Gibson v. State
| Decision Date | 22 October 1987 |
| Docket Number | No. 27A02-8611-CR-405,27A02-8611-CR-405 |
| Citation | 514 N.E.2d 318 |
| Parties | Evelyn GIBSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Nancy L. Broyles, McClure, McClure & Kammen, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
Evelyn Gibson (Gibson) appeals her convictions upon three counts of promoting prostitution under Ind.Code Ann. Sec. 35-45-4-4 (Burns 1985). Gibson was convicted on Count I for knowingly or intentionally enticing or compelling another person, under eighteen years of age, to become a prostitute; on Count III for knowingly or intentionally permitting another person to use a residence, over which Gibson had control, for prostitution; and on Count IV for receiving money from a prostitute, without lawful consideration, knowing it was earned in whole or in part from prostitution.
The issues on appeal are 1) whether Gibson was denied a fair trial when the State violated discovery orders, and 2) whether the evidence is sufficient to support her convictions on Count I and Count IV.
We affirm.
Evelyn Gibson ran a house of prostitution in her home in Muncie, Indiana, in 1984. Gibson employed Tiki Jo Everrett, JoAnn Beaty and Diane Miller as prostitutes, collecting a percentage of their earnings. JoAnn Beaty was sixteen years old at the time she worked for Gibson.
Police officer Steven Stanley visited Gibson's house posing as a customer and obstensibly employed the services of prostitute Tiki Jo Everrett. Stanley paid Everrett, who was at the time assisting police, fifty dollars in marked bills. Everrett gave the marked bills to Gibson, which resulted in Gibson's arrest on October 25, 1984. Trial by jury ensued on June 10, 1985.
Prior to trial, Gibson filed three motions to produce, all of which were granted. All three motions were identical and ordered the State to produce, among other things:
"1. The names and addresses of persons whom the Prosecuting Attorney intends to call as witnesses at the trial, together with their relevant * * *
written or recorded statements;
9. Any evidence the Prosecution might have, favorable to this defendant;
* * *
16. Any victim's statements...."
Record at 45-46, 49-50, 116-117. Gibson proceeded to trial, believing the State had provided all ordered discovery materials.
At trial the jury returned guilty verdicts on Counts I, III and IV. Gibson's motion to correct errors was denied. After filing her record of proceedings with the Clerk of this court, Gibson learned of the existence of three audio-recorded statements of State's witnesses the prosecution had failed to provide pursuant to the discovery orders. All were interviews conducted prior to trial at the prosecutor's office by the prosecutor and his chief investigating officer. Two were with State's witness JoAnn Beaty, and one with State's witness Diane Miller.
The existence of these statements was revealed during the trial of Howard Burns, which took place after Gibson's trial, and at which both JoAnn Beaty and Diane Miller testified as State's witnesses. 1
When Gibson learned of the tapes, she was granted permission to file a belated motion to correct errors and allowed to inspect and copy the tapes. At a hearing on her belated motion to correct errors, Gibson introduced transcripts of the tapes and claimed that she had been denied a fair trial because statements on the tapes "differed from trial testimony in many material aspects." Appellant's Brief at 7. The trial court denied Gibson's belated motion to correct errors.
Gibson argues that she was denied a fair trial when the State wrongfully, through either prosecutorial misconduct or gross negligence, failed to provide the tape recorded statements of State's witnesses despite three specific requests and three court orders. She argues that the prosecution's obligation to disclose was not discretionary but mandated by the Due Process Clause of the U.S. Constitution. She points out that even if the withholding of evidence was merely negligent, rather than deliberate, there are still sufficient grounds for a new trial.
There is little doubt the prosecutor's office deliberately violated the discovery orders. Nevertheless, while such violations are inexcusable and totally reprehensible, a constitutional violation occurs only if the nondisclosure deprives a defendant of a fair trial. United States v. Bagley (1985), 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481. The constitutional obligation to provide an accused a fair trial is not measured by the "moral culpability or willfulness of the prosecutor." United States v. Agurs (1976), 427 U.S. 97, 110, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342; Brady v. Maryland (1963), 373 U.S. 83, 87; Mooney v. Holohan (1935), 294 U.S. 103, 106-107, 55 S.Ct. 340, 79 L.Ed. 791.
