*1 applicable all the Respondent shall fulfill Discipline
duties under Admission and 23(26). any
IT IS FURTHER ORDERED that
attorney disciplinary proceedings pending
against Respondent hereby are dismissed Respondent's resigna-
as moot because of
tion from the bar of this State.
All Justices concur. CAMM, Appellant
David R.
(Defendant below), Indiana, Appellee
STATE
(Plaintiff below).
No. 87S00-0612-CR-499.
Supreme Court of Indiana.
June
prejudiced by the State's introduction of regarding poor character- ie., his extramarital conduct-in violation 404(b). of Indiana Evidence Rule Id. at reinvestigated the killings and soon connected a man named Charles Bo- ney. Boney's The State discovered DNA on a sweatshirt that had been tucked un- body. der the son's Because had figured the first this marked a major development in the case. Police questioned Boney, and he admitted having Uliana, Stacy Indiana, R. Indianapolis, owned the sweatshirt but claimed to have Liell, Katharine C. Liell & McNeil Attor- Later, donated to the Salvation Army. PC, IN, neys Bloomington, Attorneys for *5 police definitively matched him palm to a Appellant. print arrest, found the seene. After his Zoeller, Gregory F. Attorney General of Boney provided inconsistent stories but ul- Indiana, Creason, Stephen R. Deputy At- timately asserted that he provided had a General, torney Miklos, A. Kelly Deputy gun for the defendant and present was General, Attorney IN, Indianapolis, Attor- when the three victims were shot and neys Appellee. for killed. Schornhorst, F. Bloomington, Thomas Following remand, the reversal and the IN, Appellant. Amicus Curiae for parties agreed change venue from the Floyd Superior Court to Superior Warrick DICKSON, Justice. Court No. and that court juris- assumed defendant, Camm, David R. appeals diction over the case. The later his three convictions and sentence of life charges dismissed the prejudice without imprisonment parole without for murder- recharged and the in Floyd defendant Cir- ing his wife and two children. We reverse cuit Court with the three counts of Murder and remand for a new trial. adding charge while a of Conspiracy to Commit Murder. The defendant contest- This was the defendant's second trial. procedure by filing original ed this an ac- jury In a convicted him of Murder for Court, tion this and we ordered venue wife, shooting the deaths of his their sev transferred Superior back to Warrick son, en-year-old five-year-old and their transferred, Court No. 2. The case was daughter family at the in George home sought and the State a sentence of life town, trial, Indiana. In that re possibility without the of parole. jected the defendant's alibi that he had playing been basketball at a nearby church The defendant's second trial in Warrick County began on January killed, 2006. The family the time his was and "[the key physical ... purport was the State's evidence at the trial second sub- high velocity spatter ed blood stantially [the de mirrored that at the first: foren- fendant's] t-shirt." Camm v. expert testimony, sic and cireum- (Ind.Ct.App.2004), pointed stantial evidence to the defendant trans denied. The Court of Appeals perpetrator, re as the as well as the defen- versed, finding that the defendant was dant's alleged confession to three inmates. trial, jury convicted the defendant on
Added, however, regarding was evidence trial court all three Murder counts. The and more evi- Boney co-conspirator, as a judgment on the convictions and alleged entered regarding the defendant's dence motive, to a term of life daughter. As to sentenced the defendant of his molestation Following an unsuccessful theory parole. was that without the State's error, daughter, daughter the defendant filed had molested his motion to correct report reported or would Because the defendant was appeal. either had mother, possibility to her and the abuse sentenced to life without family to conceal the molestation. jurisdiction killed his has under parole, this Court theory, the State intro- To advance this 4(A)(1)(a). Appellate Indiana revealing autopsy evidence blunt duced daughter's trauma to the external
force challenges The defendant his con testimony opin- region expert and genital (1) general grounds: viction on four sexually ing daughter had been committed reversible error trial court twenty-four pre- hours molested within ju a allowing the State to strike female ceding her death. (2) reason; neutral gender ror without improperly both admitted evidence was at the scene Boney's presence At excluded, prejudicing the defendant maintained undisputed.1 The defense upon right present impinging perpetrator. was the sole the Sixth Amendment defense under theory, the defense of furtherance of this (8) Constitution; States United Boney's prior assaults on fered evidence *6 in charging committed misconduct State feet, compulsion sexual for women and conspiracy the defendant with order to alleged reputation dishonesty, for his failed in logically exculpating frame evidence as test, in- stipulated polygraph and certain ' (4) evidence; culpating and the evidence eulpatory out-of-court statements. support is insufficient to his conviction. all evidence. trial court excluded of this particular independently claims re Two presented The defense also that trial quire Specifically, reversal. that he had supported the defendant's alibi reversible error in allow court committed playing at the time of the been basketball ing speculative argument evidence and killings and which attacked the State's ex daughter that the molested his patterns of the perts' analysis bloodstain an admitting and out-of-court state clothing. on the defendant's to a ment that the defendant's wife made regarding expected friend the time she case-in-chief,
