Kevin Derek Riley v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 25 2018, 9:27 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger Curtis T. Hill, Jr.
Office of the Public Defender Attorney General of Indiana
Crown Point, Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin Derek Riley, May 25, 2018
Appellant-Defendant, Court of Appeals Case No.
45A05-1708-CR-1821
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Plaintiff Judge
Trial Court Cause No.
45G01-1601-MR-1
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A05-1708-CR-1821 | May 25, 2018 Page 1 of 20
[1] Kevin Derek Riley appeals his conviction of murder. 1 He presents four issues, 2
which we restate as:
1) Whether the trial court abused its discretion when it permitted
expert opinion regarding handwriting analysis;
2) Whether the trial court abused its discretion when it denied
admission of evidence allegedly showing witness bias;
3) Whether the trial court abused its discretion when it permitted
a witness to testify about the state of mind of another witness;
and
4) Whether the trial court abused its discretion when it denied
admission of evidence pertinent to witness credibility.
Finding no abuse of discretion, we affirm.
Facts and Procedural History
[2] In January 2014, Riley was dating Marian Robertson. On January 13, 2014,
they spent the day running errands. They went to a pawn shop and a gas
station, where they were recorded by surveillance cameras. Thereafter, they
went to another convenience store where they talked to Marian’s cousin.
1
Ind. Code § 35-42-1-1 (2007).
2
Riley was also convicted of Level 4 felony unlawful possession of a firearm by a serious violent felon, but he
does not challenge that conviction in this appeal.
Court of Appeals of Indiana | Memorandum Decision 45A05-1708-CR-1821 | May 25, 2018 Page 2 of 20
Marian’s cousin told Marian that Marian’s sister, Tamika Robertson, wanted to
talk to Marian.
[3] Marian called Tamika, who reported Riley was having sex with April Bailey.
Tamika believed April had AIDS. Marian confronted Riley, who denied the
sexual allegations. Riley and Marian both contacted April. Subsequently, they
drove over the house where April lived with her three children and another
couple.
[4] April came outside to talk to Marian. Marian spoke with April in her driveway
and in the street near Marian’s car. Riley stayed in the car during their
conversation. April’s son, K.B., saw the women talking. April’s daughter,
M.B., called out the door to see if her mother was alright and then returned
inside. Toward the end of the conversation, April gave Marian a “side hug.”
(Tr. Vol. 3 at 183.) Marian heard, “Pow.” (Id. at 184.) Riley told Marian,
“Bitch, get in the car . . . Bitch, drive, before I kill you.” (Id.) They drove
away. M.B. and K.B. heard the gunshot and exited the house to find their
mother lying in the middle of the street. She had been shot in the face.
[5] Marian and Riley drove to the house of Riley’s brother, Mack. Riley went
inside while Marian stayed in the car. Then, they drove to the elder care facility
where Riley’s mother resided. They signed in at 5:30 p.m. Around 8:00 p.m.,
Marian took Riley to the home of his child’s mother, Demetria Morris. Marian
then returned to spend the night with Riley’s mother at the elder care facility.
Marian did not contact the police.
Court of Appeals of Indiana | Memorandum Decision 45A05-1708-CR-1821 | May 25, 2018 Page 3 of 20
[6] The next day, Marian and Riley ran some errands. Later that day, spurred by a
tip, the police arrested Marian and Riley. Marian was interviewed but lied to
the police about her interactions with April because she was afraid of Riley.
During her second interview with the police, after she was assured the police
would keep her safe, Marian told them Riley had shot April. Riley denied
having been in contact with April that day. The State charged Riley with
murder.
[7] While incarcerated, Riley contacted his brother, Mack, via telephone. He told
Mack to retrieve the “twin” from Riley’s dresser. (Tr. Vol. 5 at 110.) Officers
speculated that “twin” referenced the bullets that went with the gun Riley used
to shoot April. (Id. at 112.) The police had already executed a search of Riley’s
residence and retrieved everything from the dresser, including a box of
ammunition.
[8] Demetria received a letter from Riley that stated: “ . . . you need to let [the
police] know that It was still day-light out when I came up there this is very
‘important’ Don’t say anything other than I know it was still day light when he
came up here.” (Ex. Vol. 1 at 35) (errors and emphases in original). Because
the envelope had Riley’s name on it and the contents of the letter “referr[ed] to
his son as Jr.[,]” (Tr. Vol. 4 at 164), Demetria believed the letter to be written by
Riley even though she had never seen his handwriting before.
