Fadell v. State, 4-1281A208

• Decision Date: 21 June 1983
• Docket Number: No. 4-1281A208,4-1281A208
• Citation: 450 N.E.2d 109
• Parties: Thomas R. FADELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 109

450 N.E.2d 109

Thomas R. FADELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 4-1281A208.

Court of Appeals of Indiana Fourth District.

June 21, 1983.

Thomas R. Fadell, pro se.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Presiding Judge.

After a jury trial, Thomas R. Fadell was convicted of Theft by Deception, Ind.Code 35-17-5-3(b) (1976), Conspiracy to Commit Perjury in a Voluntary Affidavit, Ind.Code 35-1-111-1, 35-1-90-2 (1976), and four counts of Ghost Employment, Ind.Code 35-22-8-2 (1976). From these convictions, Fadell appeals, raising the following issues:

1. Whether the prosecutors used perjured testimony to secure the conviction for Conspiracy;

2. Whether Fadell was denied a fair trial by the State's failure to provide discovery;

3. Whether the indictment for Theft by Deception was legally insufficient;

4. Whether the jury's finding of specific intent to commit Theft was based upon adequate instructions and sufficient evidence;

5. Whether the court erred in refusing to dismiss the Conspiracy charge where the same conduct had been the subject of a federal prosecution;

6. Whether the court erred in refusing to dismiss either the Ghost Employment charges or the Theft charge, since Theft is either a lesser included offense of Ghost Employment or an identical offense;

7. Whether the conviction for Conspiracy to Commit Perjury is contrary to law or not supported by the evidence;

8. Whether two of the convictions for Ghost Employment were supported by the evidence;

9. Whether the court erred in refusing Fadell's tendered instruction on the elements of Conspiracy to Commit Perjury;

10. Whether the court erred in refusing Fadell's tendered instruction on the scope of an assessor's discretion;

11. Whether the court erred in refusing Fadell's tendered instruction on witnesses' bias;

12. Whether Fadell was denied a fair trial by the exclusion of women from the jury;

13. Whether the court erred in refusing to discharge Fadell under Ind.Rules of Procedure, Criminal Rule 4(C);

14. Whether Fadell was denied a fair trial by the introduction of misleading waivers, signed by witnesses;

15. Whether Fadell's conviction on two counts of Ghost Employment as to one employee violated the double jeopardy clause; and

16. Whether the court erred in refusing to disqualify a deputy prosecutor who had represented defense witnesses.

We reverse the conviction for Theft by Deception, otherwise affirming the trial court's judgment in all respects.

The facts relevant to this appeal are as follows: Thomas R. Fadell was the Calumet Township Assessor in Lake County, Indiana, from 1959 to 1978. During this period, Fadell also maintained a private law practice and had an interest in a trucking company, a mobile home park, and a sand mining and sales company. Fadell managed these businesses from one office and conducted the assessor's work from another.

Bart Kusmierz was on the payroll of the Township Assessor's Office from March 1, 1973, to June 30, 1973, and during that time received pay of $350.00. Kusmierz was also on the payroll of the Township Assessor's Office from November 11, 1975, to September 15, 1976, and received pay of $7,046.59 for that period of time. Kusmierz was assigned to report for his work at Fadell's private offices, rather than the Assessor's office. During both of his stints working for Fadell, Kusmierz received pay both from the Assessor's office and from Fadell's private companies. Kusmierz's job was managing the trucking company and taking orders for the sand company. Kusmierz testified that he did no assessing work in 1973, and that he was assigned no work for the Assessor's office while on the payroll from November, 1975, to September, 1976.

David Krevitz was on the payroll of the Assessor's office from March 1, 1973 to April 22, 1974 and received $10,804.00 for that period of time. He had begun his employment several years earlier, but his duties began to change around September of 1972, when Fadell moved his business operations to his mobile home complex. After that time, Krevitz's duties were to take directions and orders from Fadell, doing work for the sand and trucking companies, for which he was paid one hundred dollars a week from Fadell's private businesses. Krevitz's other duties included going out for parts for the mobile home operation, getting Fadell's car washed, picking up Fadell's children from school, servicing Fadell's car, taking phone orders from accounts, calling accounts to solicit orders, and going to the sand pits to get trip tickets. During this time, Krevitz remained on the Assessor's office payroll as a full-time employee.