At the close of the State's night at on the judgment the trial court entered on the see the defendant home But evi evidence in favor of the defendant on the the murders. because sufficient vol.l); convictions,2 (w.6, the de Conspiracy charge. supports Tr. 108 dence retried, may and so we ad Appellant's App'x at 147. At the close of fendant trial, separate Boney ing a due to the erroneous admission 1. In a was convicted of reversal Murder, § Ind.Code. 35-42-1- three counts of totality of evidence if the 1, admitted, Conspiracy one count of to Commit Mur- including erroneously suf that 35-42-5-2, der, 35-42-1-1; § id. and was v. support ficient to the conviction. Lockhart offender, § to be a id. 35-50- found habitual Nelson, 33, 40-42, 285, 488 U.S. 109 S.Ct. (Ind.Ct. 279 2-8. 265, 290-92, (1988); L.Ed.2d 273-74 102 App.2008), trans. denied. (Ind. Bowman v. 1991). against prohibition dou- 2. The constitutional jeopardy prevent ble does not retrial follow- (before App'x at trial: "the record that are the other raised issues dress likely currently to arise on retrial. before the court shows no more best"); suggestion suspicion,
than at ("(Until Speculation regarding adequate whether id. connecting daughter defendant molested his evidence the defendant is established presence jury, any outside the al ground requiring The first reversal leged regard evidence with to the defen repeated emphasis upon specu- the State's dant Camm is not admissible and shall not lation that the defendant molested his case."); be offered to the hearing this daughter. vol.I) (w.8, (repeating this admoni tion). At introduced au topsy revealing blunt force trau The defendant argues that the trial reg ma to the external daughter's genital court abused its discretion allowing the examiner, Corey, Dr. a medical ion.3 State to stack upon inference inference of injuries testified for the State that these molestation to build its puts case. As he
were consistent with either sexual moles it: daughter] "The fact that [the had non- tation or a "straddle fall." Tr. 695 specific trauma opinions descended into vol.Ill). (w.5, Merk, Spivack Drs. daughter] was painfully [the molested pediatricians, both also testified for the which, turn, descended into the State's opined injuries State and these were argument [the molested defendant] couple days inflicted "no more than a mother, daughter], [the who told her who probably most and than somewhat less decided to leave [the Br. of defendant]." that," likely ... and were "most the result Appellant at 20-21. The State counters of sexual abuse." Tr. vol. arguments defendant waived his I). addition, Spivack on redirect Dr. by failing object that, at trial and under agreed with the hypothetical State's 404(b), Evidence Rule the daughter's al- daughter, molested, if she had been leged molestation was relevant to show the *7 likely would have told her mother of the defendant's motive. injury. Later, source of her Id. at 48-44. closing argument waiver, the State's premised regard was With to the State hypothesis on this and argues culminated with that the object defendant did not this statement: "He killed the Corey witnesses. when Dr. testified daugh that the He why injuries couldn't tell his ... buddies he likely by ter's were cause sexual getting molestation, was divoreed because he molested only objected and to Spi- Drs. his five-year-old daughter and he testimony watched vack and Merk's on cumulative them die and grounds. watched his son die." Tr. 1- Although the defendant filed a vol.I). 5, 96, (w.8, 197 Although the State motion in specifically limine objecting to permitted emphasize to its molesta this molestation line inquiry, "[oluly tri tion allegation, the trial court balked sev objections, limine, al not motions are eral any times at the lack of im preserve evidence effective to claims of error for plicating the Appellant's appellate Doescher, defendant. See review." Raess v. appeal, disputes On the defendant the rele- waiver, injuries"). Seeking to avoid the de- showing vance of this medical evidence blunt fendant claims its admission rises to the level but, daughter's genitals force trauma to the requiring of fundamental error reversal on failing object to to its introduction at he appeal. We decline to find this to be funda- Appellant has waived review. See Br. of at 21 mental error. (conceding object that he not "did vol.I). acknowledged this The trial court trial ob- objection. Id. specific ground
jection must "statlel from apparent if objection, [it is] for preservation. case of This is not a clear context," general mere "[al so court, ac example, for while The trial other objection grounds on objection, or an lodged counsel knowledging that defense is ineffective appeal, raised on than those they came too objections, held several re- appellate for argument an preserve late, daugh [the that the "fact that finding (internal quotation at 797 Id. view." very near may have abused or been ter} omitted). argument specificity This marks killed had been admitted the time she was fully of the judge alert the trial serves "to occasions, on one or more into evidence (internal marks quotation legal issue." Id. objection." Appellant's Supp. without omitted). (Certified of Evi at 67 Statement App'x issue, the of the preservation dence). To show sure, the record shows To be objections specific speaks the State and defendant at times both First, shows during trial. the record made inju daughter's if acted as evidence testimony, de- Spivack's Dr. that before the killer's ries was relevant to establish objections at counsel made inaudible fense See, (w.2, vol.I); eg., Tr. motive. Although the State conference. bench (w.6, (w.5, vol.IIl); Tr. 86 vol. Tr. 690-94 solely on objection was based claims this 148-44, 74-77, (w.7, vol.l); I); Tv. Tr. Spivack's nature of Dr. tes- the cumulative vol.D). (w.8, 146-50, 171, In addi- ruling timony, the trial court's transeribed tion, opened the defendant door grant "I'll the motion shows otherwise: redirect Spivack's some of Dr. clearly specu- to that. I think regard with had not by suggesting daughter that the may may part on her lation that Dr. reported injuries Spivack her occurred, possibly or could have not have for her lacked a concrete basis assessment any testify IIl let her as to occurred. degree probabili- "high that there was a made, I'll may grant have findings she ty" daughter had been molested. regard with to that issue." the order See, e.g., Kubsch v. voll) added). Second, (emphasis (Ind.2008) ("Otherwise inadmissi- 919 n. 6 Spivack asked Dr. whether when the State may ble become admissible where daughter likely reported would have 'opens question- the door' to mother, the defendant injuries her to her evidence."). ing on that Nor did the de- objected that the answer again grounds request fendant an admonishment Third, when