COURT OF APPEALS OF INDIANA
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MONICA FOSTER STEVE CARTER
Foster & Long-Sharp Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
NANCY PREWITT, )
vs. ) No. 77A04-0304-CR-197
STATE OF INDIANA, )
APPEAL FROM THE SULLIVAN CIRCUIT COURT
The Honorable P. J. Pierson, Judge
Cause No. 77C01-0201-MR-00002
December 13, 2004
This case illustrates what happens when the State engages in a pattern of
withholding exculpatory and material evidence from a defendant prior to trial. Appellant-defendant
Nancy Prewitt raises a number of alleged errors following her conviction for the
See footnote of her husband, William Davies. In particular, Prewitt claims that the
following errors occurred: (1) the State improperly withheld certain exculpatory evidence from
Prewitt in violation of
Brady v. Maryland, 373 U.S. 83 (1963); (2) statistical
evidence regarding the probability that Davies committed suicide was improperly admitted into evidence;
(3) blood spatter evidence was erroneously admitted; (4) a statement from a purported
expert witness indicating that Prewitts claim that she never heard a gunshot appeared
suspicious was improperly admitted; (5) Daviess fathers testimony that his son would never
have committed suicide was improperly admitted; (6) an autopsy photograph depicting Daviess cracked
skull was erroneously admitted into evidence because it was prejudicial and prevented Prewitt
from receiving a fair trial; (7) that the evidence was insufficient; and, finally,
(8) that she was improperly sentenced.
Concluding that the State improperly withheld material information from Prewitt prior to trial
in violation of Brady, we reverse the judgment of the trial court on
that basis. However, while we find that the evidence presented by the
State was sufficient to support Prewitts conviction, we also observe that other issues
raised by Prewitt in this appeal cause us great concern in the event
of a retrial. Specifically, we note that the admission of
certain statistics into evidence amounted to harmless error in these circumstances, that Prewitt
has waived her argument with respect to the blood spatter evidence, and that
Dr. Kohrs testimony as to his difficulty in believing that Prewitt would not
have heard the gunshot was not improperly admitted. We further observe that
Daviess fathers testimony was properly admitted and that the autopsy photograph was properly
admitted. Finally, we conclude that the States evidence was sufficient to support
Prewitts conviction so as not to bar a retrial under double jeopardy principles.
Prewitt and Davies were married in December 1995. At approximately 2:00 p.m.
on January 15, 1997, the two went drinking at the Wooden Keg Bar
and Grill in Sullivan County, where each of them drank four or five
beers every hour. They eventually left the bar at approximately 9:30 p.m.
According to Prewitt, Davies made sandwiches for both of them when they
returned to the house. Davies became angered because Prewitt did not eat
hers, and she suffered a split lip as Davies attempted to stuff food
into her mouth. Prewitt then went to bed, hoping that the situation
would be better in the morning. However, Davies then allegedly pulled her
from the bed, forced her into the bathroom and stuck her head under
running water. Everything then went black, and the next thing that Prewitt
remembers is waking up and noticing that the clock near the bed read
eleven-something. She then went back to sleep, assuming that Davies was sleeping
it off somewhere else. Tr. p. 479.
Prewitt then awoke at 2:00 a.m. when she had to use the bathroom.
She observed Davies on the bathroom floor and saw some blood.
She unsuccessfully tried to awaken Davies. Sometime during the early morning hours
of January 16, 1997, Prewitt called 911 and reported that Davies had been
shot. When the police arrived at the scene, they found Davies slumped
on the floor against the bathroom vanity that was close to the doorway
in the master bedroom. Davies was dead, and it was determined that
he had died from a single non-contact gunshot wound to the middle of
It was established that while Davies owned a number of guns, it was
Prewitts .380 caliber pistol with which he was killed. The gun was
found between Daviess legs. That particular pistol has a safety grip and
a thumb safety, both of which had to be depressed before the gun
would fire. When the investigation ensued, blood was found on the backs
of Daviess hands and wrists; however, there was no blood on the inside
of his hands or wrists. Moreover, no gunshot residue testing was done
on either Daviess or Prewitts hands. Neither the weapon nor the shell
casings were fingerprinted, as those tests were just never requested. Tr. p.
531. The police acknowledged that all of Daviess guns had been
recently cleaned and, had prints been recovered, they could be [real important].
Tr. p. 581. Prewitt made a statement to the police that she
had been sleeping in the bedroom and had not heard a gunshot.
Five years later, on January 18, 2002, a grand jury indicted Prewitt for
Daviess murder, and a jury trial commenced on December 2, 2002. At
the trial, forensic pathologist Dr. Roland Kohr testified that Daviess death was a
homicide. In reaching that conclusion, Dr. Kohr noted that the fatal gunshot
wound was a non-contact wound to the forehead. Dr. Kohr then determined
that based upon a purely statistical basis, the odds were greater than ninety-nine
percent that Daviess death was not a suicide. Tr. p. 419, 425
At the trial, the prosecutor informed the jury that the States case would
be centered around blood spatter testimony from multiple experts, and the critical blood
evidence concerned a red Indiana University sweatshirt that was seized from Prewitt on
the night of the shooting. The State contended that Prewitt had been
wearing the sweatshirt at the time Davies was shot, and that Daviess blood
was on it because Prewitt had shot him at close range. Prewitt,
however, alleged that she had been wearing the sweatshirt earlier in the day,
that she had removed it at some point during the evening, and then
put it back on after she found Daviess body so she would be
clothed when the police arrived. Prewitt also contended that the sweatshirt became
bloodstained when it was lying on the bathroom floor. In the end,
however, serological tests revealed that various cuttings that had been taken from the
sweatshirt did not contain blood.
Following the conclusion of the jury trial on December 6, 2002, Prewitt was
found guilty of Daviess murder, and the trial court set a sentencing hearing
for January 3, 2003. On December 30, 2002, Prewitt requested a continuance on
the ground that she had recently learned of new evidence. Appellants App.
p. 180. Prewitt then took the deposition of Indiana State Trooper Michael
Eslinger, and Prewitt requested another continuance of her sentencing hearing on January 21,
2003, again alleging that she had discovered new and material evidence that had
not been disclosed to defense counsel prior to trial.
The record reveals that the State had obtained statements from two witnesses who
claimed that on the night that Davies was killed, Prewitts sonMatthew Huntercame to
their window in the middle of the night and exclaimed that if something
happened he was going to run away to California. It was not
contested at trial that Hunter had been at the scene of the shooting
at approximately 11:30 p.m. Hunter was at the Wooden Keg prior to
Daviess death, and he returned to the bar at approximately 1:00 a.m.
Kevin Cornwell was Hunters companion at the Wooden Keg, and he took
him home that evening.
These witnesses reported to the police that the day after Daviess death, they
noticed a trail of blood from the window where Matthew had been that
led to the Wooden Keg. This information was not provided to Prewitt
prior to trial, and the lead detective in the case had denied its
existence in the pretrial depositions. And when the witnesses were interviewed by
Prewitts counsel prior to trial, they related a different and much less exculpatory
version of the events.
The State also did not provide information to Prewitt that Rodney Cullison learned
that Hunter and Cornwell had moved Daviess body on the night of the
shooting. Evidence at trial established that Hunter and Cornwell were together that
night and that they were at Hunters house around the time that Davies
had died. Cullison also told the police that, prior to Daviess death,
Hunter asked him to beat Davies in return for drugs and money.
