Stephenson v. State

Attorneys for Appellant

Brent Westerfield

Indianapolis, IN

Janet S. Dowling

Albuquerque, NM

Attorneys for Appellee

Jeffrey A. Modisett

Attorney General of Indiana

Michael A. Hurst

Deputy Attorney General

Indianapolis, IN

IN THE

INDIANA SUPREME COURT

JOHN M. STEPHENSON,

Appellant (Defendant below),

v.

STATE OF INDIANA,

Appellee (Plaintiff below).

)

) Supreme Court No.

) 87S00-9605-DP-398

)

)

)

)

)

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APPEAL FROM THE WARRICK SUPERIOR COURT

The Honorable Edward A. Campbell, Judge

Cause No. 87D01-9604-CF-23

ON DIRECT APPEAL

January 25, 2001

SULLIVAN, Justice.

After an eight-month jury trial with a record of proceedings covering

33,000 pages, Defendant John Matthew Stephenson was convicted of three

murders and sentenced to death. He now appeals his convictions and

sentences, arguing the evidence was insufficient to support the

convictions, the trial court committed reversible error in several

respects, and the death sentence was not appropriate. We find the testimony

of the State’s two key witnesses and additional circumstantial evidence

sufficient to support the convictions. For the reasons set forth in this

opinion, we reject Defendant’s claims that the trial court both improperly

allowed certain hearsay, opinion, prior misconduct evidence, and

photographic evidence and improperly refused evidence of a State’s

witness’s criminal history. We also analyze and reject Defendant’s claims

that his convictions and sentence should be reversed because of alleged

juror misconduct in compiling notes on a home computer, prosecutorial

misconduct in several respects, violations of his right to a speedy trial,

and three violations of his right to be present at all critical stages of

the proceedings. Lastly, we review his challenge to the propriety of the

death sentence and find the sentence to be appropriate.

Background

In large part because Defendant challenges the sufficiency of the

evidence supporting his convictions, we will present the facts in some

detail. In the early evening on March 28, 1996, Defendant John Matthew

Stephenson and his friend, Dale Funk, drove around Warrick County. The two

ended up at the residence of Brian Mossberger, a friend of the Defendant

and an acquaintance of Funk. While there, Defendant and Funk shot off

rounds of firearms with Defendant shooting his own SKS assault rifle.

Defendant and Funk left to go target shooting at a railroad crossing on Red

Brush Road located near Mossberger’s home. Afterwards, Defendant, who was

still accompanied by Funk, drove to the mobile home of Brandy Southward and

her fiancé, Troy Napier. According to Funk’s testimony, they both got out

of the car and walked around the mobile home. Defendant yelled for someone

but after no one answered, Funk returned to the car and Defendant proceeded

toward the mobile home. A few moments later, Funk observed Defendant walk

out the front door carrying a splitting maul.

Defendant and Funk returned to Mossberger’s house. Shortly

thereafter, a pick-up truck briefly pulled into Mossberger’s driveway.

John “Jay” Tyler was the driver of the truck and his wife, Kathy Tyler, and

friend Brandy Southard were the passengers. Mossberger testified that

Defendant said, “There goes Jay and I’ve got to catch him.” (R. at

24,669.) Funk testified that Defendant said, “If you’re coming, come on.”

(R. at 23,969.)

The evidence as to what happened next comes solely from Funk’s

testimony at trial. Funk testified that Defendant began chasing the Tyler

truck through Warrick County rural roads. The Tyler truck stopped at the

intersection of Eble and Youngblood roads and Defendant also stopped his

car. The driver-side door of the truck opened slightly, and Jay leaned out

of the truck to look at Defendant. At that point, Defendant grabbed his

SKS assault rifle, exited the car, and began firing several shots at the

Tyler truck. Defendant got back into the car, drove around a corner,

stopped his car and got out. Defendant walked towards the Tyler truck and

returned a few minutes later. Defendant threatened Funk stating, “You

breathe a word of this and I’ll kill you.” (R. at 23,980-80.)

Defendant and Funk then drove directly back to Mossberger’s house.

Mossberger testified that Defendant held a knife with “red smears” on the

blade, by his (Defendant’s) face and said, “Jay, Kathy, and Brandy are no

more.” (R. at 24,674-75.) Mossberger also testified that Defendant washed

his knife in the kitchen sink and that Defendant instructed him to “[d]o

something with the SKS; get rid of it; make it gone.” (R. at 24,678.)

Funk offered similar testimony, stating that he observed Defendant “hand[]

the gun to [Mossberger]; told him to get rid of it.” (R. at 23,982.) The

next day, Mossberger buried the SKS assault rifle and ammunition in the

woods.

Early Friday morning, March 29, police officers discovered the Tyler

truck. Inside the truck, the police officers found victims John “Jay”

Tyler, Kathy Tyler, and Brandy Southard dead from gunshot and stab wounds.

The police officers also discovered bullet holes in the truck and found

spent shell casings scattered across the width of Youngblood Road.

Forensic testing revealed that the fatal bullets matched those fired from

the SKS assault rifle belonging to Defendant. The spent shell casings

matched the ammunition discovered in Southard and Napier’s mobile home.

Other testing revealed Funk’s shoe prints were at the mobile home, directly

below the broken window. Although the knife used in the killings was not

recovered, Defendant owned a similar knife that could have caused the

victims’ injuries. On that Friday night, Defendant contacted police about

the murders and gave a written statement indicating that Brandy Southard

had received a threat from one Jimmy Knight.

On Saturday, March 30, while at home, Defendant voluntarily gave a

taped statement to Officers Michael Hildebrand and Gary Gilbert and

consented to a police search. In his taped statement, Defendant admitted

to having seen and talked to the victims on March 28th at around 9:30 or

10:00 p.m. at a local Circle S store. Defendant also stated that

afterwards, he went to Mossberger’s house and then went straight home.

On Sunday, March 31, Mossberger retrieved the SKS assault rifle and

ammunition, placing the SKS in the house and the ammunition in his garage.

Police officers arrived at Mossberger’s house to question him, and he

explained the events that occurred on the day of the killings. Mossberger

also showed the officers the SKS assault rifle, but not the ammunition.

The same day, Mossberger directed the officers to Funk’s apartment in

Hatfield. Police officers questioned both Mossberger and Funk and took

Funk into custody for further questioning at the Warrick County Security

Center. Funk was released on or about April 1. On April 3, 1996,

Defendant surrendered himself to the Owensboro Police Department.

The State charged Defendant with Burglary,[1] Theft,[2] and three

counts of Murder[3] of each of Jay Tyler, Kathy Tyler, and Brandy Southard.

The State also sought the death penalty, alleging as aggravating

circumstances that Defendant intentionally discharged a firearm from a

vehicle,[4] committed at least one of the murders by lying in wait,[5] and

committed multiple murders.[6]

The trial commenced on September 23, 1996. On May 8, 1997, after

deliberating for approximately three hours, the jury found Defendant guilty

of Burglary, Theft, and all three counts of Murder. On May 19, 1997, the

trial court conducted the penalty phase and the jury recommended that the

death penalty be imposed based upon the multiple murder aggravator.[7] The

trial court held a sentencing hearing on June 16, 1997. The trial court

followed the jury’s recommendation and sentenced Defendant to death.

We will recite additional facts as necessary.

Discussion

I

Defendant contends that the trial court committed reversible error

when it allowed State witness Alan Utzman to testify concerning the

contents of Dale Funk’s out-of-court statements. The State responds that

Utzman’s testimony was not hearsay because it met the requirements of

Indiana Evidence Rule 801(d)(1)(B).[8]

In a July 16, 1996, deposition, defense counsel asked Funk if, while

traveling from Evansville on March 29 (the day after the murders), he spoke

to his friend Utzman regarding the events surrounding the triple murder.

Funk denied ever having had such a conversation with Utzman. And when

first asked by police officers about any such conversation, Funk had

similarly denied it. At trial, Funk, as an eyewitness to the multiple

murders, was one of the State’s key witnesses. The State called Funk to

the stand to testify about the circumstances surrounding the murders, but

never questioned Funk about such a conversation with Utzman. On cross-

examination, defense counsel attempted to impeach Funk with inconsistencies

between his cross-examination trial testimony, his deposition testimony,

and his initial statements to police. In this regard, defense counsel

succeeded in getting Funk to admit that he had indeed discussed the murders

with Utzman, and thus he had lied in his deposition and to the officers.

Defense counsel did not question Funk about the contents of his discussion

with Utzman; the defense’s goal here apparently was only to make out Funk

as a liar for having denied any such discussion took place.

In response, the State sought to rehabilitate Funk’s testimony by

demonstrating that what Funk had told Utzman on March 29 was consistent

with Funk’s trial testimony. It did so by calling Utzman as a witness.

Utzman testified that he had a conversation with Funk on March 29 and that

in the course of this conversation, Funk said, “I took the wrong ride. I

was there when it happened.”[9] (R. at 25,636-37) (emphasis added).

Defense counsel immediately objected on grounds that Funk’s out-of-court

statements made to Utzman were inadmissible hearsay. The State replied

that Utzman’s testimony was admissible under Indiana Evidence Rule

801(d)(1)(B), and because the statements were not offered to prove the

truth of the matter asserted, but rather offered to rehabilitate Funk’s

testimony. The trial court overruled defense counsel’s objection without

explanation.

Over defense counsel’s continuing objection, the State was then

allowed to elicit more testimony from Utzman about the March 29th

conversation. Utzman further testified that Funk told him that when

Defendant returned to the car after the shooting, Defendant asked Funk,

“‘Did you see how many people was in [the truck]?,’” (R. at 25,646)

(emphasis added). Utzman testified that Funk replied, “No.” (Id.) After

defense counsel’s immediate objection to this testimony, the trial court

sustained the objection “to that specific question.” (R. at 25,646-47.)

Utzman testified further that Funk said to him, “after it was over, they

got back in the car and they took the gun to someone’s house.” (R. at

25,647) (emphasis added). Defense counsel objected on the grounds of

hearsay but the trial court allowed the testimony.

Defendant makes several challenges with respect to certain statements

made by Utzman regarding Funk’s out-of-court statements. He specifically

argues that Utzman’s testimony constituted inadmissible hearsay and did not

fall under the non-hearsay evidentiary rules. Hearsay is an out-of-court

statement offered to prove the truth of the matter asserted. See Ind.

Evidence Rule 801(c). Generally, hearsay is inadmissible. See Ind.

Evidence Rule 802. However, a statement is not hearsay if it meets the

requirements of Indiana Evidence Rule 801(d). Under Indiana Evidence Rule

801(d)(1)(B), a statement is not hearsay if the declarant testifies at the

trial or hearing and is subject to cross-examination concerning the

statement, and the statement is (1) consistent with the declarant’s

testimony, (2) offered to rebut an express or implied charge against the

declarant or recent fabrication or improper influence or motive, and (3)

made before the motive to fabricate arose. See Evid. R. 801(d)(1)(B).

Trial court rulings on the admissibility of arguable hearsay statements are

reviewed for abuse of discretion. See Wright v. State, 690 N.E.2d 1098,

1106 (Ind. 1997), reh’g denied.

Defendant first contends that Funk’s statement regarding the content

of Defendant’s purported question, “‘Did you see how many people was in

[the truck]?,’” was inadmissible double hearsay. However, the record

clearly indicates that the trial court immediately sustained Defendant’s

objection as to this particular question. As such, Defendant cannot now

claim error on appeal.

Defendant also contends that other testimony from Utzman regarding

Funk’s out-of-court statements, “I took the wrong ride. I was there when

it happened,” and “after it was over, they got back in the car and they

took the gun to someone’s house” constituted inadmissible hearsay.

Appellant’s Br. at 38-40 (emphases in original). He argues that this

testimony was not saved by Evidence Rule 801(d)(1)(B) because (1) there was

no charge of recent fabrication; and (2) Funk was an “admitted accomplice”

at the time the murders occurred and so he had a motive to fabricate before

he made statements to Utzman. Defendant also claims that Utzman’s

testimony as a whole improperly bolstered the credibility of Funk who

“would otherwise have been [the State’s] weakest witness.” Appellant’s Br.

at 40; Reply Br. at 15.

Defendant concedes that Funk testified at trial and was subject to

cross-examination regarding the statements. See Appellant’s Br. at 39

(citing R. at 24,171, 24,320-31, 24,459, 24,488-89). He also acknowledges,

“Although there were inconsistencies between Funk’s testimony and [Funk’s

prior out-of-court] statements to Utzman, this fact does not render the

prior statements inadmissible for purposes of Evid. R. 801(d)(1)(B).” Id.

(citing Willoughby v. State, 660 N.E.2d 570 (Ind. 1996)). Most of Funk’s

prior out-of-court statements made to Utzman were consistent with Funk’s

trial testimony in that they place blame on Defendant as the perpetrator

while they portray Funk as a person having a much less significant role.

Defendant contends that the second criterion of the prior consistent

statement rule was not met because the State did not offer Funk’s statement

to rebut a charge of recent fabrication. At trial, defense counsel argued,

“We have not said, nor have we ever said that there is a recent

fabrication. We . . . argue that any fabrication here has been from the

outset, not one that has been ‘recent.’” Appellant’s Br. at 39; Reply Br.

at 14; R at 25,641. However, the prior consistent statement rule is not

limited to rebutting a charge of recent fabrication. The rule also

encompasses efforts to rebut an express or implied charge of improper

motive. In this appeal, Defendant expressly argues that Funk had a “motive

to fabricate” to provide “substantive evidence of [Defendant’s] guilt.”

Appellant’s Br. at 40 (emphasis added). And at trial, defense counsel

initiated questions regarding the March 29th conversation between Funk and

Utzman in an effort to impeach Funk. It appears that this line of

questioning sought to establish not only fabrication but also improper

motive, i.e., a motive to shift blame on Defendant. The State properly

offered to rebut this charge by utilizing Utzman’s testimony. The second

requirement of the prior consistent statement rule has been met.

