Dickens v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Philip R. Skodinski Karen M. Freeman-Wilson

South Bend, Indiana Attorney General of Indiana

Arthur Thaddeus Perry

Deputy Attorney General

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

Gregory dickens, jr., )

)

Appellant (Defendant Below), )

)

v. ) No. 71S00-9911-CR-00646

)

STATE OF INDIANA, )

)

Appellee (Plaintiff Below). )

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT

The Honorable William H. Albright, Judge

Cause No. 71D01-9708-CF-00375

August 28, 2001

Appellant Gregory Dickens appeals his conviction for murder and

sentence of life without parole for shooting a police officer. He presents

six issues:

I. Whether admitting evidence that he possessed a handgun two days

before the crime violated Rule 404(b);

II. Whether he was forced to testify in violation of his Fifth

Amendment rights when the trial court restricted evidence about

another suspect;

III. Whether the admission of a photograph of him was unfairly

prejudicial;

IV. Whether the trial court improperly allowed opinion testimony;

V. Whether statements of identification retold by the police

constituted improper hearsay; and

VI. Whether the State’s peremptory strikes against African-Americans

were racially motivated in violation of Dickens’ Equal

Protection rights.

Facts and Procedural History

On August 24, 1997, sixteen-year-old Dickens was riding bikes with

Quinton Price, known as “Paulie.” While patrolling the area, Officer Scott

Hanley advised Corporal Paul Deguch by radio that Dickens was riding a

valuable bicycle that he suspected was stolen. Later on that evening,

Deguch spotted Dickens and Paulie and approached them in his patrol car.

Paulie rode off, while Dickens rode up to the nearest house, 1024 Talbot

Street, alighted from the bike, and went up on the porch. Deguch shined

his spotlight onto the porch, exited his car, and followed Dickens onto the

porch as Dickens was knocking on the door. Dickens shot Corporal Deguch in

his head and shoulder and killed him.

The State charged Dickens with murder and sought the death penalty

because the victim was a law enforcement officer. A jury found Dickens

guilty, and recommended life imprisonment without parole, which the trial

court imposed.

Evidence of Handgun Possession

Dickens argues that the testimony that he possessed a gun two days

before the shooting violated the prohibition in Rule 404(b)[1] against

evidence of prior bad acts. He contends that no exception applies and that

evidence of a propensity to carry a gun is unfairly prejudicial.

Rule 404(b) protects against conviction based on past actions (the “so

called ‘forbidden inference,’” Hicks v. State, 690 N.E.2d 215, 218-19 (Ind.

1997)), rather than facts relevant to the matter at issue. While prior

acts are not permissible to show propensity, they may be allowed for other

purposes. Rule 404(b) lists some other purposes, but this list is

illustrative only. Hardin v. State, 611 N.E.2d 123, 129 (Ind. 1993). In

fact, “extrinsic act evidence may be admitted for any purpose not specified

in Rule 404(b) unless precluded by the first sentence of Rule 404(b) or any

other Rule.” Thompson v. State, 690 N.E.2d 224, 233 (Ind. 1997)(citing

Hardin, 611 N.E.2d at 129); see generally 12 Robert Lowell Miller Jr.,

Indiana Evidence § 404.235 (2d ed. 1995 & Supp. 2000).

When evidence is challenged under Rule 404(b), the trial court should

determine: (1) whether the evidence is relevant to a matter at issue

rather than just the defendant’s propensity to commit the crime and (2)

whether the probative value outweighs the prejudicial effect. Hicks, 690

N.E.2d at 221. We review the trial court ruling for an abuse of

discretion. Id. at 223.

Here, the evidence that Dickens was seen carrying a gun on his person

just two days before the shooting was relevant. The shooting took place on

an empty porch where Dickens was unlikely to have found a gun. Dickens’

recent act of carrying a gun therefore goes to opportunity. The trial

court did not err in concluding that the probative value of this evidence

outweighed its prejudicial effect.