Prewitts motion for continuance was denied, and she was sentenced to forty-five years
in prison on January 23, 2003. Thereafter, on January 30, 2003, Prewitt
took the depositions of Detective Gary Hoskins, Jennifer and Chastity Swiger, Crystal Ladson,
Derek Cullison and Rodney Cullison. Then, on August 29, 2003, Prewitts appellate
counsel requested a remand to the trial court for investigation, discovery, and possibly
a hearing on the allegation that the State had suppressed exculpatory evidence.
This court granted Prewitts request on September 9, 2003. On November 10,
2003, Prewitt filed a request in the trial court for a Brady hearing
to support her claims that the State had failed to disclose exculpatory evidence.
Hearings were held in the trial court regarding Prewitts suppression claims on
January 8 and January 12, 2004. The trial court denied Prewitts Brady
claims by order on January 20, 2004. This court then resumed jurisdiction,
and the appeal ensued.
DISCUSSION AND DECISION
I. Withholding of Exculpatory Evidence
Prewitt contends that she is entitled to a new trial because the State
improperly withheld certain evidence from her prior to trial in violation of the
rules set forth in Brady v. Maryland. Prewitt asserts that the allegations
concerning the suppression of evidence fall into the following categories: evidence that
Hunter had blood on him the night Davies died; that Hunter had communicated
an intent to flee to California if something happened; other statements that Hunter
made to a number of witnesses suggesting that Daviess death was not the
result of a suicide; evidence that Hunter and Cornwell had moved Daviess body;
and evidence that Hunter had previously offered money and drugs to another individual
to beat up Davies.
At the outset, the State argues that Prewitt has waived these claims because
she failed to follow the procedural steps for raising a Brady issue under
Criminal Rule 16 and Trial Rules 59 and 61. See Hubbell v.
State, 754 N.E.2d 884, 894 (Ind. 2001). Specifically, the State points out
that an alleged Brady violation that comes to light after trial should be
raised by a motion for a new trial based on newly discovered evidence,
or a motion to correct error within thirty days of the final judgment,
i.e., after the imposition of the sentence. Id.
The State asserts that all of the evidence that Prewitt relied upon to
support her claims of newly discovered Brady evidence was known to her no
later than January 30, 2003, after she had completed her depositions, which was
only seven days following the entry of final judgment. The State further
points out that Prewitt did not file a motion to correct error within
thirty days of the judgment, as required by Criminal Rule 16 and Trial
Rule 59. Instead, Prewitt filed a Notice of Appeal on February 10,
2003. Although this court granted Prewitts motion to stay her appeal and
remand to the trial court for further discovery and an evidentiary hearing on
the Brady claim in September 2003, the State urges that such a
ruling should not undo the effect of the waiver.
In addressing this contention, we note that the defendant in Hubbell addressed his
claim of suppressed evidence for the first time on appeal without initially presenting
his contentions to the trial court. In rejecting Hubbells claims, our supreme
court commented on the requirement that a defendant should first file a motion
to correct error when considering the applicability of Criminal Rule 16:
Requiring a defendant to file a motion to correct error gives the trial
court an opportunity to rule on the issue and may avoid an unnecessary
appeal. Hubbells attempt to raise the issue on appeal without trial court
review, and without a hearing in the trial court, puts the appellate court
in the unenviable position of attempting to weigh credibility on an undeveloped paper
record. This is a task for the trial court. The trial
judge has the benefit of a detailed understanding of other evidence in the
case and can best assess any potential prejudice as well as weigh the
credibility of claims of new evidence.
Id. at 894.
Here, Prewitts appellate counsel sought a remand of this case after an appearance
was entered. At that time, counsel raised the Hubbell concerns and acknowledged
that the recordas it then existeddid not support the raising of a Brady
claim on appeal, inasmuch as a hearing in the trial court was required.
The order on remand was for the purpose of conducting further investigation,
discovery, and presentation of argument and evidence to the trial court. And,
while the record does not reflect the additional investigation that was necessary prior
to presenting the claim, it does establish that discovery was sought and obtained.
Appellants App. p. 323, 326, 340, 341. Following a hearing, the
trial court ruled on the claim and issued detailed findings of fact and
conclusions of law. Thus, it is our view that all of the
concerns set forth in Hubbell have been satisfied by Prewitts use of Appellate
Rule 37 to secure a remand. Just as compelling, we note that
the State conceded at oral argument that the post-trial hearing would not have
been conducted any differently had Prewitt first filed a motion to correct error.
For these reasons, we conclude that Prewitt has not waived the issue
regarding exculpatory evidence.
Hence, we go on to note that this court has determined that the
suppression by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment,
irrespective of the good or bad faith of the prosecution. Badelle v.
State, 754 N.E.2d 510, 526 (Ind. Ct. App. 2001), trans. denied (quoting Brady,
373 U.S. at 87). To prevail on a Brady claim, a defendant
must establish: (1) that the evidence at issue is favorable to the
accused, because it is either exculpatory or impeaching; (2) that the evidence was
suppressed by the State, either willfully or inadvertently; and (3) that the evidence
was material to an issue at trial. Id.
Evidence is material only if
there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different. Id.
A reasonable probability is one that is sufficient to undermine confidence in the
Evidence cannot be regarded as suppressed and the State will not be
found to have suppressed material information when the defendant has access to the
evidence before trial by the exercise of reasonable diligence. Id. at 527.
However, [w]hen police or prosecutors conceal significant exculpatory or impeaching material in
the States possession, it is ordinarily incumbent on the State to set the
record straight. Banks v. Dretke, 124 S.Ct. 1256, 1263 (2004). So,
the question is not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a verdict worthy
of confidence. Kyles v. Whitley, 514 U.S. 419, 434 (1995).
A. Evidence Regarding Statements Made By Hunter
The record reflects that at the time of Daviess death, Hunter was residing
with Davies and Prewitt. As noted in the FACTS, it was not
disputed that Hunter had been at the scene of the shooting at approximately
11:30 p.m. Tr. p. 569. It was further established that Hunter
was at the Wooden Keg prior to Daviess death, and he returned to
the bar at approximately 1:00 a.m. Tr. p. 242-44. Cornwell, who
was Hunters companion at the Wooden Keg, took him home that night.
Tr. p. 244.
On April 18, 2002, the lead detective in this caseGary Hoskinsmet with several
individuals, including Chastity Swiger. Chastity reported to Detective Hoskins that one snowy
night Hunter had come to her residence where he encountered Chastitys sister, Jennifer.
Hunter allegedly told Jennifer that if something happens that night, that he
was going to California or someplace out of state. Appellants App. p.
495. Although Chastity was unable to pinpoint the exact date that Hunter
came to her house, she believed that his communication to Jennifer was somehow
related to Daviess death. Chastity also allegedly told Detective Hoskins that
there was a trail of blood from the window where Hunter had been
that extended to the tavern.