The central issue is the third criterion of the rule — the timing of

the claimed motive to fabricate. We agree with the United States Supreme

Court in Tome v. United States which held that under Federal Evidence Rule

801(d)(1)(B), a declarant’s consistent out-of-court statements may be

admitted “to rebut a charge of recent fabrication or improper motive only

when those statements were made before the charged recent fabrication or

improper influence or motive.” 513 U.S. 150, 167 (1995).[10] The

rationale behind the pre-motive rule is that if the consistent out-of-court

statements were made before the motive to fabricate arose, we are assured

that the statements were not “contrived as a consequence of that motive.”

Id. at 158. Here, Defendant argues that because Funk was an “admitted

accomplice,” Funk’s improper motive to fabricate arose at the moment the

triple murder occurred on March 28. Defendant further contends that

because Funk uttered the statements to Utzman the next day, March 29, Funk

made the statements after his motive to fabricate arose. As such,

Defendant argues, the statements failed to meet the Tome temporal

requirement and thus, were improperly admitted as hearsay.

This Court visited this issue in Sturgeon v. State, 719 N.E.2d 1173

(Ind. 1999). In Sturgeon, a unanimous opinion authored by Chief Justice

Shepard, we evaluated prior Indiana case law concerning the temporal

requirement contained in the prior consistent statement rule and

categorized the cases under two separate scenarios: (1) where the

declarant was the defendant or equally culpable to the defendant in the

crime, such as a co-defendant, and (2) where the declarant was involved

before and after but not during the crime. See Sturgeon, 719 N.E.2d at

1179. Under the first category, we acknowledged that “[w]here the

declarant was the defendant or co-defendant, we have been willing to

conclude that a motive to fabricate likely arises immediately upon the

commission of the crime.” Id. (emphasis added) (citing Bouye v. State, 699

N.E.2d 620, 624-25 (Ind. 1998); Thompson v. State, 690 N.E.2d 224, 232 n.8

(Ind. 1997)).[11] In identifying the second category in Sturgeon, we

said, “Where the declarant became involved in the crime after it was

committed . . . the role of timing is not as clear.” Id. (emphasis

added).

In short, there is no bright-line rule for determining whether or when

a motive to fabricate has arisen even if the declarant was (1) equally

culpable as the defendant, such as a co-defendant; (2) involved after the

crime (as was the case in Sturgeon); or (3) arguably involved before,

during, and after the crime like the declarant in this case. Determining

the existence of a motive or when it arose is a fact-sensitive inquiry.

Id. at 1178. In Cline v. State, 726 N.E.2d 1249 (Ind. 2000), this Court

also addressed the timing issue, and noted a significant passage from

Sturgeon:

“We acknowledge the possibility of a motive to fabricate on [the

declarant’s] part since he knew he could be charged in connection with

the murder and since he participated in certain criminal acts

surrounding the murder. However, there is no evidence tending to

implicate [the declarant] in [the] murder and therefore no evidence

that he had a motive to lie about [the defendant’s] involvement when

questioned. Without concrete evidence to that effect, we cannot

conclude the trial court abused its discretion in admitting [the

declarant’s] prior consistent statement.”

Id. at 1253 (quoting Sturgeon, 719 N.E.2d at 1180) (emphasis added). As we

determined in Sturgeon and reaffirmed in Cline, we will not override a

trial court’s decision to admit a prior consistent statement where there is

no evidence “tending to implicate” the declarant in the crime.

In this case, although Funk was involved before, during, and after the

murders occurred, the question of whether or not a motive to fabricate

arose still remains a fact-sensitive inquiry. We find no substantial

evidence here “tending to implicate” Funk in the triple murder which would

lead to a conclusion that he had a motive to lie. Police officers

testified that they did consider Funk a suspect at the time they questioned

him on March 31. Funk testified that he feared prosecution because he

accompanied Defendant throughout the crime spree of the burglary of Napier

and Southard’s mobile home and the pursuit of the victims in a car-chase,

which ultimately led to the killings. However, Brian Mossberger, a friend

of both Defendant and Funk, offered testimony which strongly implicated

Defendant rather than Funk as the perpetrator. Further, Defendant owned

the SKS assault rifle used to commit the killings. Forensic evidence

revealed that the bullets used to kill the victims matched those shot from

the murder weapon belonging to Defendant. We also find it significant that

(1) the State never charged Funk of murder, (2) Funk did not receive any

prosecutorial benefit in exchange for his testimony; and (3) Funk made the

statements to Utzman the day immediately following the killings, which was

two days before he was questioned by police.

Our extensive review of the evidence indicates that Funk had a limited

role in the circumstances surrounding the murders. Therefore, we find that

Funk had no motive to fabricate within the meaning of Evidence Rule

801(d)(1)(B) when he uttered the statements to Utzman about the events

surrounding the crime. We hold that the trial court did not abuse its

discretion in overruling Defendant’s hearsay objections.

II

Defendant contends that the trial court committed reversible error

when it denied his post-trial motion alleging newly discovered evidence of

jury misconduct. He specifically claims that he was denied the right to

confront witnesses and that he was denied a fair trial by an impartial jury

because, unbeknownst to him, the jury foreman had prepared a notebook on

his home computer and then used this notebook during jury deliberations.

At trial, the court instructed the jurors that they were allowed to

take notes of the testimony, but admonished that note taking should not

distract them from observing the credibility of the witnesses and listening

to the evidence presented. Like other members of the jury, jury foreman

Michael Fox took notes in open court of his daily observations of the trial

without objection from defense counsel. Then in the evenings, Fox took his

courtroom notes home with him and typed a narrative version of the trial on

his personal computer. By the end of the trial, Juror Fox had prepared a

430-page typed notebook[12] supplemented with a 50-page timeline marking

the sequence of events. When it came time for jury deliberation, Fox took

the notebook into the jury room and relied on it a few times. Fox also

discussed some of the notebook’s contents with other jurors but none of the

jurors actually read the notebook themselves.

Neither the trial court nor the parties had knowledge of Juror Fox’s

typed notes during the guilt-determination phase or penalty phase, or that

Juror Fox had transcribed the notes at home. It was not until a September,

1997, post-trial investigation that defense counsel discovered Juror Fox’s

notebook. Defense counsel then filed a “supplemental motion to correct

error,” alleging that these events constituted newly discovered evidence of

juror misconduct. Counsel argued that Defendant’s “constitutional right to

a fair trial and impartial jury were violated when [the jury] was exposed

to extraneous and prejudicial materials during guilt-innocent phase

deliberations.” Deft’s Suppl. Mot. To Correct Errors, at 2. In October,

1997, the trial court held a hearing on the matter and denied, without

explanation, an original and the supplemental motion to correct error.

A party may file a motion to correct error when there is newly

discovered evidence such as alleged juror misconduct. See Ind. Trial Rule

59(A); Mitchell v. State, 726 N.E.2d 1228, 1238 (Ind. 2000), reh’g denied.

When reviewing a trial court’s denial of a motion to correct error on newly

discovered evidence, our review is deferential and we will reverse only

upon a showing of an abuse of discretion. See Slaton v. State, 510 N.E.2d

1343, 1347 (Ind. 1987). The Defendant bears the burden of proving that the

newly discovered evidence warrants a new trial. See Mitchell, 726 N.E.2d

at 1238.

Defendant makes several challenges with respect to Juror Fox’s

notebook. He first contends that the notebook constituted “extraneous

information” that unduly influenced other jurors. Appellant’s Br. at 90,

92. In a related argument, Defendant claims that when Juror Fox typed a

narrative version of the trial and time-line at home, he had improperly

“deliberated, re-evaluated, and analyzed” the evidence. Id. at 83.

Defendant maintains that such conduct violated the court’s instructions for

jurors not to reach conclusions “until [they] have heard all the evidence,

the argument of counsel, and final instructions.” Id. at 87-90. Defendant

argues that these events constituted juror misconduct that deprived him of

his fundamental right to a fair trial under the state and federal

constitutions. Id. at 93; Reply Br. at 36.

Generally, a verdict may not be impeached by evidence from jurors who

returned it. See Fox v. State, 457 N.E.2d 1088, 1092 (Ind. 1984).

However, extrinsic or extraneous material brought into deliberation may be

grounds for impeaching a verdict where there is a substantial possibility

that such extrinsic material prejudiced the verdict. See Ind. Evidence

Rule 606(b); Mitchell, 726 N.E.2d at 1238; Bockting v. State, 591 N.E.2d

576, 579 (Ind. Ct. App. 1992), transfer denied. The burden is on the

defendant to prove that material brought into the jury room was extrinsic.

The burden then shifts to the State to prove it harmless. See Taylor v.

State, 681 N.E.2d 1105, 1110 (Ind. 1997).

It is now well-settled Indiana law that jurors are permitted to take

notes during the course of a trial subject to the discretion of the trial

court and its duty to ensure that jurors pay attention to all the evidence

in the case. See Chambers v. State, 422 N.E.2d 1198, 1204 (Ind. 1981);

Smith v. State, 272 Ind. 34, 36, 395 N.E.2d 789, 790 (1979); Dudley v.

State, 255 Ind. 176, 182, 263 N.E.2d 161, 164 (1970). This Court has

further determined that a juror who records notes at home is a “closely

related matter” to a juror who takes notes in the courtroom so long as no

“communication to or from another person” has occurred. Gann v. State, 263

Ind. 297, 300-1, 330 N.E.2d 88, 91 (1975). Thus, we have determined that

both circumstances — taking notes during trial and transcribing notes at

home — are appropriate provided that the juror pays attention to the

evidence presented during trial and does not seek out any outside or

extrinsic influences aimed to taint the notes.

The trial court properly instructed the jurors not to reach any

conclusion before all the evidence had been presented and final instruction

given. But as a practical matter, jurors cannot be prevented from

reflecting upon witness testimony and other evidence after they leave the

courtroom each day. In this case, it is undisputed that Juror Fox used his

courtroom notes to compile and organize a narrative version of the trial

and a corresponding time line on his home computer. However, there is no

evidence demonstrating that Fox himself was exposed to extrinsic or outside

influences, such as reading newspaper articles, watching a television

program, researching on the Internet, or “communicating to or from another

person” while compiling the notebook at home. At a post-trial hearing on

the matter, Juror Fox testified that because he was “under Court order not

to watch T.V.— local T.V., radio, or read the newspaper” he “sat at the

computer” all evening typing his notes. (R. at 32,530). Fox’s testimony

indicated that he did seek out extrinsic material but only after the trial

had ended for purposes of editing, updating and revising his notebook. [13]

In order for jury misconduct to warrant a new trial, the defendant must

show that the misconduct was gross and that it probably harmed the

defendant. See Carr v. State, 728 N.E.2d 125, 131 (Ind. 2000). We find

that Defendant has not made a showing of gross misconduct. See, e.g., id.

at 131 (holding no jury misconduct where, during the defendant’s trial, a

juror accumulated newspapers but refrained from reading them until the

trial had ended at which time the juror compared the news stories with her

own trial notes.)

Without any evidence of extrinsic influence on Juror Fox during the

course of the trial, we think that when he brought the notebook into jury

deliberations, the contents of it were like those of any other juror-made

notebook in this case — a reflection of a juror’s personal observations of

the trial, thoughts, and mental processes. In this case, the compiling and

organizing of a notebook on a personal computer at home was a “closely

related matter” to taking notes during the trial because the notebook,

while elaborate in length and detail, was not tainted by extrinsic

influences. Thus, the notebook itself when brought into the jury room did

not amount to extraneous material. The fact that these perceptions

regarding the trial were recorded at home and on a computer does not change

our view because no outside information was sought or employed.

We find that Juror Fox did not disregard the trial court’s

instructions. The trial court instructed the jurors that they were allowed

to take notes during the trial but gave no directive prohibiting re-

writing, compiling, or organizing the notes at home. The trial court

repeatedly instructed the jurors that they should listen to the evidence as

it came from the witnesses, keep an open mind at all times, not form an

opinion during the trial, and not reach a conclusion before hearing all the

evidence, arguments of counsel, and the court’s final instructions. We

find no evidence in the record that Juror Fox did not follow these

instructions.

Defendant argues further that the trial court improperly disregarded

Indiana precedent which permitted only “limited or minor” note taking

during a trial. Appellant’s Br. at 82-84; Reply Br. at 34, 36 (citing

Miresso v. State, 163 Ind. App. 231, 323 N.E.2d 249 (1975); Dudley, 255

Ind. at 182, 263 N.E.2d at 164; Smith, 272 Ind. at 36, 395 N.E.2d at

790).[14] With our increasing familiarity with juror note taking, we

believe the necessity of restricting jurors to limited or minor note taking

has diminished. In any event, the cases cited by Defendant did not

encompass the complexities of this case: the trial spanned over eight

months during which the jury heard the testimony of 158 witnesses and

observed 966 exhibits. This evidence presented at trial, along with

numerous motions filed with the court, created a record of proceedings

consisting of over 33,000 pages. It is likely that even very limited note

taking would produce a substantial volume of material in such

circumstances. Indeed, at least three other jurors in this case composed

ten to twelve handwritten notebooks and used them during deliberations.

The making of a lengthy notebook, especially where Defendant claimed no

error to with respect to the note taking of other jurors, did not

constitute gross misconduct or irregularity on the part of Juror Fox.

Defendant also contends that Fox’s notebook was tantamount to an

“unofficial transcript[]” wrongfully brought into the jury room, and that

the notebook resembled a “pseudo exhibit,” which like other exhibits,

should have been withheld from the jurors. Appellant’s Br. at 84-85.

Defendant also argues that the notebook amounted to “evidence” not

supported by the record and that he did not have the opportunity to test

the reliability and accuracy of the notebook’s content. Id. at 88. We

reject this argument for the same reasons set forth supra. A juror’s

notes, typed or handwritten, organized or not, reflect the juror’s own

mental process and personal observations of the testimony and other

evidence presented at trial. A juror’s view of a case is not “evidence,”

does not function as an exhibit, and is not comparable to an unofficial

transcript.

Finally, we find there is no evidence in the record that Juror Fox

used the notebook inappropriately during deliberation. While in the jury

room, Fox referred to his notebook only a few times for his own

recollection. Although Fox discussed some of the information in the

notebook with other jurors, no other members of the jury read the notebook

themselves. Furthermore, Defendant did not seek and the trial court did

not give any instruction prohibiting jurors from sharing or reviewing each

other’s notes. Accordingly, we have no basis for concluding that Juror

Fox’s use of the notebook during deliberations unduly influenced the other

jurors.

