Justices affirm burglary conviction COA tossed out for perjury

The Indiana Supreme Court on Friday affirmed a trial court burglary conviction that a Court of Appeals panel vacated on the basis that the prosecution used perjured testimony. The COA panel referred the prosecutor in the case for possible disciplinary action.

“Finding that the State did not use false testimony to convict the defendant in violation of his due process rights and that the incredible dubiosity rule is not applicable to this case, we affirm the defendant’s conviction,” Justice Brent Dickson wrote for the court in Antonio Smith v. State of Indiana, 71S04-1506-CR-364.

Nicole Greenlee was the state’s key witness and also Smith’s ex-girlfriend. She had pleaded guilty to burglarizing a South Bend Dollar General store where she was a manager and had access to store keys and security codes. About $3,400 in cash was taken from the store’s safe.

Greenlee gave differing accounts in pleading guilty and in testifying against Smith. She claimed she acted alone when she pleaded guilty, but then accused Smith of breaking into the store when she testified against him. Store video appears to show a white woman in the store, according to the record. Smith is African-American.

Smith "contends that Greenlee's inconsistent testimony constituted Perjury," Dickson wrote. "… We find that the presence of such 'Perjury' for inconsistent statements, as defined by Indiana Code section 35-44.1-2-1 does not automatically require an appellate court to vacate a resulting conviction."

The court held that the question the court must analyze in such a case is if the state impermissibly used false testimony to obtain a conviction in violation of a defendant’s right to due process. In this case, the court noted, the state didn’t impair the jury’s ability to act as fact-finder. “To the contrary, the State notified opposing counsel and the trial court of Greenlee’s conflicting testimony and proactively drew attention to the discrepancies” in her testimony, Dickson wrote.

Justices also declined to find that Greenlee’s testimony was incredibly dubious, even though Dickson wrote that without her testimony, it appeared there was insufficient evidence for the jury to convict Smith. Police had provided circumstantial evidence about a white car with temporary tags that Smith was seen in after the burglary and cell phone records suggesting he was at the scene at the time of the break-in.

“At trial, the defendant was able to cross-examine both police officers, question the accuracy of the cell phone tower records, draw attention to the lack of corroborating evidence showing that the defendant bought the white car after the burglary and with the burglary money, and call into question the veracity of Greenlee's testimony.  All of this evidence, the recorded video of the burglary, and all of the competing interpretations of the evidence were before the jury. It was thus for the jury to evaluate the evidence and determine the facts. It is not an appellate court's role to substitute its judgment for the jury's regarding the assessment or weight of the evidence, or the credibility of witnesses.  

The opinion was silent on the COA’s referral of the prosecutor for possible disciplinary action.


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