Ann M. Skinner
Jeffrey A. Modisett
Arthur Thaddeus Perry
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
Ann M. Skinner
Jeffrey A. Modisett
Arthur Thaddeus Perry
years respectively. He raises four issues for our review: (1) whether he is entitled to a new
trial because of the newly discovered evidence that one of the State's witnesses offered
perjured testimony at his trial; (2) whether the trial court erred in overruling his hearsay
objection; (3) whether a detective gave improper vouching testimony; and (4) whether the
trial court erred in admitting a mug shot of a codefendant. We affirm the trial court.
Burch and Wright remained at large.
Before Powell's trial, Jones gave a deposition in which he stated that he did not have a weapon at the time of the shooting and also denied that he carried a weapon at any time. At Powell's trial, Jones again denied that he had a weapon at the time of the shooting or at any time on the day of the shooting. Powell was convicted of both counts in a trial that concluded on June 4, 1996. Appellate counsel was appointed for Powell and the record of proceedings in his direct appeal was filed on February 7, 1997.
Almost a year after Powell's trial, Jones testified as a defense witness in an unrelated handgun prosecution of James Carey. Jones testified in that case that he had a gun on his person on the day McVea was killed, but did not draw the weapon. He testified that the gun disappeared sometime after he was shot and rendered unconscious. Two weeks later, he gave a deposition in Wright's case in which he denied that he was carrying a gun at the time of the shooting or at any time on the day of the shooting. Finally, two months later at Wright's trial, Jones testified that he and McVea were both drug dealers, that he had had a verbal altercation with Powell and others over drug turf, that everybody including him pulled out guns and was out there pistol playing, that he put his gun in his apartment after the altercation and was not carrying it at the time of the shooting, and that he had lied under oath in the Carey trial.
In June 1997, the State filed a Supplemental Discovery Response with the trial court in Powell's case that included a transcript of Jones' testimony in Carey's trial. Powell filed a petition in this Court to suspend or stay his direct appeal in order to pursue postconviction
relief in the trial court. The motion was granted, and Powell then filed a petition for
postconviction relief in the trial court alleging that newly discovered evidence entitled him
to a new trial. The petition for postconviction relief was denied after a hearing, and the
direct appeal was reinstated and consolidated with the appeal of the denial of postconviction
result. Webster v. State, 699 N.E.2d 266, 269 (Ind. 1998) (citing Bradford v. State, 675
N.E.2d 296, 302 (Ind. 1996)).
The trial court entered detailed findings of fact and conclusions of law when it denied Powell's petition for postconviction relief. It found that Powell had established prongs 1, 3, 4, 5, and 6. It also found that Powell met one-half of the second prong, by showing that the newly discovered evidence was relevant but did not establish that it was material. Therefore, what remains is whether the newly discovered evidence is material, worthy of credit, capable of being produced at a retrial, and likely to produce a different result.
To prevail on appeal, Powell must demonstrate that the newly discovered evidence met all nine prerequisites of Webster and that the trial court abused its discretion by failing to find so. 699 N.E.2d at 269. In ruling on Powell's petition, it was the trial court's province to assess the credibility of the proffered evidence. Id. The trial court found that it cannot conclude that the testimony given subsequent to trial which is inconsistent with the trial testimony is any more worthy of credit than the testimony given at [Powell's] trial. Of the five accounts detailed above, Jones stated that he had a gun at the time of the shooting in only one (testimony at Carey's trial). He expressly recanted this version in his subsequent sworn testimony on the subject (Wright's trial). In addition to doubts raised by Jones' inconsistent accounts, the trial court observed that both the State and Powell were unable to locate Jones to present his live testimony at the postconviction hearing, which it found to cast further doubt on the possibility of Jones' production at a retrial. For these reasons, the trial court did not abuse its discretion when it found that Jones' subsequent and varying accounts
were not material, worthy of credit, capable of being produced at a retrial, or likely to
produce a different result.
capable of being a statement.
This conclusion is consistent with the fundamental purpose of the hearsay rule to preserve the right to cross examine the declarant. See Cain v. State, 261 Ind. 41, 45, 300 N.E.2d 89, 92 (1973) (citing 5 Wigmore on Evidence § 1362, at 3-7 (3d ed. 1940)). If a report of a question or command in effect transmits the questioner's claimed observations, the need for cross examination is as great as if the witness reported a direct statement. Other states agree. See, e.g., Carlton v. State, 681 A.2d 1181, 1184 (Md. Ct. App. 1996) (questions Does Mr. Zinkhan have an alarm? and What time, if ever, will Mr. Zinkhan leave? made no explicit or implied assertion and were therefore not hearsay); State v. Saunders, 491 N.E.2d 313, 318 (Ohio Ct. App. 1984) (in prosecution for robbery of several hundred dollars of coins from laundromat, defendant's companion asking motel employee if employee could use some spare change was hearsay because it asserted and was offered to prove that companion had access to spare change that she wished to exchange for paper currency); Brown v. Commonwealth, 487 S.E.2d 248, 251-52 (Va. Ct. App. 1997) (because question Does Peggy know I am here? necessarily implies or asserts that declarant knew Peggy (the victim) personally and was offered to prove that the defendant knew Peggy, it was hearsay).