The trial court did not abuse its discretion in denying Defendant’s

supplemental motion to correct error. See, e.g., Hailey v. State, 521

N.E.2d 1318, 1321 (Ind. 1988) (holding that the trial court did not abuse

its discretion in refusing to grant a new trial where a juror reviewed his

notes during deliberation and discussed them with other members of the

jury).

III

Defendant contends that the trial court committed reversible error

when it allowed opinion testimony from a crime scene technician and the

coroner.

A

During direct examination, the prosecuting attorney asked crime scene

technician and Sergeant David Lee Anderson the reason why, in his opinion,

he could find no hair, blood, or fiber in Defendant’s vehicle when

conducting his investigation. Sergeant Anderson replied, “The only

plausible explanation I can come up with, sir, is someone would have had to

have cleaned that vehicle in order that I wouldn’t be able to find what I

was looking for.” (R. at 27,744.) Defendant objected.

Under Indiana Evidence Rule 701, when a non-expert provides an

opinion, “the witness’s testimony in the form of opinions or inferences is

limited to those opinions or inferences which are (a) rationally based on

the perception of the witness and (b) helpful to a clear understanding of

the witness’s testimony or the determination of a fact in issue.” It is

within the trial court’s discretion to determine whether a witness is

qualified to give an opinion. See Angleton v. State, 686 N.E.2d 803, 812

(Ind. 1997) (citing Kent v. State, 675 N.E.2d 332, 338 (Ind. 1996)), reh’g

denied.

On appeal, Defendant argues that this testimony was improperly

admitted as speculation because the Sergeant had no personal knowledge that

Defendant cleaned his car after the commission of the crimes. See

Appellant’s Br. at 43. In support of his argument, he points to the

testimony of one witness, Serologist Susan Laine, who stated that

Defendant’s car was “‘not clean,’” see id. at 43 (quoting R. at 28,791-93),

and that other crime technicians testified that “photographs taken before

the vehicle was processed show “‘dirt, debris, and other material,’” see

id. (quoting R. at 27,662-63). Defendant claims that “in light of this

physical evidence, Anderson’s opinion [was] not ‘rationally based on his

perceptions,’” as required by Indiana Evidence Rule 701(a), and he further

maintains that Sergeant Anderson’s opinion was conjecture and not helpful

to the jury. Id. at 43. The State responds arguing that Sergeant

Anderson’s testimony was based on his “experience searching hundreds of

cars,” as well as “evidence that the interior of the car was damp or wet,”

and was therefore, properly admitted. Appellee’s Br. at 19. We agree with

the State.

Sergeant Anderson’s testimony regarding the state of Defendant’s

vehicle was rationally based on his perceptions. Sergeant Anderson had

been a member of the Indiana State Police for thirteen years and in law

enforcement for 20 years; had been trained and continued to train in

“photography, fingerprint techniques, firearms evidence . . . trace

evidence, serology, drugs, physical matches, . . . and forensic

entomology”; and he had worked as a crime scene technician for over eight

years. (R. at. 27,735-36.) Sergeant Anderson testified that over the

course of eight years, he had “investigated hundreds of crime scenes,”

covering “well over a 100 every year.” (R. at 27,743.) Sergeant Anderson

provided further testimony regarding his investigation of Defendant’s

vehicle:

It’s extremely unusual not to find something indicative of someone

having been [in a car]. Hair is the best example as any. Everyone

loses hair . . . But not finding hair in the vehicle was very unusual

to me; not finding fiber was unusual . . . . I remember taking my

hands across the floorboard—in the front of the vehicle, specifically

I remember, and it felt damp. And I thought that to be sort of

unusual as well. But at any rate, I suppose anything is possible, but

it was very unusual to me that we found nothing in that vehicle.

(R. at 27,743-44.)

We find that Sergeant Anderson’s conclusion that Defendant’s car had

been cleaned was “rationally based on his perceptions” of finding a damp

floorboard and discovering no hair evidence in Defendant’s car, and

rationally based on his observations of numerous investigations of other

vehicles. Furthermore, Evidence Rule 701 speaks to only those opinions or

inferences “rationally based” on the witness’s own perceptions, not those

of others. Thus, the claimed contradictions between the testimony of

Anderson and the serologist and other technicians are immaterial under the

structure of this rule. Weighing the credibility of witnesses and drawing

inferences and conclusions there from is within the jury’s province. See

Taylor v. State, 681 N.E.2d 1105, 1111 (Ind.1997).

We also find that Sergeant Anderson’s testimony was helpful to the

determination of a fact in issue. The reason Defendant’s car was free from

serological evidence such as hair and blood was an important factual issue

for the jury to decide. Even though Sergeant Anderson’s testimony was in

conflict with photographs of dirt and debris found in the car, this did not

render his opinion conjecture. The opinion was based upon his experience

with many crime scene investigations and offered a plausible explanation

for the condition of the car.

Defendant also argues that Sergeant Anderson’s opinion was

inadmissible under Indiana Evidence Rule 704(b) because the testimony

indicated he had cleaned his car with the intent of deceiving police.

Indiana Evidence Rule 704(b) provides in relevant part, “Witnesses may not

testify to opinions concerning intent . . . in a criminal case.” However,

Defendant did not object to this testimony as constituting an opinion

concerning intent. As such, this claim is not available here.

B

Defendant argues that the trial court committed reversible error “by

permitting the coroner to offer [his] expert opinion on the time of death.”

Appellant’s Br. at 44. He specifically argues that because the coroner

testified that he was not qualified to give an “expert” opinion on the

timing of death, his opinion was improperly admitted in violation of

Indiana Evidence Rule 702.[15] See id. at 43-44.

During the trial, the coroner testified that his duties consisted of

“investigat[ing] all deaths and determin[ing] the manner and cause of

death,” (R. at 20,204); however he was not qualified to render an expert

opinion concerning the time of the victims’ death. He also testified that

when he arrived at the crime scene, he observed the bodies’ physical

condition, noting the “degree of rigor mortis” [16] in the victims’ joints

and the body temperatures. The coroner testified further that shortly

after he examined the bodies, Dr. John Heidingsfelder, a forensic

pathologist, arrived on the scene and they discussed the coroner’s personal

observations regarding the condition of the bodies. Over Defendant’s

continuing objection, the coroner was allowed to offer his opinion that

“the time of death could not have occurred before 9 p.m., nor could it have

occurred after 2 a.m.” (R. at 20,337A.) The basis of Defendant’s

objection was that the coroner lacked the qualification of an expert on the

timing of death.

Any error in allowing the testimony of the coroner was harmless. We

will reverse only if the improper opinion testimony prejudiced the

defendant. See Taylor v. State, 689 N.E.2d 699, 706 (Ind. 1997). The

coroner’s opinion was merely cumulative of other properly admitted

testimony concerning the timing of the victims’ death. Dr. Heidingsfelder

was the physician who performed the autopsy on all three victims.

Defendant agreed that Dr. Heidingsfelder was a qualified expert in the

field of forensic pathology and the trial court ruled as such. When the

prosecuting attorney asked Dr. Heidingsfelder his expert opinion as to the

time of death, Dr. Heidingsfelder testified, without objection from

Defendant, that the victims died “sometime after they were last seen alive

that night . . . 9:00 or 10:00 p.m.,” (R. at 22,522), and “prior to 2:00 in

the morning,” (R. at 22,521). Accordingly, we find that Defendant suffered

no prejudice. See, e.g., Hughes v. State, 508 N.E.2d 1289, 1296-97 (Ind.

Ct. App. 1987) (ruling that in light of properly admitted expert opinion

testimony by a certified physician concerning the cause of the victim’s

death, any error in the admission of an opinion by a second-year resident

regarding the cause of death was harmless), transfer denied. Accord Tope

v. State, 477 N.E.2d 873, 876 (Ind. 1985) (recognizing in a post-conviction

proceeding that contradictory testimony of a non-expert coroner and

forensic pathologist on the issue of timing of death would not have

resulted in a different trial outcome warranting a new trial), reh’g

denied.

IV

Defendant contends that the trial court committed reversible error

when it allowed evidence of Defendant’s uncharged prior bad acts in

violation of the court’s order.

During the trial, State witness Troy Napier testified that he rented a

garage repair shop where he and Defendant worked on cars together. While

he was incarcerated in a Gibson County jail between February, 1996, and

April, 1996, Napier thought there was no telephone service at the garage.

However, a few months after his release in April, 1996, Napier received a

bill for telephone and calling card service at the garage. Napier had

neither requested telephone service at the garage nor asked for a calling

card to be issued. Napier identified the telephone bill which was

introduced as a State’s exhibit.

Defendant objected to the admission of the telephone bill on grounds

that the State was attempting to show that he had installed the phone in

Napier’s name and without Napier’s permission. Defendant argued that the

State was alleging that he had committed forgery in violation of a court

order in limine excluding evidence of prior bad acts or wrongs unrelated to

the March 28, 1996, murders. Defendant also objected because the billing

statement contained no name or address, it was incomplete. Based on the

latter grounds, the trial court sustained the Defendant’s objection to the

admission of the exhibit. The next day, the prosecuting attorney again

questioned Napier about the billing statement. Defendant again objected,

arguing that the court had already ruled on the matter. The trial court

sustained the objection as to the admission of the exhibit, but allowed

Napier to testify regarding his payment of the bill and request for service

cancellation.

Defendant contends on appeal that although the trial court sustained

the objection as to the admission of the telephone bill, the State’s follow-

up questioning the next day “was [an] attempt[] to show that [Defendant]

had a phone installed in Napier’s name through misrepresentation, and

without any means or intention of paying the bill,” Appellant’s Br. at 47

(citing R. at 22,850-59). “Because this case involved the murder of three

of [Defendant’s] friends, evidence of how [Defendant] treated another

friend was harmful and served to advance the impermissible inference.” Id.

at 50. Therefore, Defendant argues, the admission of the billing statement

was in violation of a court order in limine to exclude character evidence

under Indiana Evidence Rule 404(b).

Defendant’s objections to the billing statement were sustained. The

limited questioning that followed related only to Napier’s own acts in

canceling the service and seeking to have the charges cancelled. There was

no evidence admitted as to Defendant’s prior acts in this regard.

V

Defendant contends that the trial court committed reversible error

when it denied his motions for a mistrial. He claims that the prosecutor

engaged in repeated acts of misconduct throughout the trial, which placed

him in grave peril and thereby deprived him of his constitutional right to

a fair trial.

In reviewing a claim of prosecutorial misconduct, we first determine

whether the prosecutor engaged in misconduct, and then determine whether

that misconduct, under all of the circumstances, placed the defendant in a

position of grave peril to which the defendant should not have been

subjected. See Wisehart v. State, 693 N.E.2d 23, 57 (Ind. 1998), cert.

denied, 526 U.S. 1040 (Ind. 1999); Cox v. State, 696 N.E.2d 853, 859 (Ind.

1998), reh’g denied; Wright v. .State, 690 N.E.2d 1098, 1110 (Ind. 1997),

reh’g denied. The “gravity of peril” is measured by the “‘probable

persuasive effect of the misconduct on the jury’s decision, not on the

degree of impropriety of the conduct.’” Wisehart, 693 N.E.2d at 57

(quoting Kent v. State, 675 N.E.2d at 335) (citing in turn Bradley v.

State, 649 N.E.2d 100, 107-8 (Ind. 1995), reh’g denied)). The trial judge

is in the best position to gauge the surrounding circumstances and the

potential impact on the jury when deciding whether a mistrial is

appropriate. See Thomkins v. State, 669 N.E.2d 394, 398 (Ind. 1996); Roche

v. State, 596 N.E.2d 896, 902 (Ind. 1992). Thus, the denial of a mistrial

lies within the sound discretion of the trial court, and will be reversed

only upon a finding of an abuse of discretion. See Canaan v. State, 541

N.E.2d 894, 908 (Ind. 1989), cert. denied, 498 U.S. 882 (1990).

Defendant’s first claim of prosecutorial misconduct is that the

prosecutor improperly suggested that he had a duty to call witnesses and

present evidence. During Defendant’s cross-examination of a State witness,

the prosecutor objected on grounds that the questions were outside the

scope of direct examination, and then stated, “This is a witness that is

available to be called later by the State and by the defense.” (R. at

21,166-67.) Defendant objected to the prosecutor’s comments, and out of

the presence of the jury, argued that such “comments suggested [that] he

had a duty to call witnesses and present evidence.” Appellant’s Br. at 62

(citing R. at 21,167). Defendant then moved for a mistrial. The trial

court denied the motion, but gave the jury an admonishment advising them

that Defendant had no burden to prove his innocence or to present any

evidence.

It is improper for a prosecutor to suggest that a defendant shoulders

the burden of proof in a criminal case. See Dobbins v. State, 721 N.E.2d

867, 874 (Ind. 1999). However, a prosecutor’s improper statements

suggesting a defendant’s failure to present witnesses may be cured by the

trial court advising the jury that the defendant was not required to prove

his innocence or to present any evidence. See Chubb v. State, 640 N.E.2d

44, 49 (Ind. 1994) (Preliminary instruction given to the jury just a few

hours before prosecutorial impropriety occurred adequately cured

prosecutor’s comments regarding the defendant’s failure to call

witnesses.), reh’g denied; Pettiford v. State, 506 N.E.2d 1088, 1090 (Ind.

1987) (Both preliminary and final instructions given to the jury overcame

prosecutor’s statements on the defendant’s failure to present witnesses.).

In the instant case, the trial court admonished the jurors shortly

after Defendant’s objection, advising them that Defendant had no burden to

prove his innocence or to present any evidence. Defendant attempts to

distinguish his case from Chubb and Pettiford by arguing that the

admonishment failed to cure the impropriety because the trial court stated

the prosecutor “‘may be correct.’” See Appellant’s Br. at 63 (quoting R.

at 21,186). We find the admonishment to be adequate. In addition, the

trial court properly read preliminary instructions and final instructions

advising the jury that Defendant was to be presumed innocent of the crimes

charged and that the State bore the burden to prove Defendant guilty of

each essential element of the crimes charged beyond a reasonable doubt.

