Brown v. State, 53S00-9310-CR-01080

Citation671 N.E.2d 401
Decision Date07 August 1996
Docket NumberNo. 53S00-9310-CR-01080,53S00-9310-CR-01080
CourtSupreme Court of Indiana
PartiesBryan BROWN, Appellant, v. STATE of Indiana, Appellee.

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Pamela Carter, Attorney General of Indiana, Lisa M. Paunicka, Deputy Attorney General, Indianapolis, for appellee.

SULLIVAN, Justice.

Defendant Bryan Brown was charged with fourteen felonies in connection with the robbery and brutal murder of two elderly men on October 19, 1988, in Tippecanoe County. Brown was tried before a jury in 1990, and found guilty on thirteen counts. In 1992, however, our court reversed Brown's conviction and remanded the cause for a new trial. Brown v. State, 587 N.E.2d 111 (Ind.1992). At the second trial, the jury again found Brown to be guilty of thirteen separate crimes. 1

Brown presents four issues for review on this direct appeal:

(1) Whether Brown was denied due process of law and a fair trial by the State's calling of his co-defendant David Ohm as a witness in the presence of the jury and allowing the jury to witness Ohm's refusal to take the oath and testify, when he had indicated before trial that he would refuse to take the oath and testify;

(2) Whether the trial court erred by permitting the State to introduce as substantive evidence prior out of court statements made by its chief witness, Ohm;

(3) Whether the trial court erred by refusing to give certain tendered instructions that would have instructed the jury on how to assess Brown's accomplice Ohm's testimony given pursuant to a favorable plea agreement; and

(4) Whether Brown's rights under the Double Jeopardy Clauses of the Indiana and United States Constitutions not to be punished twice for the same offense have been violated by having judgments and sentences imposed for two counts of Confinement, in addition to having sentences imposed for Robbery and Murder.

Background

Eighty year old Lewis McKay lived alone in a small home in a rural area near Lafayette, Indiana. McKay owned farm and rental property and rented out a nearby home to defendant and his family.

Defendant and McKay were well acquainted as Brown not only had performed some odd jobs for McKay, such as helping him work on his satellite receiver for his television set, but also occasionally socialized with McKay when McKay, on several occasions, invited Brown to his house to watch television and to play checkers or cards with him. However, several months before McKay's death, McKay had accused defendant of attempting to steal some of his tools, so defendant was no longer welcome at McKay's home.

On the morning of October 20, 1988, McKay's friend, Esther Collins, became concerned that McKay had not called her, as he usually did. Collins drove to McKay's home to check on him. She opened the door and saw that the living room was in disarray and that a man was lying face down on the floor. Collins then summoned one of McKay's employees and they then contacted the police. As it turned out, there were two men on the living room floor, both of whom died as a result of excessive bleeding from knife wounds to their necks. The men were identified as Lewis McKay and John Ross, a friend of McKay's who often visited McKay to watch sports on his television.

Shortly after the murders, the police received an anonymous telephone call from a person stating that defendant and David Ohm were responsible for the victims' deaths. The police were not able to trace the source of the call.

On October 27, 1988, defendant was arrested. After signing a waiver of rights form, defendant gave a tape-recorded statement to the police, stating that Ohm entered the McKay home without him for about twenty minutes, and that after that, defendant looked into the home and saw two bodies lying on the floor. After that, defendant stated, both defendant and Ohm ransacked the house and stole some of McKay's belongings.

David Ohm eventually turned himself in to the police. In exchange for Ohm's pleading guilty and in exchange for testimony in any proceeding in the case against Brown, the State agreed to drop the death penalty charge against Ohm and to allow him to plead guilty to only two counts of Murder, with the sentences for each murder to be served consecutively.

I

At defendant's first trial, Ohm testified as a prosecution witness and was cross-examined by the defense. In preparation for re-trial, Ohm apparently indicated that he would refuse to testify at the new trial. Following a preliminary pre-trial conference, the court entered an order indicating that if Ohm refused or was otherwise unavailable to testify, the state would introduce Ohm's testimony from the first trial; 2 that the state would produce the testimony it planned to introduce; and that the defense would then file any objections to the transcript. Defense counsel filed extensive objections, which were debated before the court in a second pre-trial conference. The court then entered an order indicating that part of the transcript that could be used and that part which was inadmissible.

