ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN PINNOW STEVE CARTER
Greenwood, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
COURT OF APPEALS OF INDIANA
vs. ) No. 49A05-0210-CR-507
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION THREE
The Honorable Cale Bradford, Judge
Cause No. 49G03-0003-CF-50175
June 13, 2003
OPINION - FOR PUBLICATION
Terrance Swann (Swann) was convicted of two counts of murder
and one count
the latter as a Class C felony, in Marion Superior Court.
He was sentenced to serve consecutive sixty-five year terms for each murder
conviction and a concurrent term of eight years for the robbery conviction, for
an aggregate sentence of 130 years. He appeals and argues that the
trial court abused its discretion when it excluded evidence concerning a false confession
he gave to police in a prior murder investigation. Finding that the
evidence was properly excluded, we affirm.
Facts and Procedural History
At approximately 5:00 p.m. on November 3, 1999, Officer Brent Miller (Officer Miller)
of the Indianapolis Police Department was dispatched to 2427 North Oxford Street on
the eastside of Indianapolis. When he arrived at that residence, Officer Miller
noted that there were signs of forced entry around the frame of the
front door. As he entered the residence, Officer Miller observed that a
female was lying face down on the floor next to the couch in
the living room wearing a T-shirt, but no pants. The female, later
identified as Crystal Davenport (Davenport), had a fatal gunshot wound in the center
of her forehead. Officer Miller also discovered the body of Michael Haddix,
Jr. (Haddix) in the back bedroom of the residence. Haddix had gunshot
wounds to his right shoulder and arm, and a fatal wound to the
back of his head. An autopsy performed on the morning of November
4, 1999, revealed that Davenport and Haddix died twenty-four to forty-eight hours before
In December 1999, Detective Andy Starks (Detective Starks) was investigating the murder of
Anthony Johnson (Johnson). On December 10, 1999, Detective Starks received an anonymous
telephone call from an individual concerning the Johnson murder investigation. The caller,
Swann, asked Starks to meet him in the parking lot of the Old
Country Buffet restaurant on 38
th Street. Detective Starks met with Swann, who
was a friend of Johnsons, and Swann gave Detective Starks some information relevant
to the investigation.
On January 5, 2000, Detective Starks spoke with Swann again about the Johnson
murder. Swann was incarcerated at that time on a matter unrelated to
this case. During their conversation, Swann told Detective Starks that he had
been involved in an eastside robbery and murder in which a male and
a female had been killed. Tr. pp. 73-74. Swann also told
Detective Starks specific details about the murders, including the fact that the male
and the female had been killed in separate rooms. Tr. p. 75.
Detective Starks relayed that information to Detective Tom Tudor (Detective Tudor), the
officer investigating the double murder of Davenport and Haddix.
On February 8, 2000, Starks asked Swann questions about the double murder that
had been prepared by Detective Tudor. In response to the questions, Swann
stated that the male victim was shot in the head and chest, and
the female victim was shot in the head, but maybe also the chest
area. Ex. Vol., Defendants Ex. B. Swann also stated that the
female was shot in the living room, and the male was shot in
On March 27, 2000, Detective Tudor placed Swann under arrest and took his
statement after Swann waived his Miranda rights. Swann stated that Johnson and
Corey Spurlock (Spurlock) told him that there was money and marijuana at Haddixs
residence. Armed with guns and wearing rubber gloves, they then went to
Haddixs residence intending to steal the money and marijuana. They were also
accompanied by a woman named Tasha. When they arrived, Tasha knocked on
the door. When Davenport opened the door, Swann grabbed her, while Spurlock
and Johnson ran to the back of the house. Davenport struggled
with Swann and kicked him. During the struggle, Swann heard several gunshots
fired in the back of the house. Swann stated that he panicked,
grabbed his gun, and shot Davenport as he pushed her away from him.
He told Detective Tudor that he was one or two feet away
from Davenport when he shot her and that he shot her in the
head. Swann stated that he shot Davenport in the living room and
Davenport was wearing a T-shirt, but no pants. He also stated that
Haddix was wearing boxer shorts. Swann, Johnson, and Spurlock also took marijuana
and money from the house. Ex. Vol., States Ex. 10.