Detective Hoskins verbally informed the prosecutor of the discussion he had with Chastity,
as well as a similar conversation that Indiana State Police Trooper Michael Eslinger
had with another individualCrystal Ladsonwho recounted the same story as Chastity. Prewitt
maintains that no one informed her of these conversations, and that Detective Hoskinss
notes regarding the interview with Chastity were not disclosed to Prewitt until after
the trial had concluded. Moreover, Prewitt notes that Detective Hoskins testified during
a deposition that no exculpatory evidence existed.
Prewitt claims that just before the trial commenced, she received a tip that
Chastity, Jennifer and Crystal had spent the night together the evening that Davies
was killed, that Hunter had visited the residence, and that there was a
substance that appeared to be blood on his clothing or on the ground
close to him. In light of this information, Don Campbell, an investigator
for Prewitt, interviewed Chastity, whereupon she told Campbell that Hunter had come to
the window late one night looking for Jennifer but that Chastity had informed
him that Jennifer was sleeping, and he left. According to Chastity, this
was the only information that she had provided to the State Police.
Jennifer told Campbell that she was present at a sleepover the night that
Davies was shot. Jennifer also conveyed to Campbell that Hunter did not
speak to anyone at the residence that evening, and that no one noticed
anything unusual about Hunter or his clothing.
Additionally, just prior to trial, Rodney Cullison went to Trooper Eslingers house, where
he told Trooper Eslinger that he had heard that Hunter and a friend
had moved Daviess body from the outside to the inside of the residence
on the night of the death. Detective Hoskins then apparently told Trooper Eslinger
that such evidence was inconsequential because Davies died inside the house, was shot
inside the house. Appellants App. p. 649. The record shows that,
among other things, Davies was discovered with his blue jeans pulled down on
his hips in a fashion that counsel thought would have been consistent with
the body having been dragged by the shoulders backwards so that the pants
would have been lower on the buttocks than they would normally have been.
Tr. p. 46. There was also a towel that had been
placed across Daviess arms following the shooting that no one could explain, which
Prewitts counsel thought might have been consistent with the body being moved.
Finally, Prewitts counsel believed that the location of the spent shell casing might
have been consistent with the body being moved.
During Cullisons post-trial deposition, he testified that before Prewitts trial, he told Deputy
Eslinger that Hunter offered Cullison a half ounce of crank and five hundred
dollars to whip [Davies] up. Appellants App. p. 467. Cullison stated
that the conversation took place a couple of months prior to Daviess death.
Cullisons son, Town Marshal Derek Cullison, testified after Prewitts trial that Rodney
had told him about the offer, and he immediately brought him to Trooper
Eslinger to report that incident. Town Marshal Cullison did not participate in
his fathers interview with Trooper Eslinger. Trooper Eslinger ultimately denied that
Cullison had told him about the offer to beat up Davies for drugs
and money. Prewitts counsel was aware that that Cullison had a wild
history of having been involved with at least the use of drugs.
Brady Tr. p. 51. To be sure, Cullison had been in and
out of drug rehabilitation programs, had been convicted of a number of crimes
and had served time in various penitentiaries.
In light of these post-trial developments, Prewitt contendsamong other thingsthat the trial courts
determination that the trail of blood and the late evening visit to the
girls window were available to her by the exercise of reasonable diligence was
erroneous. Prewitt points to Boss v. Pierson, 263 F.3d 734 (7th
Cir. 2001), where the State argued that certain suppressed evidence would have
been available to the defendant had he exercised reasonable diligence, inasmuch as the
suppressed evidence originated from a defense witness. The court rejected this contention
and observed: accepting the States position would place a burden on defense counsel
that goes far beyond what reasonable diligence demands. Id. at 741.
Along with Boss, we note that Banks was a more recent case decided
by the United States Supreme Court, wherein the defendant alleged in a petition
for post-conviction relief that the prosecutor knowingly failed to turn over exculpatory evidence
that would have revealed that another individualFarracted as a police informant in the
case. Banks further alleged that the State deliberately withheld information of a
deal that prosecutors made with Cook, another witness, which would have been critical
to the jurys assessment of that witnesss credibility. Banks, 124 S.Ct. at
1258. Banks was ultimately convicted of murder committed in the
course of a robbery in violation of the Texas Penal Code,
See footnote and was
subsequently sentenced to death.
More particularly, the facts giving rise to Bankss
Brady claim are as
In a July 7, 1980, letter, the prosecution advised Bankss counsel that [the
State] will, without necessity of motions, provide you with all discovery to which
your are entitled.
Witnesses testified to seeing Banks and Whitehead together on April 11 in Whiteheads
green Mustang and to hearing gunshots in Pocket Park at 4 a.m. on
See footnote Charles Cook testified that Banks arrived in Dallas in a green
Mustang at about 8:15 a.m. on April 12, and stayed with Cook until
April 14. Cook gave the following account of Bankss visit. On
the morning of his arrival, Banks had blood on his leg and told
Cook he [had] got into it on the highway with a white boy.
That night, Banks confessed to having kill[ed] the white boy
for the hell of it and take[n] his car and come to Dallas.
During their ensuing conversation, Cook first noticed that [Banks] had a pistol.
Two days later, Banks left Dallas by bus. The next day,
Cook abandoned the Mustang in West Dallas and sold Bankss gun to a
neighbor. Cook further testified that, shortly before the police arrived at his
residence to question him, Banks had revisited him and requested the gun.
On cross-examination, Cook three times represented that he had not talked to anyone
about his testimony. In fact, however, Cook had at least one pretrial
practice sessio[n], at which Huff [the Deputy Sheriff] and prosecutors intensively coached Cook
for his appearance on the stand at Bankss trial. The prosecution allowed Cooks
misstatements to stand uncorrected. In its guilt-phase summation, the prosecution told the
jury Cook brought you absolute truth.
Corroborating parts of Cooks account, Farr testified to traveling to Dallas with Banks
to retrieve Bankss gun. On cross-examination, defense counsel asked Farr whether he
had ever taken any money from some police officers, or give[n] any police
officers a statement. Farr answered no to both questions; he asserted emphatically
that police officers had not promised him anything and that he had talked
to no one about this [case] until a few days before trial.
These answers were untrue, but the State did not correct them. Farr
was the paid informant who told Deputy Sheriff Huff that Banks would travel
to Dallas in search of a gun. In a 1999 affidavit, Farr
explained: I assumed that if I did not help [Huff] with his
investigation of Delma [Banks] that he would have me arrested for drug charges.
Thats why I agreed to help [Huff]. I was afraid that if
I didnt help him, I would be arrested . . . .
Willie Huff asked me to help him find Delmas gun. I told
[Huff] that he would have to pay me money right away for my
help on the case. I think altogether he gave me about $200.00
for helping him. He paid me some of the money before I
set Delma up. He paid me the rest after Delma was arrested
and charged with murder . . . .
In order to help Willie Huff, I had to set Delma up. I
told Delma that I wanted to rob a pharmacy to get drugs and
that I needed his gun to do it. I did not really
plan to commit a robbery but I told Delma this so that he
would give me his gun . . . . I convinced Delma
to drive to Dallas with me to get the gun.
Banks, 124 S.Ct. at 1264-65. At the penalty phase of Bankss trial:
On cross-examination, defense counsel twice asked whether Farr had told Deputy Sheriff Huff
of the Dallas trip. The State remained silent as Farr twice perjuriously
testified: No, I did not. Bankss counsel also inquired whether Farr
had previously attempted to obtain prescription drugs by fraud, and, up tight over
that, would testify to anything anybody want[ed] to hear. Farr first responded:
Can you prove it? Instructed by the court to answer defense
counsels questions, Farr again said: No, I did not. . . .
