Borders v. State

Decision Date18 November 1997
Docket NumberNo. 20S00-9505-CR-513,20S00-9505-CR-513
Citation688 N.E.2d 874
CourtIndiana Supreme Court
PartiesLorenzo BORDERS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

Robert C. Perry, Indianapolis, for Appellant.

Pamela Carter, Attorney General, Michael K. Ausbrook, Deputy Attorney General, Indianapolis, for Appellee.

SULLIVAN, Justice.

Defendant was convicted of Murder 1 on November 3, 1994. He was sentenced to a prison term of 60 years. We affirm the conviction.

Background

On January 10, 1994, around 7:00 p.m., defendant was at the home of Angela James at the same time as Onnie Smith, the victim. Shortly before 8:00 p.m., Smith went outside to his car and was shot to death while sitting in his car.

The information charged both defendant and Marcus Sanders with the murder of Smith. Sanders pled guilty to the felony murder of Smith pursuant to an agreement which stipulated that the State would not seek the death penalty against Sanders if he pled guilty and cooperated with the State in prosecuting defendant. When called to the witness stand in defendant's trial, Sanders testified that he would neither cooperate nor give testimony against defendant because he believed he had been misled and deceived into signing the plea agreement. When Sanders denied knowing Smith or seeing defendant on the day of the shooting, the prosecutor, for the purpose of impeachment, questioned Sanders about his guilty plea hearing testimony.

Other relevant facts will be provided as needed.

Discussion

Defendant raises five contentions on appeal. Three of these contentions attack the use of codefendant Sanders's guilty plea hearing testimony. The other two contentions are that the trial court committed fundamental error by admitting a tape recorded conversation in violation of defendant's right to representation by counsel and that defendant was denied his right to a fair trial by an impartial jury.

We have jurisdiction over this direct appeal because the longest single sentence exceeds fifty years. Ind. Const. art. VII, § 4; Ind.Appellate Rule 4(A)(7); Buie v. State, 633 N.E.2d 250, 252 (Ind.1994).

I

Defendant contends that the use of Sanders's guilty plea hearing testimony (1) constituted a violation of defendant's Sixth Amendment right to confront witnesses against him; (2) was the product of prosecutorial misconduct; and (3) would not have been admitted had defendant not been denied effective assistance of counsel. We find in favor of the State on all three contentions.

A

Defendant argues that his right to confront witnesses against him was violated when the trial court permitted the prosecutor to read statements made by Sanders during a plea agreement hearing. The Confrontation Clause 2 of the Sixth Amendment is applicable to States through the Fourteenth Amendment. See Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). "The essential purpose of the Sixth Amendment right of confrontation is to insure that the defendant has the opportunity to cross-examine the witnesses against him." State v. Owings, 622 N.E.2d 948, 950 (Ind.1993).

Defendant asserts that his right to confrontation was violated as a result of the following testimony elicited from Sanders on direct examination by the prosecutor:

Q: And Mr. Sanders, you are the same Marcus Sanders who has entered a plea of guilty to the crime of Felony Murder, the Murder of Onnie Smith; is that right?

A: That's correct.

Q: And you were charged with Felony Murder with a conspirator by the name of Lorenzo Borders, were you not?

A: True.

(R. at 561.)

...

Q: Now Mr. Sanders, with regard to the killing of [Smith], I have asked you whether or not you will cooperate with me, have I not?

A: Yes.

Q: And you told me that you would not cooperate; is that correct?

A: That's correct.

Q: And that you would not tell me about how Onnie Smith was killed; is that right?

A: That's correct.

(R. at 562.)

...

Q: At the time you entered the plea of guilty, you indicated at that time that you would cooperate with the State of Indiana in the prosecution of Lorenzo Borders, and you have indicated that now you will not cooperate. Why is that, Mr. Sanders, tell me?

A: Because my plea bargain agreement under the terms understood, my lawyer, I feel I was mislead [sic] and deceived into signing the plea bargain.

Q: So as a result of your feelings that you were mislead [sic] and deceived, your feeling here is you do not want to discuss the evening that Onnie Smith was killed; is that right?

A: That's correct.

Q: Let's talk about that a little bit. Did you know Onnie Smith?

A: No, I did not.

Q: Did you see him on January 10, 1994, the day that he was killed?

A: No, I did not.

Q: Do you know Lorenzo Borders?

A: Yes, I do.

Q: Did you see Lorenzo Borders on the day that Onnie Smith was killed?

A: No, I did not.

Q: So you did not see Onnie Smith, the person whom you have entered a plea of guilty to Felony Murder the day he was killed. And you did not see Lorenzo Borders on that day too; is that you're [sic] testimony?

A: Correct.

Q: Now, you have previously indicated in statements different to that testimony, have you not?

A: Yes, I have.

(R. at 563; 565.)

The prosecution then proceeded to impeach by reading statements which Sanders made during the plea agreement hearing.

Defendant argues that these statements should have been deemed inadmissible because their having been read from the guilty plea hearing transcript (rather than offered through live testimony) denied him the opportunity to cross-examine the witness. 3 Defendant's claim fails for two reasons. First, Sanders did not refuse to testify, but rather testified and was available for cross-examination. Second, the statements which were admitted were cumulative and thus, in these circumstances, harmless.

