witnesses and witness testimony suggesting that other persons admitted involvement
in the murders. See Appellants Br. at 28-31.
The State is not required to rebut directly a defendants alibi. It
may disprove the alibi by proving its own case in chief beyond a
Lott v. State, 690 N.E.2d 204, 209 (Ind. 1997).
Here, Defendant directs us to his presentation of alibi witnesses who testified that
they saw Defendant just after 10:00 p.m. on the night of the murders.
One of these witnesses claimed that she had spoken to Defendant.
Such testimony directly conflicted with Funks and Mossbergers testimony that Funk
and Defendant left Mossbergers house during the 10 oclock news. The alibi
testimony also contradicted the testimony of Funks roommate, Kenny Jennings. Jennings testified
that on the night in question, Defendant and Funk arrived at Funks apartment
during the sitcom Cheers which aired between 10:00 and 10:30 p.m. Additionally,
the alibi testimony contradicted Defendants initial alibi given to police officers. Our
review of the record indicates that on March 30, 1996, just two days
after the murders occurred, Defendant voluntarily gave a taped statement to police officers
which was later played for the jury. In this statement, Defendant admitted
that he saw and briefly talked to Jay, Kathy, and Brandy at a
local Circle S store between 9:30 and 10:00 p.m. on the night the
murders. Defendant also stated that after seeing the victims, he went to
Mossbergers house and drank wine, and then went straight home. Thus, the
jury was made aware of such inconsistencies between Defendants own stories regarding his
whereabouts on the night in question. We find that it was within
the jurys purview to believe the testimony of Mossberger and Funk over the
testimony of alibi witnesses tending to exculpate Defendant. See Carr v. State,
728 N.E.2d 125 (Ind. 2000) (A jury may choose to disbelieve alibi witnesses
if the States evidence renders such disbelief reasonable.) (citing Lambert v. State, 516
N.E.2d 16, 19 (Ind. 1987), rehg denied.). We will not disturb the
jurys prerogative to weigh the credibility of witnesses and to weigh the evidence.
Defendant also points to other witnesses testimony implicating one Guy James Knight, rather than Defendant, as the person who committed the murders. See Appellants Br. at 28, 29. One defense witness testified that Brandy Southard told her that Napier owed Knight money, and that if Knight was not paid, he was going to put a bullet in [Southards] ass. (R. at 29,536.) Another defense witness, Allen Fletcher, testified that he shared a jail cell with Knight in Vanderburgh County, and stated, [Knight] told me that he was the one, after the firing was over, that cut their throats and stabbed them. (R. at 29,704.) Police questioned Knight who said he worked for a local landlord and drug dealer named Herschel Seifert. Knight told police that he was at home with his girlfriend at the time the murders had occurred and denied ever threatening Southard. Knights girlfriend, however, confirmed one threat made against Southard.
Defendant presented additional evidence along these lines establishing the possibility that the killings
occurred as a result of a drug hit ordered by Seifert. However,
jury is entitled to disbelieve the defendants evidence and to believe the
States evidence. See Bradford, 675 N.E.2d at 299 (determining that where conflicting
evidence was presented, the jury was not required to believe the defendants evidence,
and that the jury had every right to believe the States evidence instead);
see also Harris v. State, 617 N.E.2d 912, 915 (Ind. 1993) (recognizing that
a jury was entitled to believe or disbelieve evidence presented by State and
the defendant in a criminal trial), overruled on other grounds by Wright v.
State, 690 N.E.2d 1098 (Ind. 1997). The evidence concerning Knight was presented
to the jury. It was well within the jurys ability as well
as its province to assess the witnesses relative credibility and to believe the
States evidence over Defendants evidence suggesting that Knight confessed to the murders.
Again, we find no reason to reassess the jurys credibility determinations.
After considering all the evidence most favorable to the verdict as well as
drawing all reaso
nable inferences therefrom, we conclude that the jury could have reasonably
concluded beyond a reasonable doubt that Defendant committed the burglary and the three
murders. We also find no basis to impinge on the jurys credibility
determinations and therefore decline to apply the incredible dubiosity rule.
Defendant challenges the appropriateness of his death sentences, contending that the one a
did not outweigh the mitigating circumstance of the residual doubt of his guilt.
See Dye v. State, 717 N.E.2d 5, 21 (Ind. 1999) (citing generally
Miller v. State, 702 N.E.2d 1053, 1069 (Ind. 1998) (describing residual doubt as
[w]hen a jury finds a defendant guilty beyond a reasonable doubt, there still
may be a measure or residuum of doubt about the defendants guilt), cert.
denied, 528 U.S. 1083 (2000)), cert. denied, ___ U.S. ___, 121 S. Ct.
