Reed v. State

• Decision Date: 08 June 2001
• Docket Number: No. 71S00-9911-CR-654.,71S00-9911-CR-654.
• Citation: 748 N.E.2d 381
• Parties: Grandon REED, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

748 N.E.2d 381

Grandon REED, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 71S00-9911-CR-654.

Supreme Court of Indiana.

June 8, 2001.

Mark S. Lenyo, South Bend, IN, Attorney for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. BOEHM, Justice.

Grandon Reed was convicted of the felony murder of Brian Cichocki and sentenced to sixty-five years imprisonment. In this direct appeal, he contends that: (1) Reed was denied his Sixth Amendment right of confrontation when the trial court refused to compel the deposition of prosecution witness Brandon Williams; (2) the trial court abused its discretion when it refused to permit Reed to impeach Williams with a videotaped interview between prosecutors and Williams; (3) the trial court erred in admitting the hearsay statements of Takiya Posey where Posey was not called as a witness by the State; and (4) the evidence was insufficient to support the conviction.

We conclude that the trial court abused its discretion in refusing to allow Reed to impeach Williams with his prior inconsistent statements and that this error prejudiced Reed. We reverse the conviction and remand for a new trial.

Factual and Procedural Background

On April 22, 1998, at approximately 9:00 p.m., a man wearing a black ski mask, black leather gloves, and a tan or cream colored coat entered Archie's Place, a barbecue restaurant in South Bend, pulled a black gun, and demanded money from the cashier, Tamika Fultz. As Fultz gathered the money from the register, she noticed that the outside door remained open. Because the door normally closed itself, she assumed that a second person was holding it open. After Fultz handed approximately $500 to the gunman, the gunman suddenly turned and shot Brian Cichocki, a customer who was waiting for his takeout order. Fultz dialed 911 and police were dispatched at 9:18 p.m. Cichocki suffered a gunshot wound to his left shoulder and died of severe blood loss later that night. Ballistics tests and a shell casing retrieved from the scene revealed that the lethal bullet was fired from a nine-millimeter gun.

A. The Investigation

Brandon Williams, seventeen years old, lived a few blocks away from Archie's Place. The day after the robbery, police questioned Williams after receiving a tip that he had been involved in the crime. Williams initially denied any involvement, but later that day admitted that the prior evening he had accompanied Reed to Archie's Place. Williams said that he held the door as Reed unexpectedly robbed Fultz and shot Cichocki.

Reed, who had just turned eighteen, was picked up by police and interviewed by Officer Richmond. In the course of the interview, Reed's mother, Darla Pfeifer, arrived at the police station. Although Pfeifer was not allowed to speak with Reed at that time, she signed a consent form allowing police to search her house. Police discovered a nine-millimeter AB-10 or "Baby Tec 9" handgun and bullets in the garage. They also found two black ski masks, a pair of black knit gloves, a tan coat, and a green jacket in Reed's room. Reed was arrested based on the fruits of the search. Ballistics tests later showed that the gun seized in the garage was not the weapon used to kill Cichocki.

Pfeifer was present as the police searched her home. After the AB-10 was found in her garage, she halted the search and returned to the station where she was allowed to speak with Reed in the interview room. The police routinely videotape everything that occurs in the interview room and captured the conversation between Reed and Pfeifer. Reed's interrogation by police was on the same tape, immediately before and after his conversation with Pfeifer. Although the portion of the tape containing the Reed/Pfeifer conversation is largely unintelligible, Pfeifer can be heard instructing her son to "shut up" and "just be quiet." Reed and Pfeifer can also be heard discussing the AB-10. When Pfeifer asked Reed if the gun had been used in a shooting, Reed replied that "the gun has never been fired." Pfeifer asked Reed if he shot Cichocki, to which he replied that he "didn't shoot anybody." Immediately following the conversation between Reed and Pfeifer, police placed Reed under arrest.

B. Pretrial Maneuvers

Six months later, on August 20, 1998, Williams entered into a plea agreement with the State. In return for his agreement to testify truthfully against Reed, the two counts of robbery and one count of felony murder against Williams were dropped and he was allowed to plead guilty to assisting a criminal, a Class C felony.

