Actora Bankhead v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 15, 2016
• Docket: 49A05-1503-CR-107
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 15 2016, 9:11 am

regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Small Gregory F. Zoeller Marion County Public Defender Attorney General Indianapolis, Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Actora Bankhead, June 15, 2016 Appellant-Defendant, Court of Appeals Case No. 49A05-1503-CR-107 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Mark Stoner, Appellee-Plaintiff Judge Trial Court Cause No. 49G06-1306-MR-39314

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-107 | June 15, 2016 Page 1 of 13 Case Summary [1] Actora Bankhead was charged with two counts of murder for breaking the

necks of two people after a group-sex session went awry. Bankhead and his

wife then wrapped the bodies in plastic, disposed of the bodies at a vacant lot in

Indianapolis, and set them on fire. The bodies were undiscovered for a week,

until Bankhead’s wife told the police. Bankhead was convicted of the two

murders and sentenced to 125 years.

[2] Although Bankhead contends that the trial court abused its discretion in

admitting into evidence photographs of the victims’ dead bodies covered with

maggots, the record reveals that these photographs were never admitted into

evidence. Also, we find that the trial court reasonably limited Bankhead’s

cross-examination of a prosecution witness for bias based on that witness’s

testimony in another high-profile murder case. Last, because there were

multiple testifying witnesses, Bankhead’s sufficiency challenge based on the

incredible-dubiosity rule fails.

Facts and Procedural History [3] The facts most favorable to the verdicts show that Bankhead and his wife Diane

were living in Diane’s house on Dr. Martin Luther King Jr. Street in

Indianapolis in June 2013. Bankhead, who was released from the Indiana

Department of Correction to parole in March 2013, had met Diane while he

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-107 | June 15, 2016 Page 2 of 13 was in the DOC. After dating for about a week, Bankhead and Diane got

married in April 2013.

[4] Around 1:00 a.m. on Friday, June 7, 2013, Diane returned home from work.

She and Bankhead were in bed upstairs when Bankhead got a phone call from

Michael Hite; Bankhead went downstairs to talk to Michael on the phone. A

short time later, Michael came over. Michael parked his car on Indianapolis

Avenue, near Diane’s house. Bankhead and Michael talked and drank

downstairs while Diane stayed upstairs. At some point, Diane heard the

addition of a woman’s voice; the woman was Crystal Lucas. Diane overheard

Michael say that he had just met Crystal at the liquor store.

[5] Diane had just fallen asleep when Bankhead came to the bedroom and asked

her to drive him, Michael, and Crystal to get some crack cocaine. Although

Diane initially said no, she eventually relented and drove them in her van to an

apartment at 38th Street and Boulevard Place; Michael went inside and came

back out about ten minutes later. Diane then drove the trio back to her house

and went to bed.

[6] Diane again had just fallen asleep when Bankhead came to the bedroom and

told her that he was “high” and wanted the four of them to have sex. Tr. p. 45.

Diane told Bankhead that she “d[idn’t] roll like that.” Id. But when Bankhead

kept pressing the issue, Diane relented. So Michael and Crystal joined

Bankhead and Diane in the bedroom. At some point, Crystal realized that

Michael had ejaculated inside Diane. Crystal was upset because she knew that

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-107 | June 15, 2016 Page 3 of 13 Michael was HIV positive. Crystal then told Diane that Michael was HIV

positive. Diane was “pissed.” Id. at 405. Bankhead was angry too, because it

“was like a death sentence for” his wife. Id. So Bankhead decided to kill

Michael. Id.

[7] To carry out his plan, Bankhead lured Michael into the basement, stunned him

with a stun gun, hog tied him, and then “popped his neck,” killing him. Id. at

406. Concerned that Crystal would call the police and because Diane was

jealous of Crystal (based on the earlier sexual episode), Bankhead killed Crystal

in the same manner as Michael: he hog tied her and “popped” her neck. Id. at

408. According to the forensic pathologist, Crystal’s hyoid bone was fractured

and Michael had a fracture to his thyroid cartilage.

[8] Diane went to work as usual on Friday afternoon and returned home early

Saturday morning. But when Diane started to get ready for work Saturday

afternoon, Bankhead told her that Michael and Crystal were “gone.” Id. at 56.

