                                                                               FILED
                                                                           Jun 28 2016, 8:51 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Patricia Caress McMath                                     Gregory F. Zoeller
Indianapolis, Indiana                                      Attorney General of Indiana

                                                           Michael Gene Worden
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Timothy J. Jimerson,                                       June 28, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           52A02-1510-CR-1538
        v.                                                 Appeal from the Miami Circuit
                                                           Court
State of Indiana,                                          The Honorable Timothy P. Spahr,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           52C01-1210-MR-2



Bailey, Judge.




Court of Appeals of Indiana | Opinion 52A02-1510-CR-1538 | June 28, 2016                           Page 1 of 13
                                           Case Summary
[1]   Timothy Jimerson (“Jimerson”) appeals his conviction for Voluntary

      Manslaughter, a Class A felony.1 He presents the sole issue of whether the trial

      court abused its discretion in restricting the testimony of an expert witness. We

      affirm.



                                   Facts and Procedural History
[2]   During the early morning hours of August 29, 1992, Toni Spicer (“Spicer”) was

      beaten with a blunt object and strangled to death in her home. A few hours

      later, Spicer’s young child found her deceased, naked, and tied to her bed with

      pantyhose. Initially, several suspects were investigated but no arrests were

      made and the case grew cold.


[3]   In 2001, the “cold case” was assigned to Indiana State Police Detective Mike

      Tarrh (“Detective Tarrh”), and he submitted additional items for forensic

      testing. (Tr. at 761.) In 2008, a DNA profile was created from a hair that had

      been found upon Spicer’s body. In 2011, Detective Tarrh was notified that

      there was a DNA “hit.” (Tr. at 763.) Detective Tarrh was informed that the

      DNA profile was consistent with that of Jimerson, who had submitted a DNA




      1
          Ind. Code § 35-42-1-3.


      Court of Appeals of Indiana | Opinion 52A02-1510-CR-1538 | June 28, 2016   Page 2 of 13
      sample during criminal proceedings in Mississippi. Detective Tarrh also

      learned that, in 1992, Jimerson had lived in the same trailer court as Spicer.


[4]   On October 2, 2012, Detective Tarrh and Sergeant Rob Ricks (“Sergeant

      Ricks”) traveled to Biloxi, Mississippi and conducted a video-taped interview of

      Jimerson. Jimerson initially denied his culpability, but ultimately confessed

      that he had killed Spicer because she laughed at him during a sexual encounter.


[5]   Jimerson was charged with Murder, tried before a jury, and convicted of

      Voluntary Manslaughter, as a lesser-included offense of Murder. He was

      sentenced to forty-five years imprisonment. He now appeals.



                                  Discussion and Decision
[6]   Prior to trial, Jimerson filed a motion to suppress his police statement, arguing

      that it was a product of psychological coercion. The suppression motion was

      denied, and Jimerson notified the State that he intended to present an expert

      witness on false confessions. The State filed a motion in limine seeking to

      restrict expert testimony:

              Said witness should be admonished to not testify as to the
              Defendant’s intent, guilt or innocence, the truth or falsity of
              allegations, or give an opinion on the truthfulness of the
              Defendant’s statements given in this case, or to give any legal
              conclusions. His testimony should be limited to his expertise
              regarding false confessions.


      (App. at 109.) The motion was granted.


      Court of Appeals of Indiana | Opinion 52A02-1510-CR-1538 | June 28, 2016   Page 3 of 13
[7]   At trial, Jimerson presented the testimony of Dr. Richard Leo (“Dr. Leo”), a

      law professor and expert in the field of false confessions. Dr. Leo opined that

      the “Reid method” of interrogation is widely used but “might be too effective”

      in some cases. (Tr. at 1048.) Dr. Leo explained that interviewing and

      interrogation are different concepts. According to Dr. Leo, the goal of

      interviewing is information gathering, and the goal of interrogation is to

      produce incriminating evidence from a person a police officer believes to be

      guilty of a crime. The overall strategies used in interrogation derived from the

      Reid method are two-fold: convince the subject that his or her continued

      resistance is futile and identify a benefit that the subject will gain from

      confessing.


[8]   Dr. Leo described hallmarks of the method and provided some examples. An

      interrogation would typically take place in an isolated setting, where the officer

      might better be able to develop rapport with the subject. The officer might

      confront the subject with real or false evidence, or a combination, to convince

      the subject that there is so much evidence against him or her, he or she is

      essentially “trapped.” (Tr. at 1052.) Dr. Leo described this as an “evidence

      ploy.” (Tr. at 1060.) The officer might also “spin a scenario,” such as an

      accident scenario, which might “imply mercy” would be forthcoming. (Tr. at

      1062-64.) A subject might be made to feel that there was a window of time in

      which to provide an explanation and keep others from thinking the worst of his

      or her conduct. Ultimately, a subject was to be persuaded that a confession

      would be in his or her best interests.


