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Tibbs v. State

Court of Appeals of Indiana

September 8, 2016

Jason Tibbs, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

         Appeal from the LaPorte Circuit Court Trial Court Cause No. 46C01-1308-MR-278 The Honorable Thomas J. Alevizos, Judge

          Attorneys for Appellant Scott King Russell W. Brown, Jr. Scott King Group Merrillville, Indiana

          Attorneys for Appellee Gregory F. Zoeller Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

          Barnes, Judge.

         Case Summary

         [¶1] Jason Tibbs challenges his conviction for murder and the trial court's subsequent denial of his Indiana Trial Rule 60(B) motion for relief from judgment. We affirm.


         [¶2] Tibbs raises three issues, which we restate as:

I. whether the trial court abused its discretion by excluding evidence of an alleged third-party perpetrator;
II. whether the trial court abused its discretion by excluding impeachment evidence; and
III. whether the trial court properly denied Tibbs's Trial Rule 60(B) motion for relief from judgment.


         [¶3] On March 26, 1993, sixteen-year-old Rayna Rison was working at the Pine Lake Veterinary Hospital ("the clinic") in LaPorte County. She had a date scheduled that evening with her boyfriend, Matt Elser. Rison was scheduled to finish work at approximately 6:00 p.m., and Elser was waiting for Rison at her house. When Rison failed to return home, Elser called the clinic and then began looking for her. Elser first went to the clinic and noticed Rison's car was not there.

         [¶4] At approximately 7:30 p.m. that same day, someone observed what would later be identified as Rison's car parked along a road with its hood up. The police recovered the car the next day. Inside, police found a ring, which was later identified as belonging to Tibbs. On April 27, 1993, Rison's dead body was discovered in a pond. The forensic pathologist who performed Rison's autopsy concluded the cause of her death was asphyxia due to cervical compression- strangulation-and that her death was a homicide.

         [¶5] Tibbs and Rison were friends and dated briefly in middle school or junior high school. By 1993, Tibbs had dropped out of high school but was still in touch with Rison and still had strong romantic feelings for her. On the day Rison disappeared, Tibbs contacted his friend Eric Freeman in the late afternoon and asked Freeman to pick him up and drive him to the clinic. Freeman borrowed his girlfriend Jennifer Hammons's ("Jennifer") Buick and picked Tibbs up at his house. Tibbs had previously introduced Rison to Freeman as his girlfriend, and, on the day Rison disappeared, Tibbs told Freeman he "wanted to try to work things out with [Rison]." Tr. p. 81.

         [¶6] When Freeman and Tibbs arrived at the clinic, Tibbs went inside to speak with Rison. After a short time, Tibbs and Rison came out of the clinic and talked; then they began to argue about their relationship. Tibbs and Rison got in the back seat of Jennifer's car, and the three "went driving." Id. at 84. Tibbs and Rison continued arguing. Either Tibbs or Rison asked Freeman to pull over. He did, and Tibbs and Rison got out and continued arguing behind the car. According to Freeman, Rison "just didn't want to be with [Tibbs]." Id. At some point, Freeman got out of the car and told Tibbs and Rison that he wanted to leave. Tibbs and Rison continued to argue, and Freeman observed Tibbs hit Rison then choke her with his hands. Freeman got back in the car, and Tibbs told him to open the trunk. Tibbs put Rison in the trunk, and Freeman drove back to the home of Rick and Judy Hammons, Jennifer's parents, where Freeman lived at the time.

         [¶7] When they arrived, Freeman parked the car in the Hammonses' pole barn. Freeman and Tibbs argued, and Tibbs stated, "If I can't have her nobody can." Id. at 87. After a short time, they left to get Rison's car. After Freeman and Tibbs left the Hammonses' barn, they returned to the clinic. Tibbs drove Rison's car away, and Freeman followed him in Jennifer's car. Together, the men dumped Rison's body in a pond, and Tibbs weighed it down with logs. Freeman, alone, then returned to the Hammonses' house in Jennifer's Buick. Later that evening, Tibbs stopped by the Hammonses' house, and Freeman gave him the letter jacket that had been left in the back seat of the Buick. The jacket was later discovered hanging in a tree and identified as belonging to Elser.

