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Smith v. State

Supreme Court of Indiana

June 26, 2015

ANTONIO SMITH, Appellant (Defendant),
STATE OF INDIANA, Appellee (Plaintiff)

Page 1212

Appeal from the St. Joseph Superior Court. The Honorable Elizabeth C. Hurley, Judge. Cause No. 71D08-1303-FC-58. On Transfer from the Indiana Court of Appeals, No. 71A04-1312-CR-609.

ATTORNEY FOR APPELLANT: Thomas P. Keller, South Bend, Indiana.

ATTORNEYS FOR AMICUS CURIAE: David N. Powell, J. Thomas Parker, Indiana Prosecuting Attorneys Council.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Larry D. Allen, Stephen R. Creason, Deputy Attorneys General, Indianapolis, Indiana.

Dickson, Justice. Rush, C.J., and Rucker, David, and Massa, JJ., concur.


Page 1213

Dickson, Justice.

Following a jury trial, defendant Antonio Smith was convicted of Burglary, a Class C felony, committed at a Dollar General store in South Bend, Indiana. On appeal, the defendant seeks reversal of his conviction, asserting (1) the State knowingly used perjured testimony and (2) the testimony of the principal state witness was incredibly dubious, leaving insufficient evidence to sustain the conviction. The Court of Appeals reversed, finding the conviction was obtained through the State's knowing use of perjured testimony. Smith v. State, 22 N.E.3d 620, 628 (Ind.Ct.App. 2014). We grant transfer and affirm the conviction.

Because of the nature of the two issues raised on appeal, a detailed examination of the facts is warranted in this case. In December 2012, the defendant was living with his girlfriend Nicole Greenlee in Mishawaka, Indiana, when the defendant and Greenlee started arguing about money and the defendant " brought up the idea of breaking into [Greenlee's] job and taking the daily deposit." Tr. at 32. Greenlee was a manager of a Dollar General store and " had keys to almost every door in the building . . . [her] own alarm code and . . . safe codes." Id. At approximately 1:00 a.m. on December 19, three different Dollar General security cameras recorded images of an individual unlocking the front

Page 1214

doors, turning off the store alarm, opening the store's safes, and leaving the store with nearly $3,500 in cash. The individual inside the store can be seen talking on a cell phone, and cell phone records show that Greenlee and the defendant exchanged three phone calls at times that match the time of the burglary as displayed on the security camera footage. While the person's identity in the video was obscured by gloves and two hooded sweatshirts, the video contains several views of portions of the individual's backside as the individual crouched on the floor during the burglary. In these recorded images, the perpetrator appears to be Caucasian.

Shortly after the burglary was reported to the police, the investigation focused on Greenlee. On December 28, 2012, Greenlee was interviewed by police, and she gave three conflicting stories about the night of the burglary. One of her stories implicated the defendant's involvement, but the last story she gave implicated only herself. During Greenlee's interview, South Bend Police Department Detective Kelly Waite walked outside the police station and saw the defendant sitting in the driver's seat of a white car with temporary license plates. During her testimony, Greenlee stated that she and the defendant walked to the Dollar General on the night of the burglary because she and the defendant " didn't have a car at the time." Id. at 34. While Greenlee was in jail awaiting trial, she called the defendant, and the defendant was recorded asking Greenlee if he should turn himself in, telling her he would do whatever she wants. Eventually, Greenlee entered a guilty plea, and the colloquy to establish a factual basis included the following:

[Attorney]: [O]n [the night of] December 18, 2012, did you knowingly break and enter into the building of Dollar General?
Ms. Greenlee: Yes.
[Attorney]: And that was on Hickory Road in South Bend; is that right?
Ms. Greenlee: Yes.
[Attorney]: You broke into the store with the intent to take some property out of there, to commit theft; is that right?
Ms. Greenlee: Yes.
[Attorney]: You were working there at the time; is that right?
Ms. Greenlee: Yes, I was.
[Attorney]: And you came back after it was closed. And what was it you were going to take out of the store?
Ms. Greenlee: Just money, just some money.
The Court: Now, how do you end up with $3,400 and some dollars? What's that?
Ms. Greenlee: It was our deposit from our sales from the previous day.
The Court: Did you get the money?
Ms. Greenlee: Yes.
* * *
The Court: . . . How did you get in?
Ms. Greenlee: Through the codes. I was a manager at the time . . .
The Court: But you opened the door to get in?
Ms. Greenlee: Right.
* * *
[Attorney]: You didn't have permission to take it, did you? The money?
Ms. Greenlee: No, I did not have permission.

Appellant's App'x at 31-33. At no point during her plea hearing was Greenlee asked if anyone else ...

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