Griffin v. State

763 N.E.2d 450, 2002 Ind. LEXIS 153, 2002 WL 258118

• Court: Indiana Supreme Court
• Decided: February 22, 2002
• Docket: 49S02-0101-CR-43
• Status: Published

Opinions

ON PETITION FOR REHEARING

SHEPARD, Chief Justice.

We recently affirmed James R. Griffin's conviction for carjacking. Griffin v. State, 754 N.E.2d 899 (Ind.2001). He now seeks rehearing.

A petition for rehearing is a vehicle that affords the reviewing court the "opportunity to correct its own omissions or errors." Daviess-Moartin County Rural Tel. Corp. v. Pub. Serv. Comm., 132 Ind. App. 610, 625, 175 N.E.2d 439, 440 (1961). A petitioner may seek rehearing only on points raised in the original brief. Armstrong v. Hufty, 156 Ind. 606, 55 N.E. 443, 60 N.E. 1080 (1901).

A proper petition does not simply ask the court "generally to re-examine all the questions in the record, or all the questions decided against the party filing it." Goodwin v. Goodwin, 48 Ind. 584, 596 (1874). Judge Byron Elliott¹ pointed out that claimed errors in the original decisions must be articulated with precision, and that a party cannot be regarded "as having stated a point where he does no more than assert, in general terms, that a ruling was erroneous." Byron K. Elliott & William F. Elliott, Appellate Procedure and Trial Practice Incident to Appeals § 557 (1892). >

As Judge Arch Bobbitt and Frederic Sipe noted, when a general rehearing is granted, the case stands before the court as if it had never been decided. 5 Arch N. Bobbitt & Frederic C. Sipe, Bobbitt's Revision, Works' Indiana Practice § 111.3 (5th Ed.1979). By contrast, when rehearing is granted as to a particular point, the original opinion will be modified as to that point only. Id.

Griffin argues in his petition for rehearing that we did not fully address his claim (further explained below) that the trial court's hearsay ruling violated his federal right to due process. Although Griffin presented this argument almost in passing, he did cite some federal authority and made a limited argument about it. (Appellant's Br. at 14-18.) We therefore agree that the issue was sufficiently raised and that rehearing is appropriate to address this issue.

Griffin challenges our conclusion that the trial court properly excluded testimony by his former attorney that one William Dulin confessed to the crime. (Pet. Reh. at 1.) The defense put Dulin on the stand, knowing he would deny having confessed, in order to get the attorney's hearsay testimony admitted under the guise of impeachment. Griffin, 754 N.E.2d at 904.

Griffin says we failed to consider Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1978). In Chambers, a murder occurred during a barroom brawl. Id. at 285-86, 98 S.Ct. 1038. Four months afterward, Gable McDonald swore in writing that he was the shooter, but he later repudiated his confession. Id. at 287-88, 93 S.Ct. 1038. Three of McDonald's acquaintances were prepared to testify that he orally confessed to them on separate occasions. Id. at 292, 93 S.Ct. 1038.

At trial, Chambers' lawyer called McDonald and introduced the written confession into evidence. Id. at 291, 93 S.Ct. 1038. The State then elicited testimony about the repudiation, plus a fresh denial by McDonald. Id. Chambers was denied permission to cross-examine McDonald as an adverse witness based on Mississippi's "voucher" rule. Id. at 295, 93 S.Ct. 1038. He was also denied the opportunity to introduce testimony by the three other witnesses to whom McDonald confessed. Id. at 292, 93 S.Ct. 1038.

The U.S. Supreme Court held, "[UJnder the facts and cireumstances of this case" the "exclusion of this critical evidence, coupled with the State's refusal to permit Chambers to cross-examine McDonald, denied him ... due process." Id. 302-03, 98 S.Ct. 1038 (emphasis added). It emphasized "persuasive assurances of trustworthiness" of the hearsay statements: (1) three confessions made spontaneously to close acquaintances shortly after the murder; (2) other corroborating evidence;² (8) the fact that the statements were against interest; and (4) the fact that McDonald was available at trial, Id. at 300-02, 98 S.Ct. 1038.

Chambers does not, as Griffin claims, stand for the proposition that the exelusion of hearsay evidence about a single confession, standing alone, violates federal due process.³

Griffin's case is distinguishable from Chambers for several reasons. Most importantly, unlike in Chambers Griffin claims only one evidentiary error, because he was permitted to attack Dulin's eredi-bility and motivation.⁴ Moreover, the trial court allowed certain testimony alluding to Dulin's alleged confession. The former attorney was not allowed to answer the question "Did [Griffin] make a confession?", (R. at 390), but she testified that when she was still on the case she listed Dulin as a defense witness because he made "statements that would strengthen [Griffin's] case," (R. at 392-98).

The confessions at issue in the two cases are also very different in terms of reliability. Griffin points to one oral confession made to a person who, although bound by professional ethics, was serving as his legal advocate, compared to Chambers' three confessions to disinterested acquaintances.⁵ Furthermore, the corroborating evidence against Dulin is meager⁶ compared to the eyewitness testimony against McDonald in Chambers.

