Robert L. Murray v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D), Jul 29 2013, 5:24 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
ROBERT L. MURRAY GREGORY F. ZOELLER
Pendleton, Indiana Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERT L. MURRAY, )
)
Appellant-Petitioner, )
)
vs. ) No. 45A05-1205-PC-274
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Thomas P. Stefaniak, Jr., Judge
The Honorable Natalie Bokota, Magistrate
Cause No. 45G04-1003-PC-7
July 29, 2013
MEMORANDUM DECISION ON REHEARING – NOT FOR PUBLICATION
NAJAM, Judge
On rehearing, Murray correctly points out that this court’s memorandum decision
in Murray v. State, 45A05-1205-PC-274 (Ind. Ct. App. May 28, 2013), omitted
discussion of two issues Murray had raised on appeal. Both issues relate to the use of
false testimony elicited by the State from Issa Haddad. We grant his petition for
rehearing for the limited purpose of addressing the two omitted issues regarding false
testimony. In all other respects, we affirm our memorandum decision.
Murray contends that his trial counsel was ineffective for failing to object to the
prosecutor’s examination of Issa Haddad, which allegedly resulted in the admission of
false testimony. He also argues that the admission of that purportedly false testimony
violated his due process rights. Both issues require us to consider first whether the
testimony by Issa Haddad at issue was, in fact, false. We conclude that it was not.
By way of brief review, Murray was charged with robbery and confinement, as
Class B felonies, in connection with the robbery by five men of a liquor store in
Hammond on December 21, 2007. At the time of the robbery, Talat Haddad was
working in the store, and with him was his seventeen-year-old son Issa. Issa saw the
robbery from the office at the back of the store. He tried to telephone for help, but two
gunmen appeared in the office and demanded information from Issa about the safe. The
gunmen also took a handgun from the office desk and hit Issa on the head before leaving.
When interviewed by police on December 26, the store owner listed in his
statement a handgun as missing from the back office after the robbery. In a voluntary
statement given to police after the robbery, Issa reported that the perpetrators had found a
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handgun in the office desk. On appeal Murray pointed to the following part of a
transcript of Issa’s statement:
Q: The Hammond Police are investigating a robbery to [sic] a business
located at 6045 Calumet Ave[nue,] Hammond, Indiana (Sunrise Liquors)
that occurred on December 21, 2007. Please tell me in your own words
what you know about this incident[.]
A: My dad works from 5 p[.]m. to 2:00 a[.]m. on Friday and Saturday
and he wanted me over to burn a disc for him. I was in the process of doing
that in the office. Then, my dad was in the office with me. It was about ten
seconds after my dad walked out that I heard arguing. So, I get up to walk
to see what was going on. A]s I am walking towards the doorway two
people come into the back office. So, one guy is holding up a[n] AK-47
towards me the whole time and the guy with the handgun comes toward me
and he is demanding to tell him where the safe is. I told him[,] “It’s my
first day and I don’t know where it is located!”
Q: What happened next?
A: He told me to get on my knees and turn around and lie down. So,
then as I am on the ground they are searching the cabinets and drawers.
Then they found the owner’s handgun in the drawer cabinet. Then, they are
still searching and hit me on the head before walking out.
Post-Conviction Petitioner’s Exh. 1 at 1 and 2. But at trial, Issa testified as follows:
Q: Did they [the robbers] find whatever they were looking for?
A: I don’t know.
Q: Did they find anything?
A: I don’t know.
Q: Do you know if the owner had any weapons back there?
A: I don’t know.
Trial Transcript at 66-67.
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Murray contends that the discrepancy between the statement Issa gave to police, in
which he said that one of the robbers had taken the store owner’s handgun from a cabinet,
and his trial testimony, in which he said he could not remember what the robbers had
taken, constitutes false testimony that the State knowingly put before the jury. “[T]he
prosecution may not stand mute while testimony known to be false is received into
evidence. False evidence, when it appears, must not go uncorrected.” Coleman v. State,
946 N.E.2d 1160, 1167 (Ind. 2011) (internal quotation marks and citation omitted). But
the fact of contradictory or inconsistent testimony does not mean the testimony is false.
Id. (citing Timberlake v. State, 690 N.E.2d 243, 253 (Ind. 1997) (“While the knowing use
of perjured testimony may constitute prosecutorial misconduct, contradictory or
inconsistent testimony by a witness does not constitute perjury.”). Here, Issa’s trial
testimony that he did not remember whether the robbers found anything is at most
inconsistent with his previous statement. See Coleman, 946 N.E.2d at 1167 (witness’s
“testimony during retrial that he said nothing when entering Coleman’s yard is at most
inconsistent with his testimony during the first trial. To refer to the statement as false is
mere hyperbole.”). Murray has shown only that Issa’s trial testimony is inconsistent, not
that it is false. And because Murray has not shown that Issa gave false testimony at trial,
his claims that his trial counsel was ineffective for failing to object to that testimony and
that the admission of that testimony violated his due process rights must fail.
Murray also contends that our memorandum decision “misstated the facts in a
material way regarding amendments” to his petition for post-conviction relief. Brief on
Rehearing at 3. In support, he recites the procedural post-conviction history and alleges
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that our decision “made no reference to the record.” Id. Murray does not make a cogent
argument on this issue. Although it is not clear from his brief, it appears that Murray
contends that the fact that the decision did not mention an additional motion to amend his
post-conviction petition in the procedural history amounts to a “material” misstatement of
the facts. We cannot agree. Because the trial court did not rule on that petition, it was
not and is not before us. And, further, Murray did not allege that the trial court’s failure
to rule on Murray’s final motion to amend his petition constituted reversible error. Our
omitted reference to Murray’s final motion to amend his petition is immaterial and,
therefore, not a basis for relief.
Affirmed on rehearing.
BAILEY, J., and BARNES, J., concur.
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