Dr. speculation. called for *8 closing during argu- mistrial the State's stand, defense took the witness Merk State, Cooper ment. v. 854 N.E.2d See objected grounds that this addi- counsel ("When (Ind.2006) 831, improper an Fourth, tional was cumulative. made, alleged to have been argument is defendant, argu- closing the both before request to the procedure the correct (anticipating that the would ments State jury. the If the trial court to admonish (when molestation) and after the reference with the admonish party is not satisfied so) continuing a in fact did made ment, or she should move for then he just "I to make sure that objection: want an request Failure to admonish- mistrial. continuing objec- a recognizes the Court in for mistrial results ment or to move improper an tion to what we believe is omitted)). (internal citations waiver." de- any-to argue [the argument any reasons, in daughter] But, molested [the least two fendant] for ri- unyielding rule with apply the waiver 404(b) (w.8, objection." way ... 404(b) First, absurdity. in gidity provides, this case risks "Evidence of objected consistently crimes, wrongs, other or acts is not admis experts hy of these and the speculation prove sible to the character of a in person molester-before, pothesis that he was the conformity order to show action in there during, and after trial-and the trial court with," may "be admissible for other was well aware of the issue. The over purposes, proof such as of motive." The riding purpose requirement for a governing admissibility law of specific timely objection is to alert the specific purposes" acts evidence for "other re may trial court that it so avoid error or quires a trial court to make three findings. promptly minimize harm from an error First, court must "determine that the reversal, might require otherwise re crimes, evidence of other wrongs, or acts is in miscarriage justice, sult or waste to a relevant matter at issue other than State, time Godby and resources. See v. the defendant's propensity to commit the (Ind.2000). 736 N.E.2d And see- State, charged act." v. Wilson 765 N.E.2d ond, arguments while the defendant made (Ind.2002) (internal 1265, 1270 citation from this the thrust of the defen omitted). Second, the court must deter argument appears dant's to have been that mine that proponent has sufficient sexually acted alone and attacked proof person allegedly who com wife, daughter. not the Tr. See 148-44 did, fact, mitted the act commit the act. voll). (w.8, It was the State that first Clemens filed a notice of intent to offer the molesta third, And court must 404(b) evidence, allegation tion as Rule probative "balance the value of the evi Appellant's App'x while the defen against dence prejudicial pursu its effect fought dant argument, exclude the id. at Wilson, ant to Rule 408." 765 N.E.2d at (motion limine); id. 598-604 1270. The evidence adduced at trial failed (memorandum challenging pediatricians' satisfy two of these prongs. three argument). It was the State that first brought up topic open at trial in their matter, anAs initial "[elvidence ing you'll statement: "And hear also from always of motive is relevant in proof Drs. Merk Spivack that within 24 crime," id. -and it was in this case. For death, hours of little Jill's from her blood evidence that the defendant mo shirt, being sprayed upon her dad's daughter lested his within hours of her sexually she was molested." Tr. 11 highly death would be relevant under Rule vol.I). anything, If the defendant's trial 404(b) as non-character proof of his mo merely attempt tactics were an to defend Nevertheless, tive. on this record the against himself allegation, and it is sufficiently State failed to connect axiomatic that "the State cannot bootstrap daughter's injuries to the defendant. . admissibility by putting evidence into conflicting persists When about a in, denial, forcing a and then claiming it 404(b) person's involvement in Rule specif put issue the defendant." Bas *9 acts, ic the question is one of conditional State, (Ind. 1050, sett v. 795 N.E.2d 1052 relevance, governed by which is 2003) (internal omitted). citations If this 104(b). 104(b), Under Rule force, rule is to "When the any have a defendant must relevancy of vigorously depends upon evidence the challenge erroneously able fact, admitted evidence without fulfillment of a condition of the conceding the Court to, issue on appeal. proper upon, subject We find the issue shall admit it the ly preserved for appeal. introduction of evidence sufficient to sup-
224
specific
of
acts evidence
the
The value
fulfillment of
finding
a
port
proof
strength
motive rests on the
of
prove
proof
be sufficient
There must
condition."
that
in fact committed
that the defendant
jury could find
a
from which
reasonable
connecting
act.
no evidence
other
With
pre-
uncharged
proven
conduct
the
injuries,
inquiry
the
the defendant
Clemens, 610
the evidence.
of
ponderance
Huddleston, 485 U.S.
purpose.
lacked
See
Huddleston v.
(adopting
at 242
N.E.2d
1501,
689,
at
wife was
to con-
why
particular
ments as to
he
held
molesting
daughter.
front him about
mind,
state of
or what he might have be
Id. at 181.
lieved
would have induced the state of
proof
When admitted as cireumstantial
mind.").
logic
compels excluding
The
believed,
here,
of the fact
the evidence
explicit
applies
references
even more
ceased to be
statement of the declarant's
forcefully
implication:
necessarily
It
de
state of mind but rather was a statement
pends
knowledge
on the wife's accurate
ac-
expectation
of her
the defendant's
defendant,
fact
past
some
about the
with
tions,
and one which lacked
foundation
out which her statement
to irrel
amounted
expectation.
for that
about the basis
speculation,
impossi
evant
and which was
expectation
relevance of the wife's
neces-
ble for the
defendant
cross-examine.
sarily depended
perception
on her accurate
memory:
highlighted
she could not know the de-
These concerns were
plans
perceiving
accompanying
fendant's
without
and re-
the Committee Notes
membering
past fact-something
some
808(3),5
Indiana's
own Rule
and several
going
5. The Committee concluded that
the victim is
out to meet
the defen-
dant,
question]
prove
in-
[The
[whether
statements
offered to
that the victim in fact
by
person
tent
one
should be admitted to
met
the defendant.
