Griffin v. State

attempted and murder for sentences

murder.

Id. at 595. make Elswick Buell

I believe to sen- entitled is not that Davidson

clear relief, upon which charges

tencing imposed are of were at issue

the sentences in the charged were character

similar had Davidson Even

same information. is no reason there separately, tried

been tried have been he would

think that judge. court before

the same the Kendrick indicate factors

These here. applicable

rule is

SHEPARD, C.J..,concurs. GRIFFIN, Appellant R.

James

(Defendant Below),

v. Indiana, Appellee

STATE Below).

(Plaintiff IN, for Westerfeld, Indianapolis, Brent No. 49S02-0101-CR-43. Appellant. Indiana. Supreme Court Freeman-Wilson, Attorney M. Karen Beam, Indiana, Timothy W. Feb. General General, Indianapolis, Attorney Deputy IN, Appellee. for REHEARING PETITION FOR ON SHEPARD, Justice. Chief R. Griffin's affirmed James recently We carjacking. conviction (Ind.2001). now seeks He rehearing. rehearing is a vehicle petition

A "op reviewing court the affords 451 portunity to correct its own omissions or that rehearing is appropriate to address errors." Daviess-Moartin County Rural this issue. Corp. Comm.,

Tel. v. Pub. Serv. 132 Ind. Griffin challenges our 610, conclusion App. 625, 439, (1961). 440 that the trial court properly excluded petitioner A testi may seek rehearing only on mony by his attorney former points raised in one original Wil brief. Arm liam Dulin (Pet. confessed strong 606, Hufty, 156 crime. 443, Ind. 55 N.E. (1901). 1.) 60 N.E. 1080 Reh. at put The defense Dulin on the stand, knowing he deny would having con A proper petition simply does not ask fessed, in get order to attorney's hear the court "generally to re-examine all the say testimony admitted under guise questions in record, or all ques impeachment. Griffin, 754 N.E.2d at 904. tions decided party filing it." Goodwin, Goodwin v. 584, 48 Ind. says we failed to consider Cham (1874). Judge Byron Elliott1 pointed out bers v. Mississippi, 284, 410 U.S. 93 S.Ct. that claimed errors in original deci 1038, (1978). 35 L.Ed.2d 297 In Cham sions must be articulated precision, bers, a murder occurred during a barroom party and that a cannot regarded be "as 285-86, brawl. Id. at 98 S.Ct. 1038. Four having point stated a where he does no afterward, months Gable McDonald swore assert, more than in general terms, that a in writing that shooter, he was the but he ruling was erroneous." Byron K. Elliott & later repudiated his confession. Id. at Elliott, William F. Appellate Procedure 287-88, 93 S.Ct. 1038. Three of Mc and Trial Practice Incident to Appeals Donald's acquaintances were prepared to > (1892). § 557 testify that orally he confessed to them on As Judge Arch Bobbitt and Frederic separate 292, occasions. Id. at 93 S.Ct. noted, Sipe general when a rehearing is 1038. granted, the case stands before the court trial, At lawyer Chambers' called Mc ifas it had never been decided. 5 Arch N. Donald and introduced the written confes Bobbitt & Sipe, Frederic C. Bobbitt's Revi- sion into 291, evidence. Id. at sion, (5th Works' § Indiana Practice 111.3 1038. The State then elicited Ed.1979). contrast, By when rehearing is about repudiation, plus a fresh denial granted particular as to a point, origi- by McDonald. Id. Chambers was denied nal opinion will be modified point as to that permission to cross-examine McDonald as only. Id. an adverse witness based on Mississippi's Griffin argues in petition his for rehear- "voucher" rule. Id. at 93 S.Ct. 1038. ing that we fully did not address his claim He was also denied the opportunity to (further below) explained the trial introduce testimony by the three other court's hearsay ruling violated his federal witnesses to whom McDonald confessed. process. due Although Griffin 93 S.Ct. 1038. presented argument this almost in passing, he did cite some federal authority and The Supreme held, Court "[UJnder made a argument limited about it. (Appel- the facts and cireumstances of this case" 14-18.) lant's Br. at We agree therefore the "exclusion evidence, critical cou- this that the issue was sufficiently raised pled with the State's permit refusal In serving addition to on this Court from sor of the University Indiana School of Law at Judge Elliott founding was the Indianapolis. School, dean of the Indiana Law predeces- error, evidentiary only one McDonald, claims de to cross-examine Chambers Dulin's eredi- attack 302-03, permitted Id. process." him ... due nied Moreover, trial motivation.4 bility added). empha It (emphasis S.Ct. alluding to certain trustwor court allowed assurances "persuasive sized former at confession. alleged statements: thiness" spontaneously made to answer allowed torney confessions three mur after the shortly make a confes acquaintances "Did question close [Griffin] (R. 390), testified (8) she sion?", at but evidence;2 (2) corroborating der; case she listed against on the were was still the statements she fact that when he witness because a defense (4) Dulin as that McDonald interest; the fact trial, 300-02, strengthen 98 Id. at would at "statements was available made 392-98). (R. case," at 1038. [Griffin's] S.Ct. claims, not, as Griffin does Chambers in two cases at issue The confessions the exelusion proposition for the stand of reliabili in terms very different are also single confes a about hearsay evidence of confession oral points to one ty. Griffin due alone, federal violates sion, standing by who, although bound person a made to process.3 legal ethics, serving as his professional three advocate, compared to Chambers' from distinguishable case is Griffin's acquaint disinterested im confessions Most reasons. for several Chambers corroborating Furthermore, ances.5 Griffin in unlike portantly, Chambers cor- 'case-specific error as of Chambers in- tion McDonald implicating evidence 2. Other prohi- as a its force cannot diminish (1) testimony by rection' a friend eyewitness cluded: evidentiary of state shot; enforcement bition on the fatal him fire who saw of McDonald lead, justification, holding a sufficient without saw McDonald rules that witness who a of guilt by suppression of shooting; to the establishment evi- immediately after pistol pistol of the case." the defendant's supporting owned that McDonald evidence dence 62-63, (internal used; that McDonald citation evidence 2013 type 116 S.Ct. at pistol Id. bought later. omitted). another S.Ct. booking sheet lawyer introduced 4. Griffin's 37, 116 Egelhoff, Montana v. 3. See James, the name first name giving Dulin's (1996){no funda 135 L.Ed.2d S.Ct. used, denied ever which Dulin carjacker jury evidence of right consider to have mental 351, 353.) (R. then Dulin having at used. Scalia, intoxication). writ voluntary Justice facing jail, residing in he was admitted four-justice plurality, said: ing for a 357.) (R. at charges another crime. highly case- an exercise Chambers were At issue correction. specific error Griffin, says Patricia dissent 5. The Cham- court at rulings the state trial two sister, the defendant's girlfriend and former that both of ... We held trial. bers' murder carjacking. Ms. to the Dulin admit also heard Thus, the rulings were erroneous.... these as fol- on cross-examination testified can be dis- if one holding Chambers lows: case is a fact-intensive such cerned from Griffin, Q. did Mr. you again, Miss I'll ask denied a is certainly that a defendant any crime? you committed tell against to defend opportunity "fair evi- "critical Yes. whenever A. accusations" State's Q. Yes? excluded, but to him is favorable dence" evidentiary rulings Yes. erroneous A. rather that Now, ago, before this combination, Q. a few minutes can, of a the level rise to started, you back stood me and trial process violation. due there, this? Remember did we not? Note, however, 52-53, S.Ct. 2013. at Id. response behalf of on A. Yes. O'Connor's Justice Q. we spoke, did not? we And plurality's characteriza- "The dissenters: four comp evidence Dulin meager6 independent provided confessions cor eyewitness testimony against Thomas, roboration for each." ared McDonald Chambers. 226 (quoting 410 U.S. at 1038). generous dissent's more application of Chambers would create potential serious Having claim, considered Griffin's we Any abuse. friend of a defendant with conclude the trial court should be affirmed. scene, access to the crime later knowledge contraband, the whereabouts or simi- DICKSON, SULLIVAN, and lar cireumstantial connections could con- RUCKER, JJ., concur. fess to a reliable witness that he actually committed the crime. The friend could BOEHM, J., separate dissents with promptly then repudiate confession, that opinion. leaving the with a credible wit- defendant BOEHM, Justice, dissenting. finger ness to someone else but running little or prosecution no risk of and conviec- Griffinoffered the of Lorinda tion. Youngceourt,his attorney. former Younge-

In summary, ourt, Chambers does not estab- in an prove offer to in question and lish that Griffin was denied federal due form, answer testified that she met with process. William Dulin in the course of preparing to case, defend Griffin this