Both instructions also informed the jury that Defendant was not required to

prove his innocence or to present any evidence. We presume that the jury

followed these instructions. The State made only one comment suggesting

that Defendant had an opportunity to call a witness and made no additional

statements on the matter after Defendant’s objection and the jury

admonishment. Like our rulings in Chubb and Pettiford, we find that any

misconduct here was de minimus and overcome by the court’s preliminary

instructions and final instructions, if not the court’s immediate jury

admonishment. The prosecutor’s statement did not have a probable

persuasive effect on the jury.

Defendant’s second claim of prosecutorial misconduct is that the

prosecutor improperly “allude[d] to inadmissible prior bad acts in front of

[the] jury” in violation of the trial court’s “‘Order on Comprehensive

Motion in Limine.’” Appellant’s Br. at 63 (quotations in original). During

Defendant’s cross-examination of a State witness, the prosecutor objected

to Defendant’s questioning pertaining to the witness’s use of “crank.” (R.

at 23,212.) To support his objection, the prosecutor argued, “Unless I get

to ask these kind of questions concerning the Defendant . . . I do not know

that this line of questioning has any relevance.” (R. at 23,213.)

Defendant objected to the prosecutor’s comment, and out of the jury’s

presence, moved for a mistrial on grounds that the statement suggested that

Defendant was involved in drugs.

The court ruled that although the prosecutor’s comment was serious, it

did “not rise to the level of placing the Defendant in grave peril in light

of an appropriate admonishment.” (R. at 23,232.) The court then gave an

admonishment instructing the jury to disregard the comment made by the

prosecutor and that comments of counsel were not to be considered as

evidence. The court further granted Defendant’s request for individual

voire dire on the matter, asking each juror, “Do you believe that you can

make your decision in this case free from any influence from [the

prosecutor’s] comment.” (R. at 23,237.) Each juror replied, “Yes.” (R.

at 23,237-43.)

We are satisfied that the trial court’s admonishment cured any harm to

Defendant as to this particular comment. However, Defendant argues further

that the prosecutor’s questioning of another State witness implied that

Defendant was involved in drug trafficking, and that these repeated

“suggestions” of drug use and selling drugs harmed Defendant. We treat

this argument as Defendant’s third claim of prosecutorial misconduct.

During cross-examination, Defendant asked State witness Detective

Marvin Heilman whether in his investigation he discovered any visible means

of income or support for various State witnesses. Then on re-direct

examination, the prosecution posed the same question and also asked if he

had uncovered any visible means of income or support for Defendant. At

that point, Defendant objected, arguing that the implication of the

prosecutor’s question was “because [the Defendant] had no documented

visible source of income, [he] must be making his living or income from

some unlawful or illegal source.” (R. at 28,568-69.) Therefore, Defendant

argued, the prosecutor’s question was in violation of the court’s order in

limine excluding bad character evidence. The Defendant then moved for a

mistrial. The trial court denied Defendant’s motion, but sustained

Defendant’s objection without admonishing the jury.

Our reading of the record indicates that the Detective did not answer

the prosecutor’s question in the presence of the jury and the jury heard no

information about Defendant’s income or job. Further, although the trial

court gave no admonishment, it sustained Defendant’s objection and the

prosecutor complied with the court’s ruling, asking no further questions on

the matter. The prosecutor’s question had no probable persuasive effect on

the jury’s decision. And even if the jury inferred that Defendant had no

visible source of income, this information without more would not have

established that Defendant’s only alternative source of income arose from

selling drugs or any other illegal activity. The prosecutor’s question

contained no references to “selling drugs” or “drug trafficking” or “drug

business.”

Defendant’s fourth claim of prosecutorial misconduct is that the

prosecutor improperly “discredit[ed] the conduct of defense counsel in

front of the jury.” Appellant’s Br. at 65. During cross-examination,

Defendant asked a State witness when the witness first received any

statement that Defendant was directly involved in the murders of the

victims. The prosecutor objected on hearsay grounds but the trial court

overruled the objection. After Defendant repeated the question, the

prosecutor interjected another objection stating, “Judge, as picky as we

got on my direct examination of this witness, I think it’s appropriate to

be just as picky in the cross-examination of this witness.” (R. at 23,653-

54.) Defendant objected to the prosecutor’s comment and moved for a

mistrial.

We have recognized that prosecutorial statements attacking the defense

counsel’s integrity and competence are improper and inconsistent with the

Rules of Professional Conduct which require lawyers to “‘demonstrate

respect for the legal system and for those who serve it, including . . .

other lawyers.’” Marcum v. State, 725 N.E.2d 852, 858 (Ind. 2000) (quoting

Preamable, Ind. Professional Conduct Rules), reh’g denied. But given the

brevity of the prosecutor’s comment here, we find that it did not have

probable persuasive effect on the jury’s decision.

Finally, Defendant contends that “[g]iven the closeness of the

evidence, the prosecutor’s repeated misconduct placed [Defendant] in grave

peril.” We disagree. Having found that any prosecutorial impropriety

which may have occurred was de minimus or otherwise overcome by the trial

court’s admonishments and instructions, we are unable to conclude that

Defendant was placed in grave peril.

VI

Defendant’s next argument is two-fold. First, Defendant contends that

the trial court committed reversible error when it refused to allow

Defendant to impeach State witness Brian Mossberger with evidence of three

prior robbery convictions that were more than ten years old. Second,

Defendant argues that the trial court’s application of Indiana Evidence

Rule 609(b) and the exclusion of such evidence infringed on his Sixth

Amendment right to cross-examination.

Mossberger, one of two key State witnesses, testified to the events

that occurred on the night of the murders implicating Defendant.[17] In an

effort to attack Mossberger’s credibility, Defendant sought to introduce

impeachment evidence of Mossberger’s three prior robbery convictions, all

of which occurred in 1979. However, the trial court excluded the evidence,

reasoning that Indiana Evidence Rule 609(b) prohibited evidence of

convictions that were more than ten years old.

Generally, a proponent may seek to admit evidence of certain prior

convictions of a witness to attack the credibility of that witness as long

as the prior convictions are not more than ten years old. See Ind.

Evidence Rule 609(a) and (b).[18] Evidence of a prior conviction that is

more than ten years old may be admissible, however, if the proponent

demonstrates that the probative value of the stale conviction evidence

substantially outweighs its prejudicial effect, and the proponent gives the

adverse party sufficient advance written notice of intent to use such

evidence. Evid. R. 609(b). We review a trial court’s ruling under Evid.

R. 609(b) for abuse of discretion. See Schwestak v. State, 674 N.E.2d 962,

964 (Ind. 1996).

This case is comparable to Schwestak in which this Court upheld a

trial court’s decision preventing a defendant from introducing a State

witness’s prior burglary conviction that was more than ten years old. Id.

at 963. There, we reasoned that the defendant did not demonstrate

why the probative value of this conviction, which [was] more than ten

years old, [was] so high as to overcome the general rule that stale

convictions are not admissible. Defendant d[id] not offer any reason

other than that [the State witness’s] testimony was a very important

part of the State’s case. Although [the State witness’s] testimony

was indeed an important part of the State’s case, it certainly was not

dispositive. The State introduced ample other evidence establishing

[the] defendant’s guilt.

Id. at 964. (emphasis added).

Defendant attempts to distinguish his case from Schwestak by arguing

that Mossberger’s testimony “was essential to the State’s case, and

dispositive on many issues” because Mossberger was the only witness to

testify that Defendant (1) told him to get rid of the murder weapon and

ammunition; and (2) admitted to his role in the murders by stating that one

of the victims should not have been there. See Appellant’s Br. at 33. As

such, Defendant claims “Mossberger’s believability was crucial to the

determination of substantive facts surrounding these crimes, and central to

[Defendant’s] conviction.” Id.

Mossberger’s prior robbery convictions occurred in 1979, which was

approximately seventeen years from the date the trial began in September,

1996. Therefore, to demonstrate that the trial court abused its discretion

in excluding such evidence, Defendant has the burden of showing that the

“probative value of [the] conviction[s], which [are] more than ten years

old, is so high as to overcome the general rule that stale convictions are

not admissible.” Schwestak, 674 N.E.2d at 964. Defendant has not met this

burden.

While we recognize the importance of Mossberger’s testimony to the

State’s case, we disagree with Defendant that Mossberger’s credibility was

a dispositive factor. As to the facts at issue here, Mossberger’s

testimony corroborated the testimony of Dale Funk. As discussed in part I,

supra, Funk was the key witness for the State, who testified that he

observed Defendant “hand[] the gun to [Mossberger]; told him to get rid of

it.” (R. at 23,982.) In fact, Funk testified that he was an eyewitness to

the murders and identified Defendant as the perpetrator who shot and killed

the three victims with an assault rifle. It does not appear to us that

seventeen-year-old robbery convictions undermine in any meaningful way the

credibility of this corroborating testimony. We do not find the probative

value of Mossberger’s seventeen-year-old robbery convictions so high as to

overcome the general rule that stale convictions are not admissible.

Defendant also contends that the “trial court’s mechanistic

application of the staleness provision in Rule 609 violated [Defendant’s]

state and federal constitutional right to cross-examination and a fair

trial.” Appellant’s Br. at 35 (citing U.S. Const. Amends. VI and XIV and

Ind. Const. art. 1, § 13).

“[O]ne of the fundamental rights of our criminal justice system

granted by the United States Constitution and the Indiana Constitution is

the right of a defendant to cross-examination.” Pigg v. State, 603 N.E.2d

154, 155 (Ind. 1992) (citing to Sears v. State, 258 Ind. 561, 563, 282

N.E.2d 807, 808 (1972)). While a Sixth Amendment issue is raised when a

defendant is prohibited from cross-examining a crucial witness for the

State on an area of his credibility, see Crull v. State, 540 N.E.2d 1195,

1198-1200 (Ind. 1989); Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986);

Davis v. Alaska, 415 U.S. 308, 315-18 (1974), the right to cross-

examination is not absolute and is not without limitation, see Van Arsdall,

475 U.S. at 679 (reaffirming that the Sixth Amendment “‘guarantees an

opportunity for effective cross-examination, not cross-examination that is

effective in whatever way, and to whatever extent, the defense might

wish’”) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)) (emphasis

in original).

At issue in this case is whether the trial court’s application of

Evidence Rule 609(b) denied Defendant his constitutional right to cross-

examine a witness on an area of credibility. Defendant argues that such

application “prevented [Defendant] from cross-examining Mossberger about,

and presenting evidence of, impeaching felony convictions which directly

correlated with his propensity to tell the truth.” Appellant’s Br. at 36.

We disagree and find that the trial court’s application of Rule 609(b) did

not prevent Defendant from cross-examining Mossberger and attacking his

credibility. Defendant conducted a thorough cross-examination of

Mossberger which consisted of at least 500 pages of record. Defendant

further acknowledges in his brief that he “was able to expose some of

Mossberger’s evasiveness, selective memory, and lies.” Appellant’s Br. at

33. Because Defendant was permitted to cross-examine on Mossberger’s

credibility in some extended detail, we find that the exclusion his

seventeen-year-old convictions did not amount to a denial of Defendant’s

constitutional right to cross-examination.

VII

Defendant contends that the trial court violated his statutory right

to a speedy trial under Indiana Criminal Rule 4(B)(1) when it failed to try

him within 70 days of May 15, 1996, the date that Defendant filed his

motion for a speedy trial. He specifically argues that the State’s late

production of discovery material forced him to move for continuances on

three separate occasions and thus the trial court improperly attributed the

elapsed time to him.[19] Defendant therefore argues that his convictions

should be reversed and that he is entitled to discharge.

The chronology of trial events indicate that Defendant filed a speedy

trial motion on May 15, 1996, and the court properly set a trial date for

July 22, 1996 — a time within the 70-day period required by Criminal Rule

4(B)(1).[20] On June 17, 1996, only 34 days into the speedy trial period,

Defendant filed a motion to dismiss on grounds of a Criminal Rule 4(B)(1)

violation. The trial court denied the motion.[21]

Defendant filed three separate requests for continuances over a course

of fourteen days. On July 19, 1996, a few days before trial, Defendant

moved for a continuance requesting a one-week delay and further sought to

charge the delay against the State because the State had not complied with

his discovery requests.[22] At a July 19th hearing, the trial court ruled

against charging the State with the delay, reasoning that both the State

and Defendant “made respectful attempts to comply with the orders of the

Court,” and then denied Defendant’s motion. (R. at 7,491.) Immediately

after the court’s ruling, Defendant again moved for a continuance, a motion

identical to the first except that it did not request that the delay be

charged against the State. The State responded that it was “ready to go to

trial” as scheduled but had no objection to the motion. (R. at 7,492-93.)

The court granted Defendant’s motion to reschedule the trial for July 29,

1996.

On July 26, 1996, the trial court granted Defendant’s new request to

reschedule the trial. At a hearing on the matter, the State stated that

there was more to be done but that it was “ready to go to trial.” (R. at

8,543.) On August 1, 1996, Defendant again moved for a continuance. The

trial court granted the request and rescheduled the trial to begin on

September 23, 1996, which was the only available date on the trial court’s

calendar. On August 22, 1996, Defendant filed another motion to dismiss

because he was not brought to trial within 70 days from the date he filed

his motion for a speedy trial. At a September 17, 1996, hearing, the trial

court denied this motion to dismiss.

Indiana Rule of Criminal Procedure 4(B)(1) provides that “[i]f any

defendant held in jail on an indictment or an affidavit shall move for an

early trial, he shall be discharged if not brought to trial within seventy

(70) calendar days from the date of such motion . . . .” The trial court

may set a trial date beyond this prescribed time when there is a

continuance or delay by the defendant, court congestion, or an emergency.

As such, when a defendant requests a continuance, the elapsed period

between his motion for a continuance and the new trial date is generally

chargeable to the defendant. See Vermillion v. State, 719 N.E.2d 1201,

1204 (Ind. 1999), reh’g denied. However, as Defendant correctly points

out, we have found that when a defendant moves for a continuance because of

the State’s failure to respond to discovery requests, the delay can be

attributable to the State. See Isaacs v. Sate, 673 N.E.2d 757, 762 (Ind.

1996) (citing Biggs v. State, 546 N.E.2d 1271, 1275 (Ind. Ct. App. 1989)).

