Antonio Smith v. State of Indiana

FOR PUBLICATION
Nov 24 2014, 9:31 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
THOMAS P. KELLER GREGORY F. ZOELLER
South Bend, Indiana Attorney General of Indiana
LARRY D. ALLEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANTONIO SMITH, )
)
Appellant-Defendant, )
)
vs. ) No. 71A04-1312-CR-609
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Elizabeth C. Hurley, Judge
Cause No. 71D08-1303-FC-58
November 24, 2014
OPINION - FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Antonio Smith appeals his conviction for burglary, as a Class C felony, following
a jury trial. He presents two issues for our review, but we address a single dispositive
issue, namely, whether his conviction was obtained by the State’s knowing use of
perjured testimony at his trial. In particular, Nicole Greenlee, Smith’s former girlfriend,
testified that Smith had committed the burglary while she hid outside in the bushes to
serve as a lookout. But previously Greenlee had been convicted of the same crime on a
guilty plea. Greenlee stated under oath, as the factual basis for her plea, that it was she
who had broken and entered the building and committed the burglary, and she did not
implicate Smith. The State also introduced at Smith’s trial a surveillance video and a
detective’s testimony that a white female had committed the burglary. Greenlee is white,
and Smith is African-American.
We conclude that the State was aware of a high probability that if Greenlee were
called as a witness against Smith she would commit perjury and that Greenlee perjured
herself at Smith’s trial. In particular, in its opening statement the State informed the jury
that Greenlee would give two versions of the burglary, and the State granted immunity to
Greenlee for her guilty plea testimony prior to her trial testimony. And after Greenlee
had testified, the State did not correct the perjury. A conviction based on the knowing
use of perjured testimony constitutes a denial of due process, and the error here was not
harmless. Thus, we reverse Smith’s conviction.
2
FACTS AND PROCEDURAL HISTORY
Early in the morning of December 19, 2012, a person wearing a mask, two hooded
sweatshirts, and gloves broke into a Dollar General store in Mishawaka and stole
approximately $3,500 in cash. Video surveillance revealed that the burglar was a white
female.1 On December 28, police investigating the burglary questioned Greenlee, a white
female employee of the Dollar General store, who ultimately confessed to the burglary.
At one point during the investigation, Greenlee named Smith, her boyfriend at the time,
and another woman as accomplices in the burglary, but police concluded that Greenlee
had acted on her own. The State charged Greenlee with burglary, as a Class C felony.
Greenlee pleaded guilty and, during her plea hearing on May 6, 2013, she testified under
oath that she had broken and entered the Dollar General store with the intent to commit
theft, she had opened the door to get inside, and she had disarmed the alarm system using
the code. During that hearing, Greenlee did not testify that Smith or anyone else helped
her commit the burglary.
In the meantime, and before Greenlee’s guilty plea hearing, on March 25, 2013,
the State charged Smith with burglary, as a Class C felony, for committing the same
December 19 burglary of the Dollar General store. The court held Smith’s trial on July
1
At Smith’s trial, South Bend Police Department Detective Timothy Wiley, testified that,
even though the suspect was covered head to toe and had a mask on their face [sic], they
[sic] appeared to move like a female and from some of the exposed skin that I saw on the
suspect’s backside when they [sic] were leaned over, it was my opinion that the suspect
was a female white.
Tr. at 89. The State offered no other opinion to contradict Detective Wiley’s testimony, and our review of
the video comports with his conclusion.
3
30, after Greenlee had pleaded guilty. During its opening statement at Smith’s trial, the
State told the jury
[y]ou’re also going to hear [Greenlee] give two different versions of what
happened. When she first talked to the police, you’re going to hear that she
took the blame for being the one inside the store saying she was the one
that [sic] went in, that’s her on the tape, that [Smith] was outside in the
bushes.
You’re probably also going to hear her sit right up here today and sit
on the stand and tell you something different. What she’s probably going
to tell you is that she was outside in the bushes and that [Smith] was inside,
and you’re going to hear about the factors that may contribute to that
change in story and that’s something you’re going to have to deal with at
the end of this process.
Tr. at 8-9 (emphases added). After the State concluded its opening statement, defense
counsel requested a side bar conference regarding Greenlee’s proposed testimony.
Defense counsel advised the trial court that, during her guilty plea hearing, Greenlee had
“made a factual basis under oath that she was the one who went into the store.” Id. at 10.
Thus, defense counsel argued, Greenlee would commit perjury if she testified that Smith
was the person who had entered the store. The trial court concluded that Greenlee’s
attorney should be present before she testified because of “potential criminal
ramifications” of her testimony. Id. at 14.
