Brown v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Katherine A. Cornelius Karen M. Freeman-Wilson

Indianapolis, Indiana Attorney General of Indiana

Nandita G. Shepherd

Deputy Attorney General

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

DWAYNE BROWN, )

)

Appellant (Defendant Below), )

)

v. ) No. 49S00-0002-CR-93

)

STATE OF INDIANA, )

)

Appellee (Plaintiff Below). )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Robyn Moberly, Judge

Cause No. 49G02-9808-CF-136998

April 17, 2001

SHEPARD, Chief Justice.

Appellant Dwayne Brown killed Morris Moore to prevent him from

testifying against Brown’s sister, who was about to be tried for murder.

Brown says it was error to admit evidence during his trial about his

sister’s murder charge and subsequent guilty plea. He also claims that

certain comments by the prosecutor and judge during closing arguments

denied him a fair trial. We affirm.

Facts and Procedural History

On August 14, 1998, Daniel Riddell was driving around an eastside

Indianapolis apartment complex in a borrowed car, looking for his own

stolen car. He passed Morris Moore, who momentarily obstructed the street

while backing a car into a parking space. After Riddell went by and was

turning around, he heard several explosive sounds. When he again drove

past Moore’s car ten to twenty seconds later, he saw Brown standing over

the car, reaching into the open driver’s window with his right arm as if to

grab the gearshift.

The car, now appearing unoccupied, started to roll. Riddell had an

unobstructed view of Brown’s face from a distance of thirty feet or less.

The two “locked eyes,” then Brown fled. (R. at 213, 216-17.)

Another witness heard gunshots, came outside, and saw the car rolling

to a stop. She found the wounded Moore sprawled across the front seat, and

tried unsuccessfully to revive him. Moore died of multiple gunshot wounds.

The day after the murder, Riddell viewed a six-person photo array but

did not recognize anyone as the man outside the car. Two days later, he

viewed another array and positively identified Brown. He reconfirmed the

identification at trial.

Brown knew at the time of the shooting that Moore had implicated

Brown’s sister,[1] Henri Tunstall, in a murder. (R. at 487, 489, 491.)

Brown pled an alibi, but his witnesses contradicted each other. The

shooting occurred shortly before 3 p.m., across town from where Brown lived

with his girlfriend. Brown’s neighbor said that Brown was at the

neighbor’s house from about 3:15 that afternoon until about 6:30 that

evening. (R. at 745, 754.) Brown’s girlfriend said that neither she nor

Brown left their house between 3:15 and 6:30. (R. at 802, 817, 819, 822.)

The girlfriend’s mother testified that she and her daughter went out

shopping at 4:15 that afternoon. (R. at 882-83, 889-90.)

A jury found Brown guilty of murder and of carrying a handgun without

a license.[2] The court sentenced Brown to sixty-five years on the murder

count only.

I. Evidence About Henri Tunstall’s Case

The State sought to establish that Brown killed Moore to prevent him

from testifying at Tunstall’s murder trial. To do so, the prosecutor

called to the stand the police officer who took Brown’s voluntary statement

on August 18, 1998, and played an audiotape of that statement.

In the statement, Brown admitted that in early August 1998 he saw a

probable cause affidavit naming Morris Moore as an eyewitness to Tunstall’s

July 14th shooting of John Schaefer. Brown claimed that he did not

recognize the witness’ name when he saw it on the affidavit because he knew

Moore then only as “Marquise.”[3] Brown also stated that he was present

when Schaefer was shot and that “Marquise,” not Tunstall, was the shooter.

During cross-examination, the defense sought to establish that it is not

unusual to know someone by a nickname. To make this point, defense counsel

elicited testimony from the police officer that Moore also went by the

nickname “Q.”

The gist of this defense was: “There was no reason for me to kill

this man because I knew him as ‘Marquise’ or ‘Q’ and believed the witness

against my sister was someone named Moore.”

The prosecutor responded by calling Tunstall’s attorney, who

confirmed that on July 30, 1998, he gave Brown and other family members

copies of Tunstall’s charging information and probable cause affidavit.

The prosecutor offered both into evidence. The information listed Moore as

a State’s witness and the affidavit said that Moore was also known as “Q.”

The defense then obtained Tunstall’s attorney’s testimony that Brown

had been a potential witness on his sister’s behalf. Brown’s arrest,

however, made him effectively unavailable in Tunstall’s case. This seemed

to imply that the police really arrested Brown to prevent him from

testifying for his sister, rather than because they thought he killed

Moore.