At the July 19th pre-trial hearing on the first continuance, Defendant

made no objection to the trial court’s decision not to charge the delay

against the State. Rather than raising an objection to the court’s ruling,

Defendant renewed the motion for continuance without requesting that the

delay be attributed to the State. A defendant who permits the court,

without objection, to set a trial date outside the 70-day limit is

considered to have waived any speedy trial request. See Goudy v. State,

689 N.E.2d 686, 691 (Ind. 1997).

This waiver notwithstanding, we consider Defendant’s two other

continuances. At the July 26th pre-trial hearing on the second motion for

continuance, Defendant argued that laboratory tests for hair comparisons

were not completed by the State. However, Defendant conceded that the lab

technicians were “working as fast as [they] can.” (R. at 8,540.) He

further acknowledged that new information had recently come to light which

required him to ask for additional time to re-depose two or three different

witnesses.[23] Because Defendant needed additional time to prepare for

trial, the elapsed time resulting from the second trial continuance was

rightfully charged to Defendant. With respect to Defendant’s third motion

for continuance, 54 days of the delay (the period between the date of

Defendant’s third continuance on August 1, 1996, and the date of the trial

on September 23, 1996) were attributable to neither the State nor

Defendant. The court warned both parties that because of court congestion,

the next available trial date on the court’s calendar was not until

September 23, 1996, and neither party objected to the revised schedule.

Defendant did not dispute the trial court’s finding of court congestion in

his motion for discharge or on appeal. As such, we will presume that the

trial court’s finding of court congestion is valid, and that no

contemporaneous explanation or documentation was needed. See Clark v.

State, 659 N.E.2d 548, 552 (Ind. 1995).

Finally, we recognize that in a death penalty case of this magnitude

even the most capable attorneys would be hard pressed to complete all

discovery requests before the tolling of a speedy trial period. This Court

recently gave particular attention to death penalty cases subject to the

time constraints of Criminal Rule 4 in Lowrimore v. State, 728 N.E.2d 860

(Ind. 2000), reh’g denied. In that case, we said, “The values of Criminal

Rule 4 are important, but so long as constitutional speedy trial standards

are met, these values must yield to the exigencies created by the death

penalty charge if the two cannot be reconciled.” Id. at 866. We believe

that principle also applies to the circumstances presented here.

Attorneys on both sides were under considerable time pressures to prepare a

capital case involving the murders of three victims, the presentation of

158 witnesses, and the introduction of 966 exhibits. Not surprisingly, the

record reveals that discovery continued long after the trial commenced on

September 23. While there may have been delays in the State’s response to

some discovery requests in question because of laboratory delays, we find

no basis to disagree with the State’s assertion at trial that it “made

every effort to comply with discovery orders of the Court.” (R. at 7,490.)

In light of the tremendous discovery challenges brought on by a death

penalty case of this scale, we agree with the trial court’s initial finding

that both parties made respectable attempts to

comply with court orders. Defendant is not entitled to discharge.

VIII

Defendant contends that the following “proceedings were illegally

conducted outside [Defendant’s] and his counsel’s presence”: (1) a

conference between the judge and the prosecutor regarding the State’s

request to delay the trial one week in order to investigate an alleged

confession to the murders made by someone other than Defendant; (2) a

written communication between the judge and jury during deliberations in

the guilt-determination phase; and (3) a jury viewing of the crime scene.

Appellant’s Br. at 50. Defendant argues that his absence and the absence

of his attorneys violated his right to be present at all “critical stages”

of his trial and entitles him to reversal of his convictions.

Defendant cites to three different sources for his right to be

present: the Sixth and Fourteenth Amendments to the United States

Constitution and Article 1, § 13, of the Indiana Constitution. In Ridley

v. State, we clarified that these constitutional sources guarantee a

defendant’s right to be present but that they are not identical. 690

N.E.2d 177, 180 (Ind. 1997). As such, we discuss each separately.

A

Defendant first contends that he was denied his constitutional right

to be present under the federal and state constitutions when the judge and

the prosecutor met with each other in Defendant and Defendant’s attorney’s

absence without notice.

The pertinent facts surrounding the judge-prosecutor ex parte

conference indicate that during the trial on January 2, 1997, prosecutors

met with the trial judge in the judge’s office, outside the presence of

Defendant and his attorneys. Immediately thereafter, counsel on both sides

participated in an in camera hearing in which the State requested a one-

week continuance and the temporary tolling of discovery obligations.

Defendant objected to any continuance but had no basis for the objection

simply because neither the prosecutor nor the judge disclosed the subject

matter of the ex parte communication. Defendant demanded to know the

nature of the communication but the judge denied this request. The

prosecutor argued, without legal authority, that the information was

“privileged and confidential.” (R. at 19,814.) Defendant sought, but was

denied, a mistrial.

On January 6, the judge made a written account of the ex parte

communication with the prosecutor. According to the judge’s report, the

prosecutor divulged that a person other than Defendant had admitted to

shooting the Tylers and Southard. At this time, the State supplied

Defendant with two supplemental case reports disclosing the results of its

investigation. The reports revealed that Officer Heilman learned on

December 27, 1996, that Robert Smith told Vanderburgh County Police that he

overheard someone else confess to the murders for which Defendant was

currently being tried. Smith also suggested that the murders were

committed in retaliation for a drug debt owed to Herschel Seifert by the

Southard’s fiancé, Troy Napier.

The essence of Defendant’s argument is that if he had been present

during the ex parte proceeding, Smith’s story would have been disclosed to

him and he could have presented a “meaningful argument at a meaningful time

. . . against the continuance” requested by the State. Appellant’s Br. at

54. Defendant also maintains that “[t]he subject of this ex parte

proceeding was information about a person who overheard someone else

confess to the killings for which [he] was on trial. That information

directly contradicted the story told by Funk, and provided the missing

motive behind the killings. Keeping this information from [him] ultimately

hampered his defense.” Id. at 55.

We agree with Defendant that he was entitled to know the reason the

prosecutor requested the continuance. It was not appropriate for the trial

court to place Defendant in a position of having to respond to the

requested continuance when the reason for it was secret.[24] However, we

find the trial court’s error in this regard to be harmless. We also hold

that no violation occurred under either

the Sixth Amendment or Due Process Clause of the Fourteenth Amendment.

Defendant was entitled to any information in the State’s possession

concerning another’s confession to the murders for which Defendant was

being tried. However, Defendant has not shown how his inability to have

this information in order to oppose the State’s continuance request

adversely affected his substantial rights. See Fleener v. State, 656

N.E.2d 1140, 1142 (Ind. 1995) (ruling that errors in the application of

state evidentiary or procedural law will be found harmless if their

probable impact is sufficiently minor so as not to affect the substantial

rights of the parties). Defendant acknowledges that only one week after

the ex parte communication, the State made available two supplemental case

reports disclosing the details of Smith’s story. See Appellant’s Br. at 53

(citing R. at 2,513, 3,647-48, Appendix 30-31.) The judge then properly

granted Defendant a continuance allowing him sufficient time to review this

newly discovered information, and to “pursue any avenues raised by its

disclosure and to adjust its strategy accordingly.” Dye v. State, 717

N.E.2d 5, 12 (Ind. 1999), cert. denied, __U.S.__ , 121 S. Ct. 379 (2000).

The record further indicates that defense counsel deposed Smith before the

trial reconvened and that counsel read aloud Smith’s sworn testimony in

front of the jury. As such, the jury did hear Smith’s testimony which

directly contradicted Funk’s inculpatory testimony against Defendant. We

conclude that the impact of the ex parte communication was sufficiently

minor so as not to have affected the substantial rights of Defendant.

Defendant also contends that the ex parte communication violated his

constitutional rights in several respects.

First, Defendant claims his Sixth Amendment right to be present in the

courtroom at every stage of his trial was violated. This right is rooted

in the Confrontation Clause. Ridley, 690 N.E.2d at 180 (citing Illinois v.

Allen, 397 U.S. 337 (1970)). A Confrontation Clause violation occurs when

witnesses or hearsay evidence are presented in the defendant’s absence that

affect the defendant’s opportunity for cross-examination. See Kentucky v.

Stincer, 482 U.S. 730, 737-38 (1987). In the present case, the judge-

prosecutor ex parte communication did not involve the presentation of

witnesses or evidence against Defendant. Defendant’s right to cross-

examine witnesses under the Confrontation Clause was not implicated because

no witnesses were present during the meeting held in Defendant’s absence.

See id. Accordingly, we find that there was no Sixth Amendment violation.

Second, Defendant raises an argument under the Due Process Clause of

the Fourteenth Amendment, contending that the State failed to disclose

Smith’s story about the alleged confession which was in direct violation of

Brady v. Maryland, 373 U.S. 83 (1963). See Appellant’s Br. at 54, 56. Due

process requires the State to disclose to the defendant favorable evidence

which is material to either his guilt or punishment. See Brady, 373 U.S.

at 87; Kyles v. Whitley, 514 U.S. 419, 432 (1995). Under Brady, favorable

evidence is material “only if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the proceeding

would have been different. A ‘reasonable probability’ is a probability

sufficient to undermine confidence in the outcome.” United States v.

Bagley, 473 U.S. 667, 682 (1985) (analyzing Brady). In this case, we find

that no Brady violation occurred because Smith’s story was disclosed to

Defendant only a week following the ex parte communication and became known

to the jury before the conclusion of the trial. See Williams v. State, 714

N.E.2d 644, 648-49 (Ind. 1999) (recognizing that if the favorable evidence

becomes known to the defendant before or during the course of a trial,

Brady is not implicated) (citing United States v. Agurs, 427 U.S. 97, 103

(1976)), cert. denied, ___ U.S. ___, 120 S. Ct. 1195 (2000); Dye, 717

N.E.2d at 12 (same); Braswell v. State, 550 N.E.2d 1280, 1283 (Ind. 1990)

(same).

Finally, Defendant argues that his right to be present at every stage

of a criminal proceeding under Article 1, § 13, of the Indiana Constitution

was violated. But that right only applies to situations where the jury’s

presence is required. As the jury’s presence was not required during the

judge-prosecutor communication, the Indiana constitution was not violated.

See Ridley, 690 N.E.2d at 181 n.4.

B

Defendant also contends that the trial court erred in violating his

“federal and state constitutional rights to be present and be heard in

person and by counsel at all stages of his trial,” when “the jury and judge

exchanged written communications” during jury deliberations in the guilt-

determination phase. Appellant’s Br. at 51. For this ex parte claim,

Defendant relies upon two sources for his right to be present: the Sixth

Amendment under the United States Constitution and Article 1, § 13, of the

Indiana Constitution.

After retiring for deliberations, the jury sent a written note to the

bailiff who in turn handed the note to the judge. The note read as

follows: “We would like to listen to [Defendant’s] tape 4810. Can we see

the depositions of Brian M. & Dale Funk?” (R. at 3,725.) The trial court

“advised the [b]ailiff to tell the jury that the court could not provide

the items requested [by] them.” (R. at 3,842.) The trial court reported,

“The [j]ury then continued its deliberations and no further requests were

received prior to reaching their verdicts.” (Id.) Both parties were

advised of the judge-jury communication sometime later.[25]

Case law recognizes state constitutional protection for a defendant’s

right to be present when a jury makes a request for any additional guidance

during deliberations. See Pendergrass v. State, 702 N.E.2d 716, 718-20

(Ind. 1998). This Court has repeatedly laid out the procedural guidelines

for a trial court to follow when confronted with such a situation. See id.

at 718-20; Bouye v. State, 699 N.E.2d 620, 628 (Ind. 1998). Under this

procedure, trial court should

“notify the parties so they may be present in court and informed of

the court’s proposed response to the jury before the judge ever

communicates with the jury. When this procedure is not followed, it

is an ex parte communication and such communications between the judge

and the jury without informing the defendant are forbidden. However,

although an ex parte communication creates a presumption of error,

such presumption is rebuttable and does not constitute per se grounds

for reversal. When a trial judge responds to the jury’s request by

denying it, any inference of prejudice is rebutted and any error

deemed harmless.”

Pendergrass, 702 N.E.2d at 719-20 (quoting Bouye, 699 N.E.2d at 628)

(emphases in original) (citations omitted).

In the instant case, the trial judge erred in not notifying the

parties before communicating to the jury. However, the judge merely denied

the jury’s request to listen to Defendant’s taped statement for a second

time and to review depositions that were already read into evidence;

therefore, any error resulting from this communication was harmless. See

Marsillett v. State, 495 N.E.2d 699, 709 (Ind. 1986) (holding that a judge-

jury communication outside the defendant’s presence constituted harmless

error where the judge merely denied the jury’s request to replay part of a

transcript); see also Brewer v. State, 605 N.E.2d 181, 184 (Ind. 1993)

(ruling that where a trial court simply denied a jury’s request for more

information in the defendant’s absence, such communication did not result

in prejudice to the defendant and any error was harmless).

Defendant also contends that his absence “prevented [him] from being

heard by counsel as to the importance of allowing the jury to listen to the

taped statement.” Appellant’s Br. at 59. He argues that the “subject

matter [of the jury’s note] was some of the most crucial evidence

presented,” and that “[i]t would be reasonable to conclude jurors might

need to refresh their recollections about the most pivotal evidence

presented.” Id. As we stated in response to an almost identical assertion

in Bouye, “[c]ontrary to the defendant’s argument, the prohibition against

ex parte communication is not designed to give the defendant an opportunity

to provide the jury with more information that might benefit his case, but

rather it is designed to prevent the jury from being improperly influenced

by the judge. The defendant’s contention fails.” 699 N.E.2d at 628-9.

With respect to Defendant’s other argument on the right to be present,

he contends that the “federal constitutional right[] to be heard by counsel

and to have counsel’s assistance [is] implicated by . . . an ex parte

communication even where the judge ultimately refuses communication.”

Appellant’s Br. at 59. However, Defendant merely cites to the Sixth

Amendment[26] without developing the argument further. See Ind. Appellate

Rule 8.3(A)(7).

C

Finally, Defendant argues that the jury’s view of the crime scene was

illegally conducted outside his and his counsel’s presence.