The issue is whether the prosecutor's withholding of the taped statements in violation of discovery orders deprived Gibson of a fair trial. Resolution of this issue depends upon the evidential relationship that exists between the suppressed tapes and Gibson's conviction. "[A] constitutional error occurs, and a conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial." Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.
Prior to Bagley, the Supreme Court applied differing standards of materiality to post-trial discovery of nondisclosed evidence depending upon whether the prosecution used perjured testimony, or failed to disclose evidence favorable to the accused when specifically requested, or whether the nondisclosure occurred when either a general request or no request was made by the defendant. See United States v. Agurs (1976), 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342. 2 However, in Bagley, the Supreme Court reformulated the standard for cases involving specific requests as well as for those involving general (or no) requests into one, the so-called Strickland 3 standard: Bagley, 473 U.S. at 682, 105 S.Ct. at 3384. Thus, although a stricter standard still applies to the prosecution's knowing use of perjured testimony, the Bagley standard applies to all other cases when the prosecution fails to disclose evidence favorable to the accused. Accordingly, it is applicable to Gibson's claim.
Gibson contends that the suppressed evidence could have been used for impeachment purposes at trial. The United States Supreme Court has rejected any distinction between impeachment evidence and exculpatory evidence. Bagley, 473 U.S. at 676, 105 S.Ct. at 3380. However, the importance of impeachment evidence depends on the facts of the particular case.
In Deatrick v. State (1979), 181 Ind.App. 469, 392 N.E.2d 498, this court explained: "[T]he importance of such evidence will depend upon the type of impeachment evidence it is, the extent of its impeachment, and the importance of the impeached witness to the State's case." Deatrick, 181 Ind.App. at 475, 392 N.E.2d at 502. Considerations appropriate to this determination include whether the witness' suppressed statement was substantially inconsistent with the witness' trial testimony, whether the suppressed statement would have refuted an element of the offense or whether it would have served only to impeach the general veracity of the witness, whether the witness making the suppressed statement was otherwise impeached, whether the witness' trial testimony regarding elemental facts was corroborated by other witnesses, and whether the defense had access to other pre-trial statements of the witness not claimed to be inconsistent with the suppressed statement.
Gibson was charged by Count III with: "... having control over the use of a place, to-wit: 601 South Council Street, Muncie, Delaware County, Indiana, knowingly permit another person, to-wit: Diane Miller, to use the place, said 601 South Council Street, for prostitution," a violation of IC 35-45-4-4(3) (Burns 1985). Diane Miller's testimony as a witness for the State was critical to the State's case on this count. Gibson contends that because there were so many inconsistencies between Miller's trial testimony and her suppressed statement, the unavailability of Miller's statement denied her a fair trial.
We disagree. The trial court properly concluded the nondisclosed evidence is immaterial within the meaning of Bagley.
The inconsistencies cited in Gibson's brief between Miller's suppressed statement and her trial testimony concern when she started working for Gibson, how much work she performed, whether she quit or was fired, how she was paid and Gibson's share, the names of her customers, her relationship with her boyfriend, Gibson's protection by city officials and Gibson's use of a tape recorder.
The inconsistencies in Miller's suppressed statement did not refute any element of the offense but would have served only to impeach Miller's general veracity as a witness. Many of the cited inconsistencies are either de minimis or, in fact, are not inconsistencies. For example, in her suppressed statement Miller said she stated working for Gibson in August while at the trial she testified she commenced in July. In her statement, she claimed having committed 20 to 30 acts of prostitution while at trial she claimed it was "[f]orty at the most," Record at 533, and forty "approximately maybe." Record at 548. These inconsistencies are obviously de minimis.
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