Reid v. State

• Citation: 719 N.E.2d 451
• Decision Date: 17 November 1999
• Docket Number: No. 89A01-9806-CR-222.,89A01-9806-CR-222.
• Parties: Lorenzo REID, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

719 N.E.2d 451

Lorenzo REID, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 89A01-9806-CR-222.

Court of Appeals of Indiana.

November 17, 1999.

Dale W. Arnett, Winchester, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Sarah E. Scherrer, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

RUCKER, Judge.

After a trial by jury, Lorenzo Reid was convicted of murder and attempted robbery for his role in the shooting death of a liquor store owner. Prior to his own trial, one of Reid's co-defendants was also tried and found guilty of murder. The State's theory of prosecution was slightly different in both cases. In this appeal Reid raises three issues for our review which we consolidate and rephrase as: (1) did the trial court err in allowing the state to present a different theory of the case in his trial than was presented in the trial of a co-defendant, and (2) did the state engage in prosecutorial misconduct.

We affirm.

Facts and Procedural History

At around 10:30 p.m. on September 21, 1990, Reid and two other males entered a liquor store in Richmond and attempted to rob the owner. The owner exchanged gunfire with the three men and was shot three times during the encounter. He later died. Reid was charged with murder, felony murder, and attempted robbery. Sometime prior to trial Reid discovered that in addition to introducing evidence that Reid shot the victim and attempted to take the victim's money, the State also intended to introduce evidence through witness Carolyn Webster that Reid drove the getaway car during commission of the crime. As a result, Reid filed a pleading with the trial court entitled "Motion To Disallow Evidence Contrary To Proven Evidence." Supp. R. at 35. Therein Reid argued the State should not be allowed to introduce such evidence because at the trial of a co-defendant, the State had presented evidence and argued vehemently that the co-defendant drove the getaway car. According to Reid "it would be untenable for the State to be able to argue different sets of facts against co-defendants for the same alleged offense." Supp. R. at 35-36. After entertaining Reid's argument, the trial court denied the motion and also denied Reid's request for a continuing objection to alleged inconsistent evidence. The trial court advised Reid that he would have to raise a specific objection at trial otherwise it would be difficult if not impossible to discern exactly what evidence Reid considered to be contrary or inconsistent.

At trial the State called Carolyn Webster to the stand as Reid anticipated. Among other things, Webster testified that she knew Reid, that in the late evening hours of September 21, 1990, she was a passenger in a car driven by the co-defendant in question, that they were driving through the area where the liquor store was located, that she heard what sounded like gun shots, saw three men running from the store, one of the men was Reid, that the three jumped into Reid's car, and that Reid was driving. Reid did not object to Webster's testimony. Ultimately, the jury convicted Reid as charged. The trial court vacated the felony murder conviction and sentenced Reid to fifty (50) years for murder and four (4) years for attempted robbery. The sentences were ordered to run consecutively. This appeal followed. Additional facts are set forth below.

Discussion and Decision

I.

Reid first contends "the State should have been precluded from presenting any evidence from Carolyn Webster or anyone else who would testify that Lorenzo Reid drove the getaway car in the alleged crime, or that [the co-defendant] was in another vehicle." Brief of Appellant at 10. This issue is waived because Reid did not object to the testimony at trial. Reid's pre-trial pleading was in the nature of a motion in limine. "A motion in limine is used as a protective order against prejudicial questions and statements being asked during trial ... A ruling does not determine the ultimate admissibility of the evidence; that determination is made by the trial court in the context of the trial itself." Clausen v. State, 622 N.E.2d 925, 927 (Ind. 1993). Absent a contemporaneous objection at trial a ruling on a motion in limine does not preserve an issue for appeal. Id.; see also Haynes v. State, 411 N.E.2d 659, 666 (Ind.Ct.App.1980)

(objection to alleged improper testimony must be made at the critical point in the trial when the evidence is offered or when the question is asked). In this case, Reid's failure to object to Webster's trial testimony waives the issue for review.