The dissent's more generous application of Chambers would create serious potential for abuse. Any friend of a defendant with access to the crime scene, later knowledge of the whereabouts of contraband, or similar cireumstantial connections could confess to a reliable witness that he actually committed the crime. The friend could then promptly repudiate that confession, leaving the defendant with a credible witness to finger someone else but running little or no risk of prosecution and conviection.

In summary, Chambers does not establish that Griffin was denied federal due process.

Griffin also cites Thomas v. State, 580 N.E.2d 224 (Ind.1991), but this too is readily distinguishable. The trial court in Thomas improperly excluded a jailhouse confession by the original suspect in a robbery, who described the crime in great detail to as many as twenty people. Id. at 227. As in Chambers, "the sheer number of independent confessions provided corroboration for each." Thomas, 580 N.E.2d at 226 (quoting Chambers, 410 U.S. at 800, 93 S.Ct. 1038).

Having considered Griffin's claim, we conclude the trial court should be affirmed.

DICKSON, SULLIVAN, and RUCKER, JJ., concur. BOEHM, J., dissents with separate opinion.

1 . In addition to serving on this Court from 1881 to 1893, Judge Elliott was the founding dean of the Indiana Law School, a predecessor of the Indiana University School of Law at Indianapolis.

2 . Other evidence implicating McDonald included: (1) eyewitness testimony by a friend of McDonald who saw him fire the fatal shot; (2) a witness who saw McDonald holding a pistol immediately after the shooting; (3) evidence that McDonald owned a pistol of the type used; and (4) evidence that McDonald bought another pistol later. Id. at 300, 93 S.Ct. 1038.

3 . See Montana v. Egelhoff, 518 U.S. 37, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996){no fundamental right to have jury consider evidence of voluntary intoxication). Justice Scalia, writing for a four-justice plurality, said:

Chambers was an exercise in highly case-specific error correction. At issue were two rulings by the state trial court at Chambers' murder trial. ... We held that both of these rulings were erroneous.... Thus, the holding of Chambers if one can be discerned from such a fact-intensive case is certainly not that a defendant is denied a "fair opportunity to defend against the State's accusations" whenever "critical evidence" favorable to him is excluded, but rather that erroneous evidentiary rulings can, in combination, rise to the level of a due process violation.

Id. at 52-53, 116 S.Ct. 2013. Note, however, Justice O'Connor's response on behalf of the four dissenters: "The plurality's characterization of Chambers as 'case-specific error correction' cannot diminish its force as a prohibition on enforcement of state evidentiary rules that lead, without sufficient justification, to the establishment of guilt by suppression of evidence supporting the defendant's case." Id. at 62-63, 116 S.Ct. 2013 (internal citation omitted).

4 . Griffin's lawyer introduced a booking sheet giving Dulin's first name as James, the name the carjacker used, which Dulin denied ever having used. (R. at 351, 353.) Dulin then admitted he was residing in jail, facing charges for another crime. (R. at 357.)

5 . The dissent says Patricia Griffin, Dulin's former girlfriend and the defendant's sister, also heard Dulin admit to the carjacking. Ms. Griffin testified on cross-examination as follows:

Q. I'll ask you again, Miss Griffin, did Mr. Dulin tell you he committed any crime?

A. Yes.

Q. Yes?

A. Yes.

Q. Now, a few minutes ago, before this trial started, me and you stood right back there, did we not? Remember this?

A. Yes.

Q. And we spoke, did we not?

A. Yes.

Q. And did you not tell me Mr. Dulin did not-specifically told you he did not commit a crime? Is that what you just told me a few minutes ago?

No. P

No? o

A. No.

What did you tell me?

I told you it was him and Rill (sic). P

You told me, did you not, he said-he denied committing any crime.... Did you-Are you telling me that you did not sit right there a few minutes ago-a couple hours ago, at least, and tell me that Mr. Dulin told you he most assuredly did not commit the crime? Isn't that true? 0

A. No.

Q. That's not true?

A. No.

Q. Where did I go wrong?

A. Unless I'm misunderstanding what you're saying.

Q. Did I-In fact, I specifically asked you. The specific question I asked you was, "So you're telling me Mr. Dulin did not admit to committing any crime?" You said, "'That's correct."

A. I misunderstood the question.

(R. at 382-84.)

Ms. Griffin changed her earlier story that Dulin specifically denied the carjacking, said she heard Dulin admit that he committed some unspecified crime, and implicated "him and Rill" in the carjacking. Ms. Griffin did not, however, testify that she heard Dulin admit to the carjacking, as the dissent asserts.

6 . Dulin lived with Griffin's sister Patricia at the house where the carjackers met the victim. (R. at 381, 386.) Patricia testified that Dulin showed her where the carjacked vehicle was parked on some date after the carjacking occurred. (R. at 381, 384.)