Former Arkansas police officer Gary Owen testified that Farr as a police informant
in Arkansas, had given false information; the prosecution impeached Owen by bringing out
his pending application for employment by defense counsels private investigator.
Banks admitted striking Vetran Jefferson in April 1980, and traveling to Dallas to
obtain a gun in late April 1980. He denied, however, any intent
to participate in robberies, asserting that Farr alone had planned to commit them.
The prosecution suggested on cross-examination that Banks had been willing to supply
[Farr] the means and possible death weapon in an armed robbery case.
Urging Farrs credibility, the prosecution called the jurys attention to Farrs admission, at
trial, that he used narcotics. Just as Farr had been truthful about
his drug use, the prosecution suggested, he was also open and honest with
[the jury] in every way in his penalty-phase testimony. Farrs testimony, the
prosecution emphasized, was of the utmost significance because it showed Banks is a
danger to friends and strangers, alike. Bankss effort to impeach Farr was
ineffective, the prosecution further urged, because defense witness Kelley kn[ew] nothing about the
murder, and defense witness Owen wish[ed] to please his future employers.
Id. at 1266-67.
In response to Bankss petition for postconviction relief where he claimed the Brady
violation, the State responded that nothing was kept secret from the defense.
Id. at 1267. Although the State specifically asserted that the State had
made no deal with Cook, the State said nothing about Farr. Id.
During the course of post-trial discovery, one of the items that was turned
over to Banks, pursuant to the courts order, was a seventy-four page transcript
of an interrogation of Cook. The transcript revealed that the States representatives
had closely rehearsed Cooks testimony. Additionally, testifying at the evidentiary hearing, Deputy
Sheriff Huff acknowledged, for the first time, that Farr was an informant and
that he had been paid $200 for his involvement in the case.
In ultimately determining that Banks was entitled to present evidence in support of
his Brady claims, and further deciding that Banks was entitled to a certificate
of appealability as to the question of whether he adequately raised one of
his other Brady claims, the United States Supreme Court observed:
First, the State knew of, but kept back, Farrs arrangement with Deputy Sheriff
Huff. Second, the State asserted, on the eve of trial, that it
would disclose all Brady material. Third, . . . Banks asserted that Farr
was a police informant and Banks arrest, a set-up. In its answer,
the State denied Bankss assertion. The State thereby confirmed Bankss reliance on
the prosecutions representation that it had fully disclosed all relevant information its file
contained. . . . If it was reasonable for Banks to
rely on the prosecutions full disclosure representation, it was also appropriate for Banks
to assume that his prosecutors would not stoop to improper litigation conduct to
advance prospects for gaining a conviction.
Id. at 1273-74 (citing Berger v. United States, 295 U.S. 78, 88 (1935)).
went on to note that:
Our decisions lend no support to the notion that defendants must scavenge for
hints of undisclosed Brady material when the prosecution represents that all such material
has been disclosed. The State here nevertheless urges, in effect, that the
prosecution can lie and conceal and the prisoner still has the burden to
. . . discover the evidence, so long as the potential existence of
a prosecutorial misconduct claim might have been detected. A rule thus declaring
prosecutor may hide, defendant must seek, is not tenable in a system constitutionally
bound to accord defendants due process. Ordinarily, we presume that public officials
have properly discharged their official duties.
Id. at 1275 (quoting Bracy v. Gramley, 520 U.S. 899, 909 (1997) (emphasis
Additionally, it was pointed out that
Here, the State elected to call Farr as a witness. Indeed, he
was a key witness at both guilt and punishment phases of Bankss capital
trial. Farrs status as a paid informant was unquestionably relevant similarly beyond
doubt, disclosure of Farrs status would have been helpful to [Bankss] defense.
[No] decision of this Court suggests that the State can examine an informant
at trial, withholding acknowledgment of his informant status in the hope that defendant
will not catch on, so will make no disclosure motion.
. . .
As the State acknowledged at oral argument, Farr was paid for a critical
role in the scenario that led to the indictment. Farrs declaration, presented
to the federal habeas court, asserts that Farr, not Banks, initiated the proposal
to obtain a gun to facilitate the commission of robberies. Had Farr
not instigated, upon Deputy Sheriff Huffs request, the Dallas excursion to fetch Bankss
gun, the prosecution would have had slim, if any, evidence that Banks planned
to continue committing violent acts. Farrs admission of his instigating role, moreover,
would have dampened the prosecutions zeal in urging the jury to bear in
mind Bankss planning and acquisition of a gun to commit robbery, or
Bankss planned violence. . . . On the record before us, one could
not plausibly deny the existence of the requisite reasonable probability of a different
result had the suppressed information been disclosed to the defense.
Id. at 1276-77 (quoting Kyles, 514 U.S. at 434).
B. Evidence Relating To Statements Made By Cullison
In considering the disposition and rationale espoused in Banks, together with the facts
and circumstances of this case, it is apparent that what Prewitts defense counsel
actually knew before trial was dramatically differentand far less exculpatorythan what the witnesses
had, in fact, shared with the State prior to trial. When Prewitts
counsel heard rumors of Hunters late night visit, her investigator made an immediate
effort to contact the witnesses. And, as the circumstances indicate, the police
misrepresented whether they had spoken to these witnesses, and the prosecutor did nothing
to correct those misrepresentations.
Here, the State argues that the evidence regarding Hunter was not credible because
(1) Chastity and Crystal rendered accounts that were inconsistent with each other; (2)
Jennifer, who apparently had the conversation with Hunter, consistently denied it; and (3)
none of the three girls could say with certainty that Hunters visit to
the window happened the night that Davies was killed. Appellees Br. p.
30. Contrary to this position, Detective Hoskins believed that Crystal and Chastitys
statements were consistent. To be sure, he testified that he viewed Crystals
statement to Trooper Eslinger as corroborat[ing] the statement he had taken from Chastity.
Appellants App. p. 501. Detective Hoskins also acknowledged that Crystal told
Officer Eslinger basically the same thing Chastity had told me. Appellants App.
Evidence was also presented at trial establishing that Hunter went to the girls
window the night that Davies was shot. For instance, Chastity testified that
she heard Hunter come to the window and say he had to get
out of town. Appellants App. p. 558. On direct examination, she
expressly stated that this was the evening that Davies was shot. Appellants
App. p. 559. Chastity also believed that the conversation at the window
was with regard to Daviess death. Appellants App. p. 496. She
contacted the police because it was on [her] conscience and she couldnt deal
with it anymore. Appellants App. p. 683. Jennifer testified that
one night in January when they had a sleepover with Crystal, the following
day her niece came over and said that Davies had been shot the
preceding evening. Appellants App. p. 536.
In our view, the States suppression of the evidence detailed above presented questions
of the utmost importance at the trial about the manner, quality, and thoroughness
of the investigation that led to Prewitts arrest five years after Davies had
been shot. And Prewitt could at least have used the suppressed evidence
to show shortcomings in the investigation. Without the exculpatory evidence, Prewitt was locked
in to a defense at trial that Davies had committed suicide. Had
the Brady information described above been disclosed to Prewitt, she certainly could have
made a claim that Hunteror someone elsehad been the shooter. That said,
we cannot agree with the States proposition that it should pay no penalty
for suppressing the above evidence.