Some commands (Tell me your name!) or questions (What is your name?) have no factual content and clearly are not assertions. Based on this, some treatises suggest, consistent with the State's view at trial, that all questions are ipso facto not hearsay. See, e.g., David F. Binder, Hearsay Handbook 19 (3d ed. 1991) (A question is not hearsay.) (emphasis in original); 5 Weinstein's Federal Evidence § 801.02[b] (1999) (An
inquiry is not an assertion, and is not hearsay.). Although it is true that most questions or
inquiries are not hearsay, the cases cited by these treatises make clear that that is not always
the case. See, e.g., United States v. Lewis, 902 F.2d 1176, 1179 (5th Cir. 1990) (The
questions asked by the unknown caller, like most questions and inquiries, are not hearsay
because they do not, and were not intended to, assert anything.) (cited in both treatises).
An utterance that is in the form of a question can in substance contain an assertion of a fact.
The classic example is Joe, why did you stab Bill? There may be other exceptions to the
hearsay rule permitting witnesses to testify to such a question, but a report of hearing this
question is not admissible to prove that Joe stabbed Bill on the ground that it is not hearsay
at all. Rather, such an utterance clearly carries a factual allegation within it, and should be
subject to cross-examination unless exempt for some other reason. The utterance at issue in
this case asserted that the men in the group confronting Jones and McVea were carrying
guns, and that of course is susceptible of being true or false.
To run afoul of the hearsay rule the evidentiary purpose of the proffered statement must be the truth of the matter asserted. Evid. R. 801(c). In this case, the alleged hearsay testimony came in a line of questioning regarding the nature of [the] conversation between Jones and the three men at the Meadows. Although the State argued at trial that a question by its very nature cannot be used to prove the truth of the matter asserted, the trial court's admonishment to the jury plainly demonstrates the possibility that the factual content of a question may be offered for the truth of the matter asserted. Despite the trial court's admonishment, we agree with Powell that it is difficult to imagine how the alleged
'question' of the unidentified declarant, offering the remark that the group possessed guns,
could be admitted for some purpose other than the truth of the matter asserted. The State
offers no alternative purpose. We conclude that the utterance here was offered for the truth
of the matter asserted and therefore is hearsay.
Although Powell's hearsay objection should have been sustained, the erroneous admission of this utterance was nevertheless harmless. See Fleener v. State, 656 N.E.2d 1140 (Ind. 1995); Ind. Trial Rule 61. The fact asserted in the question, that the men had guns, was established beyond doubt moments later when the three men opened fire. There is no realistic possibility that this ruling affected Powell's substantial rights.
Court found this to be error because the psychologist's testimony was an invasion of the
province of the jury in determining what weight they would place upon the child's
testimony. Id. In this case, however, the detective merely testified that is was not unusual
for Jones, like other crime victims or witnesses, to be reluctant to talk to police. Suggesting
that witnesses are sometimes reluctant to talk to police does not vouch for a witness's
truthfulness. Cf. Edgin v. State, 657 N.E.2d 445, 447 (Ind. Ct. App. 1995) (detective's
testimony that the victims seemed very credible was improper vouching testimony). The
testimony here was not improper under Head or Evidence Rule 704(b), which prohibits
witnesses from offering opinions concerning whether a witness has testified truthfully . .
. . Cf. Bufkin v. State, 700 N.E.2d 1147, 1150 (Ind. 1998) (Rule 704(b) violated by police
officer offering opinion that he found a witness's testimony credible).
traditional mug shots, but the booking placards had been covered and only the height chart
remained visible. In overruling the objection, the trial court observed that the State has
taken as many steps as they can to conceal the fact that they are a mug shot. The detective
has been careful not to use that phrase when describing the photographs, as has the State. .
We review the admission of photographic evidence for an abuse of discretion. Humphrey v. State, 680 N.E.2d 836, 842 (Ind. 1997). To constitute error, the probative value of the photograph must be substantially outweighed by the danger of unfair prejudice. Ind. Evidence Rule 403. Powell contends that the mug shots would allow the jury to suspect that Powell chose to associate with a convicted felon, thereby creating an impermissible 'guilty by association' inference. We disagree. At most the mug shot demonstrates that Wright, not the defendant, had been previously arrested. The arrest could have been for a misdemeanor, charges may never have been filed, or charges may have been resolved short of a conviction through dismissal or acquittal.
The probative value of these photographs was significant because it explained to the jury how Jones came to identify all three of the shooters. The danger of unfair prejudice was minimal, in that the mugshot was not of the defendant himself but merely of one of his codefendants and no mention of a prior arrest or conviction was made to the jury. The trial court did not abuse its discretion by admitting the mug shot of Powell's codefendant.
SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.
Converted from WP6.1 by the Access Indiana Information Network