MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 07 2020, 6:11 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES Marielena Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dwight Neal, May 7, 2020 Appellant/Defendant, Court of Appeals Case No. 19A-CR-2296 v. Appeal from the St. Joseph Superior Court State of Indiana, The Hon. John M. Marnocha, Judge Appellee/Plaintiff. The Hon. Julie Verheye, Magistrate Trial Court Cause Nos. 71D02-1812-F3-87 71D02-1107-FB-101
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2296 | May 7, 2020 Page 1 of 7 Case Summary [1] In December of 2018, Dwight Neal and Shawn Fox discussed robbing a bank,
which they subsequently did. The State charged Neal with two counts of
robbery, and Fox testified at Neal’s jury trial that he had robbed the bank with
Neal as his accomplice. Fox admitted that, by testifying against Neal, he was
hoping to benefit in a federal case in which he was accused of committing other
bank robberies. The trial court prevented Neal from questioning Fox regarding
the details of the other alleged bank robberies. The trial court, however, did
allow Neal to elicit testimony from Fox that he was generally aware of others
testifying in exchange for benefits and that Fox himself had received such
benefits in the past in exchange for cooperation with authorities.
[2] The jury found Neal guilty of Level 5 felony robbery, and the trial court
sentenced Neal to six years of incarceration for robbery, found that Neal had
violated the terms of his probation in another case, imposed the twelve-year
balance of Neal’s suspended sentence in the other case, and ordered the
sentences to be served consecutively. Neal argues that the trial court denied
him his constitutional rights to present a defense and confront the witnesses
against him. Because we disagree, we affirm.
Facts and Procedural History [3] Sometime prior to December 18, 2018, Fox and Neal discussed robbing the
Flagstar Bank in South Bend. On December 18, 2018, Neal and Fox went to
the bank, and Neal waited in the vehicle while Fox entered the bank,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2296 | May 7, 2020 Page 2 of 7 approached a teller, displayed a gun, and demanded money. The teller gave
Fox approximately $1300 from her drawer.
[4] On December 26, 2018, the State charged Neal with Level 5 felony robbery and
Level 3 felony armed robbery in cause number 71D02-1812-F3-87 (“Cause No.
87”). On January 9, 2019, the State alleged that Neal had violated the terms of
the probation imposed in cause number 71D03-1107-FB-101 (“Cause No. 101”)
by, inter alia, committing the crimes charged in Cause No. 87.
[5] Neal’s jury trial in Cause No. 87 was held on June 26 and 27, 2019. During
direct examination by the State, Fox testified as to Neal’s participation in the
robbery of the Flagstar Bank and acknowledged that he was hoping to receive a
benefit in a pending federal case in exchange for his testimony. On cross-
examination, Neal’s trial counsel asked Fox about the federal case, in which he
was facing charges related to multiple other bank robberies. Neal attempted to
question Fox about an interview Fox had had with a detective: “During the
course of that interview he confronted you with information about a robbery
that you committed at First Source Bank; is that correct?” Tr. Vol. IV p. 14
The State objected on relevance grounds, and the trial court sustained the
objection, disallowing further questioning about Fox’s participation in other
bank robberies then being investigated. Neal made no offer of proof regarding
the details of the alleged robbery of First Source Bank or any other alleged
robbery. Neal did, however, establish that Fox hoped to get “a better plea
[relating to] the periods of time [he was] facing” in that case by testifying
against Neal. Tr. Vol. IV p. 17.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2296 | May 7, 2020 Page 3 of 7 [6] Later, Neal’s trial counsel asked the trial court for permission to ask Fox if this
was the first time Fox had testified against other persons. The State objected
again on relevance grounds, which objection the trial court initially sustained.