Griffin and in that also cites Thomas v. meeting Dulin confessed that he had com (Ind.1991), N.E.2d 224 but this too is mitted the carjacking. I readily Youngcourt think distinguishable. The trial court in should be viewed as a improperly Thomas jailhouse party. excluded a disinterested I by confession also believe her original suspect is corroborat robbery, who described ed enough the crime in great evidence that its exclu detail to many as as twenty people. sion deprived Griffin of his Sixth Amend "the sheer number ment right 227. As in present witnesses in his Q. fact, A. Yes. specifically Did I-In you. I asked Q. you And did not tell me Mr. Dulin did was, specific question The you I asked not-specifically you told he did not com- you're telling "So me Mr. Dulin did not mit a you just crime? Is that what told committing any admit to crime?" You me a few ago? minutes said, "'That's correct." P No. A. I question. misunderstood o No? (R. 382-84.) at A. No. changed Ms. Griffin story her earlier you What did tell me? specifically carjacking, denied the said P I told you (sic). it was him and Rill she heard Dulin admit that he committed me, not, you You told did said-he crime, unspecified some implicated "him committing any denied crime.... Did carjacking. and Rill" in the Ms. Griffin did you-Are you telling you me that did not not, however, testify that she heard Dulin sit ago-a there a few minutes cou- carjacking, admit to the as the dissent asserts. least, ple ago, hours at and tell me that you Mr. Dulin told assuredly he most did 6. Dulin lived with Griffin's sister Patricia at not commit the crime? Isn't that true? carjackers the house where the met the vic- A. No. (R. 386.) tim. Q. That's not true? at Patricia testified that Dulin showed carjacked her where the vehicle A. No. parked was Q. on some date carjacking after the go wrong? Where did I (R. 381, 384.) occurred. A. Unless I'm misunderstanding what you're saying. testimony ad Youngeourt's Nor trial. was dis respectfully I Accordingly, defense. statement inconsistent prior aas this missible conclusion from the Court's sent Rule Evidence Indiana under by a witness to be sufficiently reliable not testimony is 80l(d)(1)3 confession fairness doc the basic under admissible oath. under given was Youngcourt Mississip in Chambers trine enunciated initial in the Court's given reasons For the L.Ed.2d 410 U.S. pi, cor court that this agree I also opinion, (1973). which precedent Indiana rectly applied opportunity an denied testimony as Youngcourt's permit does testimony because Youngcourt's was called if Dulin of Dulin impeachment if deemed Dulin's confession of a denial solely to obtain his as a witness state- of Dulin's truth prove offered confession, groundwork thereby laying perpetrator. was the that he ment testimony. impeaching Youngcourt's impeach- excluded evidence majority agreed I Accordingly, im- the doctrine Dulin under ment of af opinion original in the and concurred if the sole basis improper peachment Indiana under conviction firming Griffin's (Dulin) impeached to be calling the witness in I was I Rules. now believe Evidence for otherwise lay groundwork was to in that view. correct (Younge- evidence impeaching inadmissible State, 919, State, 754 v. N.E.2d testimony). v. 742 In Hubbard ourt's (Ind.2001). recently 904-05 re (Ind.2001), N.E.2d this Court v. from admonition peated the Huffman Youngeourt's that agree I (cit (Ind.1989) State, 543 N.E.2d to the any exception within not fall does ing Dulin's con Her account hearsay rule. by grounds 1038), other overruled on a statement as permitted fession is (Ind.1991): Street Indiana Evidence under interest against Amend- 804(b)(@8)1 Sixth was the defendant's [When Rule collides present a defense right to ment appears that term as "unavailable" promulgating 804(a)2 Indeed, interest with the State's Rule Indiana Evidence conduct govern the evidence to rules of at Griffin's testified present Dulin was memory a lack of he or she has testifies 804(b) that are situations sets out four 1. Rule state- subject the declarant's matter of hearsay declar- if the by rule the not excluded testify ment; (4) Rule present or to a witness. as unable to be is unavailable is ant illness; or death or hearing because of at the 804(b)(3) following exception: provides the hearing propo- (5) and the from the is absent of its at the time was which A statement unable to has been the statement nent of contrary declarant's to the making far so Evid. R. attendance. procure the declarant's interest, so far or proprietary pecuniary or 804(a). or to civil subject the declarant to tended a invalid liability, render or to criminal another, 801(d) pertinent part: provides in against 3. Rule by declarant claim the posi- declarant's person in the a reasonable ... de- [tlhe if is not A statement statement not have made tion would hearing and is or at the trial testifies clarant believing be true. it to unless concerning the subject cross-examination to 804(b)(3). Rule Ind. Evidence statement, ... incon- statement is and the testimony and the declarant's sistent 804(a) "unavailability a wit- 2. Rule defines subject penalty to the given oath was under (1) is declarant: where the ness" as situations trial, pro- hearing, or perjury at a ruling testifying due to a court exempt from ceeding, deposition.... or in (2) refuses privileged; court; (3) 801(d). testify despite an order from Evid. R. trials, of its the merits of respective Chambers because it was not made to a positions weighed, must be acquaintance disinterested [and] and because State's give way interest must the corroborating evidence was insuffi- rights defendant's if its rules are "me- cient; (4) the confession was made to chanistically" applied deprive the de- person one opposed multiple people. fendant of a fair trial. view, my In these factors are not suffi- Id. Youngeourt's testimony, although not cient to distinguish First, Chambers. per- falling within hearsay excep- mitting Youngeourt to allude to unspeci- tions, required permitted to be if fied other evidence "that would strengthen excluding this deprived evidence the de- [Griffin's] case" is a far ery from letting fendant of right his to a fair trial and jury hear that someone else admitted specifically witnesses to the crime. in his I defense. think it did. majority correctly notes that Cham Second, there was substantial other evi bers identified four factors when it re dence corroborating Dulin's statement that quired admission of testimony of three he committed the crime. Youngeourt's witnesses who claimed to have heard con version is at least consistent with the ac fessions by to the crime party: third given count Griffin, Patricia who also whether the confession was sponta made claimed to have heard Dulin admit to the neously to a acquaintance close shortly crime. Patricia Griffin further testified at occurred; after the murder whether trial that Dulin showed her where car each statement supported by other was after the carjacking. As the majority trial; evidence whether the con noted, she, Dulin, like given police had fession the third party's inter varying crime, accounts of the but at trial (4) est; and whether party the third was she testified that Dulin had admitted to present and could be cross-examined. 410 committing the crime 4 Dulin admitted 284, 300-01, 93 S.Ct. 35 that he met with Youngcourt after Griffin (1973). L.Ed.2d 297 arrested, was although he making denied The majority distinguishes Chambers Furthermore, confession. Dulin testified (1) pointing out that: permit- that he dating was was Patricia Griffin at the (2) time the incident ted to attack place took credibility; and that he Dulin's the trial court allowed some testimony allud- had access to her house where the crime ing (8) the was instigated. Patricia Griffin also stated to evidence; Dulin's favorable confession was unlike the confession in that Dulin lived at her house at the time of majority 4. The and I differ as proper Well, to the State: question. Withdraw the Your reading of testimony Honor, Patricia Griffin's in the approach? can we transcript. Immediately before Patricia Grif- Court: Sure. testimony fin's quoted by majority, the the Approach [Counsel the Bench] following place: took Griffin, you again, State: I'll ask Miss did you Mr. Ma'am, Dulin tell committed State: you did Mr. Dulin ever tell Wright's that he took Mr. crime? car? honor, P. Griffin: Yes. attorney: Defendant's go- Your I'm ing going object context, to-I'm Hearsay to It seems to me that in this a fair beyond reading and scope. of Patricia Griffin's is that Court: I hearsay. referring think it is she was carjacking to the crime during so, Well, questioning. State's If she State: Your Honor- testified that she heard Dulin admit to the Court: But if exception, there's an I'd be glad to listen to it. carjacking. Moreover, I see no witnesses. this, may infer to other jury From crime. pub- Youngeourt, suppose that to reason house when in the present Dulin that was by giv- defender, gain to anything had lic and Patricia arrived, or even Wright Georgia, v. See Green ing false evidence. proposal up with Wright had set 95, 97, 60 L.Ed.2d 442 U.S. car. to steal his in order easy sex (witness' (1979) testimony regarding fit supplied details also Youngeourt that de- party a third from an admission specifi- She pieces of evidence. other during the vie- present fendant was that he statement Dulin's cally recalled for several permitted was tim's murder by the the victim himself presented had had the witness including because reasons not let that he would of "James" name state- making in motive no ulterior for a prison togo James brother Patricia's ment). item, unimpor- This committed. crime he hearsay sum, teaches In Chambers cre- itself, lends some nonetheless tant trustworthy evidence may not shield rules to her account. dence Younge- at trial. being admitted from that Du- out Third, majority points me to be suffi seems ourt's independent made lin's confession by other and corroborated ciently reliable was, It people. number ly large to a accounts Its conflict with evidence. people, different however, made to two out, trial not for the jury to sort for the Griffin, according and Patricia Youngeourt matter as a to resolve court or this Court testimony. This is not trial to their initial ruling. The Court's evidentiary pre of confessions overwhelming number and denials explanations opinion noted in Thomas sented identifications. Dulin's James/William (Ind.1991).5 enough it is my view But n. 12. That at 904 Griffin, 754 N.E.2d jury. of the issue require submission jury. Applying is for the issue too conclusion that coming to its

