Albrecht v. State

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

KATHERINE A. CORNELIUS JEFFREY A. MODISETT

Marion County Public Defenders Attorney General of Indiana

Office, Appellate Division

Indianapolis, Indiana KATHRYN JANEWAY

Deputy Attorney General

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

MICHAEL G. ALBRECHT, )

)

Appellant-Defendant, )

) Supreme Court Cause Number

v. ) 49S00-9901-CR-55

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

CRIMINAL DIVISION 6

The Honorable Jane Magnus Stinson, Judge

Cause No. 49G06-9706-CF-080729

ON DIRECT APPEAL

October 19, 2000

RUCKER, Justice

A jury convicted Michael Albrecht for the 1992 murder of his wife

Cynthia for which he was sentenced to sixty years imprisonment. In this

direct appeal, Albrecht raises six issues for our review which we rephrase

and reorder as follows: (1) did the State fail to preserve and provide the

defense with exculpatory evidence; (2) did the trial court improperly

exclude evidence related to Albrecht’s defense; (3) did the trial court

improperly admit evidence offered by the State; (4) was Albrecht tried by a

fair and impartial jury; (5) did the trial court err in its instructions to

the jury; and (6) was the evidence sufficient to support the conviction?

We affirm.

Facts and Procedural History

Cynthia and Michael Albrecht worked for different owners participating

in the Championship Auto Racing Teams (CART) series. During the 1992 CART

season the Albrechts began experiencing marital difficulties. As a result,

Cynthia moved out of the marital home and thereafter filed for divorce. On

October 26, 1992, one day before the divorce was scheduled to become final,

Cynthia returned home from the final CART race of the season. She had made

plans to meet a male friend in Florida later that week. However, after

making a telephone call at approximately 9:30 p.m., Cynthia disappeared.

Her naked and decapitated body was discovered several weeks later in a

field in Northern Indiana.

On June 4, 1997, after a five-year criminal investigation, the State

charged Albrecht with Cynthia’s murder. One of the State’s key witnesses

at trial was William Filter, a long-time friend of Michael Albrecht. He had

initially provided Albrecht with an alibi for the evening Cynthia

disappeared. However, Filter later changed his story and told police that

Albrecht had planned to murder Cynthia after their marriage soured. The

plan included decapitating Cynthia to make identification of her body

difficult. A jury convicted Albrecht of murder, and the trial court

sentenced him to sixty years in prison. Albrecht filed a motion to correct

error raising many of the issues he presents to us on appeal. The trial

court denied the motion. This appeal followed. Additional facts are set

forth below where relevant.

Discussion

I.

In his motion to correct error Albrecht sought a new trial complaining

that the State failed to preserve and provide him with the interview notes

of an FBI agent. According to Albrecht, the State’s action denied him due

process of law and the right to a fair trial. The essential facts are

these. The FBI assisted Speedway police in investigating Cynthia’s death.

Working out of Milwaukee, Wisconsin, agent Daniel Craft interviewed several

friends and relatives of Albrecht. In this appeal, Albrecht’s claim

focuses on the notes taken during Craft’s two interviews of Albrecht’s wife

of a previous marriage. During the interviews, Craft made handwritten

notes and thereafter reduced the notes to a summary report. In response to

Albrecht’s discovery request for “notes, notations or any memoranda of oral

statements,” the State provided the summary reports. However, the State

did not provide Albrecht with the handwritten interview notes. The record

shows that Craft placed the notes in the FBI’s Milwaukee case file, which

was supposed to be forwarded to the Indianapolis office. Apparently, the

FBI failed to forward the notes to Indianapolis, and in 1995, three years

after the interviews took place, the notes were destroyed according to

normal FBI procedure. At trial the State called Craft as a rebuttal

witness. During his testimony, Craft referred to a portion of his

interview with Albrecht’s former wife that was not mentioned in his summary

report. Specifically, Craft testified that Albrecht’s former wife,

Kathleen, told him that she was a light sleeper and would do anything to

get Albrecht back.[1] Albrecht contends the now missing interview notes

would have impeached Craft’s trial testimony by demonstrating that Craft

was mistaken about his recollection of the interview.

Adopting the United States Supreme Court’s decision in California v.

Trombetta, 467 U.S. 479 (1984), this Court has declared that the scope of

the State’s duty to preserve exculpatory evidence is:

limited to evidence that might be expected to play a significant role

in the suspect’s defense. To meet this standard of constitutional

materiality, evidence must both possess an exculpatory value that was

apparent before the evidence was destroyed, and be of such a nature

that the defendant would be unable to obtain comparable evidence by

other reasonably available means.

Holder v. State, 571 N.E.2d 1250, 1255 (Ind. 1991) (quoting Trombetta, 467

U.S. at 488-89 (footnote and citation omitted)). The notes at issue here

do not meet the standard of constitutional materiality as Albrecht has not

shown that the handwritten interview notes played a significant role in his

defense. More specifically he has not demonstrated that the notes

possessed “an exculpatory value.” Holder, 571 N.E.2d at 1255.