Neal’s trial counsel asked Fox if he was aware of other prisoners who had
cooperated in trials against fellow prisoners in exchange for some kind of
benefit and if this was the type of consideration he was hoping to achieve here,
and Fox replied in affirmative. Neal’s trial counsel then asked Fox, “Is that
based on any direct experience on your part?” Tr. Vol. IV p. 22. The State
objected again, on the same relevance grounds, but this time, the trial court
overruled the objection. Neal’s trial counsel proceeded to ask Fox if he had
ever personally received benefits in the past in exchange for his testimony, and
Fox acknowledged that he had received, in exchange for past cooperation, a
reduction in the class of felony for which he was being charged in one case and
a reduced sentence in more than one case. The jury found Neal guilty of Level
5 felony robbery, and, on August 14, 2019, the trial court sentenced Neal to six
years of incarceration for robbery in Cause No. 87, found that Neal had
violated the terms of his probation in Cause No. 101 by committing robbery in
Cause No. 87, imposed the twelve-year balance of Neal’s suspended sentence in
Cause No. 101, and ordered the sentences to be served consecutively.
Discussion and Decision [7] Neal contends that the trial abused its discretion in disallowing cross-
examination of Fox regarding the details of the robberies he was charged with
committing in his federal case and his history of testifying in other criminal
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2296 | May 7, 2020 Page 4 of 7 trials in exchange for benefits. “Whether rooted directly in the Due Process
Clause of the Fourteenth Amendment or in the Compulsory Process or
Confrontation clauses of the Sixth Amendment, the Constitution guarantees
criminal defendants ‘a meaningful opportunity to present a complete defense.’”
Kubsch v. State, 784 N.E.2d 905, 924 (Ind. 2003) (quoting Crane v. Kentucky, 476
U.S. 683, 690 (1986) (citation omitted)).
[8] A defendant’s right to present a defense, while of the utmost importance, is not
absolute. Marley v. State, 747 N.E.2d 1123, 1132 (Ind. 2001). “[T]he accused,
as is required of the State, must comply with established rules of procedure and
evidence designed to assure both fairness and reliability in the ascertainment of
guilt and innocence.” Chambers v. Miss., 410 U.S. 284, 302 (1973). Moreover,
“the trial court has wide discretion to determine the scope of cross-examination,
and only an abuse of discretion warrants reversal.” Seketa v. State, 817 N.E.2d
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 07 2020, 6:11 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES Marielena Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dwight Neal, May 7, 2020 Appellant/Defendant, Court of Appeals Case No. 19A-CR-2296 v. Appeal from the St. Joseph Superior Court State of Indiana, The Hon. John M. Marnocha, Judge Appellee/Plaintiff. The Hon. Julie Verheye, Magistrate Trial Court Cause Nos. 71D02-1812-F3-87 71D02-1107-FB-101
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2296 | May 7, 2020 Page 1 of 7 Case Summary [1] In December of 2018, Dwight Neal and Shawn Fox discussed robbing a bank,
which they subsequently did. The State charged Neal with two counts of
robbery, and Fox testified at Neal’s jury trial that he had robbed the bank with
Neal as his accomplice. Fox admitted that, by testifying against Neal, he was
hoping to benefit in a federal case in which he was accused of committing other
bank robberies. The trial court prevented Neal from questioning Fox regarding
the details of the other alleged bank robberies. The trial court, however, did
allow Neal to elicit testimony from Fox that he was generally aware of others
testifying in exchange for benefits and that Fox himself had received such
benefits in the past in exchange for cooperation with authorities.
[2] The jury found Neal guilty of Level 5 felony robbery, and the trial court
sentenced Neal to six years of incarceration for robbery, found that Neal had
violated the terms of his probation in another case, imposed the twelve-year
balance of Neal’s suspended sentence in the other case, and ordered the
sentences to be served consecutively. Neal argues that the trial court denied
him his constitutional rights to present a defense and confront the witnesses
against him. Because we disagree, we affirm.