Over Defendant’s objection, the trial court granted the State’s

request for the jury to view various locations pursuant to Indiana Code §

35-37-2-5, which allows a “jury to have a view of the place in which any

material fact occurred.” In particular, the bailiff accompanied the jury

to see Mossberger’s home; the railroad crossing on Red Brush Road; Napier’s

mobile home where the burglary occurred prior to the murders; and the

intersection of Youngblood and Eble Roads where the commission of the

murders took place. Before the viewing, the trial court’s instructions

advised the jury that the “various locations of the jury viewing [were] not

to be considered as evidence,” (R. at 31,543), and to “remain on bus and on

public right of way at all times,” (R. at 31,545). Both parties agreed to

these instructions.

Defendant specifically argues on appeal that the places viewed by the

jury in Defendant’s absence constituted “evidence.” Defendant maintains

that because he was absent during “presentation of evidence,” his right to

be present was in violation of the Sixth and Fourteenth Amendments of the

United States Constitution, and Article 1, § 13, of the Indiana

Constitution. Appellant’s Br. at 57-58. Defendant did not make a request

to the trial court to accompany the jury during the viewing and was never

barred from doing so. Thus, he cannot now claim error on appellate review

that he was denied his constitutional rights to be present. Nevertheless,

it is well settled Indiana law that a jury’s view of a location is not

evidence, but rather it is intended to aid a jury’s understanding of

evidence presented at trial. See Jackson v. State, 597 N.E.2d 950, 962

(Ind. 1992), cert. denied, 507 U.S. 976 (1993); Johnson v. State, 472

N.E.2d 892, 909 (Ind. 1985); Mears v. State, 455 N.E.2d 603,605 (Ind.

1983). Because neither evidence nor witnesses were presented in

Defendant’s or his counsel’s absence, his rights under the Confrontation

Clause of the Sixth Amendment were not implicated. See part VIII.A, supra.

Furthermore, Defendant merely cites to the Indiana constitution and the

Fourteenth Amendment and did not develop the argument further. App. R.

8.3(A)(7).

IX

Defendant contends that the trial court erred by admitting several

autopsy photographs of the victims’ internal organs because the cause of

death was uncontested and the photographs depicted the bodies in an

“altered” condition and therefore unduly prejudiced the jury. See

Appellant’s Br. at 66. He argues that the photographic evidence had “no

real probative value” and that they only served to inflame the emotions of

the jury. See id. at 70.

Photographs, including those that are gruesome in nature, are

admissible if they act as interpretive aids for the jury and have strong

probative value. Spencer v. State, 703 N.E.2d 1053, 1057 (Ind. 1999);

Wright v. State, 730 N.E.2d 713, 720 (Ind. 2000) (citing Harrison v. State,

699 N.E.2d 645, 647 (Ind. 1998)). Relevant evidence is evidence that has

“any tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable than it

would be without the evidence.” Ind. Evidence Rule 401. To exclude

photographs from evidence on relevancy grounds, the defendant must show

that their improper influence on the jury substantially outweighed their

probative value to the extent that they were unduly prejudicial. See Ind.

Evidence Rule 403; Spencer, 703 N.E.2d at 1057; Mitchell v. State, 726

N.E.2d 1228, 1237 (Ind. 2000), reh’g denied. We review the trial court’s

admission of photographic evidence for an abuse of discretion. See Cutter

v. State, 725 N.E.2d 401, 406 (Ind. 2000), reh’g denied.

In this case, Defendant attacks the admission of the following three

photographs of Brandy Southard: State’s Exhibit No. 2995 depicted the rib

cage and muscles; Exhibit No 2998 viewed the inside of the chest after the

rib cage and breast bone were removed; and Exhibit 3003 displayed the heart

and aorta. Defendant also challenges the admission of the following three

photographs of Kathy Tyler: (1) Exhibit No. 2906 showed Kathy Tyler’s left

lung; (2) Exhibit No. 3072 revealed a windpipe and voice box; and (3)

Exhibit No.3036 pictured the inside of the chest wall after the organs had

been removed. Finally, Defendant takes issue with the admission of the

following photographs of John “Jay” Tyler: Exhibit No. 3124 and 3127

displayed lungs; Exhibit No. 3148 showed a heart; Exhibit No. 3148 depicted

ribs and a breast bone; Exhibit No. 3154 displayed a liver; Exhibit No.

3146 viewed a chest cavity after the chest organs had been removed; and

Exhibit No. 3151 depicted a lower jaw.

Defendant argues that “none of these photos depict the victims’

bodies in their natural state after [their] deaths,” but instead “show [the

victims’] appearance after the pathologist has done his work.” Appellant’s

Br. at 70. He correctly points out that photographs showing the victim’s

body in an “altered condition,” e.g., during or after an autopsy has been

performed, are generally inadmissible because they may impute the work of

the pathologist to the defendant. See Turben v. State, 726 N.E.2d 1245,

1247 (Ind. 2000); Fentress v. State, 702 N.E.2d 721, 722 (Ind. 1998); Allen

v. State, 686 N.E.2d 760, 776 (Ind. 1997), cert. denied, 525 U.S. 1073

(1999); Loy v. State, 436 N.E.2d 1125, 1128 (Ind. 1982); Warrenburg v.

State, 260 Ind. 572, 574-76, 298 N.E.2d 434, 435-6 (1973); c.f., Kiefer v.

State, 239 Ind. 103, 116-18, 153 N.E.2d 899, 904-05 (1958).

We do consider these close-up photographs viewing multiple gunshot and

stab wounds to the victims’ internal organs to be gruesome if not ghastly.

But “‘[e]ven gory and revolting photographs may be admissible as long as

they are relevant to some material issue or show scenes that a witness

could describe orally.’” Mitchell, 726 N.E.2d at 1237 (quoting Amburgey

v. State, 696 N.E.2d 44, 45 (Ind. 1998)).

The photographic evidence complemented the pathologist’s testimony as

well as other evidence introduced at trial and was relevant in rebutting

Defendant’s contention that he neither shot the victims multiple times with

his SKS assault rifle nor stabbed the victims with a knife. First, the

photograph evidence was illustrative of the pathologist’s testimony

concerning the cause of the victims’ death. For instance, the pathologist

testified that the “high powered rifle” bullets used to commit the multiple

killings penetrated the rear of the truck, struck the victims, and traveled

through their bodies. The pathologist also testified that all three

victims were shot and then subsequently stabbed by their assailant. This

determination corroborated Funk’s account of the timing of the

circumstances surrounding the murders. Although Defendant did not contest

the cause of death, the photographs helped to illustrate the pathologist’s

testimony describing the chest wound from a knife causing Brandy Southard’s

death and the projection and path of the fatal bullets from a high powered

rifle causing the deaths of Kathy Tyler and John Tyler. Second, other

evidence introduced at trial suggested that Defendant owned a knife similar

to the one used to inflict multiple stab wounds on the victims. Further,

forensic testing proved that the bullets found in the victims’ bodies came

from the same SKS assault rifle owned by Defendant. And Defendant was seen

shooting his rifle shortly before the murders occurred. The post-autopsy

photographs complemented this evidence as well as Funk’s testimony.

As previously stated, we agree with Defendant that the post-autopsy

photographs were gruesome. Thus, we presume that they had a prejudicial

effect when shown to the jury. However, the prejudicial effect was not so

substantial as to outweigh their probative value. Accordingly, we find

that the trial court did not abuse its discretion in finding that the

probative value of the photographs outweighed any prejudicial effect on the

jury.[27] See, e.g., Wright, 730 N.E.2d at 720 (holding no abuse of trial

court discretion in allowing photographs at issue establish the cause of

death and the manner in which the crime was committed and the evidence was

particularly probative inasmuch as the defendant attempted to establish

that he was not the perpetrator); Fentress, 702 N.E.2d at 722 (holding no

abuse of discretion where trial court allowed the admission of autopsy

photographs depicting the victim’s shattered skull with the hair and skin

pulled back because the photos showed the force of the blow, which in turn,

bore on the intent to kill); Elliot v. State, 630 N.E.2d 202, 204 (Ind.

1994) (holding no abuse of discretion where trial court allowed the

admission of autopsy photos of victim’s heart which was probative to

overcome the defendant’s claim of accidental killing); Jackson, 597 N.E.2d

at 963 (ruling that the trial court properly admitted photographs taken

during the autopsy showing view of victim’s skull and brain because they

were probative to illustrate trauma caused by the blows to her head and

they also served to aide the pathologist’s testimony).

X

Defendant next contends that the evidence presented at trial was

insufficient to support his convictions because Mossberger and Funk’s

testimony on the events surrounding the murders was “incredibly dubious.”

Defendant also claims that the State’s case lacked motive and that there

was no circumstantial evidence connecting him to the murders. See

Appellant’s Br. at 9, 29, 31. He further directs our attention to alibi

witnesses who placed him at their home around the time the murders

occurred, see id. at 9, 29, and to other witnesses who suggested that

another person had allegedly confessed involvement in the murders, see id.

at 29-30. All of this, Defendant’s argument continues, demonstrates that

the State failed to establish the “substantial evidence” of probative value

required to support a conclusion of guilt beyond a reasonable doubt. See

id. at 31.

When reviewing a sufficiency of the evidence claim, we neither reweigh

the evidence nor assess the credibility of witnesses. See Williams v.

State, 669 N.E.2d 1372, 1387 (Ind. 1996), cert. denied, 520 U.S. 1232

(1997). We only consider the evidence most favorable to the jury’s verdict,

along with all reasonable inferences to be drawn therefrom, and will affirm

a conviction if the probative evidence and reasonable inferences drawn from

the evidence could have led the jury to find a defendant guilty beyond a

reasonable doubt. See id.; Davis v. State, 598 N.E.2d 1041, 1045 (Ind.

1992), cert. denied, 510 U.S. 948 (1993).

Defendant first attacks the credibility of Funk and Mossberger by

arguing that both witnesses had “motives to lie” in order to implicate

Defendant as the perpetrator who killed the three victims and to exonerate

themselves. See Appellant’s Br. at 10. We considered a similar

credibility issue questioning testimony of a witness who was with the

defendant when the crime occurred in the capital case of Timberlake v.

State, 690 N.E.2d 243 (Ind. 1997), cert. denied, 525 U.S. 1073 (1999).

There we determined that even though the State did not charge the witness

to the crime as an accomplice, the “potentially self-serving testimony

[was] similar to that of one accomplice testifying against another,”

because “[b]oth situations contain the same credibility concerns.” Id. at

252. Here, the most incriminating evidence against Defendant came

primarily from the testimony of Funk and Mossberger. Like the witness in

Timberlake, neither Funk nor Mossberger was charged as an accomplice. Funk

admitted he was present throughout the crime spree of burglarizing Napier’s

mobile home and during the commission of the murders. And Defendant lists

other examples claiming that Funk had a motive to fabricate: Funk’s

shoeprint was found underneath the broken window of Napier’s mobile home;

Funk admitted that he did not want to go to jail; Funk was jealous of

Defendant’s friendship with one Kathy Morreira, whom Funk had been dating;

Funk told his roommate, Kenny Jennings, that he would “cut out

[Defendant’s] liver” (R. at 29,386, 29,431); and Funk told Morreira that he

implicated Defendant for “all the wrong reasons” (R. at 30,101-02). See

Appellant’s Br. at 11. Defendant also puts at issue Mossberger’s

credibility and his motivation to lie. In particular, he emphasizes that

Mossberger had possession of the murder weapon after the murders occurred

and that Mossberger hid the weapon along with the ammunition in the woods.

Having said that, the testimony of an accomplice is subject to high

scrutiny. We have also concluded that such testimony is alone sufficient

to sustain a conviction. See Timberlake, 690 N.E.2d at 252; see also

Thompson v. State, 671 N.E.2d 1165, 1167 (Ind. 1996), reh’g denied;

Garrison v. State, 589 N.E.2d 1156, 1159 (Ind. 1992); Douglas v. State, 520

N.E.2d 427, 428 (Ind. 1988). We have further stated, “[t]he fact that the

accomplice may not be completely trustworthy goes to the weight and

credibility of the witness’ testimony, something that is completely within

the province of the [jury] and cannot be reviewed on appeal.” Timberlake,

690 N.E.2d at 252.

In this case, the jury was made aware of Funk’s and Mossberger’s

involvement before and after the murders occurred and heard witness

testimony which, Defendant urges, indicated that Funk had other possible

motives to fabricate. But it was still the jury’s prerogative as to how

much weight and credibility to give to Funk’s and Mossberger’s testimony.

See Griffin v. State, 493 N.E.2d 439, 443 (Ind. 1986) (“When a jury is

aware of a witness’ possible motives or bias, [the jury] can use the

information to assess the witness’ credibility.”) (citing Shields v. State,

490 N.E.2d 292 (Ind. 1986), reh’g denied.). Furthermore, contrary to

Defendant’s contention,[28] the record indicates that there was

circumstantial evidence connecting Defendant to the shooting. Defendant

had possession of the murder weapon before the murders occurred. Forensic

testing established that the fatal bullets matched those fired from the SKS

assault rifle owned by Defendant. And the spent shell casings retrieved

from the crime scene and the recovered ammunition were similar to those

discovered in Southard’s and Napier’s mobile home where Defendant had

earlier confiscated ammunition on the day of the murders.

Defendant further challenges the testimony of Funk and Mossberger by

focusing on several inconsistencies between their testimony, and by

highlighting inconsistencies between their previous individual statements

to police and trial testimony. He specifically argues that such

inconsistencies make the testimony “incredible.” However, inconsistencies

in the testimony of two or more witnesses go to the weight of the evidence

and credibility of each individual witnesses’ testimony, see Dobbins, 721

N.E.2d at 875; Timberlake, 690 N.E.2d at 252, and such inconsistencies do

not make the evidence “incredible” as a matter of law, see Kappos v. State,

465 N.E.2d 1092, 1096 (Ind. 1984). Here, the jury was fully apprised of

these inconsistencies and had the opportunity to make credibility

determinations. “[J]udging the credibility of witnesses lies squarely

within the province of the jury and we will not reassess its credibility

determinations.” Ellis v. State, 707 N.E.2d 797, 801 (Ind. 1999) (citing

Gee v. State, 526 N.E.2d 1152, 1153 (Ind.1988)). We find no basis to

reassess the jury’s credibility determinations here.

