Griffin v. State

• Decision Date: 22 February 2002
• Docket Number: No. 49S02-0101-CR-43.,49S02-0101-CR-43.
• Citation: 763 N.E.2d 450
• Parties: James R. GRIFFIN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

763 N.E.2d 450

James R. GRIFFIN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 49S02-0101-CR-43.

Supreme Court of Indiana.

February 22, 2002.

Brent Westerfeld, Indianapolis, IN, for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Timothy W. Beam, Deputy Attorney General, Indianapolis, IN, for Appellee.

ON PETITION FOR REHEARING

SHEPARD, Chief Justice.

We recently affirmed James R. Griffin's conviction for carjacking. Griffin v. State, 754 N.E.2d 899 (Ind.2001). He now seeks rehearing.

A petition for rehearing is a vehicle that affords the reviewing court the "opportunity to correct its own omissions or errors." Daviess-Martin County Rural Tel. Corp. v. Pub. Serv. Comm., 132 Ind. App. 610, 625, 175 N.E.2d 439, 440 (1961). A petitioner may seek rehearing only on points raised in the original brief. Armstrong v. Hufty, 156 Ind. 606, 55 N.E. 443, 60 N.E. 1080 (1901).

A proper petition does not simply ask the court "generally to re-examine all the questions in the record, or all the questions decided against the party filing it." Goodwin v. Goodwin, 48 Ind. 584, 596 (1874). Judge Byron Elliott¹ pointed out that claimed errors in the original decisions must be articulated with precision, and that a party cannot be regarded "as having stated a point where he does no more than assert, in general terms, that a ruling was erroneous." Byron K. Elliott & William F. Elliott, Appellate Procedure and Trial Practice Incident to Appeals § 557 (1892).

As Judge Arch Bobbitt and Frederic Sipe noted, when a general rehearing is granted, the case stands before the court as if it had never been decided. 5 Arch N. Bobbitt & Frederic C. Sipe, Bobbitt's Revision, Works' Indiana Practice § 111.3 (5th Ed.1979). By contrast, when rehearing is granted as to a particular point, the original opinion will be modified as to that point only. Id.

Griffin argues in his petition for rehearing that we did not fully address his claim (further explained below) that the trial court's hearsay ruling violated his federal right to due process. Although Griffin presented this argument almost in passing, he did cite some federal authority and made a limited argument about it. (Appellant's Br. at 14-18.) We therefore agree that the issue was sufficiently raised and that rehearing is appropriate to address this issue.

Griffin challenges our conclusion that the trial court properly excluded testimony by his former attorney that one William Dulin confessed to the crime. (Pet. Reh. at 1.) The defense put Dulin on the stand, knowing he would deny having confessed, in order to get the attorney's hearsay testimony admitted under the guise of impeachment. Griffin, 754 N.E.2d at 904.

Griffin says we failed to consider Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In Chambers, a murder occurred during a barroom brawl. Id. at 285-86, 93 S.Ct. 1038. Four months afterward, Gable McDonald swore in writing that he was the shooter, but he later repudiated his confession. Id. at 287-88, 93 S.Ct. 1038. Three of Mc-Donald's acquaintances were prepared to testify that he orally confessed to them on separate occasions. Id. at 292, 93 S.Ct. 1038.

At trial, Chambers' lawyer called Mc-Donald and introduced the written confession into evidence. Id. at 291, 93 S.Ct. 1038. The State then elicited testimony about the repudiation, plus a fresh denial by McDonald. Id. Chambers was denied permission to cross-examine McDonald as an adverse witness based on Mississippi's "voucher" rule. Id. at 295, 93 S.Ct. 1038. He was also denied the opportunity to introduce testimony by the three other witnesses to whom McDonald confessed. Id. at 292, 93 S.Ct. 1038.

The U.S. Supreme Court held, "[U]nder the facts and circumstances of this case" the "exclusion of this critical evidence, coupled with the State's refusal to permit Chambers to cross-examine McDonald, denied him ... due process." Id. 302-03, 93 S.Ct. 1038 (emphasis added). It emphasized "persuasive assurances of trustworthiness" of the hearsay statements: (1) three confessions made spontaneously to close acquaintances shortly after the murder; (2) other corroborating evidence;² (3) the fact that the statements were against interest; and (4) the fact that McDonald was available at trial. Id. at 300-02, 93 S.Ct. 1038.