“Exculpatory is defined as ‘[c]learing or tending to clear from alleged

fault or guilt; excusing.’” Samek v.

State, 688 N.E.2d 1286, 1288 (Ind. Ct. App. 1997) (quoting Black’s Law

Dictionary 566 (6th ed. 1990)). Even assuming the notes could have in some

way impeached Craft’s trial testimony, such impeachment would have hardly

risen to the level of clearing Albrecht of Cynthia’s murder. Furthermore,

Albrecht provides no basis for us to conclude that Craft’s notes would have

shown whether Kathleen actually made the statements or that Craft’s

recollection of the interview was incorrect. Craft testified that the

summary reports, which did not mention the statements, were a reliable and

complete account of the interview. Albrecht used the reports to impeach

Craft’s recollection of the interviews. Thus, he accomplished the task for

which he now claims the notes were necessary.

At most, the notes may have been potentially helpful to Albrecht’s

case as additional evidence. However, the State’s failure to preserve

useful evidence violates the Fourteenth Amendment only when the defendant

can show bad faith on the State’s part. Arizona v. Youngblood, 488 U.S.

51, 58 (1988); Vermillion v. State, 719 N.E.2d 1201, 1206 (Ind. 1999),

reh’g. denied;[2] see also Killian v. United States, 368 U.S. 231, 242

(1961) (declaring that where the pre-trial destruction of an FBI agent’s

notes, which were transferred to other documents that were made available

to the defense, was done in good faith as part of a normal practice, their

destruction would not be impermissible nor deprive a defendant of any

right). Here, Albrecht has made no showing of bad faith. He was not

denied due process of law nor the right to a fair trial.

II.

Albrecht asserts the trial court improperly excluded evidence related

to his defense, namely: the results of a witness’s polygraph examination,

evidence that a witness worked as a confidential informant, and the

deposition testimony of an absent witness.

A. The polygraph examination

Matthew Kernal had dated Cynthia on at least one occasion and was

initially identified by police as a possible suspect in her death. At the

request of police, Kernal took a polygraph exam, and some of his responses

showed signs of deception. Albrecht attempted to get the results before

the jury, but the trial court ruled they were not admissible.

As a general proposition a trial court is given wide discretion in

determining the admissibility of evidence. However, it has no discretion

to admit evidence of a polygraph examination absent a waiver or stipulation

entered into by both parties. Wright v. State, 593 N.E.2d 1192, 1194-95

(Ind. 1992). Here, the State did not agree to the admission of Kernal’s

polygraph results. Therefore, the trial court properly excluded the

evidence. Further, Albrecht’s claim that the State’s failure to consent to

admission of the results denied him a fair trial is unavailing. The State

is not required to stipulate to the admission of polygraph results.

Hestand v. State, 491 N.E.2d 976, 979 (Ind. 1986). We find no error here.

B. Evidence that Kernal worked as a confidential informant

Speedway Police led the investigation into Cynthia’s murder. Albrecht

argues that evidence should have been admitted to show that police did not

thoroughly investigate Kernal because of their association with him as a

confidential informant. The essential facts are these. During the course

of trial, defense counsel received a telephone call from a man claiming

Kernal worked with Speedway Police as a confidential informant in a case

involving the caller. One of Albrecht’s main defense strategies was to

call into question the department’s diligence in thoroughly investigating

the murder and other potential suspects, including Kernal. Albrecht

questioned Kernal outside the presence of the jury about his alleged work

as an informant. Kernal denied knowing the caller or working as an

informant. Instead, he stated that he once helped a friend who worked as an

informant by riding around with him and identifying potential drug dealers.

Kernal also did not recall working with Speedway Police and said that he

never received favorable treatment from police for helping his friend.

After hearing Kernal’s testimony, the trial court precluded Albrecht from

presenting evidence on the topic, stating that it found no evidence to link

the information to this case. We agree.

“Only relevant evidence is admissible, and relevant evidence is any

evidence ‘having 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.’” Jester v. State, 724

N.E.2d 235, 240 (Ind. 2000) (quoting Ind. Evidence Rule 401). Albrecht

failed to show the relevance of his proffered evidence regarding Kernal.

Kernal denied working as an informant and more specifically, working with

Speedway Police. Albrecht did not attempt to have the caller testify or

present any other evidence on the issue. Thus, although Kernal testified

that he had once assisted his friend, Albrecht offered no evidence that

Kernal actually worked as an informant or received favorable treatment from

Speedway Police. Albrecht presented no evidence linking Kernal’s aid of

the informant with this case. The trial court did not abuse its

discretion.

C. The deposition testimony of an absent witness

Jerry Dillehay is an acquaintance of Kernal and apparently was

unavailable to testify at trial.[3] During pre-trial discovery, Albrecht

took Dillehay’s deposition in which Dillehay discussed specific instances

of misconduct on the part of Kernal as well as Kernal’s reputation for

violence. The trial court found evidence of specific acts of misconduct on

the part of Kernal to be inadmissible under the Indiana Evidence Rules.