After Greenlee’s attorney arrived, the trial court addressed defense counsel’s
concerns about Greenlee’s possible perjury and the following colloquy ensued:
COURT: And so I guess just for discussion purposes, that would lead me
to think that if she does testify as to Mr. Smith’s involvement, that wouldn’t
be perjurious statements [sic] because she has never made statements under
oath before about Mr. Smith’s involvement. I don’t know that she was ever
asked if she acted alone or anything of that nature. So I don’t believe she
was. So there may be things that are contradictory to what she said at the
plea hearing for sure, but without hearing what she’s going to testify to, I
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don’t know that I’m in any position or any of us are in any position as of
yet to determine which testimony is the truthful testimony.
DEFENSE COUNSEL: Perhaps then, Judge, we could, after she’s done
testifying, could we take a break and then discuss matters at that point?
COURT: We can take a break after she testifies, yes.
Id. at 23-24 (emphasis added). And the State advised the trial court that it was granting
Greenlee “use immunity” from prosecution for perjury with respect to her guilty plea
testimony. Id. at 26. The trial court then allowed the parties to examine Greenlee in the
presence of the jury.
On direct examination by the State, Greenlee testified that Smith had broken and
entered the Dollar General store and stole the money while she acted as a lookout outside
the store. Greenlee testified further that, at her guilty plea hearing, she had testified under
oath that she was the person who entered the store and stole the money because she “just
wanted to get this whole process done and over with.” Id. at 45. And she testified that,
during the “guilty plea process,” she was not asked whether Smith was involved in the
burglary. Id. Greenlee further explained that she had given police “multiple versions of
this series of events” because she and Smith “were in a relationship and [she] really
didn’t want to see him” arrested. Id. at 47. And Greenlee testified that, while she was in
jail after her arrest, Smith had called her and asked her whether he should turn himself
in.2 An audio recording of that phone conversation was played for the jury.
2
The trial court clerk did not include a copy of the recording of the phone call in the exhibits
folder on appeal, but the State does not contest defense counsel’s remarks in closing argument that Smith
offered to turn himself in in the context of “being reassuring to Nicole who [was] crying on the phone.”
Tr. at 134. Smith did not surrender to police or otherwise confess to having been either a principal or an
accomplice in the burglary.
5
At the conclusion of Greenlee’s testimony, defense counsel moved for a mistrial.
In particular, defense counsel argued that Greenlee had just perjured herself; the State
knew that Greenlee had intended to give perjured testimony; and that “a case with perjury
that is known about will be overturned on appeal.” Id. at 66. The trial court concluded
that Greenlee’s statements were merely inconsistent and that she had given explanations
for those inconsistencies. Accordingly, the trial court denied Smith’s motion for a
mistrial.
Following Greenlee’s testimony, the State called South Bend Detective Timothy
Wiley and offered into evidence the video surveillance recordings3 from the burglary. As
noted above, Detective Wiley testified that the video evidence shows a white female
acting as the only person inside the store during the burglary. Detective Wiley also
testified that the cell phone records of Smith and Greenlee show that they were located
near each other and were communicating with each other during the course of the
burglary. But, on cross-examination, Detective Wiley admitted that he had no way to
know the actual locations of each cell phone during the burglary. The jury found Smith
guilty as charged. The trial court entered judgment and sentence accordingly. This
appeal ensued.
DISCUSSION AND DECISION
In Wallace v. State, 474 N.E.2d 1006, 1008 (Ind. 1985), our supreme court stated:
The knowing use of perjured testimony is fundamentally unfair and a
conviction obtained by the use of such testimony will not be upheld.
Sypniewski v. State, 272 Ind. 657, 400 N.E.2d 1122 (1980); Richard v.
State, 269 Ind. 607, 382 N.E.2d 899 (1978). A conviction obtained through
3
The video was taken from three surveillance cameras inside the store.
6
the use of false testimony must fall where the State, knowing the testimony
to be false, either solicits such testimony or allows it to go uncorrected
when it appears. Napue v. Illinois, 360 U.S. 264 (1959); Sparks v. State,
271 Ind. 419, 393 N.E.2d 151 (1979).
Thus, the dispositive question here is whether Smith’s conviction was obtained through
the knowing use of perjured testimony.
Smith Preserved This Issue for Our Review
Initially, we reject the State’s contention that Smith has waived this issue for
failing to make a contemporaneous objection to the offending testimony. A
contemporaneous objection affords the trial court the opportunity to make a final ruling
on the matter in the context in which the evidence is introduced. Jackson v. State, 735
N.E.2d 1146, 1152 (Ind. 2000). Here, after the State finished its opening statement,
defense counsel requested a sidebar conference and argued that, because Greenlee had
previously testified under oath that she was the principal in the burglary, her proffered
testimony at Smith’s trial was “going to be perjury one way or the other.” Tr. at 10.
