ATTORNEYS FOR APPELLANT
Sean G. Thomasson
Roderick D. McGillivray
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
JASON HUBBELL, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 03S00-9912-CR-714
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT
The Honorable Stephen Heimann, Judge
Cause No. 03C01-9908-CF-1191
ON DIRECT APPEAL
September 5, 2001
Jason Hubbell was convicted of murder and criminal confinement and sentenced to seventy-five
years imprisonment. In this direct appeal, he raises ten issues, which we
restate as eight. Hubbell contends: (1) the trial court erred by not
dismissing the grand jurys indictment; (2) evidence of the location of the victims
body and cellular phone calls violated the alibi statute; (3) the trial court
abused its discretion in admitting physical and testimonial evidence; (4) the admissions of
his post-polygraph statements violated his right to cross-examine witnesses; (5) the trial court
abused its discretion in admitting a witness pretrial and trial identification of Hubbell;
(6) the State committed several
Brady violations; (7) he was denied his right
to counsel by frequent moves throughout the Department of Corrections; and (8) he
was entitled to a new trial based on cumulative error. We affirm
the judgment of the trial court.
Factual and Procedural Background
Sharon Myers left for work at the Arvin plant early on the morning
of May 13, 1997. She never arrived. Another employee of Arvin,
Sherry Young, saw a man and a woman leaving the Arvin plant as
she arrived at work that same morning. The woman looked similar to
Myers. The man had one hand on the womans neck or back,
and the two entered a white van and drove away.
The police came to the plant later that morning to look for Myers.
Young had mentally made note of the license plate number and gave
the police the number and a description of the van. The police
traced the license plate number to a white van owned by Hubbell.
Hubbell worked at the Arvin plant with Myers and had called in sick
on May 13. Young then identified a picture of the van as
the one she had seen that morning, and later that day identified Hubbell
when police presented him to her.
In November 1997, skeletal remains were found in a marsh area in
Johnson County and identified as Myers through dental records. An autopsy showed
a fracture in the hyoid bone
which, together with the size of a
ligature found around Myers neck, indicated that the cause of death was manual
strangulation. Acrylic fibers found near the body were consistent with fibers found
in Hubbells van. Grass fragments found in the search of the van
were consistent with grass samples from the marsh. The FBI obtained fingerprints
from the van and also shot several rolls of film of fingerprints that
might or might not be different from the fingerprints taken. No prints
from Myers were identified, and the authorities lost the rolls of film.
On August 31, 1998, Hubbell was indicted by a grand jury on the
charges of murder and criminal confinement. On September 28, Hubbell filed a
notice of alibi, which he amended on October 15. The State did
not respond. At trial, the State introduced parts of Hubbells statements made
following a polygraph examination. The State also introduced testimony from a jail
inmate that Hubbell admitted the killing to him. Hubbell was convicted of
both charges after a four-week jury trial in October and November of 1999.
The trial court sentenced him to sixty-five years for murder and ten
years for confinement, to be served consecutively.
I. Grand Jury Indictment
Hubbell first argues that, because there were police officers present during the grand
jury proceedings, he was prejudiced and the indictments should be dismissed. Before
trial, Hubbell moved to dismiss the grand jury indictment. The trial court
denied Hubbells motion after a hearing on the matter.
Indiana Code section 35-34-2-4 prescribes the conduct of grand jury proceedings and allows
for a limited number of people, including witnesses, clerks, and the prosecuting attorneys
staff, to be present during the proceedings. In Indiana, there is no
per se rule presuming prejudice when unauthorized persons appear before the grand jury,
or even when those persons participate in the interrogation of witnesses.
v. State, 266 Ind. 380, 390, 364 N.E.2d 1007, 1012 (1977). To
obtain dismissal of an indictment, the defendant must show that his substantial rights
were prejudiced. In this case, Hubbell contends that there were two police
officers present during the grand jury proceedings. The first, Detective Ken Hardwick,
was present during the testimony of Hubbells wife, Robyn Hubbell. Hubbell claims
that Hardwick made gestures indicating that Robyn was being untruthful and consulted with
the prosecuting attorney during Robyns testimony. Hubbell also claims that another detective,
Mark Gorbett, acted similarly when Hubbells alibi witness, Heather Hilliard, testified. Finally,
he contends that two other witnesses before the grand jury were harassed.