Reed first attempted to depose Williams on December 2, 1998. When it became clear that Williams would not voluntarily give a deposition, Reed filed a motion to compel. After hearing argument on December 4, 1998, the trial court denied that motion. The court took the view that because Williams' guilty plea had not yet been unconditionally accepted by the court, Williams was still in jeopardy and could stand on his privilege against self-incrimination. On April 29, 1999, after learning that Williams had submitted to a lengthy videotaped interview with prosecutors, Reed renewed his motion to compel a deposition. On May 7, 1999, a brief hearing was held on the renewed motion. Reed argued that Williams had waived his Fifth Amendment rights by videotaping an interview with the prosecutor on April 23, 1999. The court rejected that argument and also stated that it had "no power to order the State to extend use immunity or seek use immunity from a court before the State wishes to do so." The motion was denied. At that time there appears to have been no request to compel production of the videotape. In the context of debating whether Williams had waived any Fifth Amendment rights, the prosecutor claimed the interview was privileged as plea negotiations. The trial court agreed, stating that "any statements . . . by Brandon Williams were under plea discussions and not discoverable nor usable against him unless they were for perjury down the road." Reed asked that this order be certified for interlocutory appeal and that request was also denied. A copy of the videotaped interview with prosecutors was turned over to Reed at some point before trial, but the record does not indicate when or why. The State finally requested use immunity for Williams on July 2, 1999, immediately before he took the stand to testify.

A second videotape was also the subject of a pretrial motion by Reed. Reed moved to suppress the videotaped conversation between Reed and Pfeifer and also filed a motion in limine to prevent the State from admitting the AB-10 into evidence or discussing it at trial. On June 29, 1999, after the jury had been chosen, a hearing was held. The record of the hearing indicates some confusion over whether the hearing was limited to the motion to suppress the videotape or whether it also addressed the motion in limine to exclude the gun and other items. After it became clear that the trial court intended to rule on both motions immediately after the hearing, Reed attempted to argue that the AB-10 should not be admitted as evidence or discussed at trial because it was clearly not the murder weapon and bore no relationship to the crime. The prosecutor countered that during the videotaped conversation with his mother, Reed "says information that would indicate that he knows that the weapon used at Archie's was a different weapon" and "it would show relevance that Mr. Reed is familiar with the Tec 9." The trial court ultimately denied the motion to suppress and denied the motion in limine as to the AB-10.

C. Williams' Testimony at Trial

At the time of the crime, both Reed's mother, Pfeifer, and his girlfriend, Takiya Posey, worked at Cardinal Nursing Home, approximately 1 mile from the Reed/Pfeifer home. According to Williams, on the morning of the crime he and Reed rode their bicycles to Cardinal to pick up Pfeifer's car. He said the pair found Pfeifer at work, got the car keys from her, and took the car from the nursing home parking lot. Reed then drove the pair in Pfeifer's car to an unknown location on the southeast side of South Bend where Williams purchased a Tec 9 handgun from a man known only as "Terry." Cardinal's payroll records indicate that Pfeifer did not work that day. Pfeifer was not asked by either party whether the records were correct.

Williams testified that Reed stopped by his home on the evening of the crime and suggested that they get a bite to eat at Archie's Place. Williams had last seen his newly purchased gun on the ledge in his basement room. Reed and Williams walked to Archie's Place, which took approximately five minutes. As Williams held the door for Reed to walk into the restaurant, Reed suddenly pulled his ski mask over his face and said, "Get down. Give me the money." After about thirty seconds, with Reed still in the store, Williams released the door and started to run home. En route, he heard a gunshot. Reed, carrying a handgun that looked like a Tec 9, caught up with Williams and the two then walked to Williams' house. No words were spoken. Reed set the gun down on the coffee table in Williams' room and the two then went to Reed's house. Around 10:30 or 11:00 p.m., Williams returned to his own home, placed the gun in a blue bookbag, and disposed of it in a trash can in the alley behind the house where Michelle Thomas, a friend and neighbor of Williams, and Teresa Glasper, Thomas' roommate, lived. The next day, he retrieved the bag from the trash can and paid a visit to Thomas and Glasper, accompanied by Posey. After chatting with the women, he then returned the bag to the trash can in the alley.

D. The Other Evidence

Fultz testified that an unidentified gunman robbed her and shot Cichocki and that she assumed another person held the door open. Fultz also testified that the...