Jeffrey A. Modisett
K. C. Norwalk
Greenwood, IN Attorneys for Appellee
Attorney General of Indiana
Deputy Attorney General
Jeffrey A. Modisett
K. C. Norwalk
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
December 30, 1999
Defendant David Newson was convicted of Murder and Carrying a Handgun Without a License. He appeals, arguing (1) that the trial court committed reversible error when it
excluded certain testimony of a witness, and (2) that there was insufficient evidence to
support his convictions. Finding that the testimony was, in fact, not excluded and that the
evidence was sufficient, we affirm Defendant's convictions.
We have jurisdiction over this direct appeal because the longest single sentence
exceeds fifty years. Ind. Const. art. VII, § 4; Ind. Appellate Rule 4(A)(7).
As Defendant and the other man descended the small stairway, Cooks observed Defendant confront Ford. Defendant demanded ten dollars that Ford owed him. Ford
responded, No, I owe you five dollars. (R. at 275.) Defendant then struck Ford with his
fist and a melee ensued. A short distance away in her apartment, Chandler heard Ford
exclaim, Why are you doing this? (R. at 467.)
About this time, Cooks observed Defendant pull out a gun, point it at Ford's stomach
or chest area and begin shooting. As Chandler was opening up [her] door to tell them to
cool the noise down, she heard a gunshot. (R. at 487.) Through the open doorway,
Chandler could observe [Defendant] and Ford wrestling around, (R. at 467), but as Cooks
fled upstairs to Chandler's apartment, he blocked her view of the shooter.
Despite not wanting company moments earlier, Chandler let Cooks in, and he
proceeded to the kitchen window and observed Defendant still shooting Ford. Both Cooks
and Chandler saw Defendant and the other man leave the scene in a small silver or gray
automobile as Ford lay face down in front of the apartment.
Chandler phoned 911 and hung up.See footnote 1 The dispatcher called her back. Chandler told the dispatcher there had been a shooting. Cooks eventually went downstairs and flagged down the police officer. A blue bandanna similar to Defendant's was found at the scene with a cartridge casing underneath it.
We will recite additional facts as needed.
interchange took place in which Warren attempted to testify about a conversation that State
witness Cooks had with an unidentified third party. Cooks allegedly stated that he only
identified Defendant as the shooter to avoid potential prosecution for possessing drugs:
What did you hear Mr. Crooks say?
A: When the other _ when his friend, whoever he was, asked him what
happened down there, he said he didn't know what happened. You
know he said he was in the house. And uh, he said, oh, you was in the
house? And said, but I heard _ I heard that you supposed to been
testifying or whatever. And uh, he said, yeah, I only done that just to
keep me out of trouble because I had a pocket full of stones.[See footnote
] And uh,
MS. PITZER: Objection.
THE COURT: Okay. That is sustained.
MS. PITZER: I would move that that be stricken.
THE COURT: All right. The witness's narrative is stricken from the record. The jury is admonished to disregard that.
(R. at 712-13.)
If this were the end of Warren's testimony concerning what Cooks allegedly said, this
Court could would have no difficulty comprehending the issue as briefed both by Defendant
and the State _ that is, whether or not the trial court properly excluded this testimony.
However, this colloquy was only the opening act in Warren's direct testimony and cross-
examination, both of which were directed specifically at the issue of whether Cooks allegedly identified Defendant to avoid prosecution for possessing drugs. (R. at 708-24.) For
example, the following exchange occurred, without objection, as defense counsel tried to
resume her direct examination of Warren:
Q: What _
THE COURT: If you could try and avoid the narrative, Ms. Oakes.
MS. OAKES: I understand.
THE COURT: Do a more _ I guess a more traditional Direct.
MS. OAKES: Well, _
[Direct Examination Resumed]
You heard Mr. Crooks state that he had named [Defendant], or the
person he named, to keep himself out of trouble. Is that right?
A: Yes. 'Cause he thought they was gonna put it on him.
Q: He did state that also.
A: Yes, he did.
(R. at 713.)
By not objecting to this testimony, the State had just allowed defense counsel to
summarize and clearly restate Warren's just-previously-stricken and arguably incomprehensible testimony. If the jurors had any doubt about the content and purpose of Warren's
testimony, defense counsel clarified those issues.
After examining the record, it is clear that the trial court merely sustained an objection to the narrative form of Warren's testimony and then instructed defense counsel to conduct a more traditional Direct.See footnote 6 And as we have previously stated, the remainder of Warren's direct testimony (R. at 713-15) and the entirety of the State's cross examination (R. at 715-24) was solely devoted to the issue of developing (on direct) and discrediting (on cross) the events surrounding Cooks alleged conversation.See footnote 7 The Defendant suffered no prejudice because the evidence he claims was excluded was, in fact, not excluded.
This proposition is sometimes referred to as the incredible dubiosity rule. White
v. State, 706 N.E.2d 1078, 1079 (Ind. 1999) (citing Tillman v. State, 642 N.E.2d 221, 223
(Ind.1994)). Under this rule, a court will impinge on the jury's 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. Id. (internal
citations omitted). When a sole witness presents inherently improbable testimony and
there is a complete lack of circumstantial evidence, a defendant's conviction may be reversed. Id. However, application of this rule is limited to cases . . . where a sole witness
presents inherently contradictory testimony which is equivocal or the result of coercion and
there is a complete lack of circumstantial evidence of the [defendant's] guilt. Id. at 1079-
80 (emphasis added). Therefore, Defendant's reliance on this rule is misplaced.
In this case, there was both an eyewitness and a corroborating witness. Cooks testified that he witnessed Defendant approach Darryl Ford and state that Ford owed him ten dollars. Cooks also testified that an argument and fight ensued, resulting in Defendant
shooting Ford at least four times. Ford died as a result of this gunfire.
Cooks's testimony identifying Defendant as the killer was corroborated by Chandler. Chandler testified that before the shooting, Defendant had stopped by her apartment but left after he was told that she wanted no visitors. Soon thereafter, Chandler saw Defendant and Ford arguing and fighting. Chandler then heard gunshots and observed Ford lying face down on the ground with Defendant driving away.
After considering all the evidence most favorable to the verdict as well as drawing all reasonable inferences therefrom, we find the jury could have reasonably concluded that Defendant killed Ford.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
Q: And, let me ask you if you heard this. Did you ever hear Rosezina Chandler
say that she put this on the defendant, Davis Newson, so she wouldn't get in
A: No, I didn't.
(R. at 724.)