         [¶8] Unbeknownst to Freeman and Tibbs, Rickey Hammons ("Rickey"), Rick and Judy Hammons's fourteen-year-old son, was in the loft of the barn smoking marijuana when they arrived at the Hammonses' property. Rickey observed someone back Jennifer's car into the pole barn. He saw Tibbs close the barn doors and Freeman get out of the driver's seat. Rickey heard Freeman and Tibbs arguing and saw Freeman open the trunk of the car. Rickey saw a young, white woman in the trunk. "She was an off color, like-- she wasn't moving. She was-- I don't know. She didn't look like she had a lot of color in her face." Id. at 138. Rickey did not say anything to Freeman and Tibbs. After the men argued about what to do next, Rickey saw them leave in the car. When Rickey saw Rison's picture in the newspaper the next day, he recognized her as the girl he saw in the trunk of his sister's car. He did not tell anyone about what he saw in the pole barn.

         [¶9] Ray McCarty was Rison's brother-in-law. He was married to Rison's sister Lori McCarty ("Lori"). In 1991, McCarty plead guilty to Class D felony child molesting. Rison was the victim, and she became pregnant as a result of that molestation. McCarty was sentenced to serve three years on probation and was still on probation when Rison was killed. McCarty was indicted for Rison's murder near the time she was killed, but the State later dismissed the charges.

         [¶10] For fifteen years, Rison's murder remained unsolved. In 2008, Rickey, who now was serving a sentence for an unrelated murder, contacted the police in order to tell them what he saw in his parents' barn in 1993. Rickey testified he neither received nor sought any benefit in exchange for his testimony. As a result of Rickey's information, investigators located Freeman and granted Freeman immunity in exchange for the information he had regarding Rison's murder. In 2013, the State charged Tibbs with murder. Freeman gave eyewitness testimony against Tibbs during Tibbs's trial.

         [¶11] McCarty testified during Tibbs's case-in-chief that at approximately 5:40 or 5:45 p.m. on the night Rison disappeared, he looked at a house for sale directly across the street from the clinic. McCarty testified that after he left the house, he drove to the clinic to ask Rison if she knew where Lori was. McCarty testified the exchange with Rison took "[h]alf a minute, " and then he left the clinic. Tr. p. 858. McCarty admitted he told police more than one story regarding his whereabouts the night Rison disappeared. McCarty stated that he initially lied to police in order to prevent Lori from learning he had picked up a female hitchhiker that night because it might upset her. McCarty testified he did not threaten to harm Rison if she told anyone about his illegal sexual contact with her. Lori testified she did not recall telling a police officer that she vacuumed out the back of McCarty's car before police searched it, nor did she remember McCarty asking her to do so.

         [¶12] During his trial, Tibbs attempted to ask Officer Timothy Short, who interviewed both McCarty and Lori, whether McCarty asked Lori to vacuum out his car before the police searched it. The trial court sustained the State's objection to the question. Tibbs also sought to question McCarty about the details of his divergent stories to police, but the trial court prohibited him from doing so.

         [¶13] During an offer of proof, McCarty testified he was indicted for Rison's murder but was not tried. He also testified that he initially told police he was at a pig farm in the southern part of the county around or at the time Rison disappeared. As part of his offer of proof, Tibbs offered Rison's 1989 statement to police regarding McCarty's molestation. The statement states, "[McCarty] said that 'if I didn't do as he asked of me he would hurt me, and he said that if I ever told, he would KILL me.'" Ex. AA.

         [¶14] Detective Brett Airy, who began re-investigating Rison's death in 2008, testified during an offer of proof that he reviewed the reports made during the original murder investigation. He testified McCarty did not admit he had contact with Rison at the clinic until May 11, 1993, approximately six weeks after Rison disappeared, and further testified about the details of McCarty's differing stories regarding his whereabouts at the time Rison disappeared.