On March 28, 2000, Swann was charged with two counts of murder, two
counts of felony murder, and two counts of robbery. His first trial
resulted in a hung jury except for the count of felony murder of
Davenport, which resulted in a mistrial. Swann was tried for a second
time on August 12, 2002. Prior to the second trial, one count
of robbery was dismissed. Therefore, the remaining counts tried during the second
trial were two counts of murder, one count of felony murder of Haddix,
and one count of robbery. At trial, Swann presented an alibi defense
and argued that his confession was false.
Both Reverend Oscar Crear and Reverend William Gary testified that Swann was in
Elkhart, Indiana, attending a revival service from November 1 to November 3, 1999.
Tr. p. 206; Ex. Vol., Defendants Ex. E1, p. 8. Reverend
Crear testified that he and Swann arrived late for the November 1 evening
services. Ex. Vol., Defendants Ex. E1, p. 10. Both Reverends
Gary and Crear testified that Swann did not attend the November 2 services.
Tr. p. 207, Ex. Vol., Defendants Ex. E1, p. 13. However, Reverend
Crear stated that he and Swann went to lunch with Reverend Gary on
November 2. Ex. Vol., Defendants Ex. E1, p. 12. Swann and
both Reverends Crear and Gary testified that Swann attended the November 3 evening
service. Tr. pp. 208, 232; Ex. Vol., Defendants Ex. E1, p. 15.
Reverend Gary testified that they all had lunch on that day as
well, but in a prior statement, Gary indicated that Swann was not at
lunch that day. Tr. pp. 209, 211. Reverend Crear testified that
Swann was not at lunch on November 3. Ex. Vol., Defendants Ex.
E1, p. 15. Both Reverend Crear and Swann stated that they returned
to Indianapolis in the early morning hours of November 4, 1999. Tr.
pp. 232-33; Ex. Vol., Defendants Ex. E1, p. 16.
Swann testified that he gave a false confession because he was given food
and cigarettes when he was brought over from the Marion County Jail where
he was incarcerated. Tr. p. 234. He stated that he heard
other inmates discussing the double murder on the eastside and also got information
about the double murder from Johnson. Tr. p. 238. Swann testified
that he did not kill or assist Johnson and Spurlock in killing Davenport
Swann also attempted to enter into evidence the fact that he had given
a false confession in a prior murder investigation and that he could not
have committed that murder because he was incarcerated at the time. He
also attempted to enter into evidence a Marion County JUSTIS record in support
of that proposed testimony. Tr. pp. 189-90. The trial court ruled
that any evidence that Swann had previously given a false confession in another
murder investigation was irrelevant. Tr. p. 193. Therefore, Swann made an
offer to prove that Detective Starks would testify that Swann falsely confessed to
the murder of Kareem Abdullah and gave details about that murder, which were
consistent with the circumstances surrounding it. Tr. pp. 253-55. The State
maintained that Detective Starks would only testify that Swann told him that he
had information about the Abdullah murder, but that Detective Starks could not recall
whether Swann stated that he was actually involved in the Abdullah murder.
Tr. p. 256.
The jury found Swann guilty on all four counts. The trial court
entered a judgment of conviction on the counts of murder of Davenport, felony
murder of Haddix, and robbery. He was sentenced to serve consecutive terms
of sixty-five years for each murder conviction and a concurrent term of eight
years for the robbery conviction, for an aggregate sentence of 130 years.
Swann appeals. Additional facts will be provided as necessary.
Discussion and Decision
Swann argues that the trial court abused its discretion when it excluded his
proffered evidence concerning his false confession to a prior murder, and in doing
so, the court denied Swann his right to fully present his defense.
The decision to admit or exclude evidence is a matter within the sound
discretion of the trial court. Pickens v. State, 764 N.E.2d 295, 297
(Ind. Ct. App. 2002), trans. denied. An abuse of discretion occurs
if a trial court's decision is clearly against the logic and effect of
the facts and circumstances before it. Id. We afford the decision
to exclude evidence great deference on appeal, and reverse only when a manifest
abuse of discretion denies the defendant a fair trial. Price v. State,
765 N.E.2d 1245, 1248 (Ind. 2002).
The trial court excluded the evidence of Swanns prior false confession on the
grounds that it was irrelevant. Evidence is relevant if it 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. In addressing Swanns
claim that the evidence is relevant and admissible, we must determine whether the
evidence tends to prove or disprove a material fact in the case or
sheds any light on the guilt or innocence of the accused. Brown
v. State, 747 N.E.2d 66, 68 (Ind. Ct. App. 2001) (citing Carnahan v.
