Burns v. State
| Decision Date | 31 December 2015 |
| Docket Number | No. 49A02–1505–CR–348.,49A02–1505–CR–348. |
| Parties | Richard Green BURNS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Ruth Johnson, Michael R. Fisher, Marion County Public Defender Agency, Appellate Division Indianapolis, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Tyler G. Banks, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
KIRSCH
, Judge.
[1] Richard Green Burns (“Burns”) was convicted after a jury trial of murder,1 a felony, and attempted murder,2 a Class A felony and was sentenced to fifty-five years for murder and thirty-five years for attempted murder with the sentences ordered to be served consecutively for an aggregate sentence of eighty-five years. On appeal, Burns raises the following restated issues:
[2] We affirm.
[3] On March 18, 2014, Burns's father, also named Richard Burns (“Richard”), was celebrating his birthday. Richard spent the day at his home in Indianapolis, Indiana, and that night, he was sitting in his bedroom, drinking beer, and watching television, while his grandson, Timmy Moorman (“Moorman”), slept downstairs in the basement, in a space he had converted into a bedroom. At the same time, Richard's friend of more than thirty years, Sherman Wagers (“Wagers”), was awake and watching television in a space in the garage he had converted into an apartment.
[4] In the early morning hours of March 19, Burns came to Wagers's door and asked Wagers for the keys to the main house. Richard and Wagers were the only ones with keys to the house, and visitors would often come to Wagers to use his set of keys. After Burns retrieved the keys, Wagers watched him enter the main house. Within fifteen minutes, Burns returned to Wagers's apartment. Burns entered, struck Wagers in the head with a pistol, and then shot Wagers twice in the left side of the chest from close range. Burns then left the apartment and returned to the main house.
[5] Once inside the house, Burns entered Richard's bedroom holding Wagers's set of keys. Burns told Richard that he had just killed Wagers and Moorman. Richard did not believe Burns because Richard had heard no gun shots. While he was talking to Richard, Burns was holding a gun, and he pointed it at Richard several times and threatened to kill him. Burns was also talking about his mother, who had died six years prior, and Richard knew that “when [Burns] starts talking about his mom he's upset.” Tr. at 144. Richard was able to calm Burns down and walked Burns out to his vehicle. Richard told Burns to take care of himself, and Burns drove away.
[6] After Burns left, Richard yelled to Wagers and asked him to come over and celebrate his birthday. Wagers responded that Burns had shot him. After hearing this, Richard then believed Burns's earlier admission and went to check on Moorman in the basement. Richard found Moorman lying on the bed and discovered that he had been shot once in the head. Moorman later died from the gunshot wound
. Wagers survived his injuries. Ballistic evidence later showed that the same gun was used to shoot both Moorman and Wagers, although it was never recovered.
[7] On March 21, 2014, the State charged Burns with murder and Class A felony attempted murder. A jury trial was held, at the conclusion of which, Burns was found guilty of both charges. The trial court sentenced Burns to fifty-five years for his murder conviction and thirty-five years for his attempted murder conviction and ordered the sentences to be served consecutively for a total sentence of eighty-five years. Burns now appeals.
[8] Burns argues that insufficient evidence was presented to support both his conviction for murder and his conviction for attempted murder. The deferential standard of review for sufficiency claims is well settled. When we review the sufficiency of evidence to support a conviction, we do not reweigh the evidence or assess the credibility of the witnesses. Cunningham v. State, 870 N.E.2d 552, 553 (Ind.Ct.App.2007)
. We consider only the evidence most favorable to the verdict and the reasonable inferences that can be drawn from that evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind.Ct.App.2014), trans. denied. We will not disturb the jury's verdict if there is substantial evidence of probative value to support it. Id. We will affirm unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Tooley v. State, 911 N.E.2d 721, 724–25 (Ind.Ct.App.2009), trans. denied. As the reviewing court, we respect “the jury's exclusive province to weigh conflicting evidence.” Mc Hen ry v. State, 820 N.E.2d 124, 126 (Ind.2005).