The committee
fails
prove
person did an
that another
act has
connection,
victim
see the
because the
has
always been controversial. The usual con-
does,
no control over what the
text is a statement
a crime victim that
*13
party's
states,
through
case unless
affect a
substantial
either
rule6
law,7
dec
disallow the use of state-of-mind
Trial R. 61.
another
rights.
Ind.
Stated
conduct.
prove
party's
larations to
a third
way, "an error will be found harmless if its
that, while state-of-
jury,
light
agree, and hold
on
in
of all
probable impact
We
are admissible under
mind declarations
case,
sufficiently
of the evidence in the
808(8)
prove
or ex
when offered
minor so as not to affect the substantial
declarant, they
conduct of the
plain acts or
State,
rights
parties."
of the
Fleener v.
prove
are not admissible when offered to
1140, 1142
656 N.E.2d
party's conduct. Because the wife's
third
expressed a belief about the de
statement
conflicting
view of
evidence
plans,
future
and was used as
fendant's
alibi,
concerning the
cannot
defendant's
we
did,
in fact
evidence of what the defendant
in admitting
conclude that the error
this
hearsay
wife's
state
the admission of the
evidence was harmless. At
it was
ment was an abuse of discretion.
undisputed that
the murders occurred
It
p.ma.
largely
around 7:80
was also
undis
suggests that the
And while the State
puted
playing
defendant was
bas
probative of whether the
statement is
de
actually
nearby
at a
gym
fendant's wife
arrived home at
ket ball
from around 7:00
32,
times,
Appellee
1088-34,
(w.7,
Br. of
p.m.
p.m.
those
to 9:22
Tr.
1041-42
in
support
rationale finds little
this case. vol.V).
theory
The State's
was that
being
p.m.
The wife's
at home at 7:80
game,
defendant snuck out of the
mur
if
contested-yet
not
even relevant for that
family,
gym.
dered his
and returned to the
purpose, common
narrow
sense shows too
3;
(w.3, vol.D);
Appellee
Br. of
Tr. 165
high
a risk that the
would misuse the
vol.IV).
(w.3,
The defendant notes
statement to infer the defendant's act. Cf.
playing
several witnesses-others
basket
Carter,
(relying
6. R. Evid. Alaska Cal. Evid. 1250; 90.803(3); 1989). § § Code Fla. Stat. Ann. La. the murders-a Lorein Sufficiency evidence ber used to commit of the caliber hammerless semi-automatic .38 argues also The defendant handgun. An inmate testified jury's supported insufficient told him that he had used a .38 and two murdered his wife that he verdict pistol that could not be caliber hammerless children, just reversal of requiring not him traced to to commit the murders. outright dismissal convictions inculpatory The defendant made admis- *14 549, State, N.E.2d v. 542 charges. Perkins to two other inmates. The State also sions (Ind.1989); Burks v. United see 550-51 presented spatter blood evidence consis- 10-11, 2141, States, 1, 98 S.Ct. 437 U.S. close-range tent with a attack and consist- (1978). 1, 2147, 57 L.Ed.2d 9 ing of the on the defendant's wife's blood evaluating court appellate An clothing shirt and shoes. defendant's sufficiency presented of the evidence the residue, gunshot contained brass and lead conflicting evidence weigh at trial "will particles, biological particle tissue credibility of witnesses." judge the or stains of from the victims. contact blood 1098, State, 1106 Wright v. 690 N.E.2d Evidence, admitted, although erroneously a uphold The court should at the home at the placed the defendant evidence, when long so as the conviction jury A time of the murders. reasonable in most favorable to the light viewed by convict this evidence. crediting could justify a judgment, could reasonable counter-arguments- The defendant's crime elements of the finding in Boney's and his alibi evi that involvement a charged proven beyond reasonable doubt, that dence constituted reasonable State, 109, v. 740 N.E.2d doubt. Tobar regarding the evidence the trace amounts (Ind.2000). Moreover, cireumstan- gun shavings shot residue and brass may be to tial evidence alone sufficient clothing probative, was not and that conviction, a Rohr v. sustain jailhouse informants and ex State's (Ind.2007); 242, 249 it is "not nee- perts trustworthy-merely urge were not every essary that the evidence overcome accept to of events this Court his version innocence," hypothesis reasonable presented by over the version the State. (Ind. 144, 147 Drane v. jury's job But it was the to determine 2007) (internal omitted); quotation marks credible, the evi reviewing and the court considers whose evidence was more It appel chose the State's. is not the trial, including that presented dence as province reweigh late court's to the evi may erroneously have been admit which dence, witnesses, credibility assess the ted, 390; Joyner, 678 N.E.2d at see also judgment jury's. for the or substitute its Nelson, 33, 40-41, 488 U.S. Lockhart (1988). Drane, 102 L.Ed.2d S.Ct. N.E.2d at 146-47. 4. Other issues convictions for the
In order to obtain murders, prove, beyond a had to Because we remand for new we doubt, reasonable following issues raised address knowingly intentionally killed his wife likely appeal, defendant in this which are 35-42-1-1(1). § and children. Ind.Code on retrial. to resurface jury's supported the Sufficient evidence (a) relating Bo- verdict. Evidence to Charles ney showed, among The evidence at trial First, owned a things,
other
that the defendant
contends
type and cali-
handgun consistent with the
reversible
error
trial
court
committed
addition,
Singh Boney
witness Mala
acted alone.
