Smiley v. State
| Decision Date | 28 April 1995 |
| Docket Number | No. 41A01-9402-CR-46,41A01-9402-CR-46 |
| Parties | Michael SMILEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Jeffrey J. Jinks, Indianapolis, for appellant.
Pamela Carter, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.
In this appeal we clarify when a judge may preclude a witness from testifying because that witness violated the court's separation of witnesses order. Appellant-defendant Michael Smiley contests his two convictions for Conspiracy to Commit Robbery while armed with a deadly weapon, 1 both Class B felonies, and his two convictions for Conspiracy to Commit Burglary, 2 both Class B felonies. Specifically, he claims that the trial court erred in not allowing a defense witness to testify because she had violated the court's separation of witnesses order.
The State charged Smiley with one count of conspiracy to commit robbery and one count of conspiracy to commit burglary for a break-in at the home of Ronnie Toler on January 10, 1992. Smiley was also charged with the same two crimes for an incident at the home of Mike and Brenda Ford on January 28, 1992. 3 Smiley committed both incidents with co-defendant Casey Wooldridge.
During a pretrial proceeding, Smiley filed notice that he would present an alibi defense. In that same proceeding, the court imposed a separation of witnesses order instructing the witnesses that they could not be present in the courtroom when another witness was testifying. Further, the court notified everyone in the courtroom that they could not discuss any witness' testimony with other witnesses until the jury rendered a verdict. Record at 179. The judge also warned that there would be repercussions if the order was violated. R. at 180.
On November 1, 1993, Smiley's trial commenced. Wooldridge testified and implicated Smiley in both break-ins. Wooldridge also admitted that he had received a beneficial plea agreement from the State in exchange for his testimony against Smiley. Following the State's case-in-chief, Smiley presented several witnesses who testified regarding his alibi defense. After each witness' testimony, the judge reminded the witness and those in the courtroom that no one was to discuss the witness' testimony. However, despite the court's continual reiteration of its witness separation order, the judge was notified several times throughout the trial that his order had been disobeyed.
Two of the witnesses testifying on behalf of Smiley were his aunt, Janet Huff, and his sister, Della McCall. After Huff testified, another alibi witness' testimony was heard and then McCall was called to the stand. After McCall was sworn in, but before she began testifying, the State objected and informed the court that a deputy prosecutor had seen Huff, who had just finished testifying, run into the ladies restroom with McCall. The State indicated that the two women were in the restroom together for several minutes. The State requested that the court not allow McCall to testify because she had disobeyed the court's separation of witnesses order. 4 The court, outside the presence of the jury, reminded Huff that she was still under oath and questioned her about whether she entered the restroom with McCall, immediately after testifying, and whether they discussed Huff's testimony. The court asked, "What did you say to [McCall] in the restroom?" R. at 1206. Huff responded, "Nothing really," and then added "If you think I discussed the case, no, I did not." R. at 1206. The court then ordered both women to leave the courthouse and not to return. Since the court refused to allow McCall to testify, Smiley objected and requested that he be permitted to ask McCall some questions so that her testimony would be preserved on the record. The court noted that Smiley's objection was Later in the proceedings that day, the court permitted Smiley to make an offer of proof regarding what McCall's testimony would have been had she been allowed to testify. Smiley's counsel read a statement that he had prepared which stated that McCall would have testified that she and Smiley both spent the night of January 28, 1992, at their mother's house and they talked all evening until Smiley went to bed around 2:30 a.m. R. at 1240-48. In addition, McCall would have testified that in July 1992 she had a conversation with Wooldridge while they were both incarcerated in the Johnson County Jail. During that conversation, Wooldridge indicated to McCall that he would implicate Smiley in the January 28 break-in in order to receive a beneficial plea agreement from the State. McCall believed that Wooldridge was lying about Smiley's involvement in that crime. This evidence, Smiley claims, would have impeached Wooldridge's credibility as a witness.
on the record, denied Smiley's request, and called the next witness.
On November 3, 1993, the jury convicted Smiley on the two counts of conspiracy to commit robbery while armed with a deadly weapon and on the two counts for conspiracy to commit burglary. The court sentenced Smiley to a total of thirty years imprisonment. Smiley contests his convictions claiming that the trial court abused its discretion in excluding McCall's testimony which resulted in a violation of his right to call witnesses on his behalf.
The purpose of a separation of witnesses order is to prevent the testimony of one witness from influencing that of another. Alexander v. State (1992), Ind.App., 600 N.E.2d 549, 553. Once a separation of witnesses order is granted, the remedy for a violation of the order is a question left to the sound discretion of the trial court. Clark v. State (1985), Ind., 480 N.E.2d 555, 558. We will not disturb the trial court's exercise of discretion unless there is a showing of prejudice tantamount to an abuse of discretion. Wardlaw v. State (1985), Ind., 483 N.E.2d 454, 456.
A trial court has the power to exclude the testimony of a witness who has violated the court's separation order. Murphy v. State (1985), Ind.App., 475 N.E.2d 42, 50-51, trans. denied. However, disqualification of a witness is a drastic sanction due to the severe impact it has on the defendant's constitutional rights. The Sixth Amendment to the United States Constitution guarantees a defendant the right to present witnesses on his behalf. Borst v. State (1984), Ind.App., 459 N.E.2d 751, 753. This right is embodied in the due process requirement of the Fourteenth Amendment and applies to proceedings in state courts. Id. Therefore, because a defendant has a constitutionally protected right to present evidence in his favor, exclusion of a defense witness due to a violation of a witness separation order is not always appropriate.
For example, our supreme court has held that it is prejudicial error to refuse to permit an errant witness to testify where the party calling the witness is not at fault for the violation. Brannum v. State (1977), 267 Ind. 51, 366 N.E.2d 1180, 1184. In Taylor v. State (1891), 130 Ind. 66, 70, 29 N.E. 415, 417, our supreme court stated:
The rule ... is that, where a party is without fault and a witness disobeys an order directing a separation of the witnesses, the party shall not be denied the right of having the witness testify, but the conduct of the witness may go to the jury upon the question of his credibility....
Therefore, since the jury is entrusted with the job of determining witness credibility, where the violation resulted from no wrongdoing on the part of the party calling the witness, judges should allow an offending witness to testify and then permit the other party to inform the jury about the witness' misconduct. However, if the party objecting to the witness' testimony can show that the party calling the witness somehow connived or caused the witness to violate the court's order then disqualification of the witness is appropriate. 5
In addition to the defendant's cooperation in the violation of the order as a justification for the exclusion of a witness, Indiana courts have also upheld disqualifications where the witness' testimony would have been cumulative or inadmissible. Rinard v. State (1976), 265 Ind. 56, 351 N.E.2d 20, 25 (). In these...
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Hernandez v. State
... ... See Garland v. State, 439 N.E.2d 606, 608 (Ind.1982). But under Rule 615, the trial court is required to grant motions for separation of witnesses orders. Smiley v. State, 649 N.E.2d 697, 699 n.5 (Ind. Ct.App.1995), transfer denied ... As the second sentence of Rule 615 makes clear, there are certain witnesses whom a court cannot exclude from the trial proceedings. Fourthman v. State, 658 N.E.2d 88, 90-91 (Ind.Ct.App.1995), transfer denied ... ...
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...ex rel. Steigerwald v. Thomas, 111 Ind. 515, 13 N.E. 35 (1887)). First we note that this court has previously decided Smiley v. State, 649 N.E.2d 697, 699 (Ind.Ct.App.1995), trans. denied, a case similar to the case at bar. In Smiley, the defendant's sister was not allowed to testify on his......
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