Smith v. State
| Decision Date | 26 June 2015 |
| Docket Number | No. 71S04–1506–CR–364.,71S04–1506–CR–364. |
| Citation | 34 N.E.3d 1211 |
| Parties | Antonio SMITH, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff). |
| Court | Indiana Supreme Court |
Thomas P. Keller, South Bend, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Larry D. Allen, Stephen R. Creason, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
David N. Powell, J. Thomas Parker, Indiana Prosecuting Attorneys Council, Attorneys for Amicus Curiae.
, Justice.
Following a jury trial, defendant Antonio Smith was convicted of Burglary, a Class C felony, committed at a Dollar General store in South Bend, Indiana. On appeal, the defendant seeks reversal of his conviction, asserting (1) the State knowingly used perjured testimony and (2) the testimony of the principal state witness was incredibly dubious, leaving insufficient evidence to sustain the conviction. The Court of Appeals reversed, finding the conviction was obtained through the State's knowing use of perjured testimony. Smith v. State, 22 N.E.3d 620, 628 (Ind.Ct.App.2014)
. We grant transfer and affirm the conviction.
Because of the nature of the two issues raised on appeal, a detailed examination of the facts is warranted in this case. In December 2012, the defendant was living with his girlfriend Nicole Greenlee in Mishawaka, Indiana, when the defendant and Greenlee started arguing about money and the defendant “brought up the idea of breaking into [Greenlee's] job and taking the daily deposit.” Tr. at 32
. Greenlee was a manager of a Dollar General store and “had keys to almost every door in the building ... [her] own alarm code and ... safe codes.” Id. At approximately 1:00 a.m. on December 19, three different Dollar General security cameras recorded images of an individual unlocking the front doors, turning off the store alarm, opening the store's safes, and leaving the store with nearly $3,500 in cash. The individual inside the store can be seen talking on a cell phone, and cell phone records show that Greenlee and the defendant exchanged three phone calls at times that match the time of the burglary as displayed on the security camera footage. While the person's identity in the video was obscured by gloves and two hooded sweatshirts, the video contains several views of portions of the individual's backside as the individual crouched on the floor during the burglary. In these recorded images, the perpetrator appears to be Caucasian.
Shortly after the burglary was reported to the police, the investigation focused on Greenlee. On December 28, 2012, Greenlee was interviewed by police, and she gave three conflicting stories about the night of the burglary. One of her stories implicated the defendant's involvement, but the last story she gave implicated only herself. During Greenlee's interview, South Bend Police Department Detective Kelly Waite walked outside the police station and saw the defendant sitting in the driver's seat of a white car with temporary license plates. During her testimony, Greenlee stated that she and the defendant walked to the Dollar General on the night of the burglary because she and the defendant “didn't have a car at the time.” Id. at 34. While Greenlee was in jail awaiting trial, she called the defendant, and the defendant was recorded asking Greenlee if he should turn himself in, telling her he would do whatever she wants. Eventually, Greenlee entered a guilty plea, and the colloquy to establish a factual basis included the following:
Appellant's App'x at 31–33. At no point during her plea hearing was Greenlee asked if anyone else was involved in the burglary.
In addition to charging Greenlee and securing her guilty plea, the police also arrested and charged the defendant with Class C felony Burglary for the same incident. In the probable cause affidavit, the State relied on statements made by Greenlee that the defendant “acted as a look-out during the burglary” and that “she gave the money taken from the Dollar General to [the defendant] after the burglary was completed.” Id. at 28. The State also relied on the cell phone records, which show the defendant's phone conversations with Greenlee during the commission of the burglary, and the cell phone tower records, which the State claims “were picked up by cell phone towers much closer to Dollar General [than] [the defendant's] residence, where he stated he had been during the commission of the burglary.” Id.
At trial, the State's witnesses were Greenlee, then Detective Waite (testifying as to seeing the defendant in the car with temporary plates), and finally South Bend Police Officer Timothy Wiley (testifying as to the cell phone records). But Greenlee was the State's primary witness, and her testimony is the center of this appeal. At trial, during opening argument, the prosecutor spoke of Greenlee, saying:
At a bench conference following the conclusion of the State's opening argument, the defense expressed concern that Greenlee would be committing perjury if she changed her story from her plea hearing: “[I]f she gets up on the stand and says that [the defendant] is the one that went up there, it's going to be perjury one way or the other.” Id. at 10. The trial court took a recess to discuss the matter with the attorneys and concluded that Greenlee's plea hearing testimony never mentioned the defendant or his involvement and that if Greenlee were to “testify as to [the defendant's] involvement, that wouldn't be [perjury] ... because she ha[d] never made statements under oath before about [his] involvement.” Id. at 24. Before the jury returned, Greenlee entered the court and was granted use immunity. The trial court instructed her:
A grant of use immunity does not prohibit the use of evidence that you have given in a prosecution for perjury .... you cannot be prosecuted for perjury based on statements that you made prior to the State. But if you testify untruthfully here today, then you—then you are not protected from a perjury prosecution.
Id. at 26. Greenlee was then sworn, the jury entered, and the State began questioning her. After discussing her role as a manager of the Dollar General and her relationship with the defendant, Greenlee testified that both she and the defendant walked to the Dollar General from their home because they did not have a car and that the defendant entered the store using her keys and the alarm code that she gave him while she acted as a lookout. Greenlee then testified that the defendant Id. at 38. She said that she did not know specifically what he did when he was inside but that she “knew what he was supposed to be doing,” id. at 39, and she tried Id.
Toward the conclusion of the State's direct examination, the prosecutor asked Greenlee if she had been charged for the incident and whether she had entered a guilty plea. Greenlee answered “yes” to both questions and also testified that she had received a “plea deal” where she “had to pay the restitution in full” and received “[t]wo years probation or two years in jail.” Id. at 41–42. She said that she entered a guilty plea because she “was involved in the situation” and is “guilty.” Id. at 42–43. While still on direct examination by the State, Greenlee admitted that she had told the police multiple stories when she was first interviewed on December 28, 2012:
The first time I told [the police] that it was me and a girl named Sara that I met off the street. Because I wanted to take ownership in my part of it, but I didn't want to involve [the defendant] at the time because we were in a relationship.... The second story was the truth. I told [the police] that I was the lookout while [the defendant] went into the store and took the money.... After I told [the police] that story, [the police...
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