Diane asked Bankhead what he meant, and Bankhead gestured by swiping his

hand across his neck. He then told Diane that he had killed them. Bankhead

took Diane to the basement, where she saw Michael’s and Crystal’s naked and

hog-tied bodies lying on top of each other. Bankhead told Diane that she had

to help him dispose of the bodies or else she would end up like them.

[9] After Diane got off work early Sunday morning, Bankhead and Diane wrapped

Michael’s and Crystal’s bodies in plastic and then wrapped duct tape around

the plastic. Bankhead and Diane carried the bodies upstairs and loaded them

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-107 | June 15, 2016 Page 4 of 13 into Diane’s van. Bankhead then directed Diane to a vacant lot on Miley

Avenue in the Haughville neighborhood of Indianapolis. Bankhead and Diane

put the bodies in a tree-lined area on the vacant lot. Diane returned to the van

while Bankhead removed the plastic from Michael’s and Crystal’s bodies and

put the plastic in some trash bags. Bankhead then poured gasoline on the

bodies and set them on fire.

[10] When Bankhead returned to the van, he directed Diane to an apartment

building on Pennsylvania Street, where he disposed of the trash bags in a

dumpster. Bankhead and Diane went home, where they removed valuables,

including a stereo, from Michael’s car, which was still parked on Indianapolis

Avenue. Diane then drove Michael’s car to an apartment complex on Guion

Road and left it there. Bankhead followed Diane and picked her up.

[11] For the next week, Bankhead kept a close watch on Diane. During that time,

Michael’s friend, whom Michael had called during the early morning hours of

Friday to say that he was at Diane’s house with Bankhead and who had last

seen Michael’s car parked on Indianapolis Avenue on Saturday, began passing

out missing-person flyers in Diane’s neighborhood. Meanwhile, the murders

were “eating [Diane] up inside.” Id. at 65. So on Friday, June 14—exactly one

week after the murders—Diane called the Indianapolis Metropolitan Police

Department’s homicide department and spoke to Detective Harry Dunn. Id.

She told Detective Dunn about the murders and where the bodies could be

found. Detective Dunn sent an officer to the vacant lot on Miley Avenue,

where the officer found Michael’s and Crystal’s bodies. The bodies were in a

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-107 | June 15, 2016 Page 5 of 13 severe state of decomposition and infested with maggots. Although the

dumpster at the apartment complex on Pennsylvania Street had already been

emptied, Detective Dunn found Michael’s car at the apartment complex on

Guion Road. The stereo was missing from Michael’s car.

[12] The State charged Bankhead with the murders of Michael and Crystal and with

intimidating Diane. While Bankhead was in jail awaiting trial, his cell was near

Jeremy Bullock’s cell. Bullock was in jail awaiting trial in two burglary cases—

one case involving Class C felony burglary and the other case involving Class B

felony burglary and four other felonies. Bullock had previously served eighteen

years in prison for a murder conviction in Johnson County. Bullock’s murder

sentence had been forty years, but in 2009 the Johnson County prosecutor

agreed to modify his sentence. According to Bullock, Bankhead first

approached him in jail for legal advice; however, Bankhead ended up telling

Bullock about the double murders. Bullock thought that the story was

“disturbing” and sent his mother a letter about it. Id. at 399. Bullock’s mother

then contacted the police, and eventually Detective Dunn interviewed Bullock.

[13] At the jury trial, Bullock testified in great detail about his knowledge of the

double murders. According to Bullock, he received no benefit in exchange for

his testimony. Id. at 399, 456. Specifically, Bullock testified that after

Bankhead, Michael, and Crystal smoked crack cocaine, the three of them plus

Diane had a “sex party” at Diane’s house; Crystal told Diane that Michael,

who was HIV positive, had ejaculated inside her; Bankhead and Diane were

angry, so Bankhead decided to kill Michael; Bankhead hog tied and “popped”

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-107 | June 15, 2016 Page 6 of 13 the necks of Michael and Crystal in Diane’s basement, killing them both;

Bankhead and Diane wrapped the bodies in plastic and then dumped the bodies

at a vacant lot in Haughville; Bankhead poured gasoline on the bodies and set

them on fire; and Bankhead and Diane then removed the valuables from

Michael’s car and drove it to an apartment complex. Id. at 403, 406, 412.