A-1

Defendant relies on Douglas, 380 U.S. at 415, 85 S.Ct. at 1075, to support his claim that his Sixth Amendment right to confrontation was violated. In Douglas, when the codefendant refused to testify after invoking the privilege against self-incrimination, and the trial court granted the prosecutor the privilege of cross-examination, the prosecutor sought to refresh the codefendant's recollection by reading the codefendant's confession into evidence. When the prosecutor asked the codefendant whether he made the statements, the codefendant continuously asserted the privilege and refused to answer. The Court held that since the evidence "tended to show only that [the codefendant] made the confession, cross-examination of them as to its genuineness could not substitute for cross-examination of [codefendant] to test the truth of the statement itself." Douglas, 380 U.S. at 420, 85 S.Ct. at 1077. The Court proceeded to state that the " 'inferences from a witness' refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.' " Id. (quoting Namet v. United States, 373 U.S. 179, 187, 83 S.Ct. 1151, 1155, 10 L.Ed.2d 278 (1963)).

Defendant's case is distinguishable from Douglas. Sanders did not invoke the Fifth Amendment and refuse to testify as did the codefendant in Douglas. He testified voluntarily on at least two occasions. First, Sanders offered testimony--he denied being involved in the murder of Smith. Second, when the State read the guilty plea into evidence and asked Sanders whether he made the statement, he responded in the affirmative. In Douglas, the Court stated that "effective confrontation of [codefendant] was possible only if [codefendant] affirmed the statement as his." Douglas, 380 U.S. at 420, 85 S.Ct. at 1077. The Douglas test was met here.

In any event, we find that defendant did have the opportunity to cross-examine Sanders. The mere fact that defendant did not take advantage of the opportunity does not mean that his right was violated. Furthermore, defendant's claim that the entire cross-examination of Sanders consumed slightly more than one page of transcript, Br. of Appellant at 15, does not constitute a lack of cross-examination. In fact, our review of the record suggests to us that the refusal to cross-examine may have been trial strategy to avoid the possibility that Sanders would offer evidence damaging to the defendant. Alternatively, if defendant felt it of value to obtain testimony from the codefendant, he could have requested the court to compel Sanders to respond to questions on cross-examination. He did not do so. We find that defendant's Sixth Amendment right to confront and cross-examine witnesses against him was not violated.

A-2

Defendant's claim that his right to confront and cross-examine witnesses against him was violated also fails because the evidence introduced through codefendant was cumulative of defendant's and defendant's cell mate's statements. It is well recognized that any error in admitting evidence will be found harmless where the evidence is merely cumulative. 4 See Chappel v. State, 591 N.E.2d 1011, 1015 (Ind.1992).

Following is the testimony of two witnesses who we find provided evidence similar to that provided by Sanders. Officer Converse offered the following testimony on direct examination:

Q: And directing your attention to January 27, 1994, I'm going to ask you whether or not you had an occasion to have a conversation with [the defendant]?

A: Yes, sir, I did.

(R. at 628.)

...

Q: And with regard to that conversation, did he tell you anything with regard to the robbery of Onnie Smith that occurred on January 10, 1994?

A: Yes sir. The Defendant told me that he along with another subject planned to rob Onnie Smith.

Q: Did he tell you the name of the other man?

A: Yes, sir. Marcus Sanders, sir.

Q: With regard to that conversation that you had with the Defendant, did he tell you anything about a weapon that Onnie Smith had at the time of the robbery?

A: Yes, sir. He stated that Onnie Smith, the victim of this...

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  • Ritchie v. State
    • United States
    • Indiana Supreme Court
    • May 25, 2004
    ...principles rendering the trial unfair to the defendant and thereby depriving the defendant of fundamental due process. Borders v. State, 688 N.E.2d 874, 882 (Ind. 1997). The error must be so prejudicial to the rights of the defendant as to make a fair trial impossible. Id. In determining wh......
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    ...that it had a probable persuasive effect on the jury's decision. The degree of impropriety of the conduct is irrelevant. Borders v. State, 688 N.E.2d 874, 879 (Ind.1997). 6 Cox raises the following specific contentions of prosecutorial During the State's opening statement, the prosecutor sa......
  • State v. Taylor
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    • June 10, 2015
    ...when the prosecutor knows in advance that the witness will invoke the Fifth Amendment and refuse to testify.” Borders v. State, 688 N.E.2d 874, 879 (Ind.1997) (citing Brown v. State, 671 N.E.2d 401, 404–405 (Ind.1996) ; Tucker v. State, 534 N.E.2d 1110, 1111 (Ind.1989) ; Aubrey v. State, 26......
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    • May 25, 2004
    ...principles rendering the trial unfair to the defendant and thereby depriving the defendant of fundamental due process. Borders v. State, 688 N.E.2d 874, 882 (Ind. 1997). The error must be so prejudicial to the rights of the defendant as to make a fair trial impossible. Id. In determining wh......
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