At the hearing on the motion to quash the indictment, the State submitted
an affidavit from Gorbett claiming that although officers were present, none of them
took any actions indicating untruthfulness by the witnesses. Robyn testified that although
her demeanor was affected by the police officers, the content of her testimony
remained the same. The trial court then ruled:
At this time as it relates to the Motion to Quash or Motion
to Dismiss the Grand Jury Indictment, Im going to find that the defendant
has not proven by a preponderance of the evidence that his substantial rights
have been prejudiced and Im going to deny the Motion to Quash.
It is for the trial court to evaluate the truthfulness of the witnesses.
We cannot conclude on this record that the finding of absence of
prejudice was error.
II. Alibi Statute
The indictment in this case stated that Hubbell was in Bartholomew County on
May 13, 1997. Hubbell contends that the trial court erred by admitting
evidence of Myers body, which was found in Johnson county, and cellular phone
calls that were made from outside Bartholomew County. The basis of this
contention is his notice of alibi defense claiming he was in Bartholomew County
on those dates. The State did not respond to the notice.
Under the alibi statute, Indiana Code section 35-36-4-3, if the State does not
respond to a notice of alibi defense, the court is to exclude evidence
offered by the prosecuting attorney to show that the defendant was at a
place other than the place stated in . . . the indictment.
This Court has refused to adopt a rule excluding all evidence of events
occurring outside the time and spatial limits raised by a notice of alibi
Woods v. State, 250 Ind. 132, 143, 235 N.E.2d 479, 485
(1968). Testimony describing events outside these limits is admissible if it circumstantially
proves commission of a particular crime within the limits. Id. Evidence
of Myers body was not used to prove that Hubbell committed a crime
in Johnson County, for example, body dumping. See Ind. Code §§ 23-14-54-1
to 2, 23-14-54-5 (1998). Rather, it was offered as circumstantial evidence supporting
the claim that he committed crimes in Bartholomew County.
Similarly, the cellular phone calls were not offered to establish that Hubbell was
outside of Bartholomew County. At trial, David Ebney, a former operations manager
for Blue Ridge Cellular, testified that the signal of the Indianapolis cellular phone
tower overlapped into Bartholomew County. The trial court also admitted Hubbells cellular
phone bill, which showed that he made two phone calls on May 13,
1997 through a cellular tower located north of Bartholomew County. However, there
was no testimony that calls from the cellular tower outside of Bartholomew County
must have been made outside of Bartholomew County. The jury was left
with unconnected and incomplete testimony on that point. In short, the evidence
of the location of the body and calls was not used to prove
that the defendant was at a place other than the place stated in
the indictment. Accordingly, the trial court did not err in admitting this
III. Evidentiary Issues
Hubbell contends that there were two evidentiary errors in his case that require
reversal because the resulting prejudice outweighed any probative value. Relevant evidence is
admissible unless its probative value is substantially outweighed by the danger of unfair
prejudice. Ind. Evidence Rule 403. The trial courts rulings on the
admission of evidence under Rule 403 are reviewed for an abuse of discretion.
Hubbells Gun and Ammunition
Hubbell contends that the admission of a handgun found in his home and
bullets found in his van violated Indiana Evidence Rule 403. The State
argues that because the gun matched bullets found in the van, the jury
could have concluded that the gun was used to coerce Myers into the
van. Hubbell filed a pretrial motion in limine to exclude this evidence
arguing that there was no evidence that a gun was used to commit
this crime. The State argued that Myers left her work against her
will, presuming that a gun was used to coerce her. The trial
court denied the motion.
We agree with Hubbell that the introduction of the gun and bullets was
an abuse of discretion. The State presented no evidence that Young was
coerced with a gun to leave her place of employment and no evidence
that the gun was in any way connected with her murder. Its
suggestion that Hubbell may have used the gun to coerce Myers is no
more than speculation given the absence of any other evidence suggesting the use
of a weapon. There also was a danger of unfair prejudice from
admission of the gun. As a general proposition, we agree that the
introduction of weapons not used in the commission of the crime and not
otherwise relevant to the case may have a prejudicial effect. Lycan v.
State, 671 N.E.2d 447, 454 (Ind. Ct. App. 1996).