Also, the trial court excluded evidence of Kernal’s reputation for violence

in part because Dillehay admitted he had a limited knowledge of Kernal and

thus he had an insufficient basis to form an opinion regarding Kernal’s

reputation.

When Albrecht offered the deposition at trial, he provided no argument

for its admissibility, stating “Can we just enter the transcript as the

record, Your Honor? . . . Because Dillehay’s not here so there’s no proffer

we can really do.” R. at 4172-73. Furthermore, Albrecht even anticipated

that the court would exclude the deposition. Before the court ruled he

stated, “I don’t think [the judge] is going to let any of it in.” R. at

4151.

Albrecht has similarly failed to present us with a cogent argument

demonstrating that the trial court’s ruling was incorrect. Instead of

challenging the trial court’s basis for excluding the evidence, he simply

argues the evidence was relevant to show that Kernal had acted violently

toward his girlfriends in the past, and therefore he likely killed Cynthia.

Albrecht’s failure to present us with a cogent argument supporting his

allegation of trial court error results in waiver of the issue. See

Marshall v. State, 621 N.E.2d 308, 318 (Ind. 1993).

Waiver notwithstanding, the trial court’s decision to exclude the

deposition was correct. The record supports the conclusion that Albrecht

was attempting to use evidence of Kernal’s character solely for the

forbidden purpose of showing action in conformity therewith. See Ind.

Evidence Rule 404(a) (“Evidence of a person’s character or a trait of

character is not admissible for the purpose of proving action in conformity

therewith on a particular occasion . . . .”); see also Evid. R. 608

(providing that evidence of a witness’s character may be attacked by

opinion evidence only in regards to the witness’s character for

truthfulness and may not be shown by extrinsic evidence of specific acts of

misconduct not reduced to a conviction). There was no error here. The

trial court did not improperly exclude evidence related to Albrecht’s

defense.

III.

Albrecht challenges as error the trial court’s admission into evidence

of his statements to police, a tape-recorded telephone conversation between

Albrecht and another person, and an autopsy photograph of his wife’s

decapitated body. He complains the statements were not voluntarily given,

the telephone conversation violated his right to counsel, and the

prejudicial impact of the photograph outweighed its probative value.

A. Albrecht’s statements to police

Albrecht gave two statements to an officer of the Speedway Police

Department. The first occurred at the Speedway Police Station on October

28, 1992. Albrecht claims this statement was inadmissible at trial because

the examining officers failed to give him Miranda warnings. The State

counters that no such warnings were necessary because Albrecht was not in

custody at the time. We agree with the State.

Rights under Miranda apply only to custodial interrogation. Cliver v.

State, 666 N.E.2d 59, 66 (Ind. 1996). To determine whether a defendant is

in custody “we apply an objective test asking whether a reasonable person

under the same circumstances would believe themselves to be ‘under arrest

or not free to resist the entreaties of the police.’” Torres v. State, 673

N.E.2d 472, 474 (Ind. 1996) (quoting Jones v. State, 655 N.E.2d 49, 55

(Ind. 1995)). As we declared in Loving v. State, 647 N.E.2d 1123, 1125

(Ind. 1995), “[t]he test is how a reasonable person in the suspect’s shoes

would understand the situation.”

The record shows the first interview was held only two days after

Cynthia was reported missing. In response to a request by investigating

officer William Jones, Albrecht went to the Speedway police station to

speak with the officer. At that point, police were investigating a report

of a missing person and sought background information concerning Cynthia in

the hope of determining her whereabouts. Officer Jones testified at a

motion to suppress hearing that he specifically advised Albrecht that he

was not under arrest and was free to leave at any time. Albrecht counters

that Officer Jones believed that he was a suspect in Cynthia’s

disappearance but did not so advise him. This fact is not dispositive.

The question is whether a reasonable person in Albrecht’s situation would

believe himself to be under arrest or not free to resist the entreaties of

Officer Jones. Under the facts presented here we conclude no reasonable

person could reach such a conclusion. The trial court properly admitted the

statement into evidence.

The second interview took place in November 1992 while Albrecht was

in Fort Lauderdale, Florida, visiting a relative. Officer Jones flew to

Florida and accompanied Albrecht to a Fort Lauderdale police station. At

the motion to suppress hearing, Officer Jones testified that although he

again advised Albrecht that he was not under arrest and was free to leave,

he nonetheless read Albrecht his Miranda rights before questioning began.

The record does not reveal that Albrecht was presented with or signed a

waiver of rights. However, Albrecht did give an audio-taped statement and

according to officer Jones, Albrecht never indicated that he did not wish

to speak with the officer.