Finally, in (1) emphasized four factors enough not reliable confession was sup Youngeourt Dulin's confession rules, over trial; to be admitted at Griffin's by other evidence ported that, fact heavily on the majority relies Dulin's in the confession Dulin, Youngeourt met with the time she and was terest; Dulin was disagree with the I counsel. was Griffin's trial; at Griffin's cross-examined Youngcourt of within majority's characterization to made appears be the confession time crime, At the to a although not an interested witness. months of cloge result, testified, longer no I believe she was As a acquaintance. Youngeourt required to be Additionally, Younge- testimony was Youngeourt's attorney. Griffin's his Griffin of depriving admitted to court, face avoid would ourt, of as an officer a de right to in addi- Amendment consequences Sixth disciplinary serious rehearing, reverse grant I would applicable fense. perjury tion to the sanctions the defen- When was to be tried. robbery which defendant in a bank 5. Thomas involved witness, at a A cashier implicated. in- people were a Nelson two Nelson as dant called right. identi- 225. to the bank liquor close Amendment store located voked his Fifth but perpetrator, Nelson as fied one Eric trial court was error for the held it This Court defendant out of picked bank tellers confession of Nelson's to exclude de- Nelson. The lineup not include that did originally been identified Nelson had Subse- for the crime. was arrested fendant bragged of the he had perpetrator, as the on different was arrested quently, Nelson he de- twenty people, and some crime to twenty people bragged charges and to some 227. great detail. Id. at in scribed the crime robbery for which that he committed conviction, Griffin's and remand the case Foreign Discipline and Petition Issu to the trial court for a new trial. ance an Order to Show Cause on Octo of 24, 2001,