We must similarly reject the States contention that Prewitt should or could have
discovered the suppressed evidence through the exercise of due diligence because Prewitt may
have been aware of Hunters visit to the girls residence. It is
quite apparent to us that the State misled Prewitt under oath in the
early stages of the investigation, and that misfeasance was never corrected. Detective
Hoskins testified about the witnesses he had interviewed, and that list did not
include Chastity Swiger or Crystal Ladsen. While Detective Hoskins acknowledged that he
typically took notes regarding unhelpful information and that he had no such notes
in the case, the post-trial evidence demonstrated otherwise. Moreover, Detective Hoskins erroneously
testified that he was not aware of any exculpatory evidence. Defendants Brady
Ex. A, p. 33-34. And Prewitt justifiably relied upon these affirmative misrepresentations.
Additionally, even if Detective Hoskins forgot about the interview and the notesas he
in fact claimedthe prosecutor was aware of the interviews, but similarly forgot that
such evidence existed, and sat idly by without correcting the false testimony.
Appellants App. p. 498-99, 501; Defendants Brady Ex. A, p. 16-17. In
light of these circumstances, the State is in no position to fault the
defense, inasmuch as it was the State that created the conditions that occurred
here. See Leka v. Portuondo, 257 F.3d 89, 101 (2d Cir. 2001) (reversing
a murder conviction where the government disclosed Brady material three days prior to
trial after misleading the defendant about this evidence during plea negotiations).
Therefore, we can only conclude that the States suppression of this evidence amounted
to a Brady violation.
We now go on to address Prewitts challenge to the trial courts finding
that no Brady violation occurred in this case even though: (1) Cullison
testified in his post-trial deposition that he told Trooper Eslinger about Hunters offer
to pay money and drugs to have Davies beaten; (2) Cullison told Trooper
Eslinger that he had heard about Hunter and Cornwell moving Daviess body;
(3) Rodney Cullison was brought to Deputy Eslingers home by his son, who
testified in a post-trial deposition that the reason he brought his father to
Deputy Eslinger was because of the money and drugs for battery offer; and
(4) Deputy Eslinger testified post-trial that he did not take notes of his
conversation and did not put much stock in anything [Cullison] said. Appellants
App. p. 653.
Prewitt argues that the evidence was Brady material and that she is entitled
to a new trial because there is no question that defense counsel would
have interviewed Cullison to find out what he knew. Had the State
fulfilled its obligations under Brady, Prewitt contends that her trial counsel would have
learned of the highly exculpatory evidence that Hunter was soliciting someone to beat
up Davies. Cullison may very well have been the type of individual
to solicit and batter another person for drugs and money in light of
the substance abuse issues. But put quite simply, it was not for
the prosecutor or Detective Hoskins to make a judgment regarding Cullisons credibility. Rather,
it was for Prewitts counsel to decide whether Cullison was helpful enough to
be presented as a witness and for the jury to determine the issue
of credibility. Similarly, although the trial court found against Prewitt on the
claim of the battery solicitation, the evidence was covered by Brady because it
would inevitably have been discovered had the State informed Prewitt of Cullisons report.
Like the other material that was suppressed, the States withholding of this
evidence deprived Prewitt of the opportunity to investigate and possibly present Cullisons testimony
Finally, we address Prewitts Brady claim as to the States suppression of evidence
regarding the purported testimony from Cullison that Daviess body had been moved from
the outside to the inside the residence. Again, the record shows that
Trooper Eslinger reported the information he had received from Cullison to Detective Hoskins.
Brady Tr. p. 165. However, Detective Hoskins told Trooper Eslinger that
it was impossible because [Davies] died inside the house, was shot inside the
house. Appellants App. p. 649.
We reject the States contention that the statement made by Cullison did not
constitute suppressed material evidence. The question as to whether Daviess body had
been moved was one that her defense counsel had entertained before trial.
In particular, the photographs of Daviess body reflected lividity high on the
back whereas in the photographs he is leaning in a fairly upright position
against the bathroom counter, which should not have resulted in lividity in the
upper portions of the back. Brady Tr. p. 44. A former
Marion County homicide detective shared defense counsels concerns with lividity. Brady Tr.
p. 146. Again, the photographs taken at the crime scene demonstrated that
the blue jeans that Davies had worn were pulled down to his hips
in a fashion that counsel thought would have been consistent with the body
having been dragged by the shoulders backwards so that the pants would have
been lower on the buttocks than they would normally have been. Br.
Tr. p. 46. There was also a towel that had been placed
across Daviess arms following the shooting that no one could explain, which Prewitts
counsel stated might have been consistent with the body being moved. Finally,
defense counsel believed that the location of the spent shell casing may have
been consistent with the body being moved. Br. Tr. p. 45.
Also, discerning whether the body had been moved was rendered more
difficult because no good photos were taken of the carpeting from the bedroom
to the bathroom where the body was found and no luminol was placed
on that carpet to determine if blood was present. Br. Tr. p.
Although the States suppression of this evidence, when viewed in isolation or piecemeal,
may not amount to reversible error under Brady, the above discussion regarding this
evidence is just one more violation that undermines our faith in the verdict
against Prewitt. See Badelle, 754 N.E.2d at 527. In other words,
when viewing the suppressed and material evidence in totality, it is apparent that
the State knew ofbut kept backsignificant exculpatory evidence from Prewitt, and it failed
to set the record straight. See Banks, 124 S. Ct. at 1263.
Just as in Banks, Prewitt was not obligated to scavenge for hints
of undisclosed Brady material when the State represented to her that all such
material had been disclosed. See id. at 1275. That said, we
conclude that Prewitt has established that there was at least a reasonable probability
of a different result in this case. Kyles, 514 U.S. at 434.
Hence, we reverse the trial courts judgment in denying Prewitts request for
a new trial based upon her Brady claims.
II. Erroneously Admitted Expert Testimony
We next address Prewitts contention that the testimony of Dr. Kohr was erroneously
admitted at trial. Specifically, Prewitt argues that Dr. Kohrs statistical determination that
there was only a 4 in 10,000 chance that a suicide would involve
a forehead shot at intermediate range was not reliable because there was no
evidence that [Dr.] Kohr possessed knowledge or expertise in statistics. Appellants
Br. p. 8.
The record reflects that Prewitt filed a pretrial motion in limine seeking a
preliminary ruling excluding opinions solicited from the States experts which might fall outside
the scope of their specific expertise. Appellants App. p. 77. This
motion was denied, and Dr. Kohr was permitted to testify at trial that
Daviess death was a homicide in light of his testimony that the odds
were greater than ninety-nine percent that Daviess death was not a suicide.
The decision to admit or exclude evidence lies within the trial courts sound
discretion and is afforded great deference on appeal. Pritchard v. State, 810
N.E.2d 758, 760 (Ind. Ct. App. 2004). We will not reverse that
decision absent a showing of manifest abuse of discretion that results in the
denial of a fair trial. Id.