After it was decided that Greenlee would testify once her attorney was present, defense
counsel asked the trial court whether they could “take a break and then discuss matters”
after Greenlee’s testimony, and the trial court agreed. Id. at 24. At the conclusion of
Greenlee’s testimony, defense counsel moved for a mistrial.4
Defense counsel made clear during the lengthy sidebar conference—which
preceded Greenlee’s testimony—that Greenlee previously had testified at her guilty plea
hearing that she was the principal in the burglary but would testify at Smith’s trial that he
4
We note that Smith has not waived this issue for failure to request an admonishment before his
motion for mistrial. No admonishment would have cured the due process violation in this case. And
“[w]here it is obvious . . . that no admonishment could suffice, the motion for one may be dispensed
with.” Dresser v. State, 454 N.E.2d 406, 408 (Ind. 1983).
7
was the principal. The trial court declined to rule on that objection because, as the court
stated, “I don’t know that I’m in any position . . . as of yet to determine which testimony
is the truthful testimony.” Id. There is no question that the trial court and the State were
aware that Smith objected to Greenlee’s perjured testimony both before and after she
testified. The trial court was afforded the opportunity to make a final ruling on the matter
in the context in which the evidence was introduced. See Jackson, 735 N.E.2d at 1152.
We hold that defense counsel adequately preserved the issue for our review.
Whether Greenlee Committed Perjury
Smith contends that, in light of Greenlee’s testimony at her guilty plea hearing that
she was the one who had broken and entered the Dollar General store, Greenlee
committed perjury when she testified at Smith’s trial that, instead, Smith had broken and
entered the store while Greenlee waited outside. To determine whether Greenlee gave
perjured testimony, we look to Indiana Code Section 35-44.1-2-1.5 That statute provides
in relevant part that:
(a) A person who:
(1) makes a false, material statement under oath or
affirmation, knowing the statement to be false or not
believing it to be true; or
(2) has knowingly made two (2) or more material statements,
in a proceeding[6] before a court or grand jury, which are
inconsistent to the degree that one (1) of them is necessarily
false;
5
We note that neither party cites the perjury statute to support the arguments on appeal.
6
It is well established that where a statute uses “the singular only” it may also apply to the plural.
I.C. § 1-1-4-1(3). The clear purpose of subsection (a)(2) is to prohibit irreconcilable testimony given
under oath whether in the same or different proceedings.
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commits perjury. . . .
(Emphasis added).
At her guilty plea hearing, Greenlee testified under oath that she had knowingly
broken and entered the Dollar General store with the intent to commit theft. In particular,
Greenlee testified that she had gained entry into the store when she “opened the door to
get in” and “punched in a[n alarm] code.” Def. Ex. A at 4-5. But at Smith’s trial,
Greenlee testified under oath that it was Smith who had broken and entered the store
while she waited outside and acted as a lookout. These two versions of the burglary that
Greenlee gave under oath, first at her guilty plea hearing and then at Smith’s trial, are
inconsistent to the degree that one of them is necessarily false. Accordingly, we hold that
Greenlee committed perjury as a matter of law pursuant to Indiana Code Section 35-44.1-
2-1(a)(2).
But the State contends that Greenlee did not commit perjury because her guilty
plea testimony was merely inconsistent with her trial testimony, and that “contradictory
or inconsistent testimony by a witness does not constitute perjury.” Appellee’s Br. at 8.
In support of its contention, the State relies on Timberlake v. State, 690 N.E.2d 243 (Ind.
1997) and Evans v. State, 489 N.E.2d 942 (Ind. 1986). In Timberlake, the defendant
contend[ed] that the prosecutor committed misconduct by knowingly using
the false testimony of John Robbins, Richard McPeake, and Roy Hood.
Defendant’s arguments concerning the three witnesses are as follows: (1)
Shortly after the shooting, John Robbins gave a statement to the police that
he had seen McElroy and defendant in his bar two days before the shooting
and that he had heard McElroy tell Jim Gross (a patron) that, “The only
good cop is a dead cop.” (R. at 5204.) At trial, the State called Robbins as
a witness, and he testified that defendant had made the anti-police
statement; (2) At trial, Richard McPeake testified that he saw defendant,
while sitting on the trunk of the car, pull a gun. Defendant asserts that this
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statement cannot possibly be true; (3) Roy Hood’s testimony contains
inconsistencies which defendant claims show his testimony to be false and
fabricated.
