APPEAL FROM THE ST. JOSEPH SUPERIOR COURT. The Honorable Elizabeth C. Hurley, Judge. Cause No. 71D08-1303-FC-58.
ATTORNEY FOR APPELLANT: THOMAS P. KELLER, South Bend, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; LARRY D. ALLEN, Deputy Attorney General, Indianapolis, Indiana.
NAJAM, Judge. BAILEY, J., and PYLE, J., concur.
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.
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. 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 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 ...