The prosecutor countered this implication by establishing that after

Brown’s arrest, Tunstall admitted that she shot Schaefer and pled guilty to

involuntary manslaughter. Tunstall’s attorney said that Brown’s

unavailability was not a major factor in Tunstall’s decision to plead.

Defense counsel then sought to show that Tunstall’s plea did not

necessarily prove that she, not Morris, shot Schaefer. He was thwarted

when Tunstall’s attorney asserted attorney-client privilege and said he

would advise Tunstall not to testify. At the defense’s request, the court

admonished the jury not to consider Tunstall’s guilty plea as substantive

evidence in Brown’s trial.

A. The Motive Evidence. Brown first argues that evidence of the

murder charge against Tunstall should have been excluded as unfairly

prejudicial. (Appellant’s Br. at 9-14.) Relevant evidence is admissible

unless its probative value is substantially outweighed by the danger of

unfair prejudice. Ind. Evidence Rule 403. A trial court has wide

discretion to admit evidence that tends to prove the defendant’s motive.

Harris v. State, 644 N.E.2d 553 (Ind. 1994) (evidence that murder defendant

had expressed his desire to learn how it felt to kill was properly

admitted) (citing Cornelius v. State, 425 N.E.2d 616 (Ind. 1981)).

Here, the motive evidence was highly probative of Brown’s interest in

permanently silencing Moore. The court acted within its discretion in

allowing evidence that Brown knew that his victim was a key State’s witness

to a murder committed by Brown’s sister.

B. The Probable Cause Affidavit and Charging Information. Brown

next argues that the charging information and probable cause affidavit in

his sister’s case contained irrelevant, gruesome specifics and should have

been excluded to avoid guilt by association. (Appellant’s Br. at 14-15.)

We agree that certain information in those documents (such as a reference

to Tunstall’s criminal record and the specifics of how the shooting

occurred) went beyond the details necessary to establish motive. With

hindsight, the more prudent course would have been to redact the extraneous

information, or allow the parties to stipulate to the relevant facts.

Errors of this sort do not warrant reversal, however, unless the

defendant can show prejudice. Guajardo v. State, 496 N.E.2d 1300 (Ind.

1986). In Guajardo, the State introduced a probable cause affidavit and

search warrant into evidence because the defendant challenged the warrant’s

adequacy. Id. Although the documents were relevant only to matters

determinable by the court, they were shown to the jury. Id. We recognized

that such documents often contain highly prejudicial statements, but looked

to strong identification testimony in concluding that the error was

harmless. Id.

Although the documents at issue here related to a different crime and

a different defendant, the risk that irrelevant information will prejudice

the defendant is similar. We therefore apply a similar harmless error

analysis.

Brown’s claim of prejudice consists entirely of speculation that he

was a victim of guilt by association with his sister. The State, on the

other hand, presented a strong case. The evidence showed that Brown had

reason to want Moore dead. An impartial witness unequivocally identified

Brown and described Brown’s presence and activity at the murder scene.

Brown’s alibi witnesses told conflicting stories. We therefore conclude,

as in Guajardo, that any error arising from the jury’s exposure to

irrelevant information on Tunstall’s charging information and probable

cause affidavit was harmless.

C. Tunstall’s Guilty Plea. Brown argues that the defense did not

open the door to testimony by Tunstall’s attorney that Tunstall pled guilty

to involuntary manslaughter. (Appellant’s Br. at 16-19.) A review of the

events at trial shows otherwise. A prosecutor may respond to inferences

raised by the defense, even if that response would otherwise be

objectionable. Harris, 644 N.E.2d at 554 (citing Lopez v. State, 527

N.E.2d 1119, 1126 (1988)). The defense suggested that Brown was actually

arrested so that he could not serve as a witness for his sister. The

prosecutor was entitled to counter as he did, by showing that Tunstall

herself admitted killing Schaefer, and that Brown’s arrest was not a

significant factor in Tunstall’s decision to plead guilty.

D. Rebutting Tunstall’s Guilty Plea. Regardless of whether his

attorney opened the door on this issue, Brown complains that he was

unfairly denied the opportunity to quiz Tunstall’s lawyer about whether she

was innocent even though she pled guilty. (Appellant’s Br. at 20-22.) He

argues that his attorney was improperly prevented from asking questions in

the jury’s presence that were reasonably likely to prompt a claim of

attorney-client privilege. (Id.)