690 N.E.2d at 252-53. Our supreme court held that “while the prosecutor presented
witnesses who gave inconsistent accounts, there is no evidence that the prosecutor
knowingly used false testimony.” Id. at 253. Thus, in Timberlake, because the defendant
did not prove that the witnesses had committed perjury under the first subsection of the
perjury statute, the prosecutor did not knowingly use false testimony. See I.C. § 35-44.1-
2-1(a)(1) (a person who makes a false, material statement under oath knowing the
statement to be false or not believing it to be true commits perjury). Likewise, the
defendant in Evans alleged perjury under the first subsection of the perjury statute, which
the court rejected.
But here, unlike in Timberlake and Evans, Greenlee committed perjury under the
second subsection of the perjury statute. Moreover, again, Greenlee’s statements under
oath were not merely contradictory or inconsistent, like the statements in Timberlake and
Evans, but inconsistent to the degree that one of them is necessarily false. This is not a
case where a witness changes her story during the course of an investigation or during her
trial testimony and is merely impeached with her prior inconsistent statements and those
inconsistencies are to be resolved by a fact-finder. Greenlee’s explanation and disclaimer
of her guilty plea testimony at Smith’s trial does not obviate her perjury. The State’s
reliance on Timberlake and Evans is misplaced. Greenlee’s statements were not merely
inconsistent but mutually exclusive.
10
The State attempts to rationalize Greenlee’s perjury with the storyline that she
merely recanted her prior testimony. But her guilty plea testimony is not merely extrinsic
evidence of a prior inconsistent statement. See Evidence Rule 613(b). Greenlee’s prior
guilty plea testimony about material facts entirely within her knowledge is not a mere
self-contradiction that can be corrected. A judgment of conviction was entered based on
that testimony. While Greenlee is a competent witness, Greenlee gave perjured
testimony as a matter of law at Smith’s trial, and perjured testimony is not competent
evidence. As our supreme court held in Wallace, a conviction based on perjury will not
be upheld. 474 N.E.2d at 1008. Perjured testimony cannot be offered to prove the truth
of the matter asserted. Perjured testimony renders a witness’ oath to tell the truth, the
whole truth, and nothing but the truth meaningless. Perjured testimony contaminates a
trial, violates due process and strikes a blow to the heart of our judicial system.
Whether the State Knowingly Proffered Perjured Testimony
The State also contends that it did not knowingly proffer perjured testimony. The
State maintains that “it could not be sure what Greenlee would ultimately testify to until
she was called as a witness.” Appellee’s Br. at 4. But a party engages in conduct
“knowingly” if he is aware of a high probability that he is doing so. I.C. § 35-41-2-2.
And the record shows that, before Greenlee testified, the State was aware at least of a
high probability that it was offering perjured testimony. First, the State knew the factual
basis Greenlee had given for her guilty plea and granted her immunity from prosecution
for perjury for that testimony. Second, in its opening statement, the State told the jurors
that they would hear two versions of events from Greenlee, including a version where
11
Smith was the principal, contrary to her testimony at her guilty plea hearing. And third,
the State advised the jurors that Greenlee’s “inconsistent” statements would be
“something you’re going to have to deal with at the end of this process.” Tr. at 9.
Thus, while the State disclaims having had prior knowledge of how Greenlee
would actually testify at Smith’s trial, the State’s grant of immunity and its opening
statements demonstrate that the State was aware of a “high probability” that it was going
to call a witness whose testimony would be directly contrary to prior statements made by
that witness under oath in a court proceeding. And, of course, the grant of immunity did
not eliminate the perjury, only the prosecution for it. Thus, the State knowingly proffered
perjured testimony. And after Greenlee had testified, the State knew with certainty that
she had committed perjury. At that point, the State had a duty to correct the perjury. See
Wallace, 474 N.E.2d at 1008. The State should have joined in Smith’s motion for a
mistrial.
Harmless Error Analysis
Nonetheless, the State contends that Smith cannot show that he was denied his
right to due process. In essence, the State alleges that any error in the admission of
Greenlee’s testimony was harmless. We first note that there is no question that the
State’s knowing proffer of perjured testimony violated Smith’s constitutional right to due
process. Napue, 360 U.S. at 269. Accordingly, in deciding what is harmless error with
respect to violations of federal constitutional rights, “‘[t]he question is whether there is a
reasonable possibility that the evidence complained of might have contributed to the
conviction.’” Chapman v. California, 386 U.S. 18, 23 (1967) (quoting Fahy v. State of
12
Connecticut, 375 U.S. 85, 86-87 (1963)). Stated another way, “[b]efore a constitutional
error can be held harmless, the Court must be sufficiently confident to declare the error
harmless beyond a reasonable doubt.” Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991)
(citing Chapman, 386 N.E.2d at 23).