[14] During direct examination, the State asked Bullock about a photograph of a

body that Bankhead had shown him. But before Bullock could describe the

photograph, defense counsel objected, on prejudice grounds, to any testimony

concerning the burned and maggot-covered condition of the bodies. Id. at 412.

The trial court overruled defense counsel’s objection. The prosecutor resumed

questioning Bullock, but the photograph was neither mentioned again nor

admitted into evidence. Id. at 414.

[15] During cross-examination, defense counsel sought to introduce evidence that

the Johnson County prosecutor agreed to modify Bullock’s murder sentence in

2009 as a result of Bullock’s testimony in David Camm’s second murder trial in

2006.1 The State objected because there was no evidence linking Bullock’s

testimony in the second Camm trial to the modification of his murder sentence.

The trial court ruled that defense counsel could not mention the name “Camm”

because the name was unduly prejudicial: “[L]et me be really clear. The name

1 Camm was charged with the murders of his wife and two children; he was tried three times before being acquitted in 2013. This story garnered significant national attention. Bullock testified in the second and third trials.

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-107 | June 15, 2016 Page 7 of 13 Camm is never going to get in front of this jury. . . . I think that is way too well

known in terms of the information.” Id. at 426, 432-33. The court said,

however, that defense counsel could question Bullock about testifying on behalf

of the State in another murder trial because “[Bullock’s] motive in terms of

trying to gain a better bargain for himself is relevant.” Id. at 432. Defense

counsel then extensively cross-examined Bullock on the following topics: (1)

Bullock’s testimony in a 2006 murder trial (Camm), after which he received a

modification of his murder sentence; (2) Bullock was currently facing trial for

six felonies, with a sentencing exposure of seventy-seven years; (3) in October

2014, Bullock wrote a letter to a judge in Johnson County asking for leniency

in his probation-revocation case because he was cooperating with some murder

cases in Marion County; and (4) while he had been in jail for the past nine

months awaiting trial, Bullock sent the Marion County prosecutor eight letters

about eight other defendants, most of whom were facing murder charges.

[16] The jury found Bankhead guilty of Michael’s and Crystal’s murders but not

guilty of intimidating Diane. The trial court sentenced Bankhead to an

aggregate term of 125 years.

[17] Bankhead now appeals.

Discussion and Decision [18] Bankhead raises three issues on appeal. First, he contends that the trial court

abused its discretion in admitting into evidence photographs of Michael’s and

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-107 | June 15, 2016 Page 8 of 13 Crystal’s dead bodies covered with maggots. Second, Bankhead contends that

the trial court improperly restricted his right to cross-examine Bullock about his

bias. Last, he contends that Diane’s testimony was incredibly dubious and

therefore the evidence is insufficient to support his murder convictions.

I. Photographs of Victims’ Dead Bodies [19] Bankhead first contends that the trial court abused its discretion in admitting

into evidence photographs of Michael’s and Crystal’s dead bodies covered with

maggots because they were unduly prejudicial. But as the State explains in its

brief, no photographs of Michael’s and Crystal’s dead bodies were admitted

into evidence. The record shows that during Bullock’s direct examination, the

State asked him about a photograph that Bankhead had shown him of a body.

But before Bullock could describe the photograph, defense counsel objected to

any testimony concerning the burned and maggot-covered condition of the

bodies. Tr. p. 412. The trial court overruled defense counsel’s objection. The

prosecutor resumed questioning Bullock, but the photograph was neither

mentioned again nor admitted into evidence. Id. at 414. Indeed, Bankhead

does not cite any exhibit numbers, and our review of the exhibits confirms that

no photographs of Michael’s and Crystal’s dead bodies were admitted into

evidence. And notably, Bankhead did not file a reply brief in order to respond

to the State’s claim that no such photographs were admitted into evidence.

There is no error on this issue.

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-107 | June 15, 2016 Page 9 of 13 II. Reference to David Camm Trial [20] Bankhead next contends that the trial court improperly restricted his right to

cross-examine Bullock about his bias when it ruled that “Bankhead’s counsel

could not mention the name ‘Camm’ in front of the jury.” Appellant’s Br. p.