[9] Over Riley’s objection, the trial court allowed Courtney Baird, a forensic
document examiner with the Indiana State Police, to testify as an expert
Court of Appeals of Indiana | Memorandum Decision 45A05-1708-CR-1821 | May 25, 2018 Page 4 of 20
witness. Baird compared the letter sent to Demetria with other writing by
Riley, specifically “six pages of request known writing and three forms and a
half page of non-request known writing.” 3 (Tr. Vol. 6 at 171.) Baird indicated
the request known writing had indications of an attempt to disguise or distort. 4
However, she was able to proceed to a comparison. Baird determined it was
“probable that Kevin Riley . . . was the writer of the letter.” 5 (Id. at 197.) She
explained: “The opinion [‘]probable[’] means that evidence contained in the
handwriting points rather strongly towards both the questioned and the known
writing, [sic] having been written by the same individual. However, it is short
of virtually certain degree of confidence.” (Id.)
[10] Preston Meux, a friend of Riley, was incarcerated at the same time as Riley.
Riley gave Meux a letter to give to Mack. Meux lost the letter while he was
processing out of jail. He wrote down what he remembered it to say. He
3
Baird explained that “request known writing” is an example of a person’s writing that a “detective has
requested . . . from the subject.” (Tr. Vol. 6 at 166.) “Non-request known writing” is “writing that anyone
produces during the normal course of business or through personal correspondence.” (Id.)
4
Handwriting comparison first involves an “examination of the questioned writing[.]” (Tr. Vol. 6 at 185.)
Next, the analyst compares “known writing for numerous features.” (Id.) Such features include the
naturalness or distortion of the writing along with trying to discern if the known writing appears to have been
disguised and how internally consistent it is. (Id. at 185-86.) Once the analyst is satisfied the known and the
unknown writings are appropriate for comparison, i.e. include enough of the pertinent factors to allow the
analyst to determine they are valid, the analyst then compares the known and unknown examples “side-by-
side.” (Id. at 188.) However, attempts made to distort or disguise are known as “limitations” on the
analysis. (Id. at 187.)
5
Baird explained the confidence level handwriting analysts use. The scale is a “9-point handwriting
conclusion scale. (Tr. Vol. 6 at 168.) Along that scale, going from “identification” to “elimination,” (id. at
169), is the “point of neutrality” in the middle wherein the analyst will indicate “the evidence is far from
conclusive.” (Id.) If the confidence level builds, the analyst will indicate it is “probable” the writers are the
same. (Id.) The scale goes the other direction—toward elimination—through the same phases of probability.
(Id.)
Court of Appeals of Indiana | Memorandum Decision 45A05-1708-CR-1821 | May 25, 2018 Page 5 of 20
wrote: “Yo Bro said to talk to Marian and tell her don’t say shit else and not to
show up to court anymore. And if she on that bs, then do what you gotta do.
Also if the cops ask tell them that the twin he told you to get out the dresser
meant drugs.” (Tr. Vol. 5 at 22; Ex. Vol. 1 at 66) (errors in original). Meux
wrote this out on the back of a receipt with the reminder: “GIVE TO MACK.” 6
(Ex. Vol. 1 at 66.) Meux left the note on the door of Mack’s house. Jessica
Mitchell, another occupant of the house, retrieved the note and gave it to her
mother, Dorothy Robertson, who is Marian’s “auntie.” (Tr. Vol. 5 at 57.)
Dorothy gave the note to Marian. Marian gave the note to Lake County
Sheriff’s Department Detective Joseph Hardiman. Over Riley’s objection,
Detective Hardiman testified Marian was afraid because the note appeared to
confirm Riley was a threat to her.
[11] At trial, Riley wanted to question Meux regarding a pre-trial diversion (“PTD”)
agreement Meux had signed during the pendency of Riley’s case. Both the
State and Meux said the agreement was not offered as a benefit for Meux’s
testimony in Riley’s case. When the trial court asked Meux about receiving a
benefit for his testimony, Meux explained he had not received a benefit for his
testimony because, he “had a witness to come forth on that case to say that [he]
didn’t – [he] was not in possession of a firearm or anything like that. That’s
why [his] charges was dropped and everything because it was a witness on [his]
6
Meux rewrote the note on the back of two different receipts. On the back of one receipt was the substantive
content of the note. On the back of the other was simply the words “GIVE TO MACK[.]” (Ex. Vol. 1 at
66.) For clarity, we refer to these two receipts as one note.