         [¶15] In November 2014, a jury found Tibbs guilty of murder. The trial court sentenced Tibbs to forty years in the Department of Correction. This appeal ensued. Before filing his Appellant's Brief, however, Tibbs requested, and this court gave him, permission to file a Trial Rule 60(B) motion for relief from judgment in the trial court. Tibbs filed his motion and argued the State, in violation of Brady v. Maryland, withheld exculpatory evidence that Rickey received a benefit as a result of his testimony. The trial court held an evidentiary hearing on Tibbs's motion. Shortly after that evidentiary hearing, Tibbs filed an amended motion for relief from judgment and argued he had newly discovered evidence to support his contention the State committed a Brady violation. The trial court denied Tibbs's requests pursuant to Trial Rule 60(B). Tibbs now appeals his conviction and the trial court's denial of his motion for relief from judgment.


         I. Exclusion of Alleged Third-Party Perpetrator Evidence

         [¶16] Tibbs first contends the trial court denied him his right to present a complete defense by excluding: 1) testimony that McCarty was indicted for Rison's murder; 2) Rison's 1989 statement that McCarty threatened to kill her if she disclosed that he sexually abused her; 3) statements that McCarty asked Lori to clean out his car; and 4) the details of McCarty's inconsistent statements regarding his whereabouts the night Rison disappeared. Tibbs contends this evidence tends to show McCarty murdered Rison and that its exclusion was not harmless error.

         [¶17] We review the trial court's ruling on the exclusion of evidence for an abuse of discretion. Pitts v. State, 904 N.E.2d 313, 318 (Ind.Ct.App. 2009), trans. denied. The trial court's ruling regarding the admission of evidence will be upheld if it is sustainable on any legal theory supported by the record, even if the trial court did not use that theory. Rush v. State, 881 N.E.2d 46, 50 (Ind.Ct.App. 2008). We will reverse only if the trial court's decision is clearly against the logic and effect of the facts and circumstances. Pitts, 904 N.E.2d at 318. Generally, errors in the exclusion of evidence are disregarded as harmless unless they affect the substantial rights of a party. Id. However, "if error results from the exclusion of evidence which indicates that someone else had committed the crime, the error cannot be deemed harmless." Allen v. State, 813 N.E.2d 349, 361 (Ind.Ct.App. 2004), trans. denied.

         [¶18] "Evidence which tends to show that someone else committed the crime makes it less probable that the defendant committed the crime and is therefore relevant under [Evidence] Rule 401." Dickens v. State, 754 N.E.2d 1, 5 (Ind. 2001) (citing Joyner v. State, 678 N.E.2d 386, 389 (Ind. 1997)). Such evidence, however, may be excluded "if its probative value is out-weighed by unfair prejudice, confusion of the issues, or the potential to mislead the jury." Pelley v. State, 901 N.E.2d 494, 505 (Ind. 2009) (citing Ind. Evid. R. 403). "In the context of third-party motive evidence, these rules are grounded in the widely-accepted principle that before evidence of a third-party is admissible, the defendant must show some connection between the third party and the crime." Pelley 901 N.E.2d at 505.

         [¶19] In Joyner v. State, 678 N.E.2d 386 (Ind. 1997), our supreme court concluded the trial court abused its discretion by excluding Joyner's proffered evidence that a third party committed the murder for which Joyner was convicted. In that case, Joyner unsuccessfully sought to introduce the following evidence with regard to the third party: he had an affair with the victim; he worked in the same place as the appellant and the victim; he saw the victim the day before the murder; he lied to his wife about where he was the night of the murder and later told her he had an argument with the victim on the last day she was seen alive; and he went to work late the day after the victim disappeared and lied about his tardiness on his time card. Joyner also successfully presented evidence that "was consistent with [his] theory that the crime was committed by [the third party]." Id. at 389. Joyner's evidence included expert testimony that a hair found inside the plastic bag covering the victim's head excluded Joyner as the "donor" of the hair and indicated there was a ninety-eight to ninety-nine percent probability match with respect to the third party. Id. Under those circumstances, our supreme court concluded "the defendant had sufficiently connected the third party to the crime, and the excluded evidence could have also established motive and opportunity" and remanded the case for a new trial. Pelley, 201 N.E.2d at 505.

         [¶20] In Lashbrook v. State, 762 N.E.2d 756 (Ind. 2002), our supreme court rejected an argument similar to that made in Joyner. Lashbrook wanted to introduce evidence that a third party previously stated the victim "was gonna die." Id. at 757. Our supreme court concluded, "In stark contrast to Joyner, the defendant presents no material evidence that [the third party] was connected to the crime. The phrase allegedly uttered by [the third party] that [the victim] 'was gonna die' does not tend to show that [the third party] committed the murder." Id.