In this appeal, Albrecht acknowledges that he was advised of

his Miranda rights. He complains however that “Jones knew [Albrecht] had

an attorney as early as the 27th or 28th of October. Jones at no point

contacted [Albrecht’s] attorney to tell him [Albrecht] would be

interviewed.” Brief of Appellant at 40. We first note that this assertion

is not only misleading, but also misplaced. The record shows that at the

time of the interview Albrecht was represented by counsel in a divorce

proceeding and apparently Officer Jones was aware of that fact. Albrecht

does not explain why the officer would contact Albrecht’s divorce lawyer

concerning a criminal matter. More importantly, as part of the Miranda

warnings, Officer Jones advised Albrecht that he had a right to counsel and

the right to remain silent. Albrecht stated that he understood his rights

and proceeded to answer Officer Jones’s questions. The record shows that

Albrecht never asserted his right to counsel which “requires, at a minimum,

some statement that can reasonably be construed to be an expression of a

desire for the assistance of an attorney.” Goodner v. State, 714 N.E.2d

638, 641 (Ind. 1999) (quoting Davis v. United States, 512 U.S. 452, 459

(1994)). By speaking to the officer, Albrecht waived his rights. Carter

v. State, 730 N.E.2d 155, 157 (Ind. 2000) (“An express written or oral

waiver of rights is not necessary to establish a waiver of Miranda

rights.”). Other than now complaining that counsel was not present at the

second interview, Albrecht makes no other assertion exploring why his

waiver was involuntary. We find no error on this issue. The trial court

properly allowed this statement into evidence as well.

B. Recorded telephone conversation

Anthony Ferrari was a racing-industry friend and acquaintance of

Albrecht and Cynthia. Ferrari spoke to police about statements Albrecht

had made regarding Cynthia and Albrecht’s desire to harm her. At the

request of police, Ferrari called Albrecht, who was living in Florida at

the time, and recorded their conversation. That conversation, which was

admitted at trial over Albrecht’s objection, recounted many of Albrecht’s

prior discussions with Ferrari.

Albrecht contends that recording his conversation with Ferrari

violated his right to counsel as articulated by the United States Supreme

Court in Massiah v. United States, 377 U.S. 201 (1964). Albrecht’s

reliance on Massiah is misplaced. In that case, the defendant had been

indicted and was on bail when federal authorities surreptitiously listened

to a pre-arranged, non-custodial conversation between the defendant and the

accomplice. The Court held that the defendant’s Sixth Amendment right to

counsel was violated when authorities deliberately elicited comments from

him after he had been indicted and in the absence of counsel. Id. at 206.

Thus, when authorities in Massiah solicited incriminating comments from the

defendant via the accomplice, judicial proceedings had been initiated

against him. That is not the case here. A defendant’s Sixth Amendment

right to counsel applies only to critical stages of the proceedings at or

after the time that adversary judicial proceedings have been initiated

against the defendant. Dullen v. State, 721 N.E.2d 241, 242 (Ind. 1999),

cert. denied, ___ S. Ct. ___, 2000 WL 798245 (Oct. 2, 2000). Here,

Albrecht’s recorded conversation with Ferrari took place on December 4,

1992, well before adversarial proceedings were initiated against Albrecht.

As such, his Sixth Amendment right to counsel was not violated.

Furthermore, Albrecht’s rights under Miranda were not implicated because he

was clearly not in custody when the call was recorded. See Dye v. State,

717 N.E.2d 5, 14 (Ind. 1999) (“Miranda warnings are required only in the

context of custodial interrogation.”), reh’g. denied, cert. pending. The

trial court did not err in admitting the statement into evidence.

C. Autopsy photograph

Over Albrecht’s objection, the trial court admitted an autopsy

photograph of Cynthia, depicting her neck and shoulder region where her

head had been severed. Albrecht argues the photograph lacked probative

value because Cynthia’s head was severed after she was killed.

We review the trial court’s decision to admit photographic evidence

for an abuse of discretion. Cutter v. State, 725 N.E.2d 401, 406 (Ind.

2000), reh’g. denied. Although a photograph may arouse the passions of the

jurors, it is admissible unless “its probative value is substantially

outweighed by the danger of unfair prejudice.” Id. (quoting Evid. R. 403).

A photograph has probative value and is generally admissible if it

demonstrates or illustrates a witness’s testimony. Wallace v. State, 725

N.E.2d 837, 839 (Ind. 2000); Elliott v. State, 630 N.E.2d 202, 204 (Ind.

1994).

Here, the photograph was admitted during the testimony of the forensic

pathologist who examined Cynthia’s body. Her body had not been altered by

the pathologist, and the photograph essentially depicted Cynthia’s body as

it was found. Photographs showing the victim in his or her natural state

following death are generally relevant and admissible. Woods v. State, 677

N.E.2d 499, 504 (Ind. 1997). Before the photograph was admitted into

evidence, the pathologist stated that it would help him explain his

testimony. He then testified that based in part upon his examination of

the neck area, the cause of death was likely traumatic injury of the neck.