In accordance with Indiana Evidence Rule 702(b), expert scientific testimony is admissible only
if reliability is demonstrated to the trial court. Subsection (a) of that
rule requires knowledge that will assist the trier of fact to understand the
evidence or to determine a fact in issue. The rule assigns to
the trial court a gatekeeping function of ensuring that an expert witness testimony
both rests on a reliable foundation and is relevant to the task at
hand. Howerton v. Red Ribbon, 715 N.E.2d 963, 966 (Ind. Ct. App.
1999), trans. denied. In its entirety, Indiana Evidence Rule 702 (a) and
If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.
Expert scientific testimony is admissible only if the court is satisfied that the
scientific principles upon which the expert testimony rests are reliable.
In interpreting the above rule, this court recently reaffirmed the notion that an
expert must be qualified by knowledge, skill, experience, training or education. Messer
v. Cerestar USA, Inc., 803 N.E.2d 1240, 1247 (Ind. Ct. App. 2004), trans.
denied. Additionally, an expert must have sufficient skill in his particular area
of expertise before an opinion may be rendered in that area. Armstrong
v. Cerestar USA., Inc., 775 N.E.2d 360, 365 (Ind. Ct. App. 2002), trans.
denied. Moreover, an expert in one field of expertise cannot offer
opinions in other fields absent a requisite showing of competency in that other
area. Wallace v. State, 553 N.E.2d 456, 463 (Ind. 1990).
III. Erroneously Admitted Blood Spatter Evidence
We also note that the proponent of expert testimony bears the burden of
establishing the foundation and reliability of the scientific principles and tests upon which
the experts testimony is based. Hannan v. Pest Control Servs., Inc., 734
N.E.2d 674, 679 (Ind. Ct. App. 2000), trans. denied (citing McGrew v. State,
682 N.E.2d 1289, 1290 (Ind. 1997)). And reliability may be established by
judicial notice or, in its absence, by the one who seeks to offer
the scientific testimony. The proponent of the evidence must provide a sufficient
foundation that will convince the trial court that the relevant scientific principles are
reliable. Steward v. State, 652 N.E.2d 490, 498 (Ind. 1995).
Here, Prewitt claims that the trial court erred in admitting Dr. Kohrs testimony
because the statistical calculations were outside the scope of his expertise and because
he relied upon invalid mathematical calculations that produced unreliable results. She makes
the point that there was no evidence regarding Dr. Kohrs expertise or specialized
knowledge in statistics or their interpretation. To illustrate, Prewitt points to the
product rule method that Dr. Kohr used at trial in producing the 4
in 10,000 figure. Appellants Br. p. 16.
This rule states that the probability of the joint occurrence of a
number of mutually independent events is equal to the product of the individual
probabilities that each of the events will occur. People v. Collins, 68
Cal.2d 319, 325 (Cal. 1968). That is, the product rule
predicts the probability of two variables occurring simultaneously by multiplying the known probability
of one variable by the known probability of the other. See id.
Prewitt directs us to Wilson v. Maryland, 803 A.2d 1034 (2002), where
the trial court committed reversible error in admitting expert probability testimony concerning the
likelihood of two separate infant deaths being related to SIDS, as opposed to
homicide. The expert who testified in Wilson stated that the chances of
two children in the same family dying of SIDS was 1 in 100,000,000.
Id. at 1047. It was determined that this calculationbased upon the
product rulewas erroneous because a condition necessary to the proper application of the
product rule was lacking: there was inadequate proof of the independence of
[each of the childrens] deaths. Id. at 210.
Moreover, the court was not able to rule out the possibility that there
was a genetic component to SIDS. Finally, the appellate court commented that
because lay jurors tend to give considerable weight to scientific evidence when presented
by experts with impressive credentials, the defendant was granted a new trial.
Id. at 212. Citing Wilson, Prewitt maintains that the State presented
no evidence tending to show that the suicide variables it considered dispositive are
independent of each other, and she further maintains that the use of the
product rule in this case grossly under-inflated the statistical probability that Daviess death
was a suicide. Put another way, Prewitt argues that the testimony that
only 4 in 10,000 suicides are forehead wounds of intermediate range constitutes a
grotesque exaggeration when the actual numbers are reviewed.
Prewitt also urges that Dr. Kohrs testimony should not have been admitted because
there was no showing that the source of the statistics had been subjected
to scientific testing, that the statistics and the methodology used to secure them
had been subjected to peer review, or that there is general acceptance of
them in the scientific community. Inasmuch as there was no foundational basis
for Dr. Kohrs opinions with regard to this issue, Prewitt argues that the
admission of this evidence amounted to reversible error.
Finally, Prewitt maintains that the evidence offered by Dr. Kohr was so lacking
in probative value that it was irrelevant. Appellants Br. p. 22.
Again, Prewitt asserts that Dr. Kohrs opinions were based on the presence of
statistical probabilities of certain variables for which no foundation was offered and which
were demonstrably false. Moreover, Prewitt posits that this evidence suggesting guilt was
unfairly prejudicial. She notes that when unsubstantiated estimates are used in probability
calculations, speculation is presented to the jury that is clothed in scientific accuracy.
Thus, the prejudicial impact clearly outweighs any probative value of the evidence.
See Davis v. State, 476 N.E.2d 127, 134 (Ind. Ct. App.
1985), trans. denied.
At the outset, we note that the State argues that Prewitt has waived
this issue because she failed to raise these objections at trial. However,
contrary to the States contentions, Prewitts counsel not only objected to the
form of the question regarding Dr. Kohrs testimony, but the remainder of the
objection was I dont think this witness can say theres a 99%
probability. Tr. p. 425. Inasmuch as Prewitts argument focused on whether
Dr. Kohr could state that there was a 99% probability that Daviess shooting
was a homicide rather than a suicide, we find that Prewitts objection was
adequate and that she did not waive the issue.
Proceeding to the merits of Prewitts argument, it is apparent that her challenges
to the validity of Dr. Kohrs statistical methodology, and specifically the use of
the product rule, goes to the weight of the evidence, not its admissibility.
See Smith v. State, 702 N.E.2d 668, 673-74 (Ind. 1998) (stating
that a defendants claim that the product rule was improperly applied because the
genes were in linkage disequilibrium, and thus not independent, went to the weight
and not the admissibility of the evidence). Additionally, Prewitt has not made
a sufficient showing that Dr. Kohrs testimony was not outside the scope of
his expertise. Specifically, it was established at trial that Dr. Kohr is a
forensic pathologist and a professor of criminology. Tr. p. 412-13. Part
of the pathologists task is to determine whether a particular death was a
suicide or a homicide. Tr. p. 415. Moreover, the State assertsand
we agreethat Dr. Kohr was not required to explain the source of his
statistics in order to make his testimony admissible. To be sure, an
expert is permitted to testify to his opinion and the reasons therefore without
first testifying to the underlying facts or data. See Ind. Evidence Rule
Finally, we note that even if it can be said that the admission
of Dr. Kohrs testimony was error, it was harmless at best. This
court will not reverse a conviction based on the improper admission of evidence
when harmless error results. Edmond v. State, 790 N.E.2d 141, 144 (Ind.
Ct. App. 2003), trans. denied. An error will be deemed harmless if the
probable impact of the evidence upon the jury is sufficiently minor so as
not to affect a partys substantial rights. Id. at 144-45.
