Dillard v. State

Decision Date05 October 2001
Docket NumberNo. 20S00-0005-CR-301.,20S00-0005-CR-301.
Citation755 N.E.2d 1085
PartiesReginald DILLARD, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Nancy A. McCaslin, Elkhart, IN, Attorney for Appellant.

Karen Freeman-Wilson, Attorney General of Indiana, Janet Parsanko, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. SULLIVAN, Justice.

Defendant Reginald Dillard was convicted of murder for his role in killing a police informant. In affirming the conviction, we find that the trial court properly granted Defendant's request to be tried together with a co-defendant. We also find the testimony of another accomplice to be sufficiently creditworthy to support the conviction and that Defendant was not prejudiced by certain evidence initially permitted over his objection but subsequently disallowed.

Background

The facts most favorable to the judgment indicate that on August 19, 1998, Defendant and Eddie Fredrick were hired to kill Christopher Thomas because he was acting as a police informant. Thomas was residing in a room at the Three Point Motel in Elkhart. Defendant and Fredrick used Tricia Mock as a decoy to get Thomas to open the door. Mock knocked at the door of Thomas's room and Fredrick forced himself into the room after Thomas opened the door. Thomas ran out of the hotel room but was shot near his door and fell to the ground. Mock testified that the shots came from outside the hotel room. Fredrick then stood over Thomas and fired three or four more shots into his body. Thomas died as a result of gunshot wounds to the head and chest.

Defendant and Fredrick were tried together and found guilty of murder.1 The trial court sentenced Defendant to 65 years.

Discussion

I

Defendant contends that he is entitled to a new trial because the trial court should not have granted his request to withdraw his motion for a separate trial. Appellant's Br. at 6.

Defendant and Fredrick were both charged with murder. Defendant filed a motion to be tried separately from Fredrick on January 5, 2000, five days prior to trial. The motion indicated that the State intended to call David Brownlee to testify that Fredrick confessed to committing the crime and implicated Defendant in his confession. Defendant sought separation to preserve his right to confront and cross-examine Fredrick. The trial court set the matter for hearing the following day.

On January 6, 2000, Defendant asked to withdraw his motion for a separate trial. Defendant filed a Waiver of Right to Have Separate Trial From Co-Defendant and Waiver of Conflict of Interest.2 This document indicated the following: (a) Defendant had been advised by his attorney that he had a right to a separate jury trial and that he was making his request for a joint trial despite his attorney's advice recommending a separate trial; (b) Defendant's attorney had informed him that the state would call a "snitch" who would testify that Fredrick confessed to the crime and implicated Defendant in his confession; and (c) Defendant's attorney had advised him that he had "the right to confront and cross examine ALL witnesses against [him], including anything that [Fredrick] purportedly told any witnesses," and that if he proceeded with a joint trial with Fredrick and Fredrick exercised his right to remain silent and not testify, Defendant would "[lose his] right to confront and cross-examine him as to those statements and confessions made to the snitches...."

Indiana Code § 35-34-1-11(b) provides:

Whenever two (2) or more defendants have been joined for trial in the same indictment or information and one (1) or more defendants move for a separate trial because another defendant has made an out-of-court statement which makes reference to the moving defendant but is not admissible as evidence against him, the court shall require the prosecutor to elect:
(1) a joint trial at which the statement is not admitted into evidence;
(2) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been effectively deleted; or
(3) a separate trial for the moving defendant.

A motion for a separate trial must be made prior to the commencement of the trial.3 Ind.Code § 35-34-1-12(a) (1998). A defendant's right to a separate trial is waived if the defendant fails to make the motion at the appropriate time. Id.; Townsend v. State, 533 N.E.2d 1215, 1225 (Ind.1989).

As a matter of statutory construction, it appears that the trial court was correct in granting Defendant's request to withdraw his motion for separate trial. Indiana Code § 35-34-1-11 requires the trial court to take action regarding separation of trials only where one party moves for a separate trial. Defendant withdrew his motion for a separate trial. This returned Defendant to the position of not having requested a separate trial. This is sufficient under the statute to waive a defendant's right to a separate trial. See Ind. Code § 35-34-1-12(a); Townsend v. State, 533 N.E.2d at 1225.