We have held that photographs of a victim’s corpse in a homicide case are

relevant to serve as an aid to understanding the pathologist’s findings on

the cause of death. Id. The fact that the pathologist could not state for

certain what caused Cynthia’s death does not render the photograph

inadmissible. Furthermore, the pathologist also described saw marks

discovered in the bone around the wound and the uniform and regular pattern

of the cuts in the skin and muscle, indicating that a sharp object was used

to sever Cynthia’s head. The photograph was probative because it allowed

the jury to see the wound and to place the pathologist’s testimony in

context.

Moreover, the evidence of decapitation was relevant to link Albrecht

to Cynthia’s murder because Albrecht had stated his intention to kill

Cynthia and remove her head so she could not be identified through dental

records. See Schmidt v. State, 255 Ind. 443, 455, 265 N.E.2d 219, 225

(1970) (finding photographs of victim’s dismembered body were properly

admitted to substantiate evidence that murder was carried out according to

a plan to kill and dismember body). Although the photograph is certainly

gruesome and likely stirred the emotions of the jurors, its probative value

was not substantially outweighed by the danger of unfair prejudice to

Albrecht. The trial court did not err in admitting the photograph into

evidence.

IV.

Albrecht contends he was denied a fair trial because two jurors,

Marvin and Yolanda Smith, were brother and sister. Apparently the parties

did not learn of their relationship until after Albrecht’s trial. During

voir dire, neither Albrecht, the State, nor the trial court asked any of

the potential jurors if they were related to each other. Albrecht argues

that the jurors’ brother-sister relationship prejudiced his right to be

tried by “twelve independent and impartial jurors.” Brief of Appellant at

44. He also contends that Marvin and Yolanda were obligated to disclose

their relationship during voir dire even though no questions regarding

familial relationships were raised by the parties or the trial court.

Albrecht was certainly entitled to a fair and impartial jury, and

proof that a juror was biased against the defendant or lied on voir dire

may entitle the defendant to a new trial. Lopez v. State, 527 N.E.2d 1119,

1130 (Ind. 1988). That is not the case here. Yolanda testified at the

hearing on Albrecht’s motion to correct error that she believed the parties

knew she was related to Marvin because the summonses to appear for jury

duty were delivered to the same address on the same day. She further

stated, “Had that [the fact she was the sister of another potential juror]

come up, had the question been raised, I certainly would, would have given

the flag, but he [her brother] has his opinion, I have my opinion, we were

given instructions not to talk about the case. We did not do that ever.

So I didn’t see how it was relevant or that we did anything improper.” R.

at 4521. We agree with Yolanda’s assessment.[4] Absent an inquiry during

voir dire, she and her brother were not required to inform the parties of

their relationship.

Furthermore, Albrecht wholly fails to demonstrate that the jurors’

relationship prejudiced his right to a fair trial. At the hearing on

Albrecht’s motion to correct error, both jurors testified that they did not

discuss the case while the trial was taking place, and Albrecht has cited

nothing to show that these jurors were anything but fair and impartial. A

defendant is entitled to a new trial only upon a showing of bias or serious

misconduct upon the part of the juror which resulted in harm to the

defendant. Lopez, 527 N.E.2d at 1130; Allread v. State, 582 N.E.2d 899,

902 (Ind. Ct. App. 1991). In this case, Albrecht has made no such

showing.

V.

Albrecht next complains the trial court erred in denying three of his

tendered instructions. The instructions covered: (1) circumstantial

evidence; (2) the State’s burden of proof at trial; and (3) the conduct of

the jury during deliberations. In reviewing the trial court’s refusal to

provide disputed instructions, we consider whether the instruction

correctly states the law; whether there is evidence in the record to

support the giving of the instruction; and whether the substance of the

tendered instruction is covered by other instructions. Emerson v. State,

724 N.E.2d 605, 608 (Ind. 2000). Although Albrecht claims otherwise, our

review of the record shows that the substance of each of his tendered

instructions was covered by the trial court’s own instructions. On this

ground alone the trial court correctly refused to give Albrecht’s tendered

instructions.

Albrecht also challenges the trial court’s decision to give its own

instruction on reasonable doubt in addition to an instruction that Albrecht

tendered. The record shows the trial court gave an instruction approved by

a majority of this Court in Winegeart v. State, 665 N.E.2d 893, 902 (Ind.

1996). Reasoning that the two complemented each other, the trial court

also gave the following instruction tendered by Albrecht:

A reasonable doubt is a fair, actual and logical doubt that

arises in your mind after an impartial consideration of all the

evidence and circumstances in the case. It should be a doubt based

upon reason and common sense and not a doubt based upon imagination or

speculation.