         [¶21] In Pelley, our supreme court rejected the argument that the trial court denied the appellant his right to present a defense when it excluded evidence that a third party had a motive to commit the murders for which Pelly was convicted. Pelley was convicted of murdering his father, stepmother, and two sisters. He sought to introduce evidence that his father may have been killed because someone learned about money laundering at the Florida bank where Pelley's father previously worked. Pelley offered statements related to money missing from the bank and the family's subsequent move to Indiana, the fact the DEA closed the bank, and that a neighbor had seen a limousine with Florida license plates in the area of the Pelleys' home the night of the murders.

         [¶22] Our supreme court stated, "Pelley's case falls between Joyner and Lashbrook, but is much closer to Lashbrook." Pelley, 901 N.E.2d at 505. The court explained that Pelley's offer of proof was comprised of hearsay statements regarding Pelley's father's work at a Florida bank and "hearsay within hearsay" regarding the limousine. Id. It further explained that Pelley did not show that the witnesses who could testify regarding the Florida situation were competent to do so-they were minors at the time the relevant events transpired in Florida. "Equally important, " the court concluded, Pelley "failed to present any evidence connecting the bank or the limousine to the murders. Absent a more direct connection, the trial court did not abuse its discretion in excluding this evidence as too speculative." Id. at 506.

         [¶23] In some cases, our appellate courts have not reached a conclusion regarding a direct connection between the third party and the crime and, instead, focused specifically on the exculpatory nature of the excluded evidence.

         [¶24] In Allen v. State, 813 N.E.2d 349 (Ind.Ct.App. 2004), trans. denied, this court reversed a murder conviction because "Allen had the right to present evidence that [a third party] was involved in the commission of the crimes." Id. at 363. In that case, the trial court excluded testimony that the witness and a third party "cased" the Osco drug store where the murders took place; the witness encountered the third party coming from the direction of the Osco; the third party told the witness "he had just got some money and some people got hurt and got killed in it"; the third party showed the witness a handgun similar to the one used in the murders and told the witness it was "'dirty, ' meaning it had 'a body attached to it, or bodies'"; and the witness saw the third party throw the gun into the river. Id. at 362 (citations omitted). The record, this court concluded, supported "a conclusion that [the witness's] testimony was exculpatory, unique, and critical to Allen's defense." Id. at 363. Such evidence, this court concluded, goes to the very heart of the fundamental right to present exculpatory evidence, and the trial court's exclusion of the testimony impinged on Allen's right to present a complete defense. Id. at 363.

         [¶25] We conclude the evidence Tibbs sought to introduce-that McCarty was indicted for Rison's murder; that in 1989 Rison reported McCarty threatened to kill her if she disclosed he sexually molested her; that McCarty allegedly asked Lori to clean out his car; and the details of McCarty's conflicting statements related to his whereabouts around the time Rison disappeared-was neither sufficiently exculpatory nor relevant evidence of a third-party perpetrator. None of the excluded evidence made it less probable that Tibbs murdered Rison or that McCarty was responsible for her murder as required under Rule of Evidence 401.

         [¶26] We note that the evidence of McCarty's alleged threat to Rison is very similar to the evidence at issue in Lashbrook-the appellant's statement that victim "was gonna die"-which our supreme court concluded was not relevant. Lashbrook, 762 N.E.2d at 757. We further note that, with regard to McCarty's inconsistent statements regarding his whereabouts, McCarty himself admitted during his testimony that he was not forthright when police questioned him. See Herron v. State 10 N.E.3d 552, 557 (Ind.Ct.App. 2014) (concluding impeachment was "improper and unnecessary" after witness acknowledged her testimony was inconsistent with a pretrial statement and admitted she lied). Finally, like Lashbrook and Pelley, Tibbs wholly failed to establish any direct, material connection between McCarty and Rison's murder similar to that which was established by forensic evidence in Joyner.