Defendant argues that the “incredible dubiosity” rule should apply in

his case because his convictions were based on Funk’s and Mossberger’s

testimony which was “highly improbable,” as well as “equivocal,

vacillating, and contradictory.” Appellant’s Br. at 14, 20, 22. “‘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.’” White v. State, 706 N.E.2d 1078, 1079 (Ind.

1999) (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994) (internal

quotation 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. We have recognized that

application of this rule is rare and that the standard to be applied is

whether “‘the testimony is so incredibly dubious or inherently improbable

that no reasonable person could believe it.’” Bradford v. State, 675

N.E.2d 296, 300 (Ind. 1996) (quoting Pardue v. State, 502 N.E.2d 897, 898

(Ind. 1987), reh’g denied.), reh’g denied.

There is no dispute that Funk was the State’s sole eyewitness to the

burglary at Napier’s mobile home and to the commission of the murders.

Although there were discrepancies among Funk’s statements made to police,

his statements made in depositions, and his trial testimony, witness

testimony that contradicts witness’s earlier statements does not make such

testimony “incredibly dubious.” See Davenport v. State, 689 N.E.2d 1226,

1230 (Ind. 1997), reh’g granted in part, 696 N.E.2d 870 (1998). Funk

unequivocally identified Defendant as the perpetrator who shot the three

victims and he did not waver in his identification of Defendant’s assault

rifle used to commit the killings. This part of his testimony was

supported by circumstantial evidence. Furthermore, Funk’s testimony

regarding the circumstances before and after the murders was corroborative

of Mossberger’s testimony as well as other witness testimony.

Defendant also contends that Funk’s testimony was a product of Officer

Heilman’s suggestions given when the Officer first questioned Funk about

the crimes. See Appellant’s Br. at 24-6 (citing R. at 24,410-11, 24,453-

55.) Defendant complains, “Funk’s admissions of susceptibility to

suggestion and guessing reveal a lack of authenticity for his story.” Id.

at 11. However, there is no evidence in the record to suggest that Funk’s

testimony was coerced. During defense counsel’s cross-examination of Funk,

the jury heard the nature of Officer Heilman’s initial questioning of Funk.

We find that a reasonable person could have believed Funk’s testimony, and

reiterate that “‘[i]t is the province of the jury to hear the testimony

given by the witnesses and to assess the truth and veracity of each

witness.’” White, 706 N.E.2d at 1080 (quoting Wear v. State, 593 N.E.2d

1179, 1179 (Ind. 1992)); Davis v. State, 658 N.E.2d 896, 898 (Ind. 1995),

cert. denied, 516 U.S. 1178 (1996).

Finally, to further support his contention that the State failed to

establish the requisite “substantial evidence” to support a conclusion of

guilt, Defendant focuses on the testimony of alibi witnesses and witness

testimony suggesting that other persons admitted involvement in the

murders. See Appellant’s Br. at 28-31.

“The State is not required to rebut directly a defendant’s alibi. It

may disprove the alibi by proving its own case in chief beyond a reasonable

doubt.” Lott v. State, 690 N.E.2d 204, 209 (Ind. 1997). Here, Defendant

directs us to his presentation of alibi witnesses who testified that they

saw Defendant just after 10:00 p.m. on the night of the murders. One of

these witnesses claimed that she had spoken to Defendant. [29] Such

testimony directly conflicted with Funk’s and Mossberger’s testimony that

Funk and Defendant left Mossberger’s house during the 10 o’clock news. The

alibi testimony also contradicted the testimony of Funk’s roommate, Kenny

Jennings. Jennings testified that on the night in question, Defendant and

Funk arrived at Funk’s apartment during the sitcom “Cheers” which aired

between 10:00 and 10:30 p.m. Additionally, the alibi testimony

contradicted Defendant’s initial alibi given to police officers. Our

review of the record indicates that on March 30, 1996, just two days after

the murders occurred, Defendant voluntarily gave a taped statement to

police officers which was later played for the jury. In this statement,

Defendant admitted that he saw and briefly talked to Jay, Kathy, and Brandy

at a local Circle S store between 9:30 and 10:00 p.m. on the night the

murders. Defendant also stated that after seeing the victims, he went to

Mossberger’s house and drank wine, and then went straight home. Thus, the

jury was made aware of such inconsistencies between Defendant’s own stories

regarding his whereabouts on the night in question. We find that it was

within the jury’s purview to believe the testimony of Mossberger and Funk

over the testimony of alibi witnesses tending to exculpate Defendant. See

Carr v. State, 728 N.E.2d 125 (Ind. 2000) (“A jury may choose to disbelieve

alibi witnesses if the State’s evidence renders such disbelief

reasonable.”) (citing Lambert v. State, 516 N.E.2d 16, 19 (Ind. 1987),

reh’g denied.). We will not disturb the jury’s prerogative to weigh the

credibility of witnesses and to weigh the evidence.

Defendant also points to other witnesses’ testimony implicating one

Guy James Knight, rather than Defendant, as the person who committed the

murders. See Appellant’s Br. at 28, 29. One defense witness testified

that Brandy Southard told her that Napier owed Knight money, and that if

Knight was not paid, he was “going to put a bullet in [Southard’s] ass.”

(R. at 29,536.) Another defense witness, Allen Fletcher, testified that he

shared a jail cell with Knight in Vanderburgh County, and stated, “[Knight]

told me that he was the one, after the firing was over, that cut their

throats and stabbed them.” (R. at 29,704.) Police questioned Knight who

said he worked for a local landlord and drug dealer named Herschel Seifert.

Knight told police that he was at home with his girlfriend at the time the

murders had occurred and denied ever threatening Southard. Knight’s

girlfriend, however, confirmed one threat made against Southard.

Defendant presented additional evidence along these lines establishing

the possibility that the killings occurred as a result of a drug hit

ordered by Seifert. However, a jury is entitled to disbelieve the

defendant’s evidence and to believe the State’s evidence. See Bradford,

675 N.E.2d at 299 (determining that where conflicting evidence was

presented, the jury was not required to believe the defendant’s evidence,

and that the jury had every right to believe the State’s evidence instead);

see also Harris v. State, 617 N.E.2d 912, 915 (Ind. 1993) (recognizing that

a jury was entitled to believe or disbelieve evidence presented by State

and the defendant in a criminal trial), overruled on other grounds by

Wright v. State, 690 N.E.2d 1098 (Ind. 1997). The evidence concerning

Knight was presented to the jury. It was well within the jury’s ability as

well as its province to assess the witnesses’ relative credibility and to

believe the State’s evidence over Defendant’s evidence suggesting that

Knight confessed to the murders. Again, we find no reason to reassess the

jury’s credibility determinations.

After considering all the evidence most favorable to the verdict as

well as drawing all reasonable inferences therefrom, we conclude that the

jury could have reasonably concluded beyond a reasonable doubt that

Defendant committed the burglary and the three murders. We also find no

basis to impinge on the jury’s credibility determinations and therefore

decline to apply the incredible dubiosity rule.

XI

We now review whether Defendant’s death sentences are appropriate.

The Indiana Constitution provides that “[t]he Supreme Court shall have, in

all appeals of criminal cases, the power to review and revise the sentence

imposed.” Ind. Const. art. VII, § 4. Although our rules for appellate

review of sentences require that deference be given to the judgment of the

trial court where the sentence is death, those rules “stand more as

guideposts for our appellate review than as immovable pillars supporting a

sentence decision.” Spranger v. State, 498 N.E.2d 931, 947 n.2 (Ind.1986),

cert. denied, 481 U.S. 1033 (1987). Moreover, “this Court’s review of

capital cases under article 7 is part and parcel of the sentencing

process.” Cooper v. State, 540 N.E.2d 1216, 1218 (Ind.1989).

This special review of death sentences is grounded in the Indiana

Constitution, our state’s death penalty statute, and federal death penalty

jurisprudence. Harrison v. State, 644 N.E.2d 1243, 1260 (Ind. 1995), cert.

denied, 519 U.S. 933 (1996). The United States Supreme Court “has

repeatedly said that under the Eighth Amendment ‘the qualitative difference

of death from all other punishments requires a correspondingly greater

degree of scrutiny of the capital sentencing determination.’” Caldwell v.

Mississippi, 472 U.S. 320, 329 (1985) (quoting California v. Ramos, 463

U.S. 992, 998-99 (1983)). Meaningful appellate review of death sentences

plays a crucial role in ensuring that the death penalty is not imposed

arbitrarily or irrationally. Parker v. Dugger, 498 U.S. 308, 321 (1991).

Defendant challenges the appropriateness of his death sentences,

contending that the one aggravator did not outweigh the mitigating

circumstance of the “residual doubt” of his guilt. See Dye v. State, 717

N.E.2d 5, 21 (Ind. 1999) (citing generally Miller v. State, 702 N.E.2d

1053, 1069 (Ind. 1998) (describing residual doubt as “[w]hen a jury finds a

defendant guilty beyond a reasonable doubt, there still may be a measure or

residuum of doubt about the defendant’s guilt”), cert. denied, 528 U.S.

1083 (2000)), cert. denied, ___ U.S. ___, 121 S. Ct. 379 (2000). Defendant

specifically argues that residual doubt exists in his case because two key

State witnesses, Funk and Mossberger, had “compelling reasons to lie;” the

State’s lack of physical evidence connecting him to the murders; and the

fact that his “defense was supported by four alibi witnesses.” Appellant’s

Br. at 78-79. Based upon the residual doubt, he asks this Court to set

aside his death sentences and to enter sentences of life without parole.

Our death penalty statute guides our review of death sentences by

providing standards for governing the trial court’s imposition of death

sentences. Following the completion of the guilt-determination phase of

the trial and the rendering of the jury’s verdict, the trial court

reconvenes for the penalty phase. Before a death sentence can be imposed,

our death penalty statute requires the State to prove beyond a reasonable

doubt at least one aggravating circumstance listed in subsections (b)(1)

through (b)(16) of the statute.[30] See Ind. Code § 35-50-2-9 (1998). In

this case, the State supported its request for the death penalty with the

following aggravating circumstances: (1) that Defendant intentionally

discharged a firearm from a vehicle, see Ind. Code § 35-50-2-9(b)(14)(B)

(Supp. 1995); (2) that Defendant committed at least one of the murders by

lying in wait, see id. § 35-50-2-9-(b)(3); and (3) that Defendant “has

committed another murder, at any time, regardless of whether the defendant

has been convicted of that other murder,” see id. § 35-50-2-9(b)(8). To

prove the existence of these aggravating circumstances, the State presented

no additional witnesses at this stage, but rather relied upon evidence from

the guilt-determination phase of the trial.

The death penalty statute requires that any mitigating circumstances

be weighed against any properly proven aggravating circumstances. In

addition to Defendant’s mitigating circumstances presented during the guilt-

determination phase (the Defendant’s four alibi witnesses testifying that

they saw Defendant around the time the murders had occurred and Defendant’s

witnesses testifying that they overheard Knight admit to involvement in the

murders), Defendant offered the testimony of one witness at the penalty

phase, Pam Patterson, a public information officer at the Indiana

Department of Correction. She testified that the vast majority of multiple

murder offenders held in Indiana jails have not been sentenced to death,

but instead were serving either a term of years or life imprisonment

without parole.[31] The jury found that the State did not meet its burden

in proving beyond a reasonable doubt that Defendant committed the first two

alleged aggravators; however, the jury did find that the State proved

beyond a reasonable doubt that Defendant murdered Jay Tyler, Kathy Tyler,

and Brandy Southard. The jury further determined that this one aggravator

outweighed any mitigating factors, and recommended that the death sentence

be imposed.

Once the jury has made its recommendation, the jury is dismissed, and

the trial court has the duty of making the final sentencing determination

at the sentencing hearing. First, the trial court must find that the State

has proven beyond a reasonable doubt that at least one of the aggravating

circumstances listed in the death penalty statute exists. See Ind. Code §

35-50-2-9(k)(1) (1998). Second, the trial court must find that any

mitigating circumstances that exist are outweighed by the aggravating

circumstance or circumstances. See id. § 35-50-2-9(k)(2). Third, before

making the final determination of the sentence, the trial court must

consider the jury’s recommendation. See id. § 35-50-2-9(e). The trial

court must make a record of its reasons for selecting the sentence that it

imposes. See id. § 35-38-1-3.

In imposing the death sentences in the instant case, the trial court

found that the State proved beyond a reasonable doubt one of the

aggravating circumstances listed in the death penalty statute — that

Defendant committed multiple murders. (R. at 32,436-48.) The record and

the law support this finding.

At the sentencing hearing, Defendant presented one additional

witness, Sister Helen Prejean, who testified to her personal account of

past experiences in consoling death row inmates and also provided testimony

relating to her religious beliefs which underpinned her view against

capital punishment. After hearing Sister Helen’s testimony and considering

Defendant’s final argument to the trial court, the trial court issued its

sentencing order. In the sentencing order, the trial court primarily

reflected upon Funk’s account of the events leading up to the murder,

including the Napier mobile home burglary and Defendant’s car chase of the

victim’s truck throughout Warrick County’s rural roads. The court also

recounted the substance of Funk’s testimony on the commission of the

murders: that when the Tyler truck had stopped, Defendant grabbed his SKS

rifle and began to fire as soon as Jay Tyler opened his door; that when the

shooting stopped, Defendant got back in his car, drove some fifty to

seventy-five feet, stopped the car, and got out; that a few minutes later,

Defendant returned to the car and told Funk, “You breathe a word of this

and I’ll kill you.” The trial court then acknowledged that Defendant

“effectively” attacked Funk’s veracity “on many points.” (R. at 32,441.)

The trial court also considered the testimony of alibi witnesses as well as

the testimony of other witnesses indicating that another person admitted

involvement in the crimes. However, based upon Funk’s testimony and other

evidence introduced during the guilt-determination phase, the trial court

concluded that the State proved beyond a reasonable doubt that Defendant

committed three separate murders in a single incident. See Ind. Code § 35-

50-2-9(b)(8).

