COA: Murder defendant could not call accomplice to witness stand

The Court of Appeals of Indiana has declined to overturn the conviction of a man who claimed he was denied his constitutional right to present a defense at his murder trial when the trial judge prevented him from calling his accomplice and forcing him to either testify or invoke his Fifth Amendment rights.

Rhett Martin was convicted of murder and arson and sentenced to an aggregate 65 years for the death of his former girlfriend’s father-in-law. At his trial, he sought to implicate his accomplice in the crime by forcing the man to appear before the jury and either testifying or invoking his right to against self-incrimination.

The accomplice appeared outside the presence of jury and told the court he intended to invoke his Fifth Amendment rights. When Martin’s counsel sent a proposed jury instruction indicating the accomplice had exercised his right to remain silent, the prosecutor objected and the Benton Circuit Court agreed that inserting the one-line into the instruction would do more harm than actually having the person appear in front of the jury.

On appeal, Martin argued his right to present a defense guaranteed by the Sixth Amendment of the U.S. Constitution and Article 1, Section 13 of the Indiana Constitution was violated when he was prevented from calling the accomplice to the witness stand.

The Court of Appeals agreed with the state that Martin waived his argument because he failed to timely object at trial.

However, the appellate panel noted in Stephenson v. State, 864 N.E.2d 1022 (Ind. 2007), the Indiana Supreme Court addressed the claim following the denial of post-conviction relief that “appellate counsel should have raised the issue that failure to allow the defense to force Siefert to invoke his right before the jury was reversible error.”

Citing the Supreme Court ruling in Stephenson that defendants do not have a right to force a witness to invoke the Fifth Amendment before a jury, the Court of Appeals found Martin did not have an absolute right to compel his accomplice to the stand and assert his right against self-incrimination.

“We cannot say that Stephenson stands for the proposition that a witness who is expected to ultimately invoke his privilege when asked an incriminating question is categorically barred from being called as a witness,” Judge Elaine Brown wrote for the court. “It is not a given that a witness who might be asked an incriminating question is called solely to have the witness invoke his privilege before the jury. Such a witness might be an occurrence witness who is needed to provide foundational facts as to the circumstances surrounding an event. The witness might make an identification or offer some corroboration of a fact in issue.

“In some circumstances, a trial court might make a decision on availability during the motion in limine proceedings, and exercise discretion to conclude that a witness who will predictably be unwilling to give self-incriminating testimony could nevertheless be called as a witness by the defense to provide non-incriminating evidence,” Brown continued. “At most, Stephenson recognizes that there is no right to force a witness to take the stand solely to invoke a Fifth Amendment privilege. “

The case is Rhett A. Martin v. State of Indiana, 20A-CR-2326.

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