Tyjuan J. Dixon v. State of Indiana

FILED
May 25 2012, 8:55 am
FOR PUBLICATION
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KRISTIN A. MULHOLLAND GREGORY F. ZOELLER
Appellate Division Attorney General of Indiana
Office of the Public Defender
Crown Point, Indiana RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TYJUAN J. DIXON, )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1110-CR-482
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Salvador Vasquez, Judge
Cause No. 45G01-0910-MR-91
May 25, 2012
OPINION - FOR PUBLICATION
BAILEY, Judge
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Documents in the Appellant’s Appendix chronicle the trial court cause number as 45G01-0910-MR-9; the
transcript and exhibits list the cause number as 45G01-0901-MR-9.
Case Summary
Tyjuan J. Dixon (“Dixon”) was convicted of Murder, a Felony,2 and two counts of
Attempted Murder, as Class A felonies.3 He now appeals.
We affirm.
Issue
Dixon raises a single issue for our review, which we restate as whether the trial court
abused its discretion when it permitted the State to introduce extrinsic evidence, in the form
of testimony from a police detective, as impeachment of another of the State’s witnesses.
Facts and Procedural History
On the morning of October 12, 2009, Dixon’s half-brother, Edward Bond (“Bond”)
was living with his girlfriend, Catrenna Walker (“Walker”), in one unit of a two-unit duplex
in the Delaney housing project in Gary. Bond’s car was not operating at the time, and Bond
had asked one of his neighbors, James Smith (“Smith”) for a ride.
Around 10:00 a.m., Bond went to Smith’s residence and knocked on the door. Smith
was eating breakfast with his wife, Lakeisha Randolph (“Lakeisha”), and sister-in-law,
Gabrielle Randolph (“Gabrielle”). Gabrielle answered the door, and Bond eventually asked
for “the man of the house.” Tr. at 200. Gabrielle told Smith; Smith looked out the window,
saw Bond, and decided not to give Bond a ride at that time.
Soon afterward, Smith and Gabrielle went outside to clean the interior of Gabrielle’s
2
Ind. Code § 35-42-1-1.
3
I.C. §§ 35-41-5-1 & 35-42-1-1.
2
car. Bond again approached Smith, and an argument ensued that eventually involved both
men, Gabrielle, Lakeisha, and Walker. A crowd assembled in a nearby yard, and at some
point during the argument, Walker called Dixon, hoping that Dixon would calm Bond.
Dixon arrived soon thereafter and walked to the door of the unit Bond and Walker
shared. Dixon spoke briefly with Bond and Walker and tried to hand Bond a handgun, which
Bond refused to take. Walker moved to push Bond into the home. Dixon, however,
remained outside, turned the handgun on Smith, Lakeisha, and Gabrielle, and began to fire
the weapon.
All three attempted to flee from Dixon, but were unsuccessful. Smith was shot six
times, with wounds in his head, chest, arm, and hip; Smith died at the scene. Lakeisha was
shot six times, with wounds to her chest and right arm; Lakeisha was hospitalized for five
months because of her injuries, was comatose for some portion of her hospital stay, and after
release from the hospital endured ongoing respiratory problems and medical difficulties
related to the loss of her spleen and injury to her pancreas. Gabrielle was shot twice in her
hip and once on her buttocks, was hospitalized for two weeks, and required rehabilitation.
On October 14, 2009, Detective Arturo Azcona (“Detective Azcona”) spoke with
Gabrielle and showed her a photographic line-up of individuals matching the description of
the shooter at the scene; Gabrielle identified a photograph of Dixon. On March 22, 2010,
after Lakeisha was released from the hospital, Detective Azcona showed her a different
photographic line-up; Lakeisha also identified Dixon as the shooter.
On October 23, 2009, the State charged Dixon with one count of Murder and two
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counts of Attempted Murder. A warrant for Dixon’s arrest was issued that day; Dixon was
arrested on December 23, 2009.
A jury trial was conducted from July 25, 2011, to July 28, 2011. During the trial,
Walker testified about the incident and stated that she could not recall whether Dixon got out
of his car upon arriving at the duplex. The State showed Walker a signed, written version of
her statement to police wherein she stated that Dixon got out of his car and walked toward
the house. Walker reaffirmed her testimony and indicated that she did not recall telling
police that Dixon had gotten out of his car upon arriving at the duplex. As a result, at the
close of its evidence, the State called Detective Azcona, who had taken Walker’s statement,
to provide extrinsic impeachment of Walker’s testimony. Dixon objected, and the trial court
overruled the objection and instructed the jury that Detective Azcona’s testimony was for
impeachment purposes only.
At the conclusion of the trial, the jury found Dixon guilty of all three charges. On
October 6, 2011, the trial court entered judgments of conviction against Dixon and sentenced
him to sixty-two years imprisonment for Murder and thirty-seven years imprisonment for
each count of Attempted Murder, with the sentences to be served consecutively, for an
aggregate sentence of 136 years.
This appeal followed.