Facts and Procedural History [3] Sometime prior to December 18, 2018, Fox and Neal discussed robbing the
Flagstar Bank in South Bend. On December 18, 2018, Neal and Fox went to
the bank, and Neal waited in the vehicle while Fox entered the bank,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2296 | May 7, 2020 Page 2 of 7 approached a teller, displayed a gun, and demanded money. The teller gave
Fox approximately $1300 from her drawer.
[4] On December 26, 2018, the State charged Neal with Level 5 felony robbery and
Level 3 felony armed robbery in cause number 71D02-1812-F3-87 (“Cause No.
87”). On January 9, 2019, the State alleged that Neal had violated the terms of
the probation imposed in cause number 71D03-1107-FB-101 (“Cause No. 101”)
by, inter alia, committing the crimes charged in Cause No. 87.
[5] Neal’s jury trial in Cause No. 87 was held on June 26 and 27, 2019. During
direct examination by the State, Fox testified as to Neal’s participation in the
robbery of the Flagstar Bank and acknowledged that he was hoping to receive a
benefit in a pending federal case in exchange for his testimony. On cross-
examination, Neal’s trial counsel asked Fox about the federal case, in which he
was facing charges related to multiple other bank robberies. Neal attempted to
question Fox about an interview Fox had had with a detective: “During the
course of that interview he confronted you with information about a robbery
that you committed at First Source Bank; is that correct?” Tr. Vol. IV p. 14
The State objected on relevance grounds, and the trial court sustained the
objection, disallowing further questioning about Fox’s participation in other
bank robberies then being investigated. Neal made no offer of proof regarding
the details of the alleged robbery of First Source Bank or any other alleged
robbery. Neal did, however, establish that Fox hoped to get “a better plea
[relating to] the periods of time [he was] facing” in that case by testifying
against Neal. Tr. Vol. IV p. 17.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2296 | May 7, 2020 Page 3 of 7 [6] Later, Neal’s trial counsel asked the trial court for permission to ask Fox if this
was the first time Fox had testified against other persons. The State objected
again on relevance grounds, which objection the trial court initially sustained.
Neal’s trial counsel asked Fox if he was aware of other prisoners who had
cooperated in trials against fellow prisoners in exchange for some kind of
benefit and if this was the type of consideration he was hoping to achieve here,
and Fox replied in affirmative. Neal’s trial counsel then asked Fox, “Is that
based on any direct experience on your part?” Tr. Vol. IV p. 22. The State
objected again, on the same relevance grounds, but this time, the trial court
overruled the objection. Neal’s trial counsel proceeded to ask Fox if he had
ever personally received benefits in the past in exchange for his testimony, and
Fox acknowledged that he had received, in exchange for past cooperation, a
reduction in the class of felony for which he was being charged in one case and
a reduced sentence in more than one case. The jury found Neal guilty of Level
5 felony robbery, and, on August 14, 2019, the trial court sentenced Neal to six
years of incarceration for robbery in Cause No. 87, found that Neal had
violated the terms of his probation in Cause No. 101 by committing robbery in
Cause No. 87, imposed the twelve-year balance of Neal’s suspended sentence in
Cause No. 101, and ordered the sentences to be served consecutively.
Discussion and Decision [7] Neal contends that the trial abused its discretion in disallowing cross-
examination of Fox regarding the details of the robberies he was charged with
committing in his federal case and his history of testifying in other criminal
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2296 | May 7, 2020 Page 4 of 7 trials in exchange for benefits. “Whether rooted directly in the Due Process
Clause of the Fourteenth Amendment or in the Compulsory Process or
Confrontation clauses of the Sixth Amendment, the Constitution guarantees
criminal defendants ‘a meaningful opportunity to present a complete defense.’”
Kubsch v. State, 784 N.E.2d 905, 924 (Ind. 2003) (quoting Crane v. Kentucky, 476
U.S. 683, 690 (1986) (citation omitted)).