Waiver notwithstanding Reid's argument still fails. Reid's argument involves the doctrine of collateral estoppel. Generally collateral estoppel operates to bar subsequent relitigation of an issue or fact where that issue or fact was necessarily adjudicated in a former lawsuit and is then presented in a subsequent lawsuit. Doe v. Tobias, 715 N.E.2d 829, 831 (Ind. 1999) (citing Sullivan v. American Casualty Co., 605 N.E.2d 134, 137 (Ind.1992)). Collateral estoppel has been characterized as "offensive" or "defensive" depending on how a party asserts the prior judgment. The term "offensive" collateral estoppel has been used to characterize a situation where the plaintiff seeks to foreclose the defendant from litigating an issue the defendant had previously litigated unsuccessfully in an action with another party. Doe, 715 N.E.2d at 831. Similarly, the term "defensive" collateral estoppel has been used to describe those instances where the defendant seeks to prevent a plaintiff from asserting a claim that the plaintiff previously asserted and lost against another defendant. Tofany v. NBS Imaging Systems, Inc., 616 N.E.2d 1034, 1037 (Ind. 1993). Indiana no longer requires mutuality of estoppel and identity of the parties in either the defensive or offensive use of collateral estoppel in civil cases. Tofany, 616 N.E.2d at 1037; Sullivan v. American Casualty Co. of Reading Pa., 605 N.E.2d 134, 137 (Ind.1992). Hence, because a stranger to a prior litigation may now invoke the doctrine, the use is referred to as "nonmutual collateral estoppel." In this case, Reid sought to invoke the defensive use of nonmutual collateral estoppel to foreclose the State's introduction of evidence he claims was necessarily adjudicated in another lawsuit, namely: the identity of the getaway driver.

Although more commonly used in civil actions, our courts have invoked collateral estoppel in a variety of contexts in criminal cases. See, e.g., Townsend v. State, 632 N.E.2d 727, 731 (Ind. 1994)

(holding that collateral estoppel barred defendant's retrial for battery when issue of touching in a rude manner had been previously decided adversely to State); Hutcherson v. State, 269 Ind. 331, 380 N.E.2d 1219, 1222 (1978) (holding that acquittal on one of four counts charging delivery of heroin did not bar conviction on other three counts under doctrine of collateral estoppel where different circumstances and facts surrounded each transaction); Segovia v. State, 666 N.E.2d 105, 108 (Ind. Ct.App.1996) (holding that principles of collateral estoppel, as distinct from double jeopardy protections, barred defendant's retrial for conspiracy to commit arson following acquittal of felony murder charge); Williams v. State, 406 N.E.2d 263, 264 (Ind.Ct.App.1980) (holding that conviction of accessory following acquittal of principal as permitted by statute is not precluded on principles of collateral estoppel); Snodgrass v. State, 182 Ind.App. 473, 395 N.E.2d 816, 819 (1979) (holding that the driver of vehicle was not a fact conclusively established in defendant's first trial for reckless driving in Johnson County so as to preclude relitigation of issue in defendant's trial for theft of vehicle in Marion County). However, as with our own state, in the majority of jurisdictions as well as the federal courts, collateral estoppel in the criminal context involves an earlier prosecution of the same defendant by the same sovereign.¹ As indicated earlier, our supreme court has declared that Indiana no longer requires mutuality of estoppel and identity of the parties in either the offensive or defensive use of collateral estoppel. In essence, nonmutual collateral estoppel is the law in this jurisdiction, at least in civil cases. The court has not addressed the defensive use of nonmutual collateral estoppel in the context of criminal litigation.² In that regard we find instructive the rationale of the United States Supreme Court in declining to apply it in those instances:

[I]n a criminal case, the Government is often without the kind of "full and fair opportunity to litigate" that is a prerequisite of estoppel. Several aspects of our criminal law make this so: the prosecution's discovery rights in criminal cases are limited both by rules of court and constitutional privileges; it is prohibited from being granted a directed verdict or from obtaining a judgment notwithstanding the verdict no matter how clear the evidence in support of guilt [cit. omitted]; it cannot secure a new trial on the ground that an acquittal was plainly contrary to the weight of the evidence [cit. omitted]; and it cannot secure appellate review where a defendant has been acquitted. [cit. omitted]

....

The application of nonmutual estoppel in criminal cases is also complicated by the existence of rules of evidence and exclusion unique to our criminal law. It is frequently true in criminal cases that evidence inadmissible against one defendant is admissible against another. The exclusionary rule, for example, may bar the Government from introducing evidence against one defendant because that evidence was obtained in violation of his constitutional rights. And the suppression of that evidence may result in an acquittal. [cit. omitted]. The same evidence, however, may be admissible against other parties to the crime "whose rights were [not] viola

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