the defen-
when
allowed State
improp-
dant contends that the trial court
Mattingly,
Boney's
girl-
former
Charles
erly
ability
limited his
to cross-examine
friend,
testify,
over
the defendant's
respects,
her
certain
but we find
hearsay objection, that a few hours before
the trial court acted within its discretion
Boney
the murders
said to her "he was
regard.
this
go help
buddy."
going
vol.III).
position
The State takes the
The defendant also contends that
properly
girl-
trial court
admitted the
court
him
improperly prevented
trial
from
808(8)
testimony under
friend's
presenting
evidence that
was the
illustrating Boney's plan
statement
or in- perpetrator of
charged
the crimes
(The
hearsay
exception
tent to act.
case. While this Court is solicitous of a
8088)
provided by
rule
Evid. R.
is dis-
right
present
criminal defendant's
evi-
preceding
cussed in the
section of this
*15
that
charged
dence
erime was commit-
opinion.)
appeal,
On
the defendant does
another,
by
that right
ted
is not without
testimony
that her
not contend
was inad-
Joyner,
limits. See
rules," entitled the to rely on the begin inquiry We our as to the admissi 8088) exception provided by Rule here. bility Boney's history eriminal and al argues
The defendant further
that even
404(b)
leged
foot and shoe fetish with Rule
if the statement was admissible under the
and this Court's decision in
v.
Garland
rules,
hearsay
it was inadmissible under
State,
In
231
victim,
do not make the
assailant and
...
This
held
crime.
Court
"lf
family
"sig-
on either of these murders of the defendant's
probative
was
evidence
If it
it was admissible.
nature crime."
then
[purposes],
not,
of Rule
general policy
then
claim that Bo
The defendant's
404(b)
evidence would
character
against
ney's alleged foot and shoe fetish was the
court was correct to
and the trial
apply
for these erimes fails because there
motive
at 480-31.
it." Id.
exclude
connecting these crimes to a
is no evidence
par
crime of a third
prior
beyond the wife's shoes
foot or shoe fetish
similar" to the cur
"strikingly
ty must be
being bruised.
being off and her feet
identity.
Id.
probative
crime to be
rent
cireumstances,
con
these
the defendant's
Davis v.
(citing
at 481
really
guilt
that we should infer
tention is
(Ind.1993)).
Specifically,
1048 n.
Boney's
of his sexual com
part
because
"crimes
so
[are]
whether
inquiry
This is the
pulsion for feet and shoes.
say
that one can
with
strikingly similar
by Eivi-
prohibited
"forbidden inference"
and the same
certainty that one
reasonable
per
of a
dence Rule 404-that
Davis,
them?"
committed
person
trait, such
son's character or character
Penley
(citing
n.
N.E.2d at 1048
crimes,
acts, cannot be used to
wrongs, or
(Ind.1987)).
"Not
conformity
that char
show action
with
*16
two
methodology of the
only must
the
by
acter or character
trait-and
this
similar,
the meth
strikingly
crimes be
jurisprudence.
regard
Court's
Evidence
ways
in
which attribute
unique
must be
od
ing Boney's
history
alleged
criminal
Penley, 506
person."
the crimes to one
properly
foot and shoe fetish was
excluded
Garland,
In
this
held
at 810.
Court
the Rules of Evidence.
under
crime was
prior
evidence of the
briefly argues
The defendant
that
identity.
erimes
probative
"[T]he
not
of
Boney's
history
in the
if
criminal
and al
[victim
not even the same.
even
were
in
trail
were not admis
leged
was shot dead
foot and shoe fetish
charged crime]
Evidence,
they
sible under the Rules of
er,
crime
intimidation
prior
was]
and [the
place
required
and cireumstance.
nevertheless were
to be admitted
in some other
a matter of federal constitutional law
as
two threats
in the
[one
That
there were
prior
one in the
charged
crime]
Carolina,
crime and
547 U.S.
under Holmes
South
319,
1727,
the third because third-party a had committed the murder. cur potential a reason" for the "provide at trial The evidence had been excluded crime. Id. And we concluded rent under a evidence rule that South Carolina [prior to bar "the trial court was correct introducing from prohibited a defendant testimony." Id. crime] third-party guilt prosecu- if the Garland, Here, Boney's pri- that, as in had introduced forensic evidence tion believed, strongly supported guilty if a the same crimes as the or crimes are not here, crimes nor are "strik charged 1727. The verdiet. Id. at 126 S.Ct. similarities, Supreme application held that the The few such Court ingly similar." right rule violated the defendant's to women around their "targeting present cars," meaningful opportunity the have a signs struggle of a between complete Specifically, defense. Id. 126 S.Ct. statement friend. the unani- explaining sought Boney's Court's defendant to introduce decision, wrote, statement, mous Justice Alito "The in an answer to a series of that, point by evaluating strength is of hypothetical questions by the asked de- only party's logical one no con- investigator, physical fendant's that if evi- regarding can clusion be reached Boney's presence dence at the seene of strength contrary evidence offered found, killings "pret- was it would be the other side to rebut or cast doubt." Id. ty obvious" he was there and involved. (w.8, volIID); (w.7, Tr. 742-48 Tr. 1280 controlling do not find in
We
Hoimes
vol.VI).