[8] A defendant’s right to present a defense, while of the utmost importance, is not
absolute. Marley v. State, 747 N.E.2d 1123, 1132 (Ind. 2001). “[T]he accused,
as is required of the State, must comply with established rules of procedure and
evidence designed to assure both fairness and reliability in the ascertainment of
guilt and innocence.” Chambers v. Miss., 410 U.S. 284, 302 (1973). Moreover,
“the trial court has wide discretion to determine the scope of cross-examination,
and only an abuse of discretion warrants reversal.” Seketa v. State, 817 N.E.2d
690, 693 (Ind. Ct. App. 2004). An abuse of discretion occurs only where the
trial court’s discretion is clearly against the logic and effect of the facts and
circumstances before it, or if the court has misinterpreted the law. Wells v. State,
904 N.E.2d 265, 269 (Ind. Ct. App. 2009), trans. denied. We view the
circumstances in their totality and, without reweighing evidence and
considering conflicting evidence most favorable to the trial court’s ruling,
determine if there was substantial evidence of probative value to support the
trial court’s ruling. Griffith v. State, 788 N.E.2d 835, 839 (Ind. 2003).
[9] It is well-settled that “[t]here is always a question of the credibility of a witness
when the testimony of that witness is relevant to the question of guilt.” Simpson
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2296 | May 7, 2020 Page 5 of 7 v. State, 169 Ind. App. 619, 622, 333 N.E.2d 303, 304 (1975). Neal argues that
the trial court abused its discretion in preventing him from exploring more fully
the details of the charges in Fox’s federal case and his history of testifying in
exchange for benefits. The State argues that the trial court’s rulings did not
prevent Neal from adequately impeaching Fox. We agree with the State.
[10] We conclude that Neal was able to adequately present the defense that Fox
should not be believed because he hoped to benefit from his testimony against
Neal and had received similar benefits in the past. During direct examination,
the State established that Fox hoped to receive a benefit in his federal case by
testifying against Neal. On cross-examination, Neal confirmed this, asking Fox
if he was testifying in expectation of a benefit, to which Fox replied, “Yes.” Tr.
Vol. IV 22. Neal was also able to introduce evidence regarding Fox’s
experience that prisoners often testify against other prisoners in exchange for
some kind of benefit. Finally, when Neal sought to introduce evidence related
to Fox’s personal history as a witness in other cases—and the benefits he had
received in exchange—the trial court also allowed this line of questioning after
an initial denial. The jury had more than enough information to consider the
possibility that Fox was fabricating his testimony against Neal in the hopes of
reaping a benefit thereby, even though it ultimately rejected that possibility.
[11] Neal unconvincingly focuses on two rulings by the trial court: the ruling that
Neal could not question Fox about the specifics of other bank robberies for
which he was then facing charges and the initial ruling that he could not be
questioned about benefits received in exchange for prior cooperation in other
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2296 | May 7, 2020 Page 6 of 7 cases. Neal does not explain how the details of other bank robberies might
have helped him, and, in any event, he failed to make an offer of proof
regarding those details, preventing any appellate review of the claim. “It is well
settled that an offer of proof is required to preserve an error in the exclusion of a
witness’ testimony.” Dowdell v. State, 720 N.E.2d 1146, 1150 (Ind. 1999). “An
offer of proof allows the trial and appellate courts to determine the admissibility
of the testimony and the potential for prejudice if it is excluded.” See id. Neal
has waived any challenge to this first ruling for failure to make an offer of proof.
See id. (“Dowdell’s failure to make an offer of proof waives any error in the
exclusion of these witnesses.”). As for the second ruling that Neal could not
question Fox about past cases in which he had received a benefit from
cooperating with authorities, that initial ruling was reversed, and Neal was then
allowed to explore the topic, which he did. Neal has failed to establish that the
trial court denied him his due process rights to present a defense and/or
confront the witnesses against him.
[12] We affirm the judgment of the trial court.
Baker, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2296 | May 7, 2020 Page 7 of 7