ber advising that the respondent, Cole, Dennis Dale disciplined by the Supreme Court of Colorado and request ing, pursuant to Ind. Admission and Disci pline 23(28),1 Rule that identical reciprocal discipline imposed be in this state. On 5, 2001, November this Court issued an Order to Show Why Cause Reciprocal Dis In the Matter of Dennis Dale COLE. cipline Should mot Imposed. be On De No. 98S00-0110-DI-483. 12, 2001, cember respondent filed his response order, to that and on January Supreme Court of Indiana. 2002, the Disciplinary Commission filed its Feb. 2002. reply. This case is now before us for final resolution. ORDER IMPOSING IDENTICAL

RECIPROCAL DISCIPLINE We now find that the respondent was The Indiana Supreme Disciplin Court admitted to the bar of this state on Octo ary Commission filed its Notice ber 1976. He was admitted to the bar Verified of Discipline 23(28) Admission and (b), pro- Rule this Court impose shall discipline identi- vides: cal to that jurisdiction ordered in the other unless the Secretary Executive lawyer or the (a) (15) days Within fifteen of the issuance demonstrate, or this Court clearly finds that it any jurisdiction final order in another im- appears upon the face of the record from posing public sanction, disciplinary a law- discipline which the predicated, that: yer practice admitted to in this state shall procedure The lacking was so in notice notify the Secretary Executive writing in opportunity or to be heard as to constitute a discipline. Upon notification from deprivation process; of due source lawyer that a practice admitted to infirmity There was proof such estab- Indiana publicly has been disciplined in an- lishing the give misconduct as to rise to the jurisdiction, Secretary Executive not, clear conviction that the Court could shall copy obtain a certified of the order of duty, consistent with accept its as final the discipline. subject; conclusion on that (b) Upon receipt copy of a certified of an imposition discipline by demonstrating order lawyer that a admitted the Court would be inconsistent with stan- practice in Indiana disciplined has been governing dards sanctions in this rule or jurisdiction, another resulting suspension grave injustice; would result in or or lawyer's revocation of the prac- license to (4) The misconduct established warrants jurisdiction, tice law in that disbarment or substantially discipline different in this state. acceptance resignation with an admission If this Court determines that of those misconduct, Secretary Executive shall exists, elements this Court shall enter such Court, file a notice with the attaching a certi- discipline other order of appropri- it deems copy fied discipline, the order of and re- ate. The burden party seeking is on the dif- quest the issuance of an order to the Execu- discipline ferent in this state to demonstrate Secretary tive lawyer directing them imposition that the discipline to show writing cause in thirty within unwarranted. days from service why impo- of the order (d) aspects, In all adjudication a final sition of discipline identical in this state jurisdiction lawyer another that a has been. would be unwarranted. guilty of misconduct shall establish conclu- (c) Upon expiration thirty days sively the misconduct purposes of a disci- from service of the order set out in plinary proceeding subsection in this state.

Case Details

Case Name: Griffin v. State

Court Name: Indiana Supreme Court

Date Published: Feb 22, 2002

Citation: 763 N.E.2d 450

Docket Number: 49S02-0101-CR-43

Court Abbreviation: Ind.