The State maintains that Greenlee’s testimony that Smith was the principal is
insignificant because there was sufficient evidence to convict Smith as an accomplice. In
particular, the State contends that
Greenlee and Smith could have both been convicted directly under
accomplice liability. Greenlee was not asked any questions regarding
Smith’s involvement during her plea hearing, and she testified that she was
admitting her involvement in the crime. Therefore, Greenlee’s admission
during her plea hearing is not necessarily contradictory, and certainly not
perjury, because there is no distinction between the criminal liability of the
principle [sic] and the accomplice. Castillo v. State, 974 N.E.2d 458, 466
(Ind. 2012). Nothing in Greenlee’s plea hearing exonerated Smith.
Greenlee merely provided inconsistent stories, as was submitted to the jury
on direct examination, and her statements were thoroughly explored on
cross-examination.
Appellee’s Br. at 8 (citations to record omitted; emphasis added).
That is, the State presented to the jury two theories of liability against Smith: that
he was the principal or that he was the accomplice. Of course, if the jury convicted
Smith as the principal, the perjury contributed directly to the jury’s verdict. If, however,
the jury convicted Smith as an accomplice, the perjured testimony may have been
irrelevant. But whether there was sufficient evidence to convict Smith as an accomplice
does not resolve the question of whether Greenlee’s perjury constituted harmless error.
The problem with the State’s reliance on accomplice liability as an antidote to the
perjured testimony is that this court cannot discern why the jury voted the way it did.
13
Special verdicts do not exist in Indiana, see Ind. Trial Rule 49, and on appeal this court
may not speculate on the jury’s reasoning. Neither can this court suppose that the jury
gave no credit to Greenlee’s perjured testimony and convicted Smith as an accomplice
based on the State’s other evidence. Under the harmless error analysis applicable to
federal constitutional violations, the fact that the jury might have found Smith guilty as
the principal, in accordance with Greenlee’s testimony, is sufficient to reverse Smith’s
conviction.7 See Napue, 360 U.S. at 269-70. Greenlee’s testimony was not harmless
beyond a reasonable doubt. See Chapman, 386 U.S. at 24. The knowing use of perjured
testimony violates due process, impeaches the verdict, and undermines the integrity of the
judicial system. Greenlee’s testimony poisoned the well and denied Smith a fair trial.
Conclusion
The State knowingly proffered perjured testimony at Smith’s trial, as there is
substantial evidence that the State anticipated Greenlee’s testimony and was aware of a
high probability that she would commit perjury. Moreover, after Greenlee had testified at
Smith’s trial, the State knew that her guilty plea testimony and her trial testimony were
inconsistent to the degree that one of them was necessarily false. See I.C. § 35-44.1-2-1.
Greenlee’s perjury could not be cleansed, as the State suggests, by a jury determination
that her testimony at Smith’s trial was credible. And the possibility that Smith was
convicted as an accomplice does not render Greenlee’s perjured testimony harmless
7
Indeed, there is a paucity of evidence to implicate Smith in the burglary as an accomplice. For
instance, while Detective Wiley testified that Smith and Greenlee were in close proximity when they were
communicating by cell phone during the burglary, on cross-examination, Detective Wiley admitted that
he did “not know how far away [each] cell phone was” from the cell tower near the Dollar General store
when Smith and Greenlee made the calls that night. Tr. at 104.
14
beyond a reasonable doubt. We hold that Smith’s conviction was obtained by the State’s
knowing use of perjured testimony, and we reverse his conviction.8
Reversed.
BAILEY, J., and PYLE, J., concur.
8
The Indiana Supreme Court Disciplinary Commission (“Disciplinary Commission”) has
exclusive jurisdiction to discipline an attorney, where appropriate, for acting in violation of the Rules of
Professional Conduct. We are troubled that the State knowingly proffered perjured testimony but are
even more concerned that the State granted the witness immunity from prosecution, which encouraged
such testimony. Thus, we direct the Clerk of this Court to send a copy of this opinion to the Disciplinary
Commission. We also note that instances of prosecutorial misbehavior continue to come before us on
appeal notwithstanding our admonishments. See Joel Schumm, “Isn’t it Time to Get Serious About
Prosecutor Misconduct?,” The Indiana Law Blog (July 7, 2014), http://indianalawblog.com/archives/
2014/07/ind_courts_isnt.html.
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