13. While the right to cross-examine witnesses is guaranteed by the Sixth

Amendment to the United States Constitution and Article 1, Section 13 of the

Indiana Constitution, trial judges retain wide latitude to impose reasonable

limits on defense counsel’s inquiry into the potential bias of a prosecution

witness based on concerns of, among other things, prejudice. Wilson v. State, 39

N.E.3d 705, 712 (Ind. Ct. App. 2015), trans. denied; Collins v. State, 835 N.E.2d

1010, 1015 (Ind. Ct. App. 2005), trans. denied. Only a clear abuse of discretion

warrants reversal. Collins, 835 N.E.2d at 1015.

[21] Here, defense counsel wanted to question Bullock about his testimony in

Camm’s second trial, but the trial court ruled that defense counsel could not

mention the name “Camm” because it was unduly prejudicial. Nevertheless,

the court ruled that defense counsel could question Bullock about testifying on

behalf of the State in another murder trial. And defense counsel did just that:

Q. . . . You testified previously on a murder case, did you not?

A. Yes, sir.

Q. That was back in 2006?

A. I believe so.

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-107 | June 15, 2016 Page 10 of 13 Q. And then after that testimony in 2006, you actually received a modification of your forty year Department of Correction sentence, right?

A. I did.

Q. On your murder case?

A. Yes.

Q. And as a result of that modification you are now on probation for that case?

Tr. p. 440-41. Based on this exchange, defense counsel was sufficiently

permitted to attack Bullock’s credibility based on his testimony in another

murder case even though the name of that trial was not mentioned. This was a

reasonable limit on defense counsel’s cross-examination of Bullock given the

fact that Camm’s prosecution was so widely publicized. The trial court did not

abuse its discretion.

III. Incredible-Dubiosity Rule [22] Finally, Bankhead contends that Diane’s testimony was incredibly dubious and

therefore the evidence is insufficient to support his murder convictions. The

premise of Bankhead’s argument is that although Diane testified extensively at

trial about how Bankhead forced her to participate in disposing of Michael’s

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-107 | June 15, 2016 Page 11 of 13 and Crystal’s bodies, the jury acquitted Bankhead of intimidation and the trial

court commented at sentencing that it believed Diane should have been charged

with Michael’s and Crystal’s murders under an accomplice-liability theory. See

id. at 542, 544.

[23] In making this argument, Bankhead claims that the incredible-dubiosity rule “is

not necessarily rendered inapplicable merely because more than one witness

testifies for the State.” See Appellant’s Br. p. 15 (citing West v. State, 907 N.E.2d

176 (Ind. Ct. App. 2009)). To the contrary, our Supreme Court recently re-

examined the scope of the incredible-dubiosity rule, clarifying that application

of the rule is indeed restricted to cases where there is a single testifying witness.

Moore v. State, 27 N.E.3d 749, 757 (Ind. 2015). Specifically, our Supreme Court

clarified that this rule requires that the following three conditions be satisfied:

(1) a sole testifying witness; (2) testimony that is inherently contradictory,

equivocal, or the result of coercion; and (3) a complete absence of

circumstantial evidence. Id. at 756.

[24] But here, Diane was not the sole testifying witness. Bullock testified in great

detail about Bankhead’s confession to the double murders. Corroborating

witnesses testified too, including Detective Dunn, who testified about Diane

calling him at the homicide department and him finding Michael’s car at an

apartment complex, as well as Bankhead’s friend, who testified that Michael

had called him during the early morning hours of Friday to say that he was at

Diane’s house with Bankhead and who had last seen Michael’s car parked on

Indianapolis Avenue on Saturday. See id. at 757 (in concluding that the

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-107 | June 15, 2016 Page 12 of 13 incredible-dubiosity rule did not apply because there were multiple witnesses,

the Supreme Court noted that although there was only one eyewitness to the

murders, another witness placed the defendant at the scene, and there were

corroborating witnesses as well). Because “the testimony of multiple witnesses

alone precludes the application of the incredible[-]dubiosity rule,” id. at 758,

Bankhead’s sufficiency challenge on this basis fails.

[25] Affirmed.

Barnes, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-107 | June 15, 2016 Page 13 of 13