         [¶27] Unlike the evidence at issue in Allen, the evidence Tibbs sought to introduce was not "exculpatory, unique, and critical" to Tibbs's defense. Allen, 813 N.E.2d at 363. "'Exculpatory' is defined as '"[c]learing or tending to clear from alleged fault or guilt; excusing."'" Albrecht v. State, 737 N.E.2d 719, 724 (Ind. 2000) (quoting Samek v. State, 688 N.E.2d 1286, 1288 (Ind.Ct.App. 1997) (in turn quoting Black's Law Dictionary 566 (6th ed. 1990)) (alteration in Samek). None of the excluded evidence was relevant under Rule 401. Without clearing even that initial hurdle, it could not meet the definition of exculpatory evidence as required by Allen. The trial court's exclusion of Tibbs's proposed evidence did not impinge on his right to present a complete defense.

         [¶28] In addition to his general contention that the trial court's evidentiary rulings impinged on his right to present a defense, Tibbs argues his proffered evidence that McCarty was charged with Rison's murder was admissible "to show the motive or bias of the witness." Appellant's Br. p. 19. In support of that argument, Tibbs directs us to People v. Steele, 288 N.E.2d 355, 359 (Ill. 1972), and State v. Wills, 476 P.2d 711 (Wash.Ct.App. 1970), review denied.

         [¶29] In Steele, the appellant sought to introduce evidence that a witness in his murder trial was accused of the same murder, in what appears to have been an attempt to establish the witness's bias. The witness was present at the time of the murder and was called by the State "as [an] occurrence witness[] to the events which transpired in the apartment prior to the arrival of [the police]." Steele, 288 N.E.2d at 358. The Illinois Supreme Court concluded the trial court should not have excluded the evidence but noted that the witness denied any promises or threats influenced his testimony, with the exception that the prosecuting attorney agreed to help him enlist in the military and leave the city. The court further concluded, "[i]n contrast, the jury was presented with overwhelming evidence of defendant's guilt . . . After examination of the record we find this error was harmless beyond a reasonable doubt and the jury would not have reached a different verdict even if the witness would have responded affirmatively to the question [of whether he was accused of the murder]." Id. at 360.

         [¶30] In Wills, the appellant was convicted of murder in a case based entirely on circumstantial evidence. The "most damaging" was testimony from a witness who stated he observed Wills assault the victim the day before the murder in the same area of the same warehouse in which the murder took place. The witness further testified he said to Wills after the assault (which did not result in the victim's death), "Wills, you stomped that old man to death, " and that Wills replied, "You don't know [the victim] like I do, he's tough, I've stomped him a lot of times." Id. at 712. Wills sought to introduce evidence that the witness, too, had been charged with the victim's murder, but that the charges had been dismissed. "The purpose of the proposed inquiry was to determine the effect the dismissal had upon [the witness's] testimony as a witness for the state." Id. The Washington Court of Appeals reversed Wills's conviction, concluding:

The defendant was entitled to cross-examine [the witness] regarding the circumstances of the dismissal of the charges against him so that the jury could consider and weigh this testimony in its proper perspective. The scope and extent of that cross-examination was within the discretion of the trial court but its refusal to allow any cross-examination into that area constitutes reversible error.

Id. at 713.

         [¶31] We conclude these cases are inapplicable. Tibbs seems to rely on Steele and Wills for the narrow proposition that he had a right to admit into evidence the fact that the third-party perpetrator he put forth was previously indicted for Rison's murder. We, however, read these cases as discussing the constitutional rights to confront and cross-examine witnesses. See Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038 (1973). "[T]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination . . . we have recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 1435 (1986) (citations omitted) (quotations omitted) (emphases omitted).

         [¶32] Unlike the witnesses in Steele and Wills, who testified against the appellants, McCarty did not testify against Tibbs. In Steele and Wills, the appellants sought to reveal biases that could have motivated the witnesses to give damaging testimony against them. Tibbs, in contrast, called McCarty as a defense witness in order to advance his theory of the case. McCarty's testimony was not damaging to Tibbs, and Tibbs's reliance on Steele and Wills is misplaced.

         [¶33] Neither party directs us to any Indiana cases related to this argument. In Standifer v. State, 718 N.E.2d 1107 (Ind. 1999), our supreme court noted that "the constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to [the] Chapman [v. California, 386 U.S 18, 87 S.Ct. 824 (1967)] ...

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