Brown v. State

• Decision Date: 17 April 2001
• Docket Number: No. 49S00-0002-CR-93.,49S00-0002-CR-93.
• Parties: Dwayne BROWN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

746 N.E.2d 63

Dwayne BROWN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 49S00-0002-CR-93.

Supreme Court of Indiana.

April 17, 2001.

Katherine A. Cornelius, Indianapolis, Indiana, Attorney for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Nandita G. Shepherd, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee. SHEPARD, Chief Justice.

Appellant Dwayne Brown killed Morris Moore to prevent him from testifying against Brown's sister, who was about to be tried for murder. Brown says it was error to admit evidence during his trial about his sister's murder charge and subsequent guilty plea. He also claims that certain comments by the prosecutor and judge during closing arguments denied him a fair trial. We affirm.

Facts and Procedural History

On August 14, 1998, Daniel Riddell was driving around an eastside Indianapolis apartment complex in a borrowed car, looking for his own stolen car. He passed Morris Moore, who momentarily obstructed the street while backing a car into a parking space. After Riddell went by and was turning around, he heard several explosive sounds. When he again drove past Moore's car ten to twenty seconds later, he saw Brown standing over the car, reaching into the open driver's window with his right arm as if to grab the gearshift.

The car, now appearing unoccupied, started to roll. Riddell had an unobstructed view of Brown's face from a distance of thirty feet or less. The two "locked eyes," then Brown fled. (R. at 213, 216-17.)

Another witness heard gunshots, came outside, and saw the car rolling to a stop. She found the wounded Moore sprawled across the front seat, and tried unsuccessfully to revive him. Moore died of multiple gunshot wounds.

The day after the murder, Riddell viewed a six-person photo array but did not recognize anyone as the man outside the car. Two days later, he viewed another array and positively identified Brown. He reconfirmed the identification at trial.

Brown knew at the time of the shooting that Moore had implicated Brown's sister,¹ Henri Tunstall, in a murder. (R. at 487, 489, 491.)

Brown pled an alibi, but his witnesses contradicted each other. The shooting occurred shortly before 3 p.m., across town from where Brown lived with his girlfriend. Brown's neighbor said that Brown was at the neighbor's house from about 3:15 that afternoon until about 6:30 that evening. (R. at 745, 754.) Brown's girlfriend said that neither she nor Brown left their house between 3:15 and 6:30. (R. at 802, 817, 819, 822.) The girlfriend's mother testified that she and her daughter went out shopping at 4:15 that afternoon. (R. at 882-83, 889-90.)

A jury found Brown guilty of murder and of carrying a handgun without a license.² The court sentenced Brown to sixty-five years on the murder count only.

I. Evidence About Henri Tunstall's Case

The State sought to establish that Brown killed Moore to prevent him from testifying at Tunstall's murder trial. To do so, the prosecutor called to the stand the police officer who took Brown's voluntary statement on August 18, 1998, and played an audiotape of that statement.

In the statement, Brown admitted that in early August 1998 he saw a probable cause affidavit naming Morris Moore as an eyewitness to Tunstall's July 14th shooting of John Schaefer. Brown claimed that he did not recognize the witness' name when he saw it on the affidavit because he knew Moore then only as "Marquise."³ Brown also stated that he was present when Schaefer was shot and that "Marquise," not Tunstall, was the shooter. During cross-examination, the defense sought to establish that it is not unusual to know someone by a nickname. To make this point, defense counsel elicited testimony from the police officer that Moore also went by the nickname "Q."

The gist of this defense was: "There was no reason for me to kill this man because I knew him as `Marquise' or `Q' and believed the witness against my sister was someone named Moore."

The prosecutor responded by calling Tunstall's attorney, who confirmed that on July 30, 1998, he gave Brown and other family members copies of Tunstall's charging information and probable cause affidavit. The prosecutor offered both into evidence. The information listed Moore as a State's witness and the affidavit said that Moore was also known as "Q."

The defense then obtained Tunstall's attorney's testimony that Brown had been a potential witness on his sister's behalf. Brown's arrest, however, made him effectively unavailable in Tunstall's case. This seemed to imply that the police really arrested Brown to prevent him from testifying for his sister, rather than because they thought he killed Moore.