Dan Gligor was on the payroll of the Township Assessor's Office from April 1, 1973 to December 31, 1976 and received $39,665.68 for that period of time. In 1973, Gligor spent about four months working either at the trailer court or at Fadell's private home. His duties included picking up parts for Fadell's car, helping to build a recreation room, a pier, and some book shelves at Fadell's home, and installing sewer lines and new roadways at the trailer park. Gligor testified that he spent about four months of 1974 doing assessor-related work; that he spent three to four weeks of 1975 doing assessor-related work; and that he did perhaps one month of assessor-related work in 1976.

On January 14, 1977 Gligor was sent to see Fadell at his office. Fadell and another office employee explained that they had prepared an affidavit, which Gligor should sign. The affidavit stated that Gligor's wages from the Assessor's office were not to compensate him for unrelated work. Gligor looked it over and said it was false. Fadell told Gligor that the affidavit was so "You can't testify against me. I can't testify against you". Gligor testified that, although he did not want to sign the affidavit, he reluctantly agreed to do so.

I.

In attacking the trial court's judgment, Fadell first argues that reversal is required because the prosecutors knowingly used perjured testimony to convict him. Specifically, Fadell contends witness Gligor testified falsely about his affidavit containing the following statements:

That the wages paid to affiant by the Calumet Township Assessor were for services performed by affiant within the scope of his employment as a Deputy Assessor. No portion of my wages paid by the Calumet Township Assessor's Office were to compensate me in any manner for duties not related to the operation of the office of the Calumet Township Assessor.

That I was always assigned duties relating to the operation of said office by my employer or his staff and I performed the duties assigned to me.

That I never received compensation of any kind from the office of the Calumet Township Assessor for the performance of duties not related to the operation of the Assessor's office.

The conspiracy conviction against Fadell was based largely upon Gligor's testimony at trial that he agreed with Fadell to sign this document, and that he told Fadell he agreed to do so. Fadell contends that this testimony must have been false because it contradicted Gligor's earlier testimony in a deposition.

The knowing use of perjured testimony is fundamentally unfair, and any conviction based on such testimony must be reversed. Sypniewski v. State, (1980) Ind., 400 N.E.2d 1122. Confusion and inconsistencies in a witness's testimony, however, are not enough to prove perjury. Id. At trial, the prosecutor asked Gligor if he "agreed" to sign the document. Gligor responded, "I told Mr. Fadell after a brief encounter that if it would help the cause, I would sign the document." On cross-examination, Gligor repeated that he had "agreed" to sign the document. To prove these statements were perjured, Fadell points to a deposition taken before trial:

Q. "And that you didn't agree you didn't sit there and agree with Mr. Fadell that "yeah, you and I, we'll go ahead and sign this thing ... but you felt you were being forced to sign it, you didn't voluntarily agree with Mr. Fadell to sign it?"

A. "No, I didn't volunteer to sign it."

Q. You didn't voluntarily agree with Mr. Fadell?

A. I didn't want to willingly sign it. You know how circumstances are.

Although these statements are somewhat inconsistent, such inconsistency alone is not enough to prove that Gligor's testimony at trial was perjured. On the contrary, Gligor's trial testimony was substantially consistent with his earlier statements, indicating that Gligor did not want to sign the false document, but did so at Fadell's urging out of fear of being fired. Other contradictions in Gligor's testimony pointed out by Fadell likewise fail to establish any perjury. Fadell is not entitled to reversal on this basis.

II.

Fadell next contends that he was denied a fair trial when the State failed to provide discovery as ordered and suppressed Brady material. The State must disclose to a criminal defendant, on request, any material that is exculpatory or affects the credibility of a witness, and is known to the prosecution. Brady v. Maryland, (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Here, Fadell claims the prosecutors failed to disclose contradictory statements made to them by Gligor, which might have affected his credibility. Applying the three-tier analysis explained in Richard v. State, (1978) 269 Ind. 607, 382 N.E.2d 899, cert. denied, (1979) 440 U.S. 965, 99 S.Ct. 1515, 59 L.Ed.2d 781, we note that these disputed statements did not prove any perjury by Gligor; ¹ but Fadell had specifically requested a copy of "relevant statements" of all State witnesses. Thus, Fadell's conviction must be reversed if the State withheld statements that might have affected the outcome of his trial. Richard, supra, at 613, 382 N.E.2d at 903 (citing United States v. Agurs, (1976) 427 U.S. 97, 104, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342)....