Court of Appeals of Indiana | Memorandum Decision 45A05-1708-CR-1821 | May 25, 2018 Page 6 of 20
case.” (Id. at 40) (errors in original). When asked specifically if he had received
a benefit from the State for his testimony in Riley’s case, Meux unequivocally
answered, “No.” (Id. at 44.)
[12] Rogerick Denham was incarcerated with Riley. 7 He testified Riley and he had
formed a friendship and Riley wished him to “demonstrate” on Marian. 8 (Tr.
Vol. 7 at 78.) Denham reported Riley’s request through an anonymous tip line
provided at the jail. Denham told Detective Hardiman that Riley offered to
have “some woman” bail him out of jail. (Id. at 80.) However, that never came
to fruition. Working with police, Denham was released from jail with an
electronic monitoring device. Denham said Riley told him who to contact to
obtain a murder weapon and to learn how to find Marian. Denham contacted
those individuals, but no weapon or information was ever provided.
[13] The jury found Riley guilty as charged. The court imposed an aggregate
sentence of ninety-one years in the Department of Correction.
Discussion and Decision
7
Riley offered evidence of Denham’s current charges and Denham’s subjective belief he would be treated
fairly by the State if he testified in Riley’s trial. The State and Denham confirmed Denham had not been
given any benefit from his testimony. The trial court denied Riley’s request to admit evidence regarding
Denham’s current charges but allowed Riley to cross-examine Denham regarding his subjective belief
regarding future benefits.
8
Denham testified “demonstrate” means to kill someone. (Tr. Vol. 7 at 78.)
Court of Appeals of Indiana | Memorandum Decision 45A05-1708-CR-1821 | May 25, 2018 Page 7 of 20
[14] All four of the issues Riley raises assert error in the admission or exclusion of
evidence. We review evidentiary rulings for an abuse of discretion. Pavlovich v.
State, 6 N.E.3d 969, 975 (Ind. Ct. App. 2014), trans. denied. An abuse of
discretion occurs if the trial court misinterpreted the law or if its decision was
clearly against the logic and effect of the facts and circumstances before it. Id.
Expert Testimony
[15] Riley alleges Baird’s testimony did not qualify as expert witness testimony
because “there is no known or potential rate of error for handwriting analysis
nor the existence and maintenance of standards controlling the techniques’
operation.” (Appellant’s Br. at 15.) The State counters 9 it “presented ample
foundation for the scientific techniques applied in forensic document
examination and the acceptance of those techniques in the relevant scientific
community.” (Appellee’s Br. at 17.) Additionally, the State contends it
“presented independent evidence supporting that the letter had been written by
Defendant.” (Id.)
[16] A trial court has discretion to allow admission of expert opinion testimony.
Julian v. State, 811 N.E.2d 392, 399 (Ind. Ct. App. 2004), trans. denied. The
court must be “satisfied that the expert testimony rests upon reliable scientific
9
The State contends Riley “does not expressly assert the trial court abused its discretion. Rather, [Riley]
simply asserts that Baird could not offer a precise rate of error in the application of established document
examination techniques[.]” (Appellee’s Br. at 19.) Further, the State contends this is not a cogent argument
and Riley’s claim is waived. While we agree Riley’s argument is sparse, we will address his claim, to the
extent it is made, on the merits. See Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015) (“[W]henever possible,
we prefer to resolve cases on the merits instead of on procedural grounds like waiver.”).
Court of Appeals of Indiana | Memorandum Decision 45A05-1708-CR-1821 | May 25, 2018 Page 8 of 20
principles” in order to admit the testimony. Ind. R. Evid. 702(b). A decision to
admit evidence will not be reversed absent a showing of manifest abuse of the
trial court’s discretion resulting in the denial of a fair trial. Davis v. State, 791
N.E.2d 266, 268 (Ind. Ct. App. 2003), reh’g denied, trans. denied. In determining
the admissibility of evidence, we consider only the evidence in favor of the trial
court’s ruling and unrefuted evidence in the defendant’s favor. Id.
[17] Indiana Evidence Rule 702 states:
(a) A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue.
(b) Expert scientific testimony is admissible only if the court is
satisfied that the expert testimony rests upon reliable scientific
principles.