proffered
And the defendant
our case. The
evidence excluded
testimony
Boney's report-
of a friend of
Holmes consisted of the
of sev-
ing that in a conversation that
place
took
placed
eral
third-party
witnesses who
killings, Boney
after
allegedly
had
neighborhood
the victim's
on the morn-
said that "he had three bodies on his
assault,
ing of the
as well as other wit-
conscience,
and that one more wouldn't
third-party
nesses who testified that
vol.I).
matter."
acknowledged
had either
that the defen-
actually
dant was "innocent" or had
admit-
argues
The State
that this evidence was
committing
ted to
crimes.
Id.
and,
simply
therefore,
not relevant
not ad-
The defendant
whether the
in
support
offers no other
defendant acted
concert with Boney.
Appellee
for his claim of
Br. of
federal constitutional viola-
40.
in
regard
tion
this
other than Holmes.
None of this
argues,
is
that
relevant
to the
Boney's
Boney
We hold
the exclusion of
issue of whether
pri-
history
or criminal
acted alone.
did not violate the de-
right
fendant's constitutional
present
to
The
argument
State's
here
strong.
is
defense.
But it could
argued
Boney's
that
discus-
sion,
The defendant also challenges
hypothetical terms,
the trial
even in
about the
Boney's
court's exclusion of
crimes without mentioning the defendant's
(1)
allegedly self-inculpating
presence
statements
implication
contains some
(2)
to the
investigator
defendant's
was,
fact,
in
present.
not
A
agreed with
context of the case. We
enough of
tual
perhaps,
possibility
slender
the trial court was within its
a basis other
the State that
this issue on
one to decide
evidence. The
rejecting
in
relevancy.
discretion
than
attributed to the declarant "did
statements
hear-
also constitute
These statements
an admission of a crime.
not constitute
statements
are out-of-court
say-they
they did not even 'tend
and of themselves
the truth of the
prove
to
Boney offered
to eriminal
lia
subject'
declarant]
to
[the
are therefore
asserted-and
matters
most,
bility.
suspicion
[the
At
cast
by law or
exeept
provided
admissible
paired
when
with other informa
declarant]
801(c),
Evid. R.
of Evidence.
our Rules
may may
not have been known
tion that
contends that the ex-
The defendant
Id. at 878.
[the declarant]."
804(b)(8),
by Rule
which
ception provided
exception when the declarant
provides an
acknowledge that Jervis differs from
We
witness,"
here
applies
as a
is "unavailable
Boney
clearly in-
this case in that
was
"at the
of these statements
because each
charged
in the crimes
here whereas
volved
...
so far tended to
making
[their]
time of
unclear whether the declarant
was
to ... criminal liabil-
subject the declarant
any way
involved. But the
Jervis was
in the
person
reasonable
ity,
...
that a
nothing
there is
fact remains
not have made
would
position
declarant's
to the defen-
Boney
alleged
to have said
believing it to be
unless
the statement
investigator
dant's
or to his friend
true."
"an admission of a crime" or
constituted
Boney's unavaila-
party disputes
Neither
subject [Boney]
to criminal lia-
"tended
at the defendant's see-
bility as a witness
bility."
exception
hearsay
rule
that,
light
trial.
understand
ond
We
804(b)(8)
by Evid. R.
was not
provided
trial, his unavailabili-
separate criminal
available here.
privilege against
in his
ty
grounded
Appellant's App'x
self-incrimination. See
(b)
Opinion
from the
course,
then,
has
at 712. Since
experts
pattern
bloodstain
State's
convicted.
been
that the trial
argues
The defendant also
applicability
case on the
principal
Our
when it
court committed reversible error
against
exception
interest
the statement
testimony from the
opinion
allowed
State's
*18
State, 679
hearsay rule is Jervis v.
pattern experts.
bloodstain
(Ind.1997).
case,
In that
as
875
collect-
Following
killings,
the State
here,
challenged the exclu
the defendant
shirt,
testimony
to the
ed the defendant's
hearsay
related
sion of
blood-stained
shoe,
expert
The State used
in the
and socks.
involvement of others
possible
that some of
testimony
try
to
to establish
contended that a state
crime. The State
"high
the result of
in
the bloodstains were
against penal interest must be
ment
that
velocity impact spatter," indicating
to be admissible
criminating on its face
within
defendant,
family
shot his
or was
the defendant
exception.8
this
under
of the victims when
contrast,
proximity
that
it was
close
essentially argued
(The defendant maintained
merely
if the statement
aroused
sufficient
were
shot.
solely the result
that the bloodstains were
to
in the fac
suspicion
culpability
some
as
Jervis,
resolution of
N.E.2d at 878. Because
our
also contended that
the State
issue,
necessary for us to examine
this
it is not
established that the declar-
defendant had not
within the
was "unavailable"
"unavailable,"
whether
requirement
for ad-
ant was
meaning of this rule.
Jervis,
804(b).
