David M. Henn
Jeffrey A. Modisett
Preston W. Black
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
David M. Henn
Jeffrey A. Modisett
Preston W. Black
the trial court erred in admitting Goodner's statement to the police in violation of his federal
and state constitutional rights; (2) whether Goodner was denied a fair trial because the
prosecution did not timely inform defense counsel of favorable arrangements made with a
State's witness in exchange for testimony against Goodner; and (3) whether the trial court
erred in admitting into evidence a prior consistent statement of a State's witness. Although
we find the belated disclosure of dealings with witnesses to be highly problematic, under the
circumstances of this case reversal is not appropriate. We affirm the trial court.
Officer Beavers and Goodner engaged in the dialogue quoted below before Goodner
ultimately confessed to the killing. At trial, Goodner moved to suppress his statement to the
police as obtained in violation of his Miranda rights. The trial court disagreed and admitted
On the second day of the trial, and after Mayes had concluded his testimony, the prosecutor revealed to defense counsel that he had offered to recommend a bond reduction for Mayes on an unrelated charge if Mayes would testify against Goodner. Mayes was then recalled, and on cross-examination by Goodner, Mayes denied the deal with the prosecutor. However, on re-direct examination Mayes admitted that such an arrangement was made. After Mayes was excused from the witness stand, the prosecution offered into evidence a prior statement that Mayes had given to police the night of the murder. The statement was consistent with Mayes' trial testimony, but only Officer Beavers was cross-examined concerning the statement.
The jury convicted Goodner of murder, and the trial court sentenced Goodner to sixty- five years.
B. Indiana Constitutional Claim
Goodner next claims that the same interrogation violated his rights under the Indiana Constitution. He argues that Article I, Section 14 of the Indiana Constitution requires the State to prove by the heavy burden of beyond a reasonable doubt that the waiver of self- incrimination occurred before Goodner's statement may be admitted into evidence. Goodner does not rely on Article I, Section 13 of the Indiana Constitution guaranteeing that [i]n all criminal prosecutions, the accused shall have the right . . . to be heard by himself and counsel.
Generally, Indiana cases establish that there is a right not to be forced to speak, but there is no right to bar a confession freely given after appropriate warnings and waivers under the self-incrimination provision of the Indiana Constitution. Ajabu v. State, 693 N.E.2d 921, 930 (Ind. 1998). Goodner argues that the forgoing dialogue left it unclear whether he wanted an attorney before proceeding. This was undoubtedly correct at some points in the exchange. But ultimately, and before proceeding, the officer made clear that Goodner had a right to a lawyer and, if a request was made, the interrogation would stop and a lawyer would be provided. Goodner chose to proceed. Under these circumstances, and in the absence of any other coercion, a subsequent confession is voluntary as that term is used in the Indiana jurisprudence cited by Goodner.
constituted prosecutorial misconduct and greatly prejudiced Goodner because Mayes was the
only witness who actually saw Goodner shoot Clark.
Generally speaking, the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Even where no specific request was made by a defendant, suppression of material evidence by the prosecutor may violate a defendant's due process rights. United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). Materiality of the evidence entails showing that there is a reasonable probability that in the event of disclosure the result of the proceeding would have been different. Id. at 682.
A prosecutor must fully disclose express plea agreements or understandings between the State and witnesses, even where such agreements or understandings are not reduced to writing. Wright v. State, 690 N.E.2d 1098, 1113 (Ind. 1997); see also Gordy v. State, 270 Ind. 379, 381, 385 N.E.2d 1145, 1146 (1979); Newman v. State, 263 Ind. 569, 573, 334 N.E.2d 684, 687 (1975) (citing Giglio v. United States, 405 U.S. 150, 153-54, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972)). The obligation to disclose such agreements is particularly important because '[t]he jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence. Wright, 690 N.E.2d at 1113 (quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959)).
Here, there is no doubt that Mayes's testimony was material to the case against
Goodner. The testimony was important in determining Goodner's guilt, and was not merely
information given to the police leading to his arrest. Complete failure to disclose this deal
would constitute prosecutorial misconduct and require a new trial. However, in this case
there was disclosure, albeit woefully belated, and we are directed to no plainly adverse effect
on the defense. Nonetheless, Goodner and his counsel were unaware of the arrangement
between the prosecution and the witness until after Mayes had left the stand. Only then did
the prosecutor reveal the arrangement. Mayes then lied about the deal he had made with the
prosecution while testifying on re-cross-examination.