Evidence of Another Suspect

The trial court granted the State’s motion in limine to restrict the

defense from introducing evidence of another suspect, Shawn Bailey, without

first presenting direct evidence.[2]

Despite the ruling, defense counsel sought to cross-examine an

investigating officer about another suspect during the State’s case-in-

chief. The court sustained an objection. The defense later put Dickens on

the stand, and he testified that Shawn Bailey was the shooter. Dickens

claims that the trial court’s rulings impinged on his Fifth Amendment right

to not testify.[3]

Evidence which tends to show that someone else committed the crime

makes it less probable that the defendant committed the crime and is

therefore relevant under Rule 401. Joyner v. State, 678 N.E.2d 386, 389

(Ind. 1997). We review admissibility determinations for an abuse of

discretion. Id. at 390.

In Joyner, the evidence regarding the other suspect included a hair

sample and testimony from witnesses that placed the murder victim and

defendant alive and in different places after the alleged crime. Id. at

389. Here, the evidence regarding Shawn Bailey is far more tenuous.[4]

Dickens claims this evidence indicates that two people were on the porch

that night (i.e. himself and Shawn Bailey). (Appellant’s Br. at 19.)

Furthermore, the police initially considered Bailey a suspect (R. at 3432-

33), although they did not have any actual evidence that Bailey was the

shooter.

The trial court was warranted in concluding that these facts do not

make it less probable that Dickens committed the crime. Under the Joyner

analysis, the evidence was properly kept out until after the State’s case-

in-chief.

Likewise, the trial court did not violate Dickens’ Fifth Amendment

rights when it decided that if Dickens had evidence of Bailey’s involvement

he should provide it himself. The defense chose to bring out the

information regarding Bailey as a suspect during its own case-in-chief

through testimony of officers as well as from Dickens. We think the

defendant’s decision to testify and attempt to cast Shawn Bailey as the

shooter was not “compelled” within the meaning of the Fifth Amendment.

Photograph Claim Waived

Dickens claims the trial court erred in admitting a photograph of

Dickens and a friend making alleged gang signs, stating that it was

unfairly prejudicial. (Appellant’s Br. at 20; R. at 3919 (State’s Exh.

64A).) Dickens’ attorney objected to the photograph as duplicative,

without any mention of unfair prejudice. (R. at 2919.) “A party may not

object on one ground at trial and raise a different ground on appeal.”

Brown v. State, 728 N.E.2d 876, 878 (Ind. 2000). This issue is waived.

Opinion Testimony

Dickens claims that the court erred in permitting Detective Michael

Samp to give an opinion about which witnesses were in a better position to

observe the crime. Indiana Evidence Rule 701(a) requires that opinion

testimony of a lay witness[5] be “rationally based on [his] perception,”

meaning “simply that the opinion must be one that a reasonable person

normally could form from the perceived facts.” O’Neal v. State, 716 N.E.2d

82, 89 (Ind. Ct. App. 1999) (citing 13B Robert Lowell Miller, Jr., Indiana

Evidence 196 (1996)).

Detective Samp was present at the crime scene following the shooting.

He later learned of the locations of the neighbors who witnessed the

shooting. The detective’s first-hand familiarity with the crime scene as

well as his knowledge concerning the location of the witnesses make his

opinion “rationally based on [his] perception.” Evid. R. 701(a).

For that matter, the witnesses themselves all testified as to their

location. If there was any error in allowing Detective Samp’s opinion, it

was harmless, because the jury had sufficient information to determine

independently who had the best view of the crime.

Hearsay Claim

Dickens urges that witnesses’ statements of identification presented

by police officers and on videotape were inadmissible hearsay.

(Appellant’s Br. at 22.) The State points out that some statements of

identification are not hearsay, by definition. Ind. Evid. R. 801(d).

Statements of identification are not hearsay if they are made shortly after

perceiving the person,[6] and the declarant is available for cross-

examination concerning the statement at trial. Id. at 801(d)(1)(C); see

also Gates v. State, 702 N.E.2d 1076, 1077 (Ind. 1998); Robinson v. State,

682 N.E.2d 806, 810 (Ind. Ct. App. 1997). Here, all the statements

qualified as statements of identification and all the declarants were

available at trial for cross-examination. The statements therefore are not

hearsay.

Discriminatory Juror Strikes

There were no African-Americans on Dickens’ jury. During jury

selection, the State used two peremptory strikes against African-Americans.