379 (2000). Defendant specifically argues that residual doubt exists in his case because
two key State witnesses, Funk and Mossberger, had compelling reasons to lie; the
States lack of physical evidence connecting him to the murders; and the fact
that his defense was supported by four alibi witnesses. Appellants Br. at
78-79. Based upon the residual doubt, he asks this Court to set aside
his death sentences and to enter sentences of life without parole.
Our death penalty statute guides our review of death sentences by providing standards
for governing the trial courts imposition of death sentences. Following the completion
of the guilt-determination phase of the trial and the rendering of the jurys
verdict, the trial court reconvenes for the penalty phase. Before a death
sentence can be imposed, our death penalty statute requires the State to prove
beyond a reasonable doubt at least one aggravating circumstance listed in subsections (b)(1)
through (b)(16) of the statute.
See Ind. Code § 35-50-2-9 (1998).
In this case, the State supported its request for the death penalty with
the following aggravating circumstances: (1) that Defendant intentionally discharged a firearm from
a vehicle, see Ind. Code § 35-50-2-9(b)(14)(B) (Supp. 1995); (2) that Defendant committed
at least one of the murders by lying in wait, see id. §
35-50-2-9-(b)(3); and (3) that Defendant has committed another murder, at any time, regardless
of whether the defendant has been convicted of that other murder, see id.
§ 35-50-2-9(b)(8). To prove the existence of these aggravating circumstances, the State
presented no additional witnesses at this stage, but rather relied upon evidence from
the guilt-determination phase of the trial.
The death penalty statute requires that any mitigating circumstances be weighed against any
properly proven aggravating circumstances. In addition to Defendants mitigating circumstances pr
the guilt-determination phase (the Defendants four alibi witnesses testifying that they saw Defendant
around the time the murders had occurred and Defendants witnesses testifying that they
overheard Knight admit to involvement in the murders), Defendant offered the testimony of
one witness at the penalty phase, Pam Patterson, a public information officer at
the Indiana Department of Correction. She testified that the vast majority of
multiple murder offenders held in Indiana jails have not been sentenced to death,
but instead were serving either a term of years or life imprisonment without
The jury found that the State did not meet its burden
in proving beyond a reasonable doubt that Defendant committed the first two alleged
aggravators; however, the jury did find that the State proved beyond a reasonable
doubt that Defendant murdered Jay Tyler, Kathy Tyler, and Brandy Southard. The
jury further determined that this one aggravator outweighed any mitigating factors, and recommended
that the death sentence be imposed.
Once the jury has made its recommendation, the jury is dismissed, and the
trial court has the duty of making the final sentencing determination at the
sentencing hearing. First, the trial court must find that the State has
proven beyond a reasonable doubt that at least one of the aggravating circu
listed in the death penalty statute exists. See Ind. Code § 35-50-2-9(k)(1)
(1998). Second, the trial court must find that any mitigating circumstances that
exist are outweighed by the aggravating circumstance or circumstances. See id. §
35-50-2-9(k)(2). Third, before making the final determination of the sentence, the trial
court must consider the jurys recommendation. See id. § 35-50-2-9(e). The
trial court must make a record of its reasons for selecting the sentence
that it imposes. See id. § 35-38-1-3.
In imposing the death sentences in the instant case, the trial court found that the State proved beyond a reasonable doubt one of the aggravating circumstances listed in the death penalty statute that Defendant committed multiple murders. (R. at 32,436-48.) The record and the law support this finding.
At the sentencing hearing, Defendant presented one additional witness, Sister Helen Prejean, who testified to her personal account of past experiences in consoling death row inmates and also provided testimony relating to her religious beliefs which underpinned her view against capital pu nishment. After hearing Sister Helens testimony and considering Defendants final argument to the trial court, the trial court issued its sentencing order. In the sentencing order, the trial court primarily reflected upon Funks account of the events leading up to the murder, including the Napier mobile home burglary and Defendants car chase of the victims truck throughout Warrick Countys rural roads. The court also recounted the substance of Funks testimony on the commission of the murders: that when the Tyler truck had stopped, Defendant grabbed his SKS rifle and began to fire as soon as Jay Tyler opened his door; that when the shooting stopped, Defendant got back in his car, drove some fifty to seventy-five feet, stopped the car, and got out; that a few minutes later, Defendant returned to the car and told Funk, You breathe a word of this and Ill kill you. The trial court then acknowledged that Defendant effectively attacked Funks veracity on many points. (R. at 32,441.) The trial court also considered the testimony of alibi witnesses as well as the testimony of other witnesses indicating that another person admitted involvement in the crimes. However, based upon Funks testimony and other evidence introduced during the guilt-determination phase, the trial court concluded that the State proved beyond a reasonable doubt that Defendant committed three separate murders in a single incident. See Ind. Code § 35-50-2-9(b)(8).