While the United States Supreme Court interpreted the Federal Rules of
Evidence pertaining to expert testimony in Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579, 592-94 (1993), that interpretation is not
controlling in Indiana, although it may be helpful. McGrew v. State, 682 N.E.2d
1289, 1290 (Ind. 1997). Indiana Evidence Rule 702(b) “differs from the Federal
Rules of Evidence in its express requirement that expert testimony be based
upon reliable scientific principles.” Id. This rule does not “intend to interpose
an unnecessarily burdensome procedure or methodology for trial courts.” Sears
Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 460 (Ind. 2001). While requiring
Court of Appeals of Indiana | Memorandum Decision 45A05-1708-CR-1821 | May 25, 2018 Page 9 of 20
the trial court to be satisfied the expert opinion will assist the fact-finder and is
based on reliable scientific principles, the intent behind Indiana Evidence Rule
702 is to “liberalize, rather than to constrict, the admission of reliable scientific
evidence.” Id.
[18] The trial court may determine a principle is reliable: (1) by taking judicial notice
of its reliability, or (2) if the “proponent of the scientific testimony provid[es]
sufficient foundation to convince the trial court that the relevant scientific
principles are reliable.” Steward v. State, 652 N.E.2d 490, 499 (Ind. 1995), reh’g
denied. A trial court may consider the following non-exclusive factors when
determining reliability:
(1) whether the technique has been or can be empirically tested;
(2) whether the technique has been subjected to peer review and
publication; (3) the known or potential rate of error as well as the
existence and maintenance of standards controlling the
technique’s operation; and (4) general acceptance within the
relevant scientific community.
Barnhart v. State, 15 N.E.3d 138, 144 (Ind. Ct. App. 2014). However, “there is
no specific ‘test’ or set of ‘prongs’ which must be considered in order to satisfy
Indiana Evidence Rule 702(b).” McGrew, 686 N.E.2d at 1292.
[19] Here, Baird testified as to her own qualifications as a document examiner and
the methods devised to determine whether a particular person produced a
particular written document. She is a “forensic document unit supervisor . . .
responsible for training and supervision of the members of the unit, as well as
conducting examination of document related cases.” (Tr. Vol. 6 at 160.) She
Court of Appeals of Indiana | Memorandum Decision 45A05-1708-CR-1821 | May 25, 2018 Page 10 of 20
has worked in that unit since 2006 and been a supervisor since 2012. She has
completed internal training of “over 20 modules, covering the different aspects
of forensic document examination, from handwriting examination, indented
writing impression examination, physical match, print process, and many other
types of examination[.]” (Id. at 161.) She has also, “[o]ver the last ten years . .
. attended over 35 different workshops and conferences and meetings
throughout the country[.]” (Id. at 162.) These conferences are sponsored by
“organization[s] within [her] field, such as the American Society of – American
Academy of Forensic Sciences, The American Society of Questioned
Document Examiners and many others.” (Id.) Baird explained the process
undertaken when attempting to determine if a specific writing is attributable to
a person, and she used this training and these methods when analyzing the
letter Demetria received.
[20] Baird determined it was “probable” the letter Demetria received was written by
Riley. (Id. at 197.) She explained that, in this instance, “[‘]probable[’] means
that evidence contained in the handwriting points rather strongly towards both
the questioned and the known writing, [sic] having been written by the same
individual. However, it is short of virtually certain degree of confidence.” (Id.)
When asked about the error rate of handwriting analyses, Baird explained the
nature of the cases that analysts work on preclude calculation of an error rate
on individual cases, but each analyst’s proficiency is tested yearly with
standardized samples. She has been tested for the last ten years and has not
Court of Appeals of Indiana | Memorandum Decision 45A05-1708-CR-1821 | May 25, 2018 Page 11 of 20
failed her testing. Additionally, her department utilizes internal procedures to
check each analysis objectively.
[21] Riley contends Baird’s lack of a “definitive opinion” that Riley wrote the letter,
(Appellant’s Br. at 15), together with the fact Baird could not give a conclusive
error rate for her personal analyses, meant Baird’s testimony was lacking in
reliability and was not helpful to the jury in determining a fact at issue.
