ILNews

Judges reverse convictions based on use of witness’s statement

Back to TopCommentsE-mailPrintBookmark and Share

Because the state called a witness solely to impeach her with a pretrial statement, and the jury may have relied on the witness’s testimony to convict the defendant, a majority on the Indiana Court of Appeals reversed burglary and receiving stolen property convictions.  

Teresa Beever returned home from dining at Earl’s restaurant in Brook, Ind., to find her home had been burglarized. Kelly Tebo, a waitress at the restaurant, texted her boyfriend, Jacob Herron, to tell him the Beever home would be unoccupied, according to her statement to investigators. She also said she saw him carry two bags, one of which he said contained things stolen from the Beever home.

The state put Tebo on the stand to impeach her with her pre-trial statements over Herron’s objection. At his trial, Tebo said Herron said nothing about stealing from the Beevers and that they traveled out of town for a bridal shower, thus the two bags. She also denied discussing the burglary with anyone other than investigators, but the state then called Beever to the stand, who said Tebo admitted texting Herron on the night of the burglary and that the bags had things from her home.

“Put simply, the record belies the State’s argument that Tebo’s testimony served a legitimate non-impeachment purpose. The State knew before trial that Tebo’s testimony would be inconsistent with her pretrial statement.  Tebo’s direct examination spans thirty-five pages, thirty of which pertain to her pretrial statement, and the remaining pages do not contain substantive testimony,” Chief Judge Nancy Vaidik wrote in Jacob Herron v. State of Indiana, 56A03-1306-CR-210. “These facts, when considered in light of the minimal evidence tying Herron to the burglary, lead us to conclude that the State’s only purpose in calling Tebo as a witness was, in fact, impeachment. Tebo readily admitted that her testimony was inconsistent with her pretrial statement. Despite admitting herself a liar, the State drove the point home by reading, line-by-line, from her pretrial statement. This was improper and unnecessary.”

The jury couldn’t use Tebo’s pretrial statement as substantive evidence against Herron because it was admitted solely for impeachment. But when a witness is impeached as Tebo was — by reciting portions of the witness’s pretrial statement — there is a very real threat that the impeachment evidence will be used as substantive evidence, Vaidik continued.
Vaidik and Judge Melissa May voted to reverse his conviction and held he could be retried.

Judge Patricia Riley dissented in part, believing that while the state’s procedure for impeaching Tebo was improper, the error was harmless. She found enough circumstantial evidence existed to prove Herron committed the offenses, including a glove found at Herron’s home that matched a photographic imprint taken at the Beevers’ residence.

She found the trial court did not abuse its discretion in allowing the state to call Tebo as a witness because the jury may have wondered why such a valuable witness was being kept from the stand if she was not called.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  2. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  3. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  4. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

  5. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

ADVERTISEMENT