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Judges reverse convictions based on use of witness’s statement

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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.
 

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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