Discussion and Decision
Dixon appeals his conviction, arguing that the trial court erred when, for impeachment
purposes, the court permitted the State to recall Detective Azcona and admitted into evidence
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the detective’s testimony concerning Walker’s statement to police and the written statement
itself. We review a trial court’s decision concerning the admission of evidence for an abuse
of discretion, which occurs when the trial court’s decision is against the logic and effect of
the facts and circumstances before it. Kendall v. State, 790 N.E.2d 122, 126 (Ind. Ct. App.
2003), trans. denied. Even when a decision on the admissibility of evidence is an abuse of
discretion, we will not reverse a judgment where that error is harmless, that is, where the
error did not affect the substantial rights of a party. Ind. Trial Rule 61; Appleton v. State,
740 N.E.2d 122, 124 (Ind. 2001).
The Indiana Rules of Evidence govern the use of extrinsic evidence for impeachment
of a witness. “The credibility of a witness may be attacked by any party, including the party
calling the witness.” Ind. Evidence Rule 607. Where a party seeks to examine a witness
concerning a prior statement, the party need not show the statement to the party or disclose
the statement’s contents to the witness, though it must be disclosed to opposing counsel upon
request. Evid. R. 613(a). “Extrinsic evidence of a prior inconsistent statement by a witness
is not admissible unless the witness is afforded an opportunity to explain or deny the same
and the opposite party is afforded and opportunity to interrogate the witness thereon.” Evid.
R. 613(b). Extrinsic evidence of impeachment is not, however, admissible where
impeachment is complete because the witness “admitted himself a liar,” that is, where the
witness acknowledges having made the prior inconsistent statement. Appleton, 740 N.E.2d
at 126 (citing United States v. Soundingsides, 820 F.2d 1232, 1240-41 (10th Cir. 1987), for
the proposition that there is no basis for introduction of extrinsic evidence of prior
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inconsistent statement where witness does not deny making the inconsistent statement).
Here, Dixon contends that Walker’s testimony that she did not remember telling
Detective Azcona that she saw Dixon get out of his car was not inconsistent with her
statement to Detective Azcona that Dixon did get out of his car and a description of Dixon’s
clothes. Dixon directs our attention to Dunlap v. State, 761 N.E.2d 837 (Ind. 2002), in which
our supreme court held that, for the purposes of Rule 613(b), “a statement at trial of ‘I am not
sure’ or ‘I don’t remember’ is not necessarily inconsistent with an earlier statement that
provides the answer to the question being asked.” Id. at 845.
In Dunlap, a witness testified that she had attempted to turn the defendant around to
prevent a shooting, but was unsure whether she was holding onto or touching the defendant
when the shots were fired. Id. at 844. The defendant confronted the witness with a
transcription of her statement to police, during which she told police that she did not have
hold of the defendant until after the first shot was fired, and asked whether the witness
recalled making that statement to police. Id. The witness did not recall giving police that
description of the events. Id. Dunlap then attempted to introduce into evidence the entirety
of the witness’s transcript for the purpose of impeachment under Rule 613(b); the State
objected that the statements were not inconsistent, and the trial court agreed. Id. Our
supreme court concluded, “the differences between [the witness’s] trial testimony and her
statements in the transcribed police interview [are] within the ambit of the trial court’s
discretion to determine inconsistency,” and thus found no error in the trial court’s decision to
deny admission of the transcript. Id. at 845.
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A similar situation obtains here. Walker neither admitted nor denied making the prior
statement regarding Dixon’s attire and conduct, but testified that she did not recall making
the statement, could not recall at trial whether she saw Dixon get out of the car, and reading
the written transcript of her statement did not refresh her memory.4 As in Dunlap, this does
not take the decision on whether to admit Detective Azcona’s testimony and the written
version of Walker’s statement outside “the ambit of the trial court’s discretion to determine
inconsistency.” Id. at 845. We therefore find no error in the trial court’s decision to admit
this evidence.
Even if the trial court had abused its discretion, however, any error was harmless.
Both Lakeisha and Gabrielle testified that they saw Dixon get out of his car and go toward
the front of the duplex and identified Dixon both at trial and during their respective
statements to police. Gabrielle testified that she saw Dixon attempting to hand a handgun off
to Bond, that she saw Bond refuse to take possession of the firearm, and that she was looking
in Dixon’s direction as he began shooting. Lakeisha testified that the gunshots came from
where Dixon was standing. Both Lakeisha and Gabrielle testified that a large number of
shots were fired at them. Lieutenant Henry Hatch, a ballistics analyst with the Lake County
Sheriff’s Department crime lab, testified that all of the bullets and cartridge casings
recovered from the scene that were capable of being analyzed came from a single firearm.
Thus, there is substantial independent evidence upon which a jury could have convicted
4
The transcript was labeled as Exhibit 63 at trial, but was not included among the exhibits submitted to this
Court along with the trial record.
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Dixon, and we therefore conclude that any error in the admission of Detective Azcona’s
testimony and Walker’s prior statement was harmless. T.R. 61; Appleton, 740 N.E.2d at 126.
Affirmed.
ROBB, C.J., and MATHIAS, J., concur.
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