Chambers does not, as Griffin claims, stand for the proposition that the exclusion of hearsay evidence about a single confession, standing alone, violates federal due process.³

Griffin's case is distinguishable from Chambers for several reasons. Most importantly, unlike in Chambers, Griffin claims only one evidentiary error, because he was permitted to attack Dulin's credibility and motivation.⁴ Moreover, the trial court allowed certain testimony alluding to Dulin's alleged confession. The former attorney was not allowed to answer the question "Did [Griffin] make a confession?", (R. at 390), but she testified that when she was still on the case she listed Dulin as a defense witness because he made "statements that would strengthen [Griffin's] case," (R. at 392-93).

The confessions at issue in the two cases are also very different in terms of reliability. Griffin points to one oral confession made to a person who, although bound by professional ethics, was serving as his legal advocate, compared to Chambers' three confessions to disinterested acquaintances.⁵ Furthermore, the corroborating evidence against Dulin is meager⁶ compared to the eyewitness testimony against McDonald in Chambers.

The dissent's more generous application of Chambers would create serious potential for abuse. Any friend of a defendant with access to the crime scene, later knowledge of the whereabouts of contraband, or similar circumstantial connections could confess to a reliable witness that he actually committed the crime. The friend could then promptly repudiate that confession, leaving the defendant with a credible witness to finger someone else but running little or no risk of prosecution and conviction.

In summary, Chambers does not establish that Griffin was denied federal due process.

Griffin also cites Thomas v. State, 580 N.E.2d 224 (Ind.1991), but this too is readily distinguishable. The trial court in Thomas improperly excluded a jailhouse confession by the original suspect in a robbery, who described the crime in great detail to as many as twenty people. Id. at 227. As in Chambers, "the sheer number of independent confessions provided corroboration for each." Thomas, 580 N.E.2d at 226 (quoting Chambers, 410 U.S. at 300, 93 S.Ct. 1038).

Having considered Griffin's claim, we conclude the trial court should be affirmed.

DICKSON, SULLIVAN, and RUCKER, JJ., concur.

BOEHM, J., dissents with separate opinion.

BOEHM, Justice, dissenting.

Griffin offered the testimony of Lorinda Youngcourt, his former attorney. Youngcourt, in an offer to prove in question and answer form, testified that she met with William Dulin in the course of preparing to defend Griffin in this case, and in that meeting Dulin confessed that he had committed the carjacking. I think Youngcourt should be viewed as a disinterested party. I also believe her testimony is corroborated by enough other evidence that its exclusion deprived Griffin of his Sixth Amendment right to present witnesses in his defense. Accordingly, I respectfully dissent from the Court's conclusion that this testimony is not sufficiently reliable to be admissible under the basic fairness doctrine enunciated in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

Griffin was denied an opportunity to present Youngcourt's testimony because Dulin's confession was deemed hearsay if offered to prove the truth of Dulin's statement that he was the perpetrator. The same evidence was excluded as impeachment of Dulin under the doctrine that impeachment is improper if the sole basis for calling the witness to be impeached (Dulin) was to lay the groundwork for otherwise inadmissible impeaching evidence (Youngcourt's testimony). Griffin v. State, 754 N.E.2d 899, 904-05 (Ind.2001).

I agree that Youngcourt's testimony does not fall within any exception to the hearsay rule. Her account of Dulin's confession is not permitted as a statement against interest under Indiana Evidence Rule 804(b)(3)⁷ because Dulin was not "unavailable" as that term appears in Indiana Evidence Rule 804(a).⁸ Indeed, Dulin was present and testified at Griffin's trial. Nor was Youngcourt's testimony admissible as a prior inconsistent statement by a witness under Indiana Evidence Rule 801(d)(1)⁹ because Dulin's confession to Youngcourt was not given under oath. For the reasons given in the Court's initial opinion, I also agree that this court correctly applied Indiana precedent which does not permit Youngcourt's testimony as impeachment of Dulin if Dulin was called as a witness solely to obtain his denial of a confession, thereby laying the groundwork for Youngcourt's impeaching testimony. Accordingly, I agreed with the majority and concurred in the original opinion affirming Griffin's conviction under Indiana Evidence Rules. I now believe I was incorrect in that view.

In Hubbard v. State, 742 N.E.2d 919, 922 (Ind.2001), this Court recently repeated the admonition from Huffman v. State, 543 N.E.2d 360, 375 (Ind.1989) (citing Chambers, 410 U.S. at 302, 93 S.Ct. 1038), overruled on other grounds by Street v. State, 567 N.E.2d 102 (Ind.1991)

:

[W]hen the defendant's Sixth Amendment right to present a defense collides with the State's interest in promulgating rules of evidence to govern the conduct of its trials, the merits of the respective positions must be weighed, [and] the State's interest must give way to the defendant's rights if its rules are "mechanistically" applied to deprive the defendant of a fair trial.

Id. Youngcourt's testimony, although not falling within any of the hearsay exceptions, was required to be...