Another African-American was dismissed for cause at the defense’s request.

A fourth African-American served as the first alternate juror.

Dickens challenges the State’s two peremptory strikes as being

racially motivated. Batson v. Kentucky, 476 U.S. 79 (1986). “Peremptory

strikes are improper when used to exclude potential jurors from serving

solely because of race.” Williams v. State, 700 N.E.2d 784, 786 (Ind.

1996). Such claims are analyzed like this:

To establish a prima facie case of racial discrimination in the use of

peremptory challenges, a defendant must first show the trial court:

(1) that the prosecutor used peremptory strikes to remove members of a

cognizable racial group from the jury pool; and (2) that the facts and

circumstances raise an inference that the prosecutor used those

strikes to exclude potential jury members from the jury because of

their race. Once the defendant establishes a prima facie case, the

burden of production shifts to the State to tender a race-neutral

explanation.

Id. (citations omitted).

During jury selection, Dickens first challenged the prosecutor’s

peremptory strike of Ms. Dixon. The prosecutor disagreed that he needed to

state racially-neutral reasons for the strike before Dickens established a

prima facie case. Nonetheless, he explained that he was concerned about

Dixon’s ability to follow the law concerning the death penalty[7] and her

ability to understand technical evidence.[8]

The second challenged strike was of Mr. Warburton-Brown. The

prosecutor explained that Warburton-Brown knew a police officer who was a

witness; that his license had been suspended because of a false driver’s

application; that he had a record of charges for unlawful use of a weapon

and deceptive practices; and that he did volunteer work by giving legal,

economic, and social advice to youth.[9] The prosecutor also stated a

vague concern regarding Warburton-Brown’s involvement with international

studies and Amnesty International’s position against the death penalty.

The prosecutor later also said the State was concerned that Warburton-Brown

had expressed that he felt the judicial system was unfair towards

economically disadvantaged individuals.

Dickens challenges the validity of these reasons at some length.

(Appellant’s Br. at 26-31.)[10] “Unless a discriminatory intent is

inherent in the prosecutor’s explanation, the reason offered will be deemed

race neutral.” Williams, 700 N.E.2d at 786 (quoting Purkett v. Elem, 514

U.S. 765, 767 (1995)). The trial court found the reasons to be

sufficiently race neutral. “We will uphold the trial court’s decision on

the matter of discriminatory intent unless the decision is clearly

erroneous.” Williams, 700 N.E.2d at 786 (citing Kent v. State, 675 N.E.2d

332, 340 (Ind. 1996); Lee v. State, 689 N.E.2d 435, 441 (Ind.1997)). We

find no clear error.

Conclusion

We affirm.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

-----------------------

[1] Indiana Evidence Rule 404(b) states,

Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as

proof of motive, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident . . . .

[2] The court recognized that Dickens’ own testimony would create direct

evidence. (R. at 2825.)

[3] Dickens also claimed the trial court denied him his Sixth Amendment

right to confront and cross-examine witnesses by granting the motion in

limine. (Appellant’s Br. at 18.) However, Dickens fails to develop this

argument. Under Ind. Appellate Rule 8.3(A)(7), this claim is waived.

[4] Two witnesses saw Dickens fleeing in one direction, a third witness

claimed that Dickens ran the opposite direction. (R. at 3442-43.)

[5] Detective Samp was not qualified as an expert witness. (Appellant’s

Br. at 21.)

[6] “[T]he term ‘shortly’ is relative rather than precise;” the purpose of

the rule is assuring reliability. Robinson, 682 N.E.2d at 811.

[7] Ms. Dixon said that it would be difficult for her to choose the death

penalty and that she would have to pray to God to do it. (R. at 2294.)

[8] Ms. Dixon failed to complete her questionnaire completely and made a

spelling error. (R. at 2294.)

[9] The prosecutor was concerned that Warburton-Brown would be a “street

lawyer” back in the jury room. Additionally he was concerned that he

assists youth similar in age to Dickens. (R. at 2365-66.)

[10] At trial, Dickens’ lawyer suggested that the State ran only selective

background checks aimed at black members of the venire, (Supp. R. at 42),

but he did not offer evidence to support that contention and does not raise

it on appeal.