However, Indiana Evidence Rule 702 only “requires the trial court’s satisfaction
that the expert’s opinion is based on reliable scientific principles that can be
properly applied to the facts in issue.” Person v. Shipley, 962 N.E.2d 1192, 1197
(Ind. 2012). Once the trial court was satisfied regarding the reliability of Baird’s
methods and training, any question as to her conclusions goes to the credibility
of her opinion rather than the admissibility of the evidence. See West v. State,
755 N.E.2d 173, 181 (Ind. 2001) (any discrepancy in the actual facts and the
expert’s estimate goes to weight and not admissibility). Even if the testimony
consists simply of “observations of person with specialized knowledge,” id., the
trial court does not abuse its discretion when admitting that testimony. As
Baird testified to her credentials and the acceptability of her methods and as the
trial court accepted that she was an expert, the trial court did not abuse its
discretion in admitting the evidence. See Burnett v. State, 815 N.E.2d 201, 206
(Ind. Ct. App. 2004) (trial court did not err in qualifying witness as an expert
after being presented with background on witness experience and training), reh’g
denied.
Court of Appeals of Indiana | Memorandum Decision 45A05-1708-CR-1821 | May 25, 2018 Page 12 of 20
Meux’s PTD Agreement
[22] Riley argues the trial court abused its discretion when it did not allow him to
question Meux about a PTD agreement between Meux and the State in an
unrelated criminal case. He contends Indiana Evidence Rule 616 requires the
jury be presented with evidence a witness received a benefit “even on an
unrelated case” so the jury may properly weigh the testimony of the witness.
(Appellant’s Br. at 17.)
[23] While evidence of witness “bias, prejudice, or interest for or against any party
may be used to attack the credibility of the witness[,]” Indiana Evidence Rule
616, a “trial court has wide discretion when determining the scope of cross-
examination, and only an abuse of that discretion warrants reversal.” Tolliver v.
State, 922 N.E.2d 1272, 1285 (Ind. Ct. App. 2010), trans. denied. Our Indiana
Supreme Court has determined that “any beneficial agreement between an
accomplice and the State must be revealed to the jury.” Id. Any such benefit
“is relevant to the jury’s determination of the weight and credibility of the
witness’s testimony.” Id. “While confirmed promises for leniency must be
revealed, whether in writing or not,” disclosure is not required based on the
witness’s hopes for leniency or if the State denies leniency. Id.
[24] Meux and the State signed a PTD agreement in an unrelated case. At trial,
Riley first wanted to introduce the agreement as an exhibit. The State objected
because although it
Court of Appeals of Indiana | Memorandum Decision 45A05-1708-CR-1821 | May 25, 2018 Page 13 of 20
recognize[d] that this is a pretrial diversion agreement signed off
by the Prosecutor’s office, [] neither of those Prosecutors are
involved in this case. . . . Although the State was aware [Meux]
did receive a [PTD] agreement, [the State] would object to the
admission of this as it list [sic] the offenses which can be
prejudicial. [Meux] has not been convicted of this.
(Tr. Vol. 5 at 34.)
[25] Riley agreed to withdraw his request to have the PTD agreement entered as an
exhibit but requested permission to question Meux about any benefit he
received from the PTD agreement. Riley’s attorney stated, “When [Meux]
testified in July [at a bail hearing], he didn’t have an agreement. He testifies
and lo and behold he has an agreement.” (Id. at 36.) The State continued to
object because the other case “ha[d] absolutely nothing to do with this case.”
(Id. at 37.)
[26] Without the jury present, the trial court asked Meux about his understanding of
whether he was given any benefit from the PTD agreement for his testimony.
Meux told the trial court his testimony in the current trial was not discussed
when he entered into the PTD agreement “because [he] never benefited from
the State.” (Id. at 40.) Further, he stated he “had a witness to come forth on
that case to say that [he] didn’t – [he] was not in possession of a firearm or
anything like that. That’s why [his] charges was [sic] dropped and everything
because it was a witness on [his] case . . . not because of [his testimony here].”
(Id. at 40-41.) The trial court sustained the State’s objection and did not allow
Riley to question Meux about the PTD agreement. The State then asked Meux,
Court of Appeals of Indiana | Memorandum Decision 45A05-1708-CR-1821 | May 25, 2018 Page 14 of 20
with the jury present, if he had received any benefit for his testimony to which
he responded, “No.” (Id. at 44.)
[27] Riley offered no actual proof of a benefit provided to Meux. See Strickland v.
