“Although there may be strategic reasons to not reveal to the jury that D.S. had been given use immunity, trial counsel testified at the post- conviction hearing that he had no strategic reason for not informing the jury of the use immunity and recognized it would be a good defense strategy to inform the jury.”
How later courts described this case
- “Although there may be strategic reasons to not reveal to the jury that D.S. had been given use immunity, trial counsel testified at the post- conviction hearing that he had no strategic reason for not informing the jury of the use immunity and recognized it would be a good defense strategy to inform the jury.”
Written by the judges who cited it.
The opinion
ROBB, Judge,
concurring with separate opinion.
I concur in the majority's opinion on rehearing, but write separately to address an additional area of concern: the State's calling of a witness it expected to give perjured testimony.
Even before reaching the question of whether J.J.'s counsel was ineffective for failing to inform the jury that D.S. was testifying pursuant to a grant of use immunity, I would note that J.J.'s counsel should have objected to the State calling D.S. at all. As noted by the majority, during the State's opening statement, the prosecutor said, "You're going to hear from [D.S.] and I tell you right now [D.S.] is going to sit there and he is going to ... he is going to lie and lie and lie. And he's going to lie when he's confronted with the truth." Record of Proceedings at 74. During closing arguments, the State said, "LD.S.] sat right there yesterday and [we] took his deposition.... [HJe professed to *253 us yesterday that he didn't know that [J.J.] was going to commit a burglary. And he just wasn't truthful.... And he was certainly more candid today when he testified. . .." Id. at 185-86.
Indiana Evidence Rule 607 provides that "Itlhe credibility of a witness may be attacked by any party, including the party calling the witness." However, Indiana Code section 34-45-4-1 provides that except in certain cireumstances, "the party producing a witness shall not be allowed to impeach the credibility of the witness by evidence of bad character." Ind.Code § 34-45-4-1(a). In other words, "a party is forbidden from placing a witness on the stand when the party's sole purpose in doing so is to present otherwise inadmissible evidence cloaked as impeachment." Appleton v. State, 740 N.E.2d 122, 125 (Ind.2001). This has long been the rule in Indiana. In Slayton v. State, 481 N.E.2d 1300 (Ind.1985), our supreme court quoted a case from 1892, in which the court stated: "The rules of practice will not permit a party to call a witness closely connected with the [adversary] cause, and from whom he has [no] reason to expect favorable testimony, [and] then to assail the character of the witness by impeachment." Id. at 1303 (quoting Diffenderfer v. Scott, 5 Ind.App. 243 , 32 N.E. 87, 89 (1892)). To determine whether the rule allowing impeachment of one's own witness has been abused, we consider whether the party examined the witness for the primary purpose of placing before the jury otherwise inadmissible evidence. Julian v. State, 811 N.E.2d 392, 397 (Ind.Ct.App.2004), trans. denied.
In this case, the State did not actually impeach D.S. during D.S's testimony. However, it is clear from the State's comments during the hearing on its petition to grant D.S. use immunity and from its opening statement and closing argument that it fully expected and intended to impeach D.S. from the moment it called him to the stand and it was only D.S.'s unexpected truthful testimony that kept the State from doing so. In discussing with the court its petition for use immunity for D.S. prior to the beginning of the trial, the State said:
I would represent to the Court the testimony that I'm going to put on I don't believe ... actually, I'm not ... I'm not one hundred percent sure what to believe and what not to believe. I believe a good part of it is impeachable. I believe a good part of it is probably not true. And I would submit to the Court that I won't be presenting it as ... I won't be submitting to the jury that they should rely on all this boy's testimony to be true. But there are parts of his testimony that do fit into a circumstantial puzzle that make my case.
Record of Proceedings at 54. The State informed the jury during its opening statement that D.S. was a liar, and expressed during closing argument that D.S.'s testimony was "candid," but not what it had expected when it called him to the stand. The State should never have been allowed to call D.S. to the stand with the stated intention to impeach his expected testimony, and J.J.'s counsel was ineffective for failing to object to the State doing so.
With that addition, I agree with the majority's analysis of J.J.'s counsel's failure to ensure that the jury was informed that D.S. had been granted use immunity for his testimony, and therefore concur in the majority's opinion.