State, 681 N.E.2d 1164, 1166 (Ind. Ct. App. 1997)).
In this case, the only direct evidence that Swann participated in the double
murder was his confession. In his defense, Swann argued that he was
in Elkhart at the time Davenport and Haddix were murdered, and that he
lied to the police when he confessed. Swann testified that he confessed
to the murder because [Detective Starks] was giving me food and cigarettes and
I dont get that at the jail and I didnt think he would
really at the time, at first, I didnt think he would take me
serious, but it turned out he did. Tr. p. 234.
Swann argues that the evidence the court excluded showed Swann falsely confessed to
another murder and he provided details matching the circumstances of that murder.
The excluded evidence was relevant on the issue of whether Swanns inculpatory statements
in this case were credible. Br. of Appellant at 17.
However, [e]vidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith.
Ind. Evid. R. 404(b);
see also Heavrin v. State, 675 N.E.2d 1075,
1083 (Ind. 1996) ([A] trial court abuses its discretion when it admits evidence
of extrinsic acts that are relevant to no issue other than character and
to proof of behavior in conformity with that character.). [T]he rule acts
as an appropriate restraint on admissibility of evidence about events or acts that
are by definition largely extraneous to those for which a defendant is on
trial. Garland v. State, 788 N.E.2d 425, 429 (Ind. 2003).
Pursuant to Indiana Rule of Evidence 404(b), Swanns attempt to introduce evidence of
his prior false confession improperly sought to use proof of that prior extrinsic
act to bolster his statement that he lied when giving his confession in
this case. Therefore, under the rationale of Rule 404(b), the trial courts
exclusion of Swanns prior false confession was not error.
In addition, to warrant reversal, any error in the exclusion of evidence must
be inconsistent with substantial justice. Ind. Trial R. 61. A reviewing
court must disregard any error which does not affect the substantial rights of
Benson v. State, 762 N.E.2d 748, 752 (Ind. 2002) (citing
T.R. 61). Moreover, the error is harmless if the evidence of guilt
was overwhelming and the defendant was allowed to present his defense even if
not as completely as he desired. Miles v. State, 777 N.E.2d 767,
772 (Ind. Ct. App. 2002) (citing Whited v. State, 645 N.E.2d 1138, 1140
(Ind. Ct. App. 1995)).
First, we note that when Swann made his offer to prove with regard
to the prior false confession, defense counsel indicated that Detective Starks would have
testified that Swann had told police that he shot Kareem Abdullah as Adbullah
was climbing out of a window and a 40 caliber Glock and an
AK-47 were used in the shooting. Tr. p. 254. Defense counsel
also stated that Detective Starks would testify that these details were consistent with
the actual circumstances surrounding the Abdullah murder.
Id. However, the State
informed the court that Detective Starks would have testified only that Swann knew
certain details surrounding the Abdullah murder, but that Starks could not recall Swann
ever stating that he was actually involved in the murder. Tr. p.
256. It is not clear from the record why Detective Starks was
not called to testify regarding the prior false confession during the offer to
prove, especially given the disputed nature of his proposed testimony and the fact
that he was a witness in this case.
When he confessed in the present case,
Swann gave specific details about the
double murder at issue, including the following facts: 1) Davenport was shot in
the living room of the house and Haddix was shot in the back
bedroom; 2) Haddix was shot multiple times and he was wearing boxer shorts;
3) Davenport was wearing a T-shirt and no pants and she was shot
near the front door by the couch; and, 4) Davenport was shot in
the head at close range. These details were confirmed by the evidence
discovered at the crime scene.
Importantly, Swann was allowed to testify that he lied when he gave his
confession because the police officers were giving him food and cigarettes. He
also was able to fully present his alibi defense. However, Swanns knowledge
of the specific details of the murders of Davenport and Haddix constituted overwhelming
evidence of his guilt.
KIRSCH, J., and MATTINGLY-MAY, J., concur.
Ind. Code § 35-42-1-1 (1998 & Supp. 2002).
Footnote: Ind. Code § 35-42-5-1 (1998).
Footnote: We note that Swann continued to maintain his involvement in the murders
of Davenport and Haddix even after he was placed under arrest.