Evid. R.
mission under
unnecessary
techniques
shirt,
shoe,
revisit scientific
of "transfer"-his
and socks
having come into contact with the victims'
already deemed to have achieved sufficient
bodies when he discovered them and the
Miller,
general acceptance."9
L.
Robert
having
blood
eloth-
been transferred
Jr., Courtroom Handbook on Indiana Evi
contact.)
ing through the
It is worth not-
(West 2007-08).
dence 286
The defendant
ing
"spatter"
this
versus "transfer" de-
dispute
position
did not
this
hearing
at the
bate
the State contends that some of
instead
contended that the facts of this
elothing
the blood on the defendant's
came
case were such that
authority
this
was not
transfer;
spatter
from
and some of it from
applicable. He contended that the blood
the defendant
that all
maintains
of was
clothing
stains on his
"eight
consisted of
from
appeal,
transfer. On
tiny
t-shirt,"
stains on a man's
Ap
[blood]
experts'
testimony
contends that
did
pellant's Br. at
the science of
not meet the
reliability
standards of
re-
analysis
bloodstain
was simply not suffi
quired by Indiana
argues
law. He also
ciently advanced to
capable
of discern
probative
value of this evidence
ing whether such a small
tiny
number of
substantially outweighed by
the dan-
spots
blood
came from high-velocity impact
ger of unfair prejudice.
spatter
physical
or from
contact. At the
702(b)
Evidence Rule
dictates that "[elx-
hearing,
end of the
trial
court ruled in
pert
testimony
scientific
only
admissible
the State's favor and found that the "blood
if the court is satisfied that the scientific pattern
analysis
stain
evidence is admissi
principles upon
expert testimony
which the
case,
ble in this
such that the witnesses
Here,
rests are reliable."
agree
both sides
qualified
experts by
skill,
as
knowledge,
general
as a
analy-
matter that bloodstain
experience,
training
education,
may tes
expert
sis is matter for
scientific testimo-
tify
the form an opinion
or other
ny,
recognized.
as this Court has
Grin
Appellant's App'x
wise."
at 624.
(Ind.
stead v.
1997), superseded
trial,
grounds
unrelated
At
presented
the State
bloodstain
Before
the court conducted a hear
witness testified that some of the blood
ing on this matter. The State's stance was
stains on the defendant's shirt were the
reliability
princi
the scientific
high-velocity
result of
impact spatter.
ples upon
See
analysis
which bloodstain
expert
633-35,
(w.2, vol.III);
Tr.
622-23,
testimony is
Tr.
based is well established.
It
(w.4, vol.III);
cases,
101-03,
cited a
Tr.
number of
including
Indiana
*19
Grinstead,
jurisdictions,
v.I).
in
those
other
some,
The defendant
object
did
all,
in which
analysis expert
bloodstain
not
of these
testimony
testi
witnesses'
mony was
"702,"
held to have been properly
contrary
ad
as
to Rule
which we take
that,
It
mitted.
also
"It
objection
noted
should be
to be an
reliability
of the
Judge
9.
points
Miller's Courtroom Handbook
Miller,
21
Robert L.
adoption
out that before
of
Indiana
Rules
Jr.,
Courtroom Handbook
on Indiana Evi-
Evidence,
"recognized
of
this Court
the ad-
(West 2007-08).
dence 236
We reaffirmed
missibility,
reliability,
expert
based on
testi-
holding
adoption
this
after the
of the Rules in
mony concerning the results of ... blood
Grinstead,
State's counsel did make one defense objection "specula- based on neous trial also contends The defendant volIV). tion." error reversible trial court committed defendant reasserts three appeal, the expert On it allowed one of State's when *20 first, Englert's objections: of his trial a witnesses, to conduct court- Englert, Mr. the how certain of opinion concerning responds The State room demonstration. had been blood and tissue daughter's permitted are to "[dJemonstrations an "en- to his shirt constituted the transferred they a trial if will aid during conducted opinion" hanced that the State had never were the result of opposed transfer as to defense, thereby disclosed to the constitut- spatter. And while it is true that the violation, ing discovery Appellant's Br. at demonstration at he beyond went his 483; second, configuration deposition testimony the expressed chairs and the reenactment were mislead- view that the during transfer occurred ing they because were shooting, "conducted under does rise to the level of a discovery seene," violation. The trial only court's conditions dissimilar to the crime 44-45; third, id. at that "Englert's requirement parties regarding of the dis- covery said, expert witnesses par- opinion and "The re-enactment [the son's] murder were speculation" based on be- ties are directed to generally to disclose testimony cause his supported only by was one anticipated another the witnesses to be ambiguous (citing id. Evid. testify called to following Ap- week." 7083). R. pellant's App'x at 735. The defendant Englert knew testify, satisfying would thus claim, As to discovery violation Trial sure, the trial requirement. court's To be 26(E)(1) requires parties supple 26(E)(1) Trial Rule requires parties sup- discovery ment responses respect with plement discovery responses respect with subject-matter and substance of an subject-matter and substance of an expert witness's expected testimony in a expert expected witness's testimony in a timely fashion. And pre-trial standing dis timely fashion. Beauchamp, See covery orders often impose related re N.E.2d at 894. But the defense knew quirements. such, As there are situations before trial that it Englert's opinion was unexpected which the testimony of an that the blood and tissue in question was expert witness can rise to the level of the daughter's and that it was on the reversible error. For example, Beau- by defendant's shirt transfer. As it was State, champ v. the Court Appeals held theory the State's that the defendant was that it was reversible error for the State shooter, it could not have been a sur- not to have expert disclosed that one of its prise Englert expressed when his view changed witnesses had his opinion regard the transfer during occurred ing the cause of a injuries victim's from shooting. the time of his deposition to his (Ind.Ct. trial. 788 N.E.2d As to generalized claim App.2003). And in opinion its in this de that the demonstration misleading, appeal, fendant's first Appeals the Court of trial court's decision to allow courtroom found that the State's failure to disclose only demonstrations will be reversed for another "augmented" State witness's opin an abuse of discretion. Lambert ion did not comply either with the trial (Ind.1994). 643 N.E.2d This inis court's standing discovery order or Rule part because permit "[dJemonstrations are
26(E)(1).10
stains and tissue in question-the
daugh- Here we see no basis for concluding that
ter's blood and tissue on the defendant's
the trial court abused
its discretion
shirt-and
opinion,
said that
in his
allowing
Indeed,
the demonstrations.