At trial, Ohm was called to testify. In front of the jury, he refused to take the oath and explicitly refused to testify, despite being threatened with contempt. The jurors were excused and the court tried and convicted Ohm of contempt. When the jury returned, the court explained that Ohm had been found in contempt for refusing to testify. The trial then proceeded, using the transcript of Ohm's testimony from the first trial, edited in accordance with the court's pre-trial order.

Defendant claims that it was error for the trial court to permit Ohm to refuse to testify in front of the jury, and that the trial court further erred by not admonishing the jury with respect to his refusal to testify. Defendant cites as authority our opinions in Tucker v. State, 534 N.E.2d 1110 (Ind.1989) and Aubrey v. State, 261 Ind. 692, 310 N.E.2d 556 (1974).

In Tucker, during the jury trial of Danny E. Tucker, the State called witness James Eller, who was a codefendant in the charged crime. Eller was called to take the stand and, in front of the jury, refused to testify. Tucker's attorney requested that the court instruct the jury to disregard Eller's refusal to testify, but the court did not do so. We held that it was reversible error for the trial court to permit Eller to be called before the jury when all parties knew in advance that he would invoke the Fifth Amendment and that "[t]he court further erred in refusing to admonish the jury to disregard the situation." 534 N.E.2d at 1111. In so holding, we relied on the logic enunciated in Aubrey:

The natural, even inevitable, inference which is raised in the jury's mind when an alleged accomplice refuses to testify is that the withheld testimony would be damaging, not only to the witness, but also to the defendant. Thus, the mere refusal to speak indelibly implants adverse inferences in the minds of the jurors and reaches them in a form not subject to cross examination. Blakes refusal to testify 'may well have been the equivalent in the jury's mind of testimony.' Douglas v. Alabama (1965), 380 U.S. 415, 419, 85 S.Ct. 1074, 1077, 13 L.Ed.2d 934, 937.

Id. at 1110 (citing Aubrey, 310 N.E.2d at 559) (emphasis in original).

Tucker and Aubrey are important cases and we re-affirm that it is reversible error to permit a co-defendant or accomplice to take the stand in front of the jury and refuse to testify. But we find this case to be different from Tucker and Aubrey in at least two and perhaps three important respects.

First, although defendant disputes it, it is not clear to us that the court and the parties knew that Ohm would refuse to testify when he took the stand. Granted that the parties and the court prepared for trial on the assumption that Ohm would refuse to testify, it appears to us from a careful study of the record that the court and the parties did not know in advance that Ohm would refuse to testify.

Even if we were to agree with defendant that the court and the parties knew that Ohm would refuse to testify, we would not find Tucker and Aubrey applicable here for two additional reasons. As noted in the excerpts

from Tucker and Aubrey, the reason it is reversible error to permit a co-defendant or accomplice to refuse to testify in front of a jury is because of the inference that such refusal implants in the jury's mind as to what the witness would say. But here Ohm's testimony from the prior trial was available and used. The jury was not placed in a position of speculating about what Ohm would say; it received Ohm's testimony

Furthermore, defendant did not object to Ohm being brought before the jury. Cf. Tucker, 534 N.E.2d at 1110 (calling to stand of defendant's accomplice "done over the strenuous objection of appellant's counsel"). There may have been sound strategic reasons for this, to wit, since the jury would be hearing Ohm's testimony from the prior trial anyway, defense counsel may well have concluded that it would be to defendant's advantage for the jury to see Ohm, observe his demeanor, and watch the trial court threaten him with contempt.

While reaffirming Tucker and Aubrey, we find that under the particular circumstances of this case, it was not error to permit Ohm to take the stand in front of the jury and refuse to testify. 3

II

Defendant also claims that it was error for the trial court to admit as substantive evidence certain out of court statements made by Ohm.

At the first trial, Ohm testified for the State, and was subject to cross examination by defendant. During cross examination, Ohm was questioned by defendant's attorney as follows:

Q. Now, when you turned yourself in, with Mike Collins, sometime after the homicide, did you at that date give a statement to the police?

A. No.

Q. Did you give a statement to your--to the police regarding your involvement at any time prior to receiving the plea agreement?

A. N...

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