Julian v. State
| Decision Date | 29 June 2004 |
| Docket Number | No. 48A02-0305-CR-406.,48A02-0305-CR-406. |
| Citation | 811 N.E.2d 392 |
| Parties | Billy JULIAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Bruce A. Stuard, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Matthew D. Fisher, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-Defendant, Billy Julian (Julian), appeals his convictions for Count I, arson, a Class B felony, Ind.Code § 35-43-1-1(A)(1); Count II, burglary, a Class C felony, I.C. § 35-43-2-1; and Count III, attempted theft, a Class D felony, I.C. § 35-43-4-2(A).
We affirm.
Julian raises five issues on appeal, which we consolidate and restate as follows:
1. Whether the trial court erred in allowing the State to impeach its own witness;
2. Whether the trial court erred in allowing the State's expert witness, Timothy Murray, to testify that the fire in the school was intentionally set;
3. Whether the trial court violated its separation of witnesses order by permitting a State's witness, who remained in the courtroom, to testify after hearing the testimony of other witnesses; and
4. Whether the trial court properly sentenced Julian.
In the late evening of March 11, 2001, Julian, Josh Rider (Rider), and J.H., a juvenile, broke into Frankton High School (the school) in Madison County, Indiana. The three perpetrators entered the school through a door on the roof of the school, removed a ceiling tile from above the ceiling, and climbed down a ladder into the hallway. After obtaining an oxyacetylene torch from the industrial arts classroom, the young men entered the school's main office suite. The torch was then used to burn wiring in the enunciator panel that serves as the control box for the school's fire alarm system in the main office. The torch was also used in an attempt to open a large safe where prescription drugs and money were stored in the main office. However, during this failed attempt to open the safe, molten steel dripped onto the carpet, causing a fire.
William Amick (Amick), Head of Security for Frankton-Lapel Schools, responded first to the scene after being alerted of the fire alarm through his pager shortly after 12:30 a.m. on March 12, 2001. Once the fire department arrived and the fire was brought under control, Amick patrolled the perimeter of the school and school grounds to prevent anyone from entering the area. Later in the afternoon of March 12, 2001, while still on patrol, Amick noticed a young man, who he recognized as J.H., walking on the sidewalk near the football stadium. Amick observed that J.H. was covered in soot. J.H. explained his appearance, saying that he had been burning trash in his backyard.
Amick informed Madison County Sheriff's Department Detective Samuel Hanna (Detective Hanna) of his encounter with J.H. Detective Hanna arranged to interview J.H. on March 16, 2001, about the fire at the school. During the interview, J.H. implicated Julian, Rider, and himself as being involved in the burglary and fire. Meanwhile, during the course of the investigation, Detective Hanna recovered three red fibers from the top of a security gate inside the school. Investigators previously determined that at least one of the perpetrators had climbed over the gate upon entering the school through the ceiling. Forensic analyses of the fibers revealed that they were "very similar" to those in a red shirt frequently worn by Julian. (Transcript p. 123).
On March 16, 2001, Julian was arrested. On April 3, 2001, the State filed an information against Julian, charging him with Count I, arson, a Class B felony, I.C. § 35-43-1-1(A)(1); Count II, burglary, a Class C felony, I.C. § 35-43-2-1; and Count III, attempted theft, a Class D felony, I.C. XX-XX-X-X(A). On March 6, 2003, the State filed an additional information, charging Julian with Count IV, criminal mischief, a Class C felony, I.C. § 35-43-1-2(B).
On March 11, 2003, through March 14, 2003, the trial court conducted a jury trial in this matter. On March 14, 2003, the jury returned a verdict finding Julian guilty as charged. On March 31, 2003, a sentencing hearing was held in which the trial court sentenced Julian to the Department of Correction for eighteen years on Count I, with fifteen years executed and three years suspended to probation; six years executed on Count II to run concurrent with Count I; and three years executed on Count III to run concurrent with Count I. The trial court also vacated the conviction on Count IV, pursuant to Julian's request.
Julian now appeals. Additional facts will be supplied as necessary.
Julian first argues that the trial court erred by allowing the State to impeach its own witness. Specifically, Julian contends that, when the State impeached J.H., who was testifying as a State's witness, the prosecutor improperly offered an out-of-court statement by J.H. as substantive evidence, which is contrary to law.
Indiana Evidence Rule 607 authorizes a party to impeach the credibility of its own witness. Impson v. State, 721 N.E.2d 1275, 1281 (Ind.Ct.App.2000). However, the rule is abused if the party is permitted to call a co-defendant as a witness, when the party knows that the co-defendant will not give useful evidence, just so the party can introduce otherwise inadmissible hearsay evidence against the defendant, "in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence — or, if it didn't miss it, would ignore it." Id. (quoting U.S. v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984)). To determine whether an abuse of the rule has occurred, we consider whether the prosecutor examined the witness for the primary purpose of placing before the jury otherwise inadmissible evidence. Id. Nevertheless, otherwise inadmissible evidence that is placed before the jury when the State has a legitimate basis to call the witness will not be considered improper. Id.
In the instant case, the trial court conducted multiple hearings outside the presence of the jury regarding the State's desire to call J.H. as a witness and Julian's objection thereto. During these hearings, Julian objected strenuously that the State was attempting to place J.H. on the stand to present otherwise inadmissible evidence cloaked as impeachment in violation of Appleton v. State, 740 N.E.2d 122, 125 (Ind.2001)(where our supreme court held that "a party is forbidden from placing a witness on the stand when the party's sole purpose in doing so is to present otherwise inadmissible evidence cloaked as impeachment"). The trial court eventually granted the State's request to call J.H. as a witness, explaining that, (Tr. pp. 291-2).
However, as the State launched into a line-by-line impeachment of J.H., to which Julian objected, the trial court sustained Julian's objection and advised the State that it could only inquire into an explanation of the inconsistencies in J.H.'s out-of-court statement and his in-court testimony. Thereafter, the trial court admonished the jury that the evidence of prior inconsistent statements by J.H. were not offered for their truthfulness, "but only to show that [J.H.] is not a truthful person." (Tr. p. 319).
After reviewing the record, we conclude that the trial court committed no error by allowing the State to call J.H. as a witness and then proceed to impeach him. According to the facts before the jury, J.H. was first encountered by Amick, who saw J.H. walking near the school football stadium the afternoon following the fire; J.H. was covered in soot. When Amick questioned J.H., he explained that the soot resulted from his burning trash in his backyard. Amick reported J.H.'s suspicious appearance to Detective Hanna, who arranged to interview J.H. a few days later. Also before the jury was Hanna's testimony that, as a result of his interview with J.H., Julian became a suspect in the school burglary and fire. Thus, if the State had omitted J.H. from its list of witnesses, the jury could reasonably have wondered why the State was reluctant to question this apparently crucial witness. See Impson, 721 N.E.2d at 1282
.
trans. denied.
We are mindful that the State may have been able to place more of J.H.'s out-of-court statement in front of the jury than would be preferred, especially in light of the fact that Julian offered to stipulate that the out-of-court statement was untruthful in order to make the impeachment unnecessary. See Appleton, 740 N.E.2d at 125
. In addition, we are aware of the fact that, once J.H. admitted to the inconsistent prior statement, he had effectively impeached himself and further evidence was unnecessary for impeachment purposes. See id. Nonetheless, as stated above, J.H. was a key witness to the State and his absence as a witness...
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