[9] Burns argues that the State did not present sufficient evidence to support his conviction for murder because the testimony of Richard was incredibly dubious. Burns specifically contends that Richard's testimony was vague, inconsistent, and internally contradictory. He further claims that the most serious problem with Richard's testimony was that it demonstrated that Richard had a very serious memory impairment and could not recall much of what he had previously told the police or the attorneys who questioned him at the deposition. Burns asserts that, although the incredible dubiosity rule is restricted to cases where only a single witness testifies, and here both Richard and Wagers testified against him, it nevertheless seems logical that the rule should also apply where a single witness testified to the critical elements of a single charge, as occurred here.
[10] The incredible dubiosity rule provides that a court may impinge on the jury's responsibility to judge witness credibility only when confronted with inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Carter v. State, 31 N.E.3d 17, 30–31 (Ind.Ct.App.2015)
(citing Love v. State, 761 N.E.2d 806, 810 (Ind.2002) ), trans. denied. Application of this rule is rare, and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it. Id. at 31 (quotations omitted). The rule applies only when a witness contradicts herself or himself in a single statement or while testifying, and does not apply to conflicts between multiple statements. Id. (citing Manuel v. State, 971 N.E.2d 1262, 1271 (Ind.Ct.App.2012) ). Therefore, to warrant application of the incredible dubiosity rule, there must be: (1) a sole testifying witness; (2) testimony that is inherently contradictory, equivocal, or the result of coercion; and (3) a complete absence of circumstantial evidence. Smith v. State, 34 N.E.3d 1211, 1221 (Ind.2015). “Cases where we have found testimony inherently improbable have involved situations either where the facts as alleged ‘could not have happened as described by the victim and be consistent with the laws of nature or human experience,’ or where the witness was so equivocal about the act charged that her uncorroborated and coerced testimony ‘was riddled with doubt about its trustworthiness.’ “ Id. (quoting Watkins v. State, 571 N.E.2d 1262, 1265 (Ind.Ct.App.1991), aff'd in relevant part, 575 N.E.2d 624 (Ind.1991) ).
[11] In the present case, Richard was not the sole testifying witness to Burns's crimes. Wagers testified that Burns came to his garage apartment and retrieved the keys to the main house from him. Wagers then watched as Burns entered the main house, which was the site of Moorman's murder. Within fifteen minutes, Burns returned to Wagers's apartment and hit Wagers in the head with a gun and shot him twice in the chest from close range. This testimony from Wagers placed Burns at the scene of Moorman's murder around the time of Moorman's death as suggested by the evidence. Where there are multiple testifying witnesses, even if not eyewitnesses, the incredible dubiosity rule does not apply. See Moore v. State, 27 N.E.3d 749, 757–58 (Ind.2015)
().
[12] Additionally, Richard's testimony was not inherently contradictory. In order to be found inherently contradictory, the testimony must be inconsistent within itself and not with other evidence or prior testimony. Smith, 34 N.E.3d at 1221
. Richard's testimony did not contain internal contradictions; rather, all of the contradictions that Burns points to in his brief were either contradictions with statements made outside of the trial or contradictions regarding what prior statements Richard remembered. Burns does not specify any inconsistencies within Richard's testimony, only inconsistencies with previous out-of-court statements. In his trial testimony, Richard consistently stated that Burns told him that Burns had killed Moorman and Wagers and that Burns had a gun in his possession while confessing to these crimes. Tr. at 142–44. Richard did not contradict himself on this information, and although he may have contradicted himself about his out-of-court statements, this is irrelevant to the application of the incredible dubiosity rule. As to Richard's lack of memory of his prior statements to the police and in his deposition, although his testimony did indicate problems with his memory, the incredible dubiosity rule has not been applied in such situations. Here, Richard's memory issues were presented to the jury, and defense counsel had ample opportunity to impeach Richard.
[13] Further, in addition to Richard's testimony, circumstantial evidence of Burns's guilt was presented to the jury....
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