The trial court found three non-statutory mitigating factors[32]

which were listed in the presentence report: (i) in 1995, the Indiana

legislature offered a sentence of Life Without Parole as an equal

alternative to the death penalty; (ii) the majority of offenders held in

Indiana prisons who have committed multiple murders were not sentenced to

death; and (iii) Defendant demonstrated that he could safely be imprisoned

if a sentence of Life Without Parole were imposed. (R. at 32,444-45; see

also Defendant’s Presentence Report at 5-6.) The court assigned “low

weight” to these three mitigation factors. (R. at 32,444.) The trial court

also showed “great respect” for Sister Helen Prejean’s position against the

death penalty, and even acknowledged that the “vast majority of religious

organizations in the Unites States favor the abolition of the death

penalty” (R. at 32,444), but declined to consider the “very significant

moral issue as a mitigation circumstance in the sentencing process,” (id).

In accordance with our death penalty statute, the trial court found

that the non-statutory mitigating circumstances were outweighed by the

multiple murder aggravator for all three counts of murder. The trial court

also gave consideration to the jury’s recommendation, the presentence

report, and Defendant’s independent report. We find that the trial court’s

sentencing order complies with the requirements imposed by the death

penalty statute and case law.

Based on our review of the record and the law, we agree with the

trial court’s conclusion that the State proved beyond a reasonable doubt

the (b)(8) aggravating circumstance promulgated in the death penalty

statute. As discussed in Part IX, supra, during the guilt-determination

phase of the trial, Defendant repeatedly attacked the veracity of Funk’s

and Mossberger’s testimony, presented testimony that someone else could

have committed the murders, and offered the testimony of four alibi

witnesses. Yet both the jury and the trial court found the testimony of

Funk and Mossbeger to be more credible than the Defendant’s witnesses and

other exculpatory evidence. The witness testimony offered by Defendant and

the inconsistencies in Funk’s testimony persuaded neither the trial court

nor the jury of Defendant’s innocence. We are also not persuaded. We

agree with the trial court that the aggravating circumstance outweighs the

non-statutory mitigating circumstances. We find that residual doubt does

not provide a basis for revising Defendant’s sentences to life without

parole, and therefore conclude that the death penalty is appropriate for

Defendant’s murder of John “Jay” Tyler, Kathy Tyler, and Brandy Southard.

Conclusion

We affirm Defendant’s convictions and the imposition of the death

sentences.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.

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

[1] Ind. Code § 35-43-2-1 (1993).

[2] Id. § 35-43-4-2(a).

[3] Id. § 35-42-1-1(1).

[4] Id. § 35-50-2-9(b)(14)(B) (Supp. 1995). In 1996, the Indiana

legislature re-designated subsection (b)(14) to subsection (b)(15) for

crimes committed after June 30, 1996. See P.L. 228-1996 § 1.

[5] Id. § 35-50-2-9(b)(3).

[6] Id. § 35-50-2-9(b)(8).

[7] The jury determined that Defendant committed the multiple murder

aggravator under Indiana Code § 35-50-2-9(b)(8), allowing for the

imposition of the death penalty.

[8] A statement is not hearsay under Evid. R. 801(d)(1)(B)

if [t]he declarant testifies at trial or hearing and is subject to

cross-examination concerning the statement, and the statement is . . .

consistent with the declarant’s testimony, offered to rebut an express

or implied charge against the declarant of recent fabrication or

improper influence or motive, and made before the motive to fabricate

arose.

Id.

[9] On direct examination, Utzman testified to the following out-of-

court statements made by Dale Funk about the shooting:

[Prosecutor]: And on the way back [from Evansville], did you

and Dale [Funk] have any conversation?

[Utzman]: Yes, we did.

[Prosecutor]: What did you talk about?

[Utzman]: Ah, he was looking scared and nervous about ALCOA,

and I asked him what was wrong with him.

[Prosecutor]: Did he say he was looking scared and nervous

about

ALCOA? I didn’t mean to interrupt you.

[Utzman]: And I asked him what was wrong, and he said that he

took the wrong ride. And I really didn’t understand

what he was saying at the time. But I said, “What do

you mean,” you know, and he said, “Well, I took the

wrong ride. I was there when it happened.” And I

didn’t know what he was talking about.

[Defense counsel]: Show objection to the question, Your Honor.

It’s hearsay

(R. at 25,636-37) (emphases added).

[10] This was the position of the five-justice majority as expressed

in an opinion written by Justice Kennedy and joined by Justices, Stevens,

Scalia, Souter, and Ginsburg. Chief Justice Rehnquest, and Justices

O’Conner, and Thomas, and Breyer would have allowed “relevant” consistent

out-of-court statements admitted even after the motive to fabricate arose.

Tome, 513 U.S. at 169 (Breyer, J. dissenting).

[11] Defendant similarly relies upon our decisions in Bouye and

Thompson to lend support to his argument that Funk, as an “admitted

accomplice,” had an improper motive to fabricate at the time of the

murders. However, we also found that these two precedents do not “require

us to find a motive to fabricate, automatically, at the time the crime

occurred or where the declarant has been questioned by the police in

connection with the matter.” Sturgeon, 719 N.E.2d at 1178.

[12] Apparently, Juror Fox was a former reporter and wanted to use the

notebook as a “springboard for a creative writing project,” such as a book

or a journal. (R. at 32,523, 32,535.)

[13] The trial court held a post-trial hearing concerning Juror Fox’s

notebook. Fox testified before the court and explained that after the

trial had ended, he explored the circumstances surrounding the case by

reading newspaper articles and interviewing officers who testified at

trial. Fox stated that while pursuing his research on the case, he had

destroyed “more than half” of the original notebook by updating and

revising the notebook. Fox testified that he did not have a copy of the

original notebook on file, saved on a floppy disk, or saved on his computer

hard-drive. Because the original notebook could not be produced or re-

produced at the post-trial hearing, the notebook admitted at the trial

level and reviewed by this Court is not the same notebook taken into jury

deliberation.

[14] The principal concern addressed by theses cases was whether note

taking distracted jurors from hearing all the testimony and paying

attention to the credibility and demeanor of witnesses and whether the

jurors relied too much on their notes rather than their memory. These

cases held that at least limited or minor note taking could serve to keep

the minds of jurors from wandering during trial.

[15] Indiana Evidence Rule 702 allows testimony by experts where

specialized knowledge will assist the trier of fact and the expert is

qualified by knowledge, skill, experience, training or education. Whether

or not an expert witness meets these requirements and should be allowed to

testify is within the sound discretion of the trial court. See Roach v.

State, 695 N.E.2d 934, 939 (Ind.1998), reh’g granted on other grounds, 711

N.E.2d 1237 (Ind. 1999).

[16] According to forensic pathologist Dr. Heidingsfelder, “rigor

mortis is the stiffening that takes place in human skeletal muscle after

death. It actually begins at the time of death [and] becomes perceivable

or noticeable at about five (5) or six (6) hours after death.” (R. at

22,449-50.)

[17] According to Mossberger’s testimony, Defendant went to

Mossberger’s house, held a knife by his (Defendant’s) face, and said, “Jay,

Kathy, and Brandy are no more.” (R. at 24,674-75.) Mossberger also

testified that Defendant instructed him to “[d]o something with the SKS;

get rid of it; make it gone.” (R. at 24,678.) Mossberger said that he

complied with Defendant’s demand and buried the assault rifle and

ammunition in the woods the next day. (R. at 24,752-53, 24,770, 24,798-

99.)

[18] Indiana Evidence Rule 609(a) states:

For the purpose of attacking the credibility of a witness, evidence

that the witness has been convicted of a crime or an attempt of a

crime shall be admitted but only if the crime committed or attempted

is (1) murder, treason, rape, robbery, kidnapping, burglary, arson,

criminal confinement or perjury; or (2) a crime involving dishonesty

or false imprisonment.

[19] Defendant also claims that he was compelled to choose between his

constitutional right to a fair trial and his constitutional right to a

speedy trial. However, he does not develop this claim further. See Ind.

Appellate Rule 8.3(A)(7).

[20] Crim. R. 4(B)(1) provides:

If any defendant held in jail on an indictment or an affidavit shall

move for an early trial, he shall be discharged if not brought to

trial within seventy (70) calendar days from the date of such motion,

except where a continuance within said period is had on his motion, or

the delay is otherwise caused by his act, or where there was not

sufficient time to try him during such seventy (70) calendar days

because of the congestion of the court calendar. Provided, however,

that in the last-mentioned circumstance, the prosecuting attorney

shall file a timely motion for continuance as set forth in subdivision

(A) of this rule. Provided further, that a trial court may take note

of congestion or an emergency without the necessity of a motion, and

upon so finding may order a continuance. Any continuance granted due

to a congested calendar or emergency shall be reduced to an order,

which order shall also set the case for trial within a reasonable

time.

[21] It is well established that when a motion for discharge for a

Criminal Rule 4 violation is made prematurely, it is properly denied. See

Bell v. State, 622 N.E.2d 450 (Ind. 1993); Perry v. State, 471 N.E.2d 270,

273 (Ind. 1984). As such, the trial court in this case properly denied

Defendant’s motion to dismiss which was prematurely filed 34 days into the

speedy trial period.

[22] In his first motion for continuance, Defendant argued, inter

alia, that as of July 19, 1996, the State had not allowed Defendant access

to the murder weapon. Defendant further claimed that the State had yet to

complete its analysis of hair, blood, and fiber samples for Defendant’s

independent review and inspection. On July 24, 1996, Defendant requested a

court order instructing the State to release the murder weapon and shell

casings for testing by a defense expert. The trial court granted the

motion, ordering the State to either release such evidence to Defendant’s

agents or make it available for testing at the Warrick County Security

Center. The State promptly complied with the court order.

[23] Defense counsel stated:

We received additional information [on July 25th] that is going to

require the re-deposing of at least two (2) witnesses, and perhaps

three (3), based on information that was not divulged in the first

deposition . . . I think the State is aware of what I’m speaking of .

. . it’s not something that [the State] contrived or done[sic]

willfully . . . but [the depositions] just have to be done. And we’re

in a situation with that, trying then to move into a mode to prepare

the final motions that are going to have to be . . . filed.

(R. at 8,541.)

[24] We express no opinion on the amount of detail the prosecutor was

required to disclose in support of the requested continuance. In certain

continuances, it will be appropriate for a party when requesting a

continuance to ask the court to review supporting documentation in camera.

[25] Our review of the record indicates that the court reporter and

lead defense counsel engaged in a conversation in which the court reporter

informed counsel that the jury had requested Defendant’s taped statement to

police. (R. at 3,772-73, 3,790, 3,808-09.) However, defense counsel

neither objected nor asserted his concerns before the trial court. (Id.)

The facts are in dispute, however, as to whether the court reporter

informed counsel about the jury’s request for the depositions of Funk and

Mossberger. The court reporter provided a sworn affidavit dated September

4, 1997, which states in relevant part:

That whenever Mr. Long returned to the Courthouse after being

notified that the Jury in the above-captioned cause of action had

reached a verdict, but before counsel for the State had arrived and

before the verdict was received from the Jury, [defense counsel] asked

if the Jury had requested any exhibits during their deliberation. I

advised him [that] the Jury had requested Defendant’s taped statement,

and the depositions of Brian Mossberger and Dale Funk. . . . [Defense

counsel] stated he did not believe the State would have had a case

without his client’s statement, and [defense counsel] did not indicate

any objection to me or the judge as to the way the matter was handled.

(R. at 3,809) (emphases added).

In contrast, Defendant claims that the court reporter only informed

him of the jury’s request to listen to Defendant’s taped statement, and it

was only after he read the State’s response to Defendant’s motion to

correct errors that he learned of the jury’s request to see the

depositions. The record of proceedings is unclear as to when or how the

State was advised about the communication.

[26] For a discussion of a defendant’s right to be present under the

Sixth and Fourteenth Amendments under the federal constitution in the

context of a judge-jury ex parte communication, see Pendergrass, 702 N.E.2d

at 718-19 n.3.

[27] Having found that, collectively, these post-autopsy photographs

were properly admitted during the guilt-determination phase, we decline

Defendant’s invitation to address whether such evidence subsequently unduly

prejudiced the jury during the penalty phase. See Appellant’s Br. at 68

(arguing that post-autopsy photographs which “depict removed organs and

body parts should be reviewed under the principles of proportionality

outlined” in Bivins v. State, 642 N.E.2d 928 (Ind. 1994), because “evidence

from the guilt phase is incorporated into and considered by the jury in the

penalty phase” (citing Ind. Code § 35-50-2-9(d)).

[28] Defendant contends that there was “absence of circumstantial

evidence” and no physical evidence connecting him to the murders because no

blood, hair, or fiber, was found in his car or on his clothes, see

Appellant’s Br. at 27 (citing to R. at 27,298, 28,865, 28,935), and his

fingerprints were absent from the Tyler truck, the murder weapon, and the

ammunition case, see id. (citing R. at 24,298, 21,498, 28,865, 28,775,

28,935). Defendant also points out that neither shoe prints nor tire

tracks placed him at the crime scene. See id. (citing R. at 28,935.)

[29] The alibi witnesses included Julie Girtman and Caroline Pevelak,

and their mother, Emily Girtman. Julie and Emily offered testimony

indicating that on the night the murders, they were watching the 10:00

evening news on television when Defendant pulled into their driveway.

Julie testified that she went outside to speak to Defendant for about 25

minutes. During this time, her sister, Cindy Pevelak, drove up and noticed

Defendant and her sister Julie engaged in conversation. Julie and Emily

testified that when Julie returned from talking to Defendant, the 10:00

p.m. program had ended and the sitcom show “Cheers” came on.

[30] We note that at the time the murders occurred, the effective

statutory aggravators upon which Defendant could have been sentenced to

death or life imprisonment without parole were listed in subsections (b)(1)

through (b)(14). See Ind. Code § 35-50-2-9 (Supp. 1995). The legislature

has since then promulgated two more statutory aggravators under subsection

(b). See P.L. 228-1996, § 1; P.L. 261-1997 § 7.

[31] The public information officer offered the following testimony:

[Defense Counsel]

Q: How many men on death row in the State of Indiana are on death

row for committing multiple murder?

[Public information officer]

A: Twenty-three (23)

Q: . . . [H]ow many men are in our state prisons, not on death

row, who have committed multiple murder?

A: As of 5/14/97, there were one hundred eighty-five (185).

(R. at 31,859.)

[32] According to Indiana Code § 35-50-2-9(c)(8) (1998), a trial court may

find mitigating “[a]ny other circumstances appropriate for consideration.”