To prove the defendant’s guilt of the elements of the crime

charged beyond a reasonable doubt, the evidence must be such that it

should convince you of the truth of it, to such a degree of certainty

that you would feel safe to act upon such conviction, without

hesitation, in a matter of the highest concern and importance to

you.[5]

R. at 491, 544.

Albrecht makes two claims: (1) the Winegeart instruction represents an

incorrect statement of the law on reasonable doubt; and (2) giving both

instructions confused the jury because the “firmly convinced” language in

the Winegeart instruction is inconsistent with the “degree of certainty to

act without hesitation” language in his own instruction. Therefore,

according to Albrecht, the trial court should have given only one

instruction, his own.

As to the first claim, we have approved of the Winegeart instruction

on numerous occasions and decline Albrecht’s invitation to revisit the

issue here. See McGregor v. State, 725 N.E.2d 840, 842 (Ind. 2000);

Turnley v. State, 725 N.E.2d 87, 89 (Ind. 2000); Williams v. State, 724

N.E.2d 1093, 1094-95 (Ind. 2000); Dobbins v. State, 721 N.E.2d 867, 874-75

(Ind. 1999); Ford v. State, 718 N.E.2d 1104, 1105 (Ind. 1999); Barber v.

State, 715 N.E.2d 848, 851-52 (Ind. 1999); Williams v. State, 714 N.E.2d

644, 650 (Ind. 1999), cert. denied, 120 S. Ct. 1195, 145 L. Ed. 2d 1099

(2000); Young v. State, 696 N.E.2d 386, 390 (Ind. 1998); Tobias v. State,

666 N.E.2d 68, 69 (Ind. 1996). We therefore reject Albrecht’s claim that

the instruction represents an incorrect statement of the law.

As for Albrecht’s second claim, we do not agree that giving both

instructions tended to confuse the jury as to the State’s burden of proof.

“The Due Process Clause of the Fourteenth Amendment protects an accused

‘against conviction except upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which he is charged.’”

Winegeart, 665 N.E.2d at 896 (quoting In re Winship, 397 U.S. 358, 364

(1970)). The test for determining the constitutionality of a reasonable

doubt instruction is whether “‘there is a reasonable likelihood’ that the

jury applied the instructions to convict based upon constitutionally

insufficient proof of guilt.” Id. at 897-98 (quoting Victor v. Nebraska,

511 U.S. 1, 6 (1994)). Simply because the language of the instructions

differs, it does not necessarily follow that the definitions are

inconsistent or conflicting. Although we maintain our belief that the

first instruction is the better of the two and requires no supplement to

fully inform the jury about the concept of reasonable doubt, id. at 902,

Albrecht has not convinced us that providing supplementation in the form of

the second instruction tended to confuse or mislead the jury. As we

observed in Winegeart, “[w]hile the federal constitution requires that

juries be instructed ‘on the necessity that the defendant’s guilt be proven

beyond a reasonable doubt,’ it does not require the use of ‘any particular

form of words.’” Id. at 896 (quoting Victor, 511 U.S. at 5). Rather, the

instructions taken as a whole must correctly express “the concept of

reasonable doubt to the jury.” Id. (quoting Victor, 511 U.S. at 5).

Viewing the court’s instructions as a whole, we conclude that there is not

a reasonable likelihood that the jurors applied the instructions to convict

Albrecht based upon constitutionally insufficient proof of guilt. The

trial court did not abuse its discretion in instructing the jury on

reasonable doubt.

VI.

Last, we address Albrecht’s contention that the evidence was

insufficient to support his conviction. In reviewing a sufficiency of the

evidence claim, we do not reweigh the evidence or assess the credibility of

the witnesses. Brown v. State, 720 N.E.2d 1157, 1158 (Ind. 1999). Rather,

we look to the evidence and reasonable inferences drawn therefrom that

support the verdict and will affirm the conviction if there is probative

evidence from which a reasonable jury could have found the defendant guilty

beyond a reasonable doubt. Id.

Albrecht argues that the evidence was not sufficient to convict him

because the testimony of William Filter, the State’s key witness, was

inconsistent, incredible, uncorroborated, and coerced by threat of

prosecution and incarceration by the State. His claim amounts to an

invocation of the “incredible dubiosity rule.” See Tillman v. State, 642

N.E.2d 221, 223 (Ind. 1994); Gaddis v. State, 253 Ind. 73, 80-81, 251

N.E.2d 658, 661-62 (1969). Under this rule, a court will impinge on the

jury’s responsibility to judge witness credibility only when confronted

with inherently improbable testimony or coerced, equivocal, wholly

uncorroborated testimony of incredible dubiosity. Tillman, 642 N.E.2d at

223. “Application of this rule is limited to cases, such as Gaddis, where

a sole witness presents inherently contradictory testimony which is

equivocal or the result of coercion and there is a complete lack of

circumstantial evidence of the appellant’s guilt.” Id. In such an

action, an appellate court may reverse the judgment of the trial court.

Id.