Here, the location of the shot to the forehead was not the only
factor that Dr. Kohr relied upon to conclude that Daviess death was a
homicide. The evidence showed that Dr. Kohr relied upon several other factors,
including the non-contact nature of the woundwhich occurs in only 2-4% of suicidesDaviess
high level of intoxication that would have made it difficult for him to
have the motor control needed to inflict this injury, and the fact that
Prewitt had claimed not to have heard any gunshot even though she was
approximately five feet away. In light of these factors, we cannot say
that there was a reasonable likelihood that the opinion to which Dr. Kohr
testified would have been different had it been based on data indicating that
the percentage of gunshot suicides to the forehead was only a few percentage
Moreover, the State presented the trial testimony of a second forensic pathologist, Dr.
Pless, who independently reviewed the evidence and also concluded that Daviess death was
a homicide. Tr. p. 451-55. Dr. Pless did
not rely on the location of the entry wound to the forehead either
alone, or in conjunction with, the distance of the weapon. Tr. p. 454-55.
Because this second forensic
pathologist testified that Daviess death was a homicide wholly apart from, and without
relying on, the statistical evidence that Prewitt now challenges, any error in the
admission of Dr. Kohls testimony was at most, harmless error.
Prewitt next contends that expert testimony relating to blood spatter patterns was erroneously
admitted at trial. Specifically, she maintains that the evidence was irrelevant, did
not assist the factfinder, confused the jury, and had no probative value.
Appellants Br. p. 24.
We note that Prewitt agrees that she did not object to this testimony
at trial. As a result, the issue is waived. See Haycraft
v. State, 760 N.E.2d 203, 211-12 (Ind. Ct. App. 2001), trans. denied (recognizing
that in order to preserve an issue for appeal, a defendant must make
a contemporaneous objection, on the same grounds as those raised on appeal, at
the time the evidence is elicited at trial. We similarly conclude that
this issue does not rise to the level of fundamental error, inasmuch as
Prewitt has not demonstrated that the error was so prejudicial to her rights
as to render a fair trial impossible. See Clay v. State, 766
N.E.2d 33, 36 (Ind. Ct. App. 2002).
IV. Opinion EvidenceTruthful Testimony Offered By Prewitt
Prewitt next argues that the trial court improperly admitted the testimony of Dr.
Kohr regarding his opinion as to the truthfulness of Prewitts testimony. In
particular, Prewitt claims that it was error to admit Dr. Kohrs testimony that
he had a very difficult time believing that or understanding how Prewitt, who
claimed to have been in a bed five to ten feet away from
the incident, would not have heard the gunshot.
This court has held that skilled witnessesthose with a degree of knowledge short
of what is required to be an expert in the field but beyond
that of an ordinary jurormay testify to opinions that are rationally based on
the witnesss perceptions and helpful to a clear understanding of the witnesss testimony
or the determination of a fact at issue. Davis v. State, 791
N.E.2d 266, 268 (Ind. Ct. App. 2003), trans. denied. Additionally, lay witnesses
can offer opinion testimony so long as the opinion is rationally based on
the perceptions of the witness and is helpful to a clear understanding of
the witnesss testimony or the determination of a fact at issue. See
Evid. R. 701. However, it is improper to ask a witness whether
he believed that another witness was truthful. Bufkin v. State, 700 N.E.2d
1147, 1150 (Ind. 1998).
With respect to this issue, Dr. Kohr testified as follows:
I had information provided to me by the police investigators at the time
of the autopsy, was that this gun was discharged roughly five to ten
feet away from the defendant, who, uh, was apparently sleeping in bed, or
thats the story that was provided by initial scene investigations. Although Im
not a firearms expert, I have been around weapons and know how much
noise they make when theyre discharged and I have a very difficult time
believing or understanding that a gunshot in a bathroom where you have tiles,
which would cause reverberation.
Tr. p. 420 (emphasis added). Prewitt then lodged the following
Judge, Im gonna object. Um, Dr. Kohr is basing his opinion upon
an inaccurate assumption. And theres been no testimony as to whether this
bathroom has tiles opposed to carpeting. I think those are incorrect facts
and the States not put into evidence what facts were actually given to
Dr. Kohr. I think hes giving an opinion thats beyond his field
of expertise as well.
Tr. p. 420.
In light of the above, Prewitt maintains that Dr.
Kohrs testimony was a direct attack upon her credibility that invades the province
of the jury, which is prohibited by Indiana Evidence Rule 704(b).
See footnote Notwithstanding
this claim, it is our view that Dr. Kohrs statement was offered in
the context of explaining why he concluded that the manner of death was
By way of illustration, while the State acknowledged that Dr. Kohr is not
a firearms expert, he is a forensic pathologist and a professor of criminology.
Thus, the State points out that both of those fields require some
knowledge of firearms and crime scene investigations that goes beyond the knowledge of
most ordinary jurors. Appellees Br. p. 31. As set forth above,
Dr. Kohr testified that I have been around weapons and know how much
noise they make when theyre discharged. Tr. p. 420. Hence, Dr.
Kohrs opinion that it was unlikely that a person so close to the
shooting would not be awakened by a gunshot occurring in a bathroom was
based on his personal experience and perceptions of the noise made by a
That said, we further note that Prewitts argument is simply a challenge to
the credibility or weight to be given to Dr. Kohrs opinion, which is
for the jury to decide. It was, therefore, relevant for the jury
to hear the reasons upon which Dr. Kohr based his conclusion in order
for the jury to weigh that evidence and determine whether it was persuasive.
Hence, no error occurred with respect to this issue.
V. Testimony of Daviess Father
Prewitt next contends that the trial court erred in admitting certain testimony offered
by Daviess father, George, that Davies would not have committed suicide. Specifically,
Prewitt maintains that reversible error occurred when George opined that Davies would never
have considered killing himself. Tr. p. 225.
In support of this argument, Prewitt directs us to Indiana Evidence Rule
If the witness is not testifying as an expert, the witnesss testimony in
the form of opinions or inferences is limited to those opinions or inferences
which are (a) rationally based on the perception of the witness and (b)
helpful to a clear understanding of the witnesss testimony or the determination of
a fact in issue.
Three factors must be shown before the admission of lay opinion testimony:
(1) the lay witness must set forth enough facts to allow the trial
court to find, pursuant to Evidence Rule 104(a), that the opinion is based
on the witnesss personal perceptions, Ackles v. Hartford Underwriters Ins. Corp, 699 N.E.2d
740, 743 (Ind. Ct. App. 1998), trans. denied; (2) the opinion must
be rationally based on the witnesss perception, Id. ; and (3) the opinion
must be helpful to a clear understanding of the witness testimony or to
the determination of a fact in issue. Id.
In our view, Georges opinion testimony above was based on his personal observations
of his son. For instance, George testified in detail as to where Davies
lived and how long he had been employed in the years after he
stopped living at home. Tr. p. 222-23. George also was aware
that Daviess hobbies included reading, history, mechanics, hunting and fishing. Tr. p.
223-24. The evidence further established that George and Davies remained in contact,
and that the two had a close relationship. Given these circumstances, we
agree that the State established a sufficient foundation for the admission of Georges
opinion of his sons personality and whether he would consider suicide. It
is thus apparent that Georges opinion testimony was based upon his personal perceptions
of Davies. Moreover, because Prewitts theory of defense was suicide, the opinion
of someone close to Davies as to whether he might contemplate suicide would
assist the jury in coming to a decision regarding Prewitts guilt or innocence.