He is incorrect. Indiana Evidence Rule 501(d)(2) plainly says: “In

jury cases, proceedings shall be conducted, to the extent practicable, so

as to facilitate the making of claims of privilege without the knowledge of

the jury.”

Tunstall had not yet been sentenced when her attorney took the stand

in Brown’s case, and Brown does not dispute that her attorney properly

invoked privilege. (R. at 676-77, Appellant’s Br. at 20.) The court

followed the rules of evidence when it ordered defense counsel not to ask

questions likely to produce a legitimate claim of privilege in the jury’s

presence. (R. at 692.)

Brown claims that this ruling caused the jury to be misled and

prejudiced by partial information. (Appellant’s Reply Br. at 2.) This

assumes the jury would have been better informed by hearing questions go

unanswered. Brown cries foul because he could not imply, without proving,

that his sister perjured herself when she admitted in open court that she

shot Schaefer. His claim is baseless.

II. Closing Arguments

Brown argues that certain statements by the prosecutor during closing

argument, and one comment by the trial judge, denied him a fair trial.

(Appellant’s Br. at 32.)

Defense counsel implied in closing that law enforcement officials

ignored or actively concealed potentially exculpatory information, stating:

We have a bunch of people out there on that day and all we can hear

from is Mr. Riddell and [the witness who attempted to revive Moore].

Where are all these other people? I mean, they’re the ones who gave

me these crossed out reports, where are they.[4] How come they treat

my witnesses, law enforcement treats my witnesses different than their

witnesses?

(R. at 932.) The prosecutor argued in rebuttal:

It’s the job of the prosecutor to tell you what the elements of the

crime are. Direct evidence, the evidence that came from here, sworn

testimony. You all took an oath that you would base your decision on

sworn testimony saw here, and not statements and people that didn’t

come here, and not the unsworn testimony of defense counsel trying to

throw other things in here. Our job is similar to being on the road,

folks. We simply ask you to listen to the evidence, hear the elements

and evaluate it. Here’s the road, here are the elements of the crime,

does the evidence match that. The role of the defense counsel is to

get you off that road however they can. If they can. . .

(R. at 939-40.) Defense counsel interrupted with an objection, which the

trial judge overruled by saying “His argument is exactly appropriate.” (R.

at 940.) The prosecutor continued:

Do not be confused or feel sorry, or in any way ignore this evidence

because the defense suggests to you, oh, we weren’t treated fairly. I

am absolutely incensed that [defense counsel] suggests to you that

evidence was withheld from him and hidden from him. In October of

1998, [defense counsel] had all the addresses for these people. He

had an opportunity to interview any witness that he wanted to . . . .

This defense counsel suggests to you, not under oath, not taking the

stand, that this is what you should know. And yet you know from the

evidence that he took statements from Daniel Riddell in October of

1998. He took statements from Detective Martinez in 1998. He wants

you to think that there is something unfair about initially blocking

out addresses. Why do we block out addresses? Because we don’t

[want] witness information being given out because we don’t want

people like this going out and killing our witnesses.

(R. at 941-42.) Defense counsel objected, and moved for a mistrial. The

court overruled the objection and denied the motion.

The prosecutor resumed, with defense counsel continuing to interject

objections. The court finally ordered defense counsel to sit down, so the

prosecutor concluded without further interruption. Brown’s final challenge

is to the following statement:

What does that tell you about defense counsel’s role here? He is

doing his job. He is an experienced person, but he knows what he is

doing, folks, and he is trying to get you off the elements of the

crime.

(R. at 948.)

A. Prosecutorial Misconduct. Brown argues that “[t]hese attacks

on defense counsel denied [him] a fair deliberation and verdict.”

(Appellant’s Br. at 33.) He says the comments quoted above

mischaracterized the roles of the prosecutor and defense. (Appellant’s Br.

at 34.)

We begin evaluating claims of prosecutorial misconduct by asking

whether misconduct in fact occurred. Maldonado v. State, 265 Ind. 492,

498, 355 N.E.2d 843, 848 (1976). If so, we consider whether the misconduct

placed the defendant in a position of grave peril. Id. We assess grave

peril based on the probable persuasive effect of the misconduct on the

jury’s decision, not on the degree of impropriety. 265 Ind. at 499, 355

N.E.2d at 848. An isolated instance that does not rise to the level of

grave peril by itself may become grave peril if repetition evidences a

deliberate attempt to improperly prejudice the defendant. Id.