The highly attenuated relevance of the gun was insufficient to overcome its potential
prejudice. However, any error in the admission of the gun and bullets
was harmless. Errors in the admission or exclusion of evidence are to
be disregarded as harmless error unless they affect the substantial rights of a
Fleener v. State, 656 N.E.2d 1140, 1141 (Ind. 1995); Ind. Trial
Rule 61. In this case, the State presented evidence that a man
matching Hubbells description and driving Hubbells van left the Arvin parking lot with
a woman who looked like Myers. Fibers and grass near Myers body
matched fibers and grass from Hubbells van. Finally, Hubbell confessed to a
jail inmate that he murdered Myers. Given this evidence, we cannot say
that evidence of the gun and bullets affected Hubbells substantial rights.
Hubbell also contends that the trial court abused its discretion in admitting testimony
that two rolls of film containing photographs of fingerprints found in Hubbells van
were destroyed. The FBI conducted a search of Hubbells van on May
19, 1997. They found numerous fingerprints, but none from Myers. The
FBI also took pictures of other fingerprints from the van. These rolls
of film were lost before they could be developed. Hubbell filed a
motion in limine to exclude testimony of the lost rolls of film because
of the danger that the jury would assume the missing film contained fingerprints
of the victim. The trial court denied this motion and, at trial,
an FBI agent testified that, although the film had been destroyed, more fingerprints
were found in the van.
We think admitting the testimony was error. Unless there was some basis
to suggest the missing fingerprints were Myers, this testimony again raises only speculation.
There was no evidence suggesting that the lost photographs were of fingerprints
from a source different from the fingerprints that were not lost. The
lost photos do not suggest that anyone else, much less Myers, was in
the van. Although the probative value of this testimony is minimal, its
prejudicial effect was also low and any error was harmless for the same
reason as the gun and bullets.
IV. Hubbells Post-Polygraph Statements
Hubbell also contests the admission of his statements from a post-polygraph interview.
On May 19, 1997, Hubbell submitted to a polygraph examination. Sergeant Jeff
Williams questioned Hubbell after the interview. The exact questions are not in
the record because Williams notes have been destroyed. However, in his report,
During the post-test interview I explained the results of the polygraph examination to
[Hubbell] to see if he could furnish any reason for the deceptive responses.
When I stated to him that I believed that he was responsible
for [Myers] disappearance he stated that it might be possible but he cant
say that he did it. He stated that he has prayed to
God every night since then that it isnt so. When I asked
him to explain further he states he knows that he does things during
his episodes that he cant remember so he always has doubts now about
things he could have done.
Hubbell filed a motion in limine to exclude any evidence of this exchange.
The motion was denied and Williams testified to the statements Hubbell made,
with no reference to the polygraph examination. Hubbell argues that the trial
court erred in admitting this testimony because he was unable to cross-examine Williams
fully because evidence of the polygraph was inadmissible. He urges this Court
to render inadmissible any [post-polygraph] statements which are not admissions, but are speculative
responses to an officers question of why the polygraph indicated deceptive responses.
As an initial matter, Hubbell cites to no authority for this proposition.
Although the right to cross-examine witnesses is guaranteed by the Sixth Amendment to
the United States Constitution and Article I, Section 13 of the Indiana Constitution
and is one of the fundamental rights of our criminal justice system,
v. State, 603 N.E.2d 154, 155 (Ind. 1992), it is subject to reasonable
limitations placed at the discretion of the trial judge. McQuay v. State,
566 N.E.2d 542, 543 (Ind. 1991); accord Delaware v. Van Arsdall, 475 U.S.
673, 679 (1986). Requiring Hubbell to choose between incomplete questioning (foregoing his
Sixth Amendment rights) and revealing unfavorable polygraph results would present an impermissible choice.
But Hubbell gives no reason why a complete cross-examination of Williams required
reference to the polygraph. The trial court stated:
With regard to Motion in Limine #6 concerning the defendants post polygraph statements
to Detective Williams; these statements are not tied so directly to the polygraph
results that they force the defendant to invoke the doctrine of completeness and
divulge the fact that a polygraph examination was performed. In the police
report, Officer Williams says: When I stated to him that I believed
that he was responsible for Sharons disappearance he stated that it might be
possible but he cant say that he did it. This portion of
the conversation is illustrative of the post polygraph questioning. The discussion does
not require the divulgence of the polygraph exam.
Based on this record, we conclude that the trial court was correct that
exploring the polygraph examination was not critical to Hubbells statements or his ability
to cross-examine Williams.