As a result, there was no error in the admission of Georges testimony
with respect to this issue.
VI. Admission of Autopsy Photographs Into Evidence
Prewitt next argues that the trial court erroneously admitted an autopsy photograph into
evidence. Specifically, Prewitt claims that the photograph of Daviess body was irrelevant,
gruesome and had no material value. Appellants Br. p. 59.
In resolving this issue, we note that the admission of photographic evidence is
within the trial courts sound discretion and is reviewed only for an abuse
of that discretion. Helsley v. State, 809 N.E.2d 292, 296 (Ind. 2004).
Even gory and revolting photographs may be admissible as long as they are
relevant to some material issue or show scenes that a witness could describe
orally. Id. Photographs that depict a victims injuries are generally relevant
and admissible. Custis v. State, 793 N.E.2d 1220, 1224 (Ind. Ct. App.
2003), trans. denied. Although autopsy photos are generally inadmissible if they show
the body in an altered condition, they are nevertheless admissible where some alteration
of the body is necessary to demonstrate the testimony being given. Id.
In this case, the only autopsy photograph at issue here is States exhibit
41a picture of the inside of the top of a cracked, largely dry,
non-bloodied skull bone. Dr. Kohr testified that this photograph shows the fracture
lines emanating from the gunshot wound, and he explained that those fractures demonstrated
the injury to the skull. Tr. p. 446-47.
From our review of the record, the photograph was relevant to explain Dr.
Kohrs testimony regarding Daviess cause of death, and the photograph is not particularly
gruesome. Hence, we conclude that the trial court did not err in
admitting this exhibit into evidence.
VII. Sufficiency of the Evidence
Because we reverse on other grounds, we
must go on to determine whether there is sufficient evidence upon which Prewitt
can be retried. See Lockhart v. United States, 488 U.S. 33, 40
(1988) (observing that a reviewing court must consider all of the evidence admitted
by the trial court in deciding whether retrial is permissible under the Double
In resolving this issue, we initially observe that this court will affirm a
defendants conviction if, considering only the probative evidence and reasonable inferences supporting the
trial courts judgment, and without weighing evidence or assessing witness credibility, a reasonable
trier of fact could conclude the defendant was guilty beyond a reasonable doubt.
Rogers v. State, 741 N.E.2d 395, 396 (Ind. Ct. App. 2000), trans.
denied. When a conviction is based on circumstantial evidence, this court will
not disturb the verdict if the fact finder could reasonably infer from the
evidence presented that the defendant is guilty beyond a reasonable doubt. Jones
v. State, 783 N.E.2d 1132, 1139 (Ind. 2003); Hawkins v. State,
794 N.E.2d 1158, 1164 (Ind. Ct. App. 2003). Additionally, the circumstantial evidence need
not overcome every reasonable hypothesis of innocence; the evidence is sufficient if an
inference may reasonably be drawn from it to support the verdict. Hawkins,
794 N.E.2d at 1164. Inconsistencies in the evidence are for the
jury to evaluate, and to determine what evidence to believe. Miller v.
State, 770 N.E.2d 763, 774-75 (Ind. 2002).
In this case, we note that Prewitt does not dispute that the
State proved the elements of the crimes charged beyond a reasonable doubt.
Rather, she argues that she was not the perpetrator of the offenses, and
the evidence offered by the State failed to prove the same. In
essence, Prewitt argues that the alleged inadmissible evidencethe statistical probability evidence offered by
Dr. Kohr as well as the blood spatter testimonybore no probative value whatsoever.
Appellants Br. p. 34. That said, Prewitt maintains that all we
are left with is a case where charges were brought five years after
the decedents death, [and] at best, the States evidence consists of a defendant
who was present at the time her husband was killed. Appellants
Br. p. 34.
Notwithstanding Prewitts claim, the State presented testimony from two forensic pathologists that the
manner of death was homicide rather than suicide. Tr. p. 415-21, 425-26,
452-55. Moreover, Prewitt had both the motive and the opportunity to
commit the crime. In light of all the evidence that was properly before
the jury, the record does not support the contention advanced by Prewitt that
she could not have committed the crime. Thus, in considering such evidence,
and applying our well-known standard of review, we cannot conclude that no reasonable
jury could have found guilt beyond a reasonable doubt. We therefore reject
Prewitts contention that the evidence was insufficient to convict, and she may be
In light of our discussion of the issues set forth above, we conclude
that the States suppression and withholding of the Brady material from Prewitt before
trial amounts to reversible error. We similarly note that Dr. Kohrs testimony
relating to the statistical probability that Davies committed suicide amountedat mostto harmless error,
that Prewitt has waived the argument that the testimony regarding blood spatter evidence
was erroneously admitted and that Dr. Kohr properly testified that he had a
difficult time believing that Prewitt would not have heard the gunshot under the
circumstances. George Daviess testimony was also properly admitted as to whether his
son had the propensity to commit suicide, and the admission of the autopsy
photograph into evidence was not error. Finally, we conclude that the State
presented sufficient evidence to support Prewitts conviction, thus allowing a retrial by the
Reversed and remanded.
FRIEDLANDER, J., and ROBB, J., concur.
Ind. Code § 35-42-1-1.
Footnote: Inasmuch as we are reversing Prewitts conviction, we do not
address her claim that she was improperly sentenced.
Footnote: This court heard oral argument in Indianapolis on November 17,
2004 in the Indiana Supreme Court chambers. Present at the argument were
a number of students from Carmel High School. We appreciate counsel for
their able presentations in the presence of so many who were witnessing our
appellate process for the first time.
Footnote: Tex. Penal Code Ann. § 19.03 (a)(2) (1974).
Banks v. State, 643 S.W.2d 129, 131 (Tex.Crim.App. 1982).
Although Prewitt has waived this issue, it is difficult to
imagine that this issue will not again arise in the event of a
retrial. During the trial, the experts for the State consistently referred to
the stains found on the sweatshirt as blood. The States expertsand the
prosecutor in his opening statementidentified the substance as blood.
See tr. p. 210,
548, 601, 607-08, 638-39, 656-60. However, the additional evidence established at trial
revealed that the States serologist collected six cuttings from the sweatshirt that she
believed were representative of the staining. Presumptive tests were performed that revealed
negative results for blood on one of the cuttings. While presumptive tests
conducted on the remaining cuttings were positive for blood, additional confirmatory tests yielded
negative results for blood. Moreover, luminol testing that was performed on the
sweatshirt also yielded negative results for blood. Tr. p. 613. The States
expert explained that his assistant had incorrectly mixed the luminol solution that was
used in performing the test. Tr. p. 613-14.
In light of the evidence that was presented, it is apparent that each
expert simply wrote off the negative testing results, thereby indicating that neither expert
was aware of the others negative test results. Quite simply, that State cannot
refer to the substance as blood when it is not blood.
This rule provides as follows:
(b) Witnesses may not testify to opinions concerning intent, guilt, or innocence
in a criminal case; the truth or falsity of allegations; whether a witness
has testified truthfully; or legal conclusions.