All attorneys are officers of the legal system and have a duty of

candor toward tribunals. Coy v. State, 720 N.E.2d 370, 373 (Ind. 1999);

Ind. Professional Conduct Rule 3.3 and Preamble. We hold prosecutors to an

even higher standard of conduct. The Comment to Indiana Professional

Conduct Rule 3.8 says: “A prosecutor has the responsibility of a minister

of justice and not simply that of an advocate.” Defense counsel frequently

embrace this differential in duty.[5] As a leading criminal defense lawyer

has asserted, “[D]efense counsel has a different agenda that is inherent in

the adversary system itself.” Albert J. Krieger, Friendly Fire and

Casualties of the War On Crime, 30 Loy. L.A. L. Rev. 49, 53 (1996).

Still, despite this actual difference in the ethical obligations of

opposing counsel, we have concluded that permitting the combatants to play

on these differences in front of a jury may jeopardize fairness in criminal

trials. In Miller v. State, 623 N.E.2d 403, 408 (Ind. 1993), we therefore

disapproved of the prosecutorial tactic of reading from Justice White’s

concurrence and dissent in United States v. Wade, 388 U.S. 218, 256-58

(1967) (“Law enforcement officers . . . must be dedicated to making the

criminal trial a procedure for the ascertainment of the true facts”;

defense counsel’s role may require conduct that “in many instances has

little, if any, relation to the search for truth.”).

In Coy, we emphasized the need for limits on the extent to which

prosecutors may portray themselves as seekers of truth while denigrating

the role of defense attorneys. 720 N.E.2d at 373. We also acknowledged

the key role of the judicial officer on the scene, saying: “Which

[statements] represent fair or harmless techniques and which are abusive is

a call best placed in the hands of trial judges.” Id.

Here, the prosecutor was certainly entitled to respond to defense

counsel’s accusation in closing argument that the State had overlooked or

even covered up evidence that could vindicate Brown. It is not so apparent

that the prosecutor’s remarks crossed the line into misconduct that we can

say the trial judge abused her discretion.[6]

B. The Judge’s Ruling. Brown argues that the judge violated her

duty of impartiality when she overruled a defense objection by saying:

“His argument is exactly appropriate.”

Judges require broad latitude to run their courtrooms and to maintain

discipline and control. Timberlake v. State, 690 N.E.2d 243, 256 (Ind.

1997) (citing Dixon v. State, 154 Ind. App. 603, 290 N.E.2d 731 (1972)). A

defendant asserting judicial bias must show that the trial judge’s actions

and demeanor showed partiality and prejudiced his case. Timberlake, 690

N.E.2d at 256 (citing McCord v. State, 622 N.E.2d 504, 511 (Ind. 1993)).

Brown complains about the style of a single ruling, in effect arguing

that the trial judge was too emphatic. Had she said instead, “I think it’s

an appropriate comment, so I’ll overrule the objection,” there would be

little doubt about her impartiality. As it is, her choice of words did not

display the sort of partiality that would warrant a reversal.

Conclusion

We affirm the judgment of the trial court.

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

Boehm, J., concurs in result.

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

[1] Although other testimony indicated that Tunstall was Brown’s half-

sister, (R. at 547), Brown referred to her in his statement to the police

as his sister, (R. at 491).

[2] Brown waived a jury trial on enhancement of the handgun offense from

class A misdemeanor to class C felony status based on a prior offense, and

the court found him guilty.

[3] On the other hand, there was evidence that Brown knew Moore reasonably

well, having shared an apartment with him for three months the previous

summer. (R. at 496-97.)

[4] This referred to the fact that the State redacted addresses and

telephone numbers when it originally provided a witness list, in accordance

with local court rules. (R. at 941-42.)

[5] Here, defense counsel acknowledged this difference even prior to

closing arguments, by asking Tunstall’s attorney: “And that is the role of

the defense attorney, is to make the best argument they can. Correct?”

(R. at 710.) The answer: “Defense attorney is to represent his client as

zealously and as professionally as he’s capable,” to which Brown’s lawyer

responded, “Right.” (Id.)

[6] In any event, the evidence against Brown (summarized above) was so

formidable that the remarks did not place him in grave peril. See Scherer

v. State, 563 N.E.2d 584, 586-87 (Ind. 1990) (no grave peril created by

prosecutor’s closing argument statements “someone is trying to snow you”

and “you are snowed under and you have to try to dig yourself out” where

evidence was overwhelming).