State, 359 N.E.2d 244, 248-49 (Ind. 1977) (“offer of proof must be made in
order to preserve an objection to the exclusion of evidence for review”). Riley
merely presented the PTD agreement and alleged the agreement demonstrated
a possible benefit to Meux for his testimony at Riley’s trial. (See Tr. Vol. 5 at
36.) Meux’s testimony throughout this case, from the bail hearing until the
trial, was the same: he was given a note by Riley; the note contained statements
about silencing a witness; he lost the note when he processed out of jail, but he
remembered the basic contents and where and to whom to deliver it; he wrote
out what he remembered; and he delivered his note to the address he
remembered from Riley’s original note. Riley’s speculation about a possible
benefit provided by the State to Meux is entirely unsupported and speculative.
As such, the trial court did not abuse its discretion when it denied Riley’s
request to question Meux about his PTD agreement. See Tolliver, 922 N.E.2d at
1286 (when basis for the alleged bias is purely speculative and unsupported by
evidence, no error when defendant is limited in his cross-examination).
Detective Hardiman’s Characterization of Marian’s Fear
[28] Riley gave Meux a note to deliver to Riley’s brother, Mack. Meux lost the note
but rewrote it from memory. He placed his note on Mack’s door where it was
found by Jessica, who gave the note to her mother, who gave it to Marian.
Court of Appeals of Indiana | Memorandum Decision 45A05-1708-CR-1821 | May 25, 2018 Page 15 of 20
Marian gave the note to Detective Hardiman. Detective Hardiman testified
Marian was afraid because the contents of the note confirmed Riley would
harm her.
[29] Riley alleges the trial court abused its discretion when it allowed Detective
Hardiman to testify as to Marian’s state of mind when she gave him the note
Meux left on Mack’s door. 10 Riley says Detective Hardiman did not base his
opinion on personal observations or statements from Marian; thus, his opinion
testimony was improper. The State counters: 1) Detective Hardiman had
already testified regarding Marian’s fear of Riley, without any objection based
on speculation; and 2) Detective Hardiman’s testimony about Marian’s fear
based on the note “was based on Marian’s statements to him and his
observations.” (Appellee’s Br. at 26.)
[30] A witness may testify “in the form of an opinion” if that testimony is “(a)
rationally based on the witness’s perception; and (b) helpful to a clear
understanding of the witness’s testimony or to a determination of a fact in
issue.” Ind. Evidence Rule 701. “Rationally based” means the “opinion must
be one that a reasonable person could normally form from the perceived facts.”
Davis v. State, 791 N.E.2d 266, 268 (Ind. Ct. App. 2003), reh’g denied, trans.
denied. “Helpful” means “the testimony gives substance to facts, which were
10
Riley also asserts Marian shot April Bailey and, thus, was lying to the police about her fear. However, that
assertion is an invitation for us to reweigh the evidence and assess the credibility of the witness, which we
cannot do. See Luckhart v. State, 736 N.E.2d 227, 231 (Ind. 2000) (declining to reweigh the evidence).
Court of Appeals of Indiana | Memorandum Decision 45A05-1708-CR-1821 | May 25, 2018 Page 16 of 20
difficult to articulate.” McCutchan v. Blanck, 846 N.E.2d 256, 262 (Ind. Ct. App.
2006).
[31] Pertinent to the Meux note, Detective Hardiman testified:
On -- I believe it was April 8th, [Marian] actually contacted me
by phone first and she took – to tell me what had transpired. She
at that time had those -- those notes written on those receipts in
hand. She first took pictures of them and then actually texted
them to me so I could see what she had recovered -- or what was
given to her.
(Tr. Vol. 5 at 125.) When asked if Marian “had any fears, based on what was
written in that note,” (id. at 126), Detective Hardiman replied, “Absolutely.”
(Id.) Detective Hardiman testified Marian continued to express her fear
throughout Riley’s criminal proceedings.
[32] Detective Hardiman based his opinion of Marian’s fear on what she said on the
phone, together with her statements of fear during the police interrogation and
her continuing fear of Riley. Detective Hardiman stated throughout his
testimony he believed Marian was in fear—from the time of the police
interrogation until “this day[.]” (Id.) Because of her fear, Marian lied to the
police and did not reveal Riley shot April. When Marian received the note
Meux left on Mack’s door, her fears were confirmed, i.e., she had feared Riley
would do something to her or her family and the note confirmed he was willing
to do so. Detective Hardiman’s opinion was rationally based on his perceptions
of Marian in person and on the phone. His opinion helped the jury understand
his own and Marian’s actions throughout the investigation. Thus, the trial
Court of Appeals of Indiana | Memorandum Decision 45A05-1708-CR-1821 | May 25, 2018 Page 17 of 20
court did not abuse its discretion in allowing Detective Hardiman to testify that
Marian was afraid when she gave him the note from Riley that Meux left on
Mack’s door. See Angleton v. State, 686 N.E.2d 803, 812 (Ind. 1997) (admission
of officer opinion testimony not an abuse when that testimony is “rationally
based on [officer’s] perception” and helpful to understand the facts), reh’g
denied.