Defendant's claim for relief, as we understand it, is not that the trial court acted contrary to the severance statute but the because his request to withdraw his motion for separate trial was not voluntary, knowing, or intelligent, the trial court should not have granted the request. While Defendant on appeal does not describe the circumstances that caused him to submit the request, it seems clear from the text of the request that it was done over the vigorous protest of his trial counsel. Given the circumstances, it would have been helpful if the trial court had held a hearing on the record on the matter.

However, we are unable to conclude from the record or the argument presented on appeal that the trial court committed reversible error in granting the request. The most that can be said in support of Defendant's claim is that the "waiver has numerous misspellings, lacks a caption, is single spaced, is not signed by counsel, has been dated by filling in a blank, and releases counsel from claims of ineffective assistance for not filing a Motion to Separate, which motion was filed the previous day." Appellant's Br. at 8. But these attributes of the request do not undermine the fact that the language of the request is quite explicit and detailed in its discussion of the risks of a joint trial. And there is nothing of record or in Defendant's argument on appeal that suggests that there was anything involuntary, i.e., coerced, about his request.

More generally, the decision by a defendant in a criminal case to be tried jointly with or separately from a co-defendant is a highly fact-sensitive strategic decision that will vary from defendant to defendant and case to case. Here there is no evidence to suggest that Defendant made anything other than a strategic decision over the protest of his counsel to be tried together with Fredrick. Absent error by the trial court in applying applicable law, he is not entitled to a new trial merely because that decision did not work out to his satisfaction.

II

Defendant challenges the sufficiency of the evidence, contending that his "conviction should be overturned because it was based on inherently contradictory and dubious testimony." Appellant's Br. at 11.

Tricia Mock testified as to what happened on the night of the murder. She also testified that her testimony was inconsistent with earlier statements she had made to the police. Mock initially had told the police that she didn't know anything about the murder. Later, she told the police that Defendant and Fredrick killed Thomas, but didn't tell them that she was involved. She eventually told the police the story set forth under Background supra, including her involvement in the murder. During cross-examination, defense counsel questioned Mock extensively regarding her inconsistent statements. In questioning Mock, defense counsel elicited that there were motives for her to lie. Counsel attacked her credibility by pointing out errors in her statements about certain details of the crime. Throughout the cross-examination, defense counsel vigorously attacked her credibility.

In reviewing a sufficiency of the evidence claim, the Court neither reweighs the evidence nor assesses the credibility of the witnesses. See Brasher v. State, 746 N.E.2d 71, 72 (Ind.2001)

; Chambliss v. State, 746 N.E.2d 73, 77 (Ind.2001). We look to the evidence most favorable to the verdict and reasonable inferences drawn therefrom. Id. We will affirm the conviction if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id.

Within the narrow limits of the "incredible dubiosity" rule, a court may...

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13 cases
  • Pugh v. State
    • United States
    • Indiana Appellate Court
    • 10 Mayo 2016
    ...fact-finder could have found the defendant guilty beyond a reasonable doubt, the verdict will not be disturbed. Dillard v. State, 755 N.E.2d 1085, 1089 (Ind.2001). [33] In order to convict Pugh of rape, attempted criminal deviate conduct, and carjacking as an accomplice, the State was requi......
  • Fredrick v. State
    • United States
    • Indiana Supreme Court
    • 5 Octubre 2001
    ...Code § 35-42-1-1 (1998). Dillard also appeals his conviction. We address his claims on appeal in a separate decision. Dillard v. State, 755 N.E.2d 1085 (Ind.2001). 2. This document is substantially similar to the "waiver" signed by co-defendant Dillard. However, Dillard's waiver followed Di......
  • Woods v. State
    • United States
    • Indiana Appellate Court
    • 30 Mayo 2002
    ...sufficiency of the evidence claims, this court neither reweighs the evidence nor assesses the credibility of witnesses. Dillard v. State, 755 N.E.2d 1085, 1089 (Ind.2001). Rather, we look to the evidence most favorable to the verdict and reasonable inferences drawn therefrom. Id. A convicti......
  • Lichti v. State
    • United States
    • Indiana Appellate Court
    • 11 Mayo 2005
    ...to the sufficiency of the evidence, an appellate court does not reweigh the evidence or assess witness credibility. Dillard v. State, 755 N.E.2d 1085, 1089 (Ind.2001). Rather, we consider only the evidence most favorable to the verdict and all reasonable inferences therefrom. Id. We will af......
  • Request a trial to view additional results

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