The prosecutor countered this implication by establishing that after Brown's arrest, Tunstall admitted that she shot Schaefer and pled guilty to involuntary manslaughter. Tunstall's attorney said that Brown's unavailability was not a major factor in Tunstall's decision to plead.

Defense counsel then sought to show that Tunstall's plea did not necessarily prove that she, not Morris, shot Schaefer. He was thwarted when Tunstall's attorney asserted attorney-client privilege and said he would advise Tunstall not to testify. At the defense's request, the court admonished the jury not to consider Tunstall's guilty plea as substantive evidence in Brown's trial.

A. The Motive Evidence. Brown first argues that evidence of the murder charge against Tunstall should have been excluded as unfairly prejudicial. (Appellant's Br. at 9-14.) Relevant evidence is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice. Ind. Evidence Rule 403. A trial court has wide discretion to admit evidence that tends to prove the defendant's motive. Harris v. State, 644 N.E.2d 552 (Ind.1994) (evidence that murder defendant had expressed his desire to learn how it felt to kill was properly admitted) (citing Cornelius v. State, 425 N.E.2d 616 (Ind.1981)).

Here, the motive evidence was highly probative of Brown's interest in permanently silencing Moore. The court acted within its discretion in allowing evidence that Brown knew that his victim was a key State's witness to a murder committed by Brown's sister.

B. The Probable Cause Affidavit and Charging Information. Brown next argues that the charging information and probable cause affidavit in his sister's case contained irrelevant, gruesome specifics and should have been excluded to avoid guilt by association. (Appellant's Br. at 14-15.) We agree that certain information in those documents (such as a reference to Tunstall's criminal record and the specifics of how the shooting occurred) went beyond the details necessary to establish motive. With hindsight, the more prudent course would have been to redact the extraneous information, or allow the parties to stipulate to the relevant facts.

Errors of this sort do not warrant reversal, however, unless the defendant can show prejudice. Guajardo v. State, 496 N.E.2d 1300 (Ind.1986). In Guajardo, the State introduced a probable cause affidavit and search warrant into evidence because the defendant challenged the warrant's adequacy. Id. Although the documents were relevant only to matters determinable by the court, they were shown to the jury. Id. We recognized that such documents often contain highly prejudicial statements, but looked to strong identification testimony in concluding that the error was harmless. Id.

Although the documents at issue here related to a different crime and a different defendant, the risk that irrelevant information will prejudice the defendant is similar. We therefore apply a similar harmless error analysis. Brown's claim of prejudice consists entirely of speculation that he was a victim of guilt by association with his sister. The State, on the other hand, presented a strong case. The evidence showed that Brown had reason to want Moore dead. An impartial witness unequivocally identified Brown and described Brown's presence and activity at the murder scene. Brown's alibi witnesses told conflicting stories. We therefore conclude, as in Guajardo, that any error arising from the jury's exposure to irrelevant information on Tunstall's charging information and probable cause affidavit was harmless.

C. Tunstall's Guilty Plea. Brown argues that the defense did not open the door to testimony by Tunstall's attorney that Tunstall pled guilty to involuntary manslaughter. (Appellant's Br. at 16-19.) A review of the events at trial shows otherwise. A prosecutor may respond to inferences raised by the defense, even if that response would otherwise be objectionable. Harris, 644 N.E.2d at 554 (citing Lopez v. State, 527 N.E.2d 1119, 1126 (1988)). The defense suggested that Brown was actually arrested so that he could not serve as a witness for his sister. The prosecutor was entitled to counter as he did, by showing that Tunstall herself admitted killing Schaefer, and that Brown's arrest was not a significant factor in Tunstall's decision to plead guilty.

D. Rebutting Tunstall's Guilty Plea. Regardless of whether his attorney opened the door on this issue, Brown complains that he was unfairly denied the opportunity to quiz Tunstall's lawyer about whether she was innocent even though she pled guilty. (Appellant's Br. at 20-22.) He argues that his attorney was improperly prevented from asking questions in the jury's presence that were reasonably likely to prompt a claim of attorney-client privilege. (Id.)

He is incorrect. Indiana Evidence Rule 501(d)(2) plainly says: "In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury."

Tunstall had not yet been sentenced when her attorney took the stand in Brown's case, and Brown does not dispute that her attorney properly invoked privilege. (R. at 676-77, Appellant's Br. at 20.) The...