Denham’s Ankle Monitor
[33] Denham and Riley were incarcerated at the same time. Riley approached
Denham for advice and subsequently offered to pay him to kill Marian so no
witness would be able to testify against him. Denham reported Riley to the
anonymous tip line. Working with police, Denham was subsequently released
with an ankle monitor to try to confirm Riley’s plans to harm Marian.
[34] Riley advances the theory Denham “had fabricated the information about Mr.
Riley to facilitate [Denham’s] release.” (Appellant’s Br. at 20.) Riley asserts
the trial court abused its discretion when it did not allow him to introduce
evidence Denham had tampered with his ankle monitor and had other pending
criminal cases. Riley argues Denham’s tampering and crimes were the reason
the State terminated its investigation involving Denham and, without that
information, the jury would be left with a “false impression” as to why the State
terminated the investigation with Denham. (Tr. Vol. 7 at 94.) Riley also argues
withholding the evidence of Denham’s tampering with the ankle monitor and
Denham’s other criminal cases would affect the jury’s ability to weigh
Denham’s credibility.
Court of Appeals of Indiana | Memorandum Decision 45A05-1708-CR-1821 | May 25, 2018 Page 18 of 20
[35] Detective Hardiman testified they terminated the investigation with Denham
not because of Denham’s actions but because the trial date was approaching
and the State did not want to have to request a continuance. The trial court
denied Riley’s request to introduce this evidence because the jury was not left
with a false impression as to why the investigation was terminated.
[36] Neither did the jury need the information to assess Denham’s credibility. The
jury knew Denham had been in jail. Denham’s testimony was that he and
Riley had talked about Riley’s case while in jail together. Denham said Riley
told him Riley could get Denham’s bail posted so he could get out of jail and
“demonstrate” on Marian. (Id. at 78.) The bail was never posted. Denham
said Riley had given him the name and phone numbers of someone to contact
who could get Denham a gun and Marian’s location so that Denham could kill
her for Riley. Although one of phone numbers worked, Denham was never
provided with a gun or a location. Denham’s credibility was undermined by
the facts that he had been in jail and that nothing he said Riley had promised
him actually happened. Riley did not need to elicit evidence of ankle monitor
tampering or other criminal charges to undermine Denham’s credibility. We
accordingly hold the trial court did not abuse its discretion when it denied
Riley’s request to introduce that evidence.
[37] Even if we were to assume arguendo the tampering and other criminal cases
were relevant, the exclusion of that evidence was harmless. Substantial
evidence already suggested Riley was attempting to influence or harm
witnesses—the note he sent to Demetria, the note Meux delivered to Mack’s
Court of Appeals of Indiana | Memorandum Decision 45A05-1708-CR-1821 | May 25, 2018 Page 19 of 20
house, and Marian’s fear of Riley harming her. Denham’s testimony was
merely cumulative. Furthermore, Denham’s credibility was low and, even if
believed, his testimony merely underscored the evidence already heard. Any
error resulting from the trial court’s denial of admission of evidence regarding
Denham’s credibility likely would not have influenced the jury’s impression of
Denham’s testimony; thus, the error, if any, was harmless. See McCorker v.
State, 797 N.E.2d 257, 267 (Ind. 2003) (substantial cumulative evidence from
other witnesses renders the court’s evidentiary decision harmless).
Conclusion
[38] The trial court did not abuse its discretion when it admitted the handwriting
analysis testimony or when it admitted Detective Hardiman’s testimony about
Marian’s fear of Riley when she delivered the note from Meux. The trial court
did not abuse its discretion when it denied Riley’s requests to question Meux
about his PTD agreement or when it denied Riley’s requests to question
Denham about tampering with his ankle monitor and his other criminal cases.
Accordingly, we affirm Riley’s convictions.
[39] Affirmed.
Riley, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A05-1708-CR-1821 | May 25, 2018 Page 20 of 20