In support of his contention, Albrecht cites a series of events that

he claims led to a dramatic change in Filter’s account of the events

surrounding Cynthia’s death. Filter and Albrecht had been friends for

approximately twenty years. R. at 2718. On several occasions during the

lengthy criminal investigation into Cynthia’s murder, Filter provided an

alibi for Albrecht, telling police that he was with Albrecht on the night

Cynthia disappeared. R. at 2747, 2766-69, 2774-76, 2784-85. However,

when police contacted Filter again in August 1997, they told him that they

did not believe his story and informed Filter that he could be charged with

assisting a criminal and face jail time. R. at 2788-89. Police also told

Filter that he could be arrested and jailed until resolution of the case if

he could not afford bail, which could amount to $100,000. R. at 2757-58,

2788-91. Filter contacted an attorney, who arranged a meeting with police.

R. at 2759. Before the meeting, police provided Filter and his attorney

with a copy of the probable cause affidavit it had generated against

Albrecht. R. at 2793, 2806-08. When confronted with this information and

the threat of prosecution and possible jail time, Filter told police that

his previous statements were untrue and that he had been covering for

Albrecht, who killed Cynthia. R. at 2743, 2799, 2809-10. Filter recounted

this story at trial wherein he described in detail his communications and

contact with Albrecht regarding Albrecht’s desire to kill Cynthia and

ultimately Albrecht’s confession to Filter that he had in fact killed

her.[6] R. at 2727-2750. Both his statement to police and trial testimony

were given under a grant of use immunity by the State. R. at 2715, 2717,

2764, 2800, 2833-34.

Albrecht argues Filter’s testimony at trial was coerced by threat of

prosecution and imprisonment by police and therefore was unworthy of credit

and insufficient to sustain the conviction. In further support of his

claim, Albrecht also contends that Filter’s testimony was unreliable

because he changed his story only after reading the probable cause

affidavit given to him by police and subsequently provided police only with

information found in that document. The thrust of this portion of

Albrecht’s claim is that police gave Filter the information for which they

needed corroboration and he simply told them what they wanted to hear to

avoid punishment.

Although Albrecht raises legitimate issues regarding Filter’s

credibility, these issues were fully presented to the jury at trial.

Albrecht extensively cross-examined Filter about the change in his story

and the forces that Albrecht believed played a factor in Filter ultimately

implicating Albrecht in Cynthia’s death – the threat of prosecution and

jail time. R. at 2766-2801. The jury was also made aware that although

Filter faced charges for assisting a criminal, he was testifying under a

grant of use immunity and would receive a sentence recommendation from the

State if prosecuted and convicted. R. at 2715, 2717, 2764, 2800, 2833-34.

Albrecht also pointed out that many of the details in Filter’s story could

be found in the probable cause affidavit. R. at 2806-19. Therefore,

Albrecht’s contention that Filter only changed his story to avoid

imprisonment and his assertion that Filter’s testimony was unworthy of

credit were placed squarely before the jury for consideration.

Nevertheless, in carrying out its role as the trier of fact, the jury

apparently found Filter’s testimony to be worthy of credit. See Ellis v.

State, 725 N.E.2d 411, 412 (Ind. 2000) (“[I]t is within the jury’s province

to assess the credibility of all witnesses and weigh the evidence . . .

.”). The extent to which threats may have, in some degree, affected a

third party’s testimony goes to the weight to be given the testimony by the

trier of fact. See Barnes v. State, 269 Ind. 76, 84, 378 N.E.2d 839, 844

(1978); Cain v. State, 594 N.E.2d 835, 840 (Ind. Ct. App. 1992), reh’g.

granted on other grounds; McIntyre v. State, 460 N.E.2d 162, 166 (Ind. Ct.

App. 1984).

We cannot say that the jury’s credibility assessment in this case was,

as a matter of law, improper. In response to Albrecht’s attacks at trial,

Filter held firm in his assertion that he was testifying truthfully. R. at

2763-64, 2810, 2848-49, 2871-72. Filter also explained the impact of the

affidavit on his statement and testimony. He told the jury that he finally

changed his story and told the truth when, after briefly examining the

affidavit, he realized that other information had surfaced that supported

what Albrecht had been telling him regarding Cynthia’s murder. R. at 2848-

49. He appeared to believe facts were beginning to surface about Cynthia’s

murder and decided to come clean. Id. In sum, Filter’s testimony was not

incredibly dubious. It was therefore up to the jury to evaluate Filter’s

testimony and assess his credibility in light of the circumstances

presented by Albrecht. We will not substitute our judgment for the jury’s

as to Filter’s credibility.

Further, the jury need not have relied solely on Filter’s statement

to convict Albrecht. In addition to Filter’s testimony, other evidence

tended to support the jury’s conclusion that Albrecht murdered Cynthia.