V. Eyewitness Identification
Hubbell next contends that the trial court erred in admitting Youngs pre-trial and
in-court identifications. He contends that the pre-trial identification was unduly suggestive and
therefore tainted the in-court identification. He further contends that the suggestive lineup
led Young to add further details to her description of Hubbell. On
the morning of Myers disappearance, Young saw a man and a woman get
into a white van in her employers parking lot and drive away.
Young was able to give the police the license plate number of the
van, and described the man as having blonde hair, probably five nine, six
foot. Less than six hours later, police presented Hubbell to Young in
a showup or single person lineup. At the showup, Young thought Hubbell
was the man she had seen driving the van, although she was not
positive. This testimony was corroborated by Steve Prosser, another witness at the
showup. Two police officers testified that Young was not positive that Hubbell
was the man driving the van.
At trial, Young testified that she watched the couple walk across the parking
lot for several minutes and took notice of them because they were leaving
work at an unusual hour. She also testified that she was approximately
thirty feet from the van and had a three-quarters view of the drivers
face for three seconds. The parking lot was well-lit and the driver
of the van turned and made eye contact with Young before driving away.
She made a mental note of the license plate number of the
van. Her description of the suspect remained largely the same after the
showup, although she did provide more detail on his haircut.
Stovall v. Denno, 388 U.S. 293, 302 (1967), overruled on other grounds
by Griffith v. Kentucky, 479 U.S. 314 (1987), the United States Supreme Court
noted that a show-up procedure may be so unnecessarily suggestive and so conducive
to irreparable mistake as to constitute a violation of due process. Such
a claimed violation is to be examined in light of the totality of
the circumstances surrounding it. Id. A per se rule of exclusion
of pre-trial identification evidence involving suggestive or unnecessary procedures was rejected in Manson
v. Brathwaite, 432 U.S. 98, 109-14 (1977). Instead, due process permits the
admission of such evidence if, under the totality of circumstances, the identification is
reliable. Accord Neil v. Biggers, 409 U.S. 188, 196-201 (1972). Hubbells
claim thus involves a two-step analysis. Slaton v. State, 510 N.E.2d 1343,
1348 (Ind. 1987). The first question is whether the initial identification procedure
was unnecessarily or impermissibly suggestive. Id. As noted in Stovall, The
practice of showing suspects singly to persons for the purpose of identification, and
not as part of a lineup, has been widely condemned. 388 U.S.
at 302. This Court has also recognized the inherent suggestiveness of such
one-on-one confrontations. Head v. State, 443 N.E.2d 44, 55 (Ind. 1982); Poindexter
v. State, 268 Ind. 167, 173, 374 N.E.2d 509, 512 (1978). The
second inquiry is whether, under the totality of the circumstances, the identification was
reliable even though the procedure was suggestive. Slaton, 510 N.E.2d at 1349.
We have permitted such procedures when they occur shortly after the commission
of the crime because of the value of permitting a witness to view
a suspect while the image of the perpetrator is fresh in the witnesss
mind. Head, 443 N.E.2d at 55. Likewise, one-on-one confrontations have been
found proper where circumstances rendered an alternative approach such as a lineup impossible.
Id. at 55-56.
In this case, we agree with Hubbell that the single person lineup was
unduly suggestive. We also find no exigent circumstances requiring this showup, which
occurred six hours after Young had seen the white van leaving the parking
lot. Wethington v. State, 560 N.E.2d 496, 502 (Ind. 1990) (showup two
hours after robbery was unduly suggestive). Thus, the pre-trial identification was erroneously
Where it is established that evidence of an out-of-court identification has been erroneously
admitted based on a finding that the confrontation procedure was impermissibly suggestive and
not otherwise justified based on the totality of the circumstances, the error may
nonetheless be harmless. A conviction will not be reversed if the State
can show beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained. Chapman v. California, 386 U.S. 18, 24
(1967), cited in Wethington, 560 N.E.2d at 502. Whether or not Young
could identify Hubbell conclusively, she did identify his van by license plate number
and also reported a driver of his general description. This, together with
the fiber and grass matches and Hubbells confession, renders any error in Youngs
VI. Brady Violations
Hubbell claims that his due process rights were violated by the States failure
to disclose exculpatory evidence and the trial courts failure to perform an in
camera review of all the evidence to look for additional exculpatory evidence.