The trial court found three non-statutory mitigating factors
which were listed in the
presentence report: (i) in 1995, the Indiana legislature offered a sentence of Life
Without Parole as an equal alternative to the death penalty; (ii) the majority
of offenders held in Indiana prisons who have committed multiple murders were not
sentenced to death; and (iii) Defendant demonstrated that he could safely be imprisoned
if a sentence of Life Without Parole were imposed. (R. at 32,444-45; see
also Defendants Presentence Report at 5-6.) The court assigned low weight to
these three mitigation factors. (R. at 32,444.) The trial court also showed
great respect for Sister Helen Prejeans position against the death penalty, and even
acknowledged that the vast majority of religious organizations in the Unites States favor
the abolition of the death penalty (R. at 32,444), but declined to consider
the very significant moral issue as a mitigation circumstance in the sentencing process,
In accordance with our death penalty statute, the trial court found that the non-statutory mit igating circumstances were outweighed by the multiple murder aggravator for all three counts of murder. The trial court also gave consideration to the jurys recommendation, the presentence report, and Defendants independent report. We find that the trial courts sentencing order complies with the requirements imposed by the death penalty statute and case law.
Based on our review of the record and the law, we agree with the trial courts conclusion that the State proved beyond a reasonable doubt the (b)(8) aggravating circumstance promulgated in the death penalty statute. As discussed in Part IX, supra, during the guilt-determination phase of the trial, Defendant repeatedly attacked the veracity of Funks and Mossbergers testimony, presented testimony that someone else could have committed the murders, and offered the testimony of four alibi witnesses. Yet both the jury and the trial court found the testimony of Funk and Mossbeger to be more credible than the Defendants witnesses and other exculpatory evidence. The witness testimony offered by Defendant and the inconsistencies in Funks testimony persuaded neither the trial court nor the jury of Defendants innocence. We are also not persuaded. We agree with the trial court that the aggravating circumstance outweighs the non-statutory mitigating circumstances. We find that residual doubt does not provide a basis for revising Defendants sentences to life without parole, and therefore conclude that the death penalty is appropriate for Defendants murder of John Jay Tyler, Kathy Tyler, and Brandy Southard.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
if [t]he declarant testifies at trial or hearing and is subject to cross-examination
ncerning the statement, and the statement is . . . consistent with the
declarants testimony, offered to rebut an express or implied charge against the declarant
of recent fabrication or improper influence or motive, and made before the motive
to fabricate arose.
[Prosecutor]: And on the way back [from Evansville], did you and Dale [Funk] have
[Utzman]: Yes, we did.
[Prosecutor]: What did you talk about?
[Utzman]: Ah, he was looking scared and nervous about ALCOA, and I asked him what was wrong with him.
[Prosecutor]: Did he say he was looking scared and nervous about
ALCOA? I didnt mean to interrupt you.
[Utzman]: And I asked him what was wrong, and he said that he took the wrong ride. And I really didnt understand what he was saying at the time. But I said, What do you mean, you know, and he said, Well, I took the wrong ride. I was there when it happened. And I didnt know what he was talking about.
[Defense counsel]: Show objection to the question, Your Honor. Its hearsay
(R. at 25,636-37) (emphases added).
We received additional information [on July 25th] that is going to require the
re-deposing of at least two (2) witnesses, and perhaps three (3), based on
information that was not divulged in the first deposition . . . I
think the State is aware of what Im speaking of . . .
its not something that [the State] contrived or done[sic] willfully . . .
but [the depositions] just have to be done. And were in a
situation with that, trying then to move into a mode to prepare the
final motions that are going to have to be . . . filed.
(R. at 8,541.)
That whenever Mr. Long returned to the Courthouse after being notified that the
Jury in the above-captioned cause of action had reached a verdict, but before
counsel for the State had arrived and before the verdict was received from
the Jury, [defense counsel] asked if the Jury had requested any exhibits during
tion. I advised him [that] the Jury had requested Defendants taped
statement, and the depositions of Brian Mossberger and Dale Funk. . . .
[Defense counsel] stated he did not believe the State would have had a
case without his clients statement, and [defense counsel] did not indicate any objection
to me or the judge as to the way the matter was handled.
(R. at 3,809) (emphases added).
In contrast, Defendant claims that the court reporter only informed him of the
jurys request to listen to Defendants taped statement, and it was only after
he read the States response to Defe
ndants motion to correct errors that he
learned of the jurys request to see the depositions. The record of
proceedings is unclear as to when or how the State was advised about