case,
disposition
10. Given its
the court
ranted reversal of [the
convic-
defendant's]
question
did not reach the
of "whether this
tion."
its part on the rested legitimately have contention final The defendant's to tell use of twelve women prosecution's of and re-enactment "Englert's opinion infidelity running the stories of Camm's specula- on murder were based son's] [the these years nine before as far as back goes tion," Br. Appellant's testimony about how The murders. to its testimony, and not the weight of during periods up his wife treated Camm responsi- jury's the admissibility. It was probative of killings seems closer to and to de- evidence bility to consider motive, me that surprise it does not demon- Emglert's weight give cide the in trial number decided prosecutors court did The trial opinion. and stration let the seeking run the risk of two not to Englert demon- in permitting not err jury hear it. opinion. stration category in the same this Court's put I Conclusion any of the evi- tough prohibiting stance of convictions reverse the defendant's We mo- daughter had been that Camm's dence proceed- other new trial or remand for murders, day or two of the lested within opinion. consistent with ings in- suggested has prosecution evidence family so as to Camm killed dicated RUCKER, SULLIVAN, BOEHM, and Af- or confrontation. responsibility avoid JJ., concur. Appeals of the Court the first ter SHEPARD, C.J., separate with dissents on the available evidence summarized opinion. way: topic this Justice, dissenting. SHEPARD, Chief conducted examiner who The medical justice provide seeks to system The of there was autopsy testified Jill's to a trial, but there is no entitlement fair region consistent genital trauma to her two reversals I think the trial. perfect fall; a straddle molestation or with either in this case courts appellate entered hymen, penetration no there was unnecessarily the evidence sanitized have evi- presented also however. against David Camm. complained vaginal that Jill had denee occasions, prior on at least two in this irritation evidence the mountainous
Amidst days before the being time a few pris- the last while declaration trial was Camm's him Finally, to leave presented his wife intended on that murders. DNA was found that some of Jill's marriage and in their problems
because have bedspread, which could night on a Camm's killings planned that he vaginal secretions. come from saliva might provide game the basketball when However, found DNA was none Jill's jail-house credibility of this alibi. The an mate- seminal locations where (which ad- in the two more direct included *22 rial from Camm was also found garage on the to administer CPR. Or ask fact, bedspread. at one of those loca- jury what the probably made of Camm's tions Camm's seminal material was phone call at 7:15 a.m. morning after mixed with Kim's DNA. inquire the murder to at Kim's work about her Camm, employment request benefits. Or his 1140. The defense very lawyers day who have same that an acquaintance been so effective as to win two reversals did not even bother to who was the crime cleaning scene busi- object to this during trial number ness come to clean out the vehicle that regard one. I this evidence as providing contained evidence about the murders. an inference about Camm's motive and I jury's would affirm the verdict. dissent today's from decision to bar the jury from hearing it.
Finally on admission of
Court quoted reverses because the witness
Kim saying, Camm as "she expecting
her husband home between 7:00 and 7:80
..," 808(@). citing Evidence Rule suggests
Court that it might permit a wit- Bobby Deloris ENGLAND and G. quote ness saying, a victim as "I plan to E. England, be home between 7:00 and 7:80." This as Guardians of the Estate England, and Person of Robert E. In suggested appears distinction to indicate capacitated Adult, Appellants-Plain that a reversal required would be if in- tiffs, friend, stead the victim had told her "I plan to be home between 7:00 and I 7:80 so v. my can meet husband." The Court has CONTRACTING, INC., FAIRFIELD cut a pretty fine today line on what is Appellee-Defendant/Cross-
permitted prohibited and what under Appellant, 803(8). I do not large space see so daylight my here colleagues do. It is not the stuff upon which reversals are Masonry, Ed Inc., Muller Cross- warranted. Appellee/Third-P arty Part of the reason I regard reversal as Defendant. unwarranted is the rest of the evidence the No. 79A02-0711-CV-935. jury heard. The passes Court over in two sentences Camm's guilt confessions of Appeals Court of of Indiana. three different inmates. Twenty-four ju- Sept.23,2008. apparently rors credited their testimony.
But, may put one those witnesses aside Publication Ordered Oct.
and ask instead what the made
Camm's own version of the events. says
Camm he came home to a horrific
scene, concluded his son was warm and
might saved, still be go decided to inside house, police called a distant agency,
turned suggestions down three that medi- sent,
cal help only then went back