A. Conservation Report
First, Hubbell contends that the State failed to produce a complete case report
by a conservation officer. The State produced a two-page case report in
response to Hubbells motion to produce. However, Hubbell later learned of the
existence of a fifteen-page report that contained an interview with a witness claiming
to see suspicious persons in the area where the body was found.
Hubbell had copies of this report at least ten months prior to trial.
Although not explicitly stated, it appears that Hubbell is contending that the States
actions violated Brady v. Maryland, 373 U.S. 83, 86-88 (1963), and its progeny.
There is no doubt that the State is required to disclose evidence
that is favorable to the accused and material to the accuseds guilt or
punishment. See Williams v. State, 714 N.E.2d 644, 648-49 (Ind. 1999), cert.
denied, 528 U.S. 1170 (2000). Evidence favorable to the accused includes impeaching
evidence. Id. at 649. In this case, however, the full conservation
report was discovered at least ten months prior to the actual trial.
Hubbell had adequate opportunity to investigate the witness and alter trial strategy accordingly.
Brady applies to the discovery of favorable evidence after trial. See
Lowrimore v. State, 728 N.E.2d 860, 866-67 (Ind. 2000); Williams, 714 N.E.2d at
648-49; accord Dye v. State, 717 N.E.2d 5, 12 (Ind. 1999), cert. denied,
531 U.S. 957 (2000)
Hubbell also contends that he was denied the opportunity to discover a report
detailing the exculpatory testimony of Marcus Yano. At trial, a witness testified
that Eddie Harrison, Hubbells candidate as the perpetrator of these crimes, had told
her he killed Myers. Harrison denied making the statement. Hubbell requested
the entire police file on Myers murder prior to his deposition of Detective
Dennis Knulf. Knulf appeared at his deposition with a summary report, which
the State refused to turn over to Hubbell. After trial, Yano came
to defense counsels office and signed an affidavit claiming that Harrison was in
the Arvin parking lot the morning Myers disappeared and that Knulf knew of
this. Hubbell now claims that the summary report contained information leading to
Yano and that he was denied the opportunity to discover this fact.
Hubbell learned of Yanos allegations on November 5, 1999, after the guilty verdict,
but before the sentencing hearing on December 3. He did not raise
this issue until January 19, 2000, when he filed an affidavit unaccompanied by
any motion. Although Indiana law has not been entirely clear on this
point, the procedural steps for raising a Brady issue are controlled by Criminal
Rule 16 and Trial Rules 59 and 61. A Brady violation is
almost always based on evidence that comes to light after trial. If
so, it is raised by a motion for a new trial based on
newly discovered evidence, or a motion to correct error. Pursuant to Criminal
Rule 16(A), the defendant must file a motion to correct error in order
to address newly discovered material evidence, including alleged jury misconduct, capable of production
within thirty (30) days of final judgment which, with reasonable diligence, could not
have been discovered and produced at trial. See also Ind. Trial Rule
59(A). A motion to correct error addressing newly discovered evidence is a
mandatory prerequisite for an appeal, and a failure to file such a motion
will result in a waiver of the issue unless the provisions of Trial
Rule 60(B)(2) for late discovered evidence apply.
4A Kenneth M. Stroud, Indiana
Practice § 4.1, at 44 (2d ed. 1990). Because Hubbell knew of
Yanos affidavit within thirty days after the judgment and failed to file a
motion to correct error, Hubbell has waived this issue.
Requiring a defendant to file a motion to correct error gives the trial
court an opportunity to rule on the issue and may avoid an unnecessary
appeal. Hubbells attempt to raise the issue on appeal without trial court
review, and without a hearing in the trial court, puts the appellate court
in the unenviable position of attempting to weigh credibility on an undeveloped paper
record. This is a task for the trial court. The trial
judge has the benefit of a detailed understanding of the other evidence in
the case and can best assess any potential prejudice as well as weigh
the credibility of claims of new evidence. For all these reasons, the
issue is not preserved on this record.
VII. Improper Transfers in Department of Corrections
Hubbell claims that he was denied both his right to be present at
important stages of the criminal proceedings and his right to counsel as a
result of his frequent transfers by the Department of Corrections.
See footnote On December 9,
1998, Hubbell was transferred, over his objection, to the Department of Corrections because
its medical facilities were better than those in the Bartholomew County Jail.
On August 11, 1999, Hubbell was transferred back to the jail pursuant to
his request. In the interim, Hubbell had spent time at the Plainfield,
Pendleton, and Michigan City correctional facilities. He claims these frequent moves made
it impossible for him to attend several court proceedings and impossible for his
attorney to contact him and discuss important decisions.