These facts are more egregious than those in Carey v. State, 416 N.E.2d 1252 (Ind. 1981), cited by the State for the proposition that belated disclosure is good enough. In Carey, the State's witness became an informant for the police in exchange for the State's dropping criminal charges against him. In his direct testimony, the witness offered perjured testimony that he did not have a deal with the police. Id. at 1255. The prosecutor allegedly did not know of the witness's acting as an informant and had not disclosed this information to the defendant. Id. When the prosecutor learned of the witness's status as an informant, she recalled the witness to testify about his activities as an informant and the defense was allowed to cross-examine. Id. at 1256. On appeal, this Court held that although the prosecutor should have disclosed the arrangement to defense counsel prior to trial, the defendant still received a fair trial. Id. at 1258. We reasoned that because the informant status was ultimately presented to the jury, and defense counsel had an ample opportunity to cross-examine the witness, the impeaching evidence was adequately presented to the jury
and thus the defendant was not denied a fair trial. Id. Under current doctrine reversal under
these circumstances is not required.
There may be a valid explanation for the sequence of events at Goodner's trial, but none is apparent, and none was offered in the trial court. This conduct appears to be a recurring scenario. See Williams v. State, ___ N.E.2d ___ , (Ind. 1999); Carey, 416 N.E.2d at 1255-56. We cannot continue to tolerate late inning surprises later justified in the name of harmless error. Continued abuses of this sort may require a prophylactic rule requiring reversal. In the meantime, there are other sanctions for prosecutorial misconduct. The Indiana Rules of Professional Conduct require a prosecutor to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense. Ind. Professional Conduct Rule 3.8(d) (emphasis added). Rule 8.4(d) also states that it is misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice. Members of the bar and the trial bench should remember their obligation to report such misconduct to the appropriate authorities. See Prof. Cond. R. 8.3(a) (A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct . . . shall inform the appropriate professional authority.).
murder. Goodner concedes that the statement was used to rebut a charge of recent
fabrication by the witness. However, Goodner argues that because the prior statement was
offered after Mayes had left the stand, the statement is inadmissible under Indiana Evidence
Indiana Evidence Rule 801(d)(1) provides that a statement is not hearsay if:
[t]he declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is . . . (B) consistent with the declar-
ant's testimony, offered to rebut an express or implied charge against the declar-
ant of recent fabrication or improper influence or motive, and made before the
motive to fabricate arose . . . .
Although the predicate requirement set forth in Rule 801(d)(1) mandates that the declarant testify at trial and be subject to cross-examination concerning the statement, if the declarant has not already been cross-examined on the statement, his availability to be recalled for cross-examination satisfies this requirement. See Brown v. State, 671 N.E.2d 401, 407 (Ind. 1996) (finding that prior consistent statements could be admitted because the declarant was available for cross examination regarding the statements he made); see also Kielblock v. State, 627 N.E.2d 816 (Ind. Ct. App. 1994). But see Moran v. State, 604 N.E.2d 1258 (Ind. Ct. App. 1992). Similarly, most other jurisdictions allow admission of prior statements after the declarant has testified.See footnote 1 This Court has not specifically addressed
this issue, but the Indiana Court of Appeals has followed the majority rule.See footnote
v. State, 639 N.E.2d 288, 295 (Ind. Ct. App. 1994) ([D]espite the fact that [the defendant]
declined to cross-examine [the victims] concerning their prior consistent statements, he
clearly was given the opportunity to do so.).
In this case, it is not as clear that Goodner had an opportunity to cross-examine Mayes regarding the prior statement. During court discussion, while the jury was temporarily removed from the courtroom, Goodner objected to the admission of the prior statement. The trial judge responded:
Court: **** It seems pretty apparent from a reading of this particular rule of
evidence that this testimony would be proper. The statement, if it is consistent,
was made by a witness who did testify here at trial. Your re-cross examination
of the witness Mayes had to do with improper influence or probably more likely
motive that he might have to fabricate his testimony and this previous statement
was made before this possible motive, that is, his release from jail after his test-
mony had been made prior to that, so it seems clear to the Court that this would
fit within the provision of the rule.
The trial judge apparently misinterpreted Rule 801(d)(1)(b) to mean that cross-examination was necessary only to present evidence of fabrication, which in turn triggers the use of a prior consistent statement. The declarant should also be subjected to cross-examination concerning the prior statement or at least continue to be available for cross-examination. Mayes was excused before the admission of the prior consistent statement. However, there
is no showing that he could not be subpoenaed again, and in light of his agreement with the
prosecutor, presumably he was, as a practical matter, within the prosecutor's grasp. Goodner
did not request that Mayes be recalled and nothing in the record suggests he could not have
been produced. The record does not support a claim of unavailability of cross-examination,
and the admission of the statement was not error.
SHEPARD, C.J., and DICKSON, SULLIVAN, and SELBY, JJ., concur.
impeachment has been used to assail the witness' testimony as a fabrication.).
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