Albrecht’s former employer, Antonio Ferrari, testified that Albrecht

contacted him about trying to hire someone to “do something permanent” to

Cynthia and that the person could be paid from the $50,000 in life

insurance proceeds. R. at 2625-2631, 3039. A life insurance policy for

Cynthia did in fact exist, naming Albrecht as the beneficiary. R. at 3081,

3117-20. Albrecht continued to make payments on the policy after he and

his wife separated, and he filed a claim for the benefits approximately six

months after Cynthia’s body was discovered. R. at 3049, 3081, 3143-49. He

ultimately received $52,000 from the policy. R. at 3111. When Ferrari

informed Albrecht that he would be unable to help him, Albrecht told

Ferrari that he would do it himself. R. at 2629. Albrecht also contacted

his brother in Florida expressing his anger toward Cynthia and attempted to

hire someone to “rough up” Cynthia. R. at 2480-82. See Shane v. State,

716 N.E.2d 391, 398 (Ind. 1999) (finding the defendant’s expression of

animosity toward the victim and discussions about killing the victim

supported murder conviction despite other erroneously admitted evidence).

Further, Albrecht made somewhat frequent trips to Milwaukee, Wisconsin, and

was in Milwaukee during a part of the weekend Cynthia disappeared. R. at

2743, 3758, 3774, 3803, 3860, 3864. Cynthia’s body was found in a field in

Northern Indiana near I-65, Albrecht’s route between Indianapolis and

Milwaukee. R. at 2130, 2133, 2677. Although this evidence standing alone

may not have been adequate to convict Albrecht, when considered together

and with Filter’s testimony, the evidence was more than sufficient for the

jury to conclude beyond a reasonable doubt that Albrecht murdered his wife

Cynthia.

Conclusion

We affirm the judgment of the trial court.

SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.

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

[1] Craft’s report and testimony at trial indicated that during the

first interview, Kathleen stated that she was barely awake when Albrecht

returned to her home early Monday morning at approximately 2:00 a.m. after

spending the evening with Filter, and that Albrecht let himself in with a

key. Kathleen, however, testified at trial that she was awakened at 2:00

a.m. by Albrecht knocking on her door because his key would not work, and

that she had to get out of bed and let him inside. In Craft’s report,

Kathleen was unsure of the time Albrecht returned, but at trial she was

certain it was 2:00 a.m. Also, Craft testified that Kathleen told him she

still loved Albrecht and would do anything to get him back. His report

stated that Kathleen “desired to get back with [Albrecht] . . . .” R. at

4300.

[2] Albrecht cites Brady v. Maryland, 373 U.S. 83 (1963), in support

of his claim. Although closely related to the principles of evidence

preservation announced in Trombetta and Youngblood, Brady is not directly

on point. Brady applies in situations where a defendant discovers after

trial that the prosecution suppressed material,exculpatory information.

United States v. Agurs, 427 U.S. 97, 103 (1976). “Brady has no application

. . . where the alleged exculpatory evidence no longer exists but its

content was nonetheless revealed through testimony at trial.” Noojin v.

State, 730 N.E.2d 672, 676 n.1 (Ind. 2000) (citing Williams v. State, 714

N.E.2d 644, 649 (Ind. 1999), cert. denied, 120 S. Ct. 1195, 145 L. Ed. 2d

1099 (2000)). The notes in this case were negligently destroyed well

before trial and testimony as to their existence and content was presented

during trial. Further, there was no evidence of suppression by the State.

Therefore, Brady is inapplicable here.

[3] Neither party has addressed, at trial or on appeal, whether

Albrecht met the unavailability requirements of Indiana Evidence Rule 804

or Indiana Trial Rule 32 regarding the admission of Dillehay’s deposition.

Therefore, we will not address the issue in this opinion.

[4] In addition, as the trial court noted in denying Albrecht’s

motion to correct error, Yolanda and Marvin both filled out Albrecht’s

lengthy, detailed jury questionnaire, which was slightly modified by the

trial court. Although the questionnaire did not include an inquiry

regarding relationships between jurors, according to the trial court

Yolanda and Marvin provided “several significant common answers.” R. at

709. However, Albrecht did not question them about their common answers,

e.g., same last name, recent death of grandmother, common place of worship,

and soon-to-be brother-in-law and fiancé was a correctional officer.

[5] Albrecht’s tendered instruction was criticized, but not found to

be constitutionally inadequate, by a majority of this Court in Winegeart,

665 N.E.2d at 898. Two members of our Court found the criticized

instruction to be an appropriate description of reasonable doubt. Id. at

904-05 (DeBruler, J., concurring in result, joined by Shepard, C.J.).

[6] At trial, Filter testified that Albrecht had initially asked him

to kill Cynthia, and when he declined Albrecht said he would do it himself

and that his first wife Kathleen, who lived in Milwaukee, would provide an

alibi. R. at 2728, 2734-37, 2741. Filter stated that he agreed to be an

additional alibi witness for Albrecht. R. at 2737-39, 2741, 2746-47, 2755.

Filter also testified that Albrecht had confided in him the plan to murder

Cynthia, telling him that Cynthia’s head would have to be severed so her

body would not be easily identified through dental records. R. at 2731-

2744, 2811-12. Filter told the jury that Albrecht confessed to following

through with his plan to kill Cynthia. R. at 2743.