Although Hubbell has the right to be present at significant stages of the
criminal proceedings, he has not established that any hearings he missed, including the
one on July 14, 1999, were of critical importance to implicate the Confrontation
Clause. Even if the Confrontation Clause is not violated, the right to
be present may be guaranteed by the Due Process Clause of the Fourteenth
Amendment, which guarantees the defendant the right to be present in his own
person whenever his presence has a relation, reasonably substantial, to the fulness of
his opportunity to defend against the charge. . . . [T]he presence
of a defendant is a condition of due process to the extent that
a fair and just hearing would be thwarted by his absence, and to
that extent only.
United States v. Gagnon, 470 U.S. 522, 526 (1985)
(quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 107-08 (1934)). In sum,
a defendant is guaranteed the right to be present at any stage of
the criminal proceeding that is critical to its outcome if his presence would
contribute to the fairness of the procedure. Kentucky v. Stincer, 482 U.S.
730, 745 (1987).
The defendant has the burden of showing how his presence could contribute to
a more reliable determination of the fact at issue. If a defendant
can contribute or gain nothing from attending the proceeding, then his due process
right is not violated. Id.; see also Hovey v. Calderon, 1996 WL
400979, at *10 (N.D. Cal. July 10, 1996). Hubbell has not shown,
or attempted to show, how any of these proceedings were critical to the
outcome of the trial or how his presence would have contributed to the
fairness of the procedure. Stincer, 482 U.S. at 745. Accordingly, his
due process claim fails. Ridley v. State, 690 N.E.2d 177, 180-81 (Ind.
As for the right to counsel, there is no showing that the transfers
were made for the purpose of preventing Hubbell from conferring with counsel, or
from preparing his defense. Nor is there any showing, other than Hubbells
general allegations, that the transfers had this effect. There is therefore no
reversible error on this issue. See Nagy v. State, 505 N.E.2d 434,
436 (Ind. 1987); Hurley v. State, 446 N.E.2d 1326, 1331 (Ind. 1983).
VIII. Cumulative Error
As a final point, Hubbell suggests that even if each of the foregoing
individual errors was harmless, their cumulative effect requires reversal. The State responds
that a number of trial irregularities that do not amount to error standing
alone do not collectively amount to reversible error.
See Reaves v. State,
586 N.E.2d 847, 858 (Ind. 1992); Stonebraker v. State, 505 N.E.2d 55, 61
(Ind. 1987). Assuming, for the sake of argument, that under some circumstances
the cumulative effect of trial errors may warrant reversal even if each might
be deemed harmless in isolation, in this case it is clear in light
of the evidence of guilt that no prejudice resulted from any of the
erroneous rulings, individually or cumulatively. Thompson v. State, 728 N.E.2d 155, 163
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
The hyoid bone is a bone or complex of bones situated at
the base of the tongue and supporting the tongue and its muscles.
Merriam Websters Collegiate Dictionary 569 (10th ed. 1993).
The same is true of evidence of grass fragments found on the
underside of Hubbells van.
For the same reasons, any error in admitting Youngs in-court identification of
Hubbell was also harmless.
In his reply brief, Hubbell claims he was denied his Due Process
Rights based upon a pattern of conduct on the part of the State
and its agents that deprived Defendant of his ability to effectively discover relevant
and/or exculpatory evidence the State had in either its actual or constructive possession.
Brady violations are a species of due process violations and as such
are addressed above. To the extent Hubbell is making a separate claim,
he argues that the trial court erred by not reviewing all the evidence
in camera to determine whether Hubbell had access to all exculpatory, material evidence.
We find no authority requiring trial courts to perform such an extensive
task and are not inclined to order them to do so.
Trial Rule 60(B)(2) allows a party to file a motion for relief
from judgment within one year after the judgment for newly discovered evidence, which
by due diligence could not have been discovered in time to move for
a motion to correct errors under Rule 59.
Hubbell also contends that Indiana Code sections 35-33-11-1 and 2 were violated,
thus violating his due process rights. He has not alleged any specific
harm from a violation of these statutes, nor has he presented this Court
with any authority as to why a violation of these statutes should be
cause to vacate these convictions. See Parr v. State, 504 N.E.2d 1014,
1018 (Ind. 1987).