      Court of Appeals of Indiana | Opinion 52A02-1510-CR-1538 | June 28, 2016      Page 4 of 13
[9]    After Dr. Leo provided this background, defense counsel confirmed that Dr.

       Leo had watched the videotape of Jimerson’s statement. Defense counsel then

       ventured: “And there was a point where,” prompting an objection from the

       prosecutor. (Tr. at 1064.) The jury was excused and the parties presented

       argument as to the breadth of false confession testimony in light of three cases

       under consideration by the trial court: Callis v. State, 684 N.E.2d 233, 239 (Ind.

       Ct. App. 1997); Miller v. State, 770 N.E.2d 763, 772 (Ind. 2002); and Shelby v.

       State, 986 N.E.2d 345 (Ind. Ct. App. 2013). The trial court ruled that Dr. Leo

       could testify “about the phenomena of false confessions” and about

       “problematic practices” but the jury was to determine whether a particular

       technique had been applied in Jimerson’s case. (Tr. at 1072, 1076.) The trial

       court expressed concern that allowing testimony such as “I saw Detective Tarrh

       do this” would invade the province of the jury. (Tr. at 1076.)


[10]   In an offer of proof, Dr. Leo testified that he had noticed “risk factors” for false

       confessions present in Jimerson’s statement. (Tr. at 1139.) He agreed that it

       was “important for the jury to understand” that Jimerson had been told his

       DNA was all over Spicer’s body. (Tr. at 1140.) Dr. Leo also acknowledged

       that Jimerson had been assured that he was not “a monster” and had been

       given the opportunity to explain that “something bad” happened, and a

       scenario was suggested that it perhaps related to drugs and sex. (Tr. at 1140-

       41.) Additionally, Dr. Leo opined that Jimerson’s interrogation provided an

       example of “time pressure” and that being presented with a gruesome crime

       scene photo (as was done in this case) can “have a very powerful effect on some


       Court of Appeals of Indiana | Opinion 52A02-1510-CR-1538 | June 28, 2016   Page 5 of 13
       people.” (Tr. at 1143.) The trial court reiterated that the jury could apply the

       concepts introduced by Dr. Leo without the specific categorization and that the

       earlier ruling would stand.


[11]   On appeal, Jimerson contends that the trial court too narrowly construed Callis,

       Miller, and Shelby and abused its discretion by excluding Dr. Leo’s testimony

       addressing the particular circumstances surrounding Jimerson’s confession.

       The decision to admit or exclude evidence is a matter within the sound

       discretion of the trial court. Hape v. State, 903 N.E.2d 977, 991 (Ind. Ct. App.

       2009), trans. denied. We afford an evidentiary decision great deference upon

       appeal and reverse only when a manifest abuse of discretion denies the

       defendant a fair trial. Collins v. State, 826 N.E.2d 671, 677 (Ind. Ct. App. 2005),

       trans. denied. An abuse of discretion occurs when the trial court’s decision is

       clearly against the logic and effect of the facts and circumstances before it or the

       trial court has misapplied the law. Walker v. Kelley, 819 N.E.2d 832, 836 (Ind.

       Ct. App. 2004).


[12]   The case law appears to present three categories of expert testimony regarding

       false or coerced confessions: a general description of techniques and goals;

       highlighting of practices used in a particular interview; and the impact of

       techniques on a particular confession. The parties agree that general testimony

       is permissible and that allowing testimony on the latter category would invade

       the province of the jury. They disagree, in light of the relevant precedent, as to

       admissibility of evidence falling within the second category.



       Court of Appeals of Indiana | Opinion 52A02-1510-CR-1538 | June 28, 2016   Page 6 of 13
[13]   In Callis, Dr. Richard Ofshe (“Dr. Ofshe”) was allowed to testify about the

       phenomena of false or coerced confessions but was not permitted to comment

       that there were three different versions of an inculpatory statement or to offer

       opinion testimony such as “someone is telling the truth and someone is lying.”

       Callis, 684 N.E.2d at 239. On appeal, a panel of this Court concluded: “the

       trial court properly admitted Ofshe’s testimony regarding the phenomenon of

       coerced confessions and properly excluded his opinion about Callis’s

       interrogation.” Id. Citing Indiana Evidence Rule 704(b),2 the Court further

       observed that no witness is competent to testify that another witness is or is not

       telling the truth. Id. at 239-40.


[14]   In Miller, Dr. Ofshe was called as a defense expert witness but was not

       permitted to testify before the jury. On appeal, the defendant argued that he

       was “entitled to present expert testimony regarding the psychology of false

       confessions that would enable the jury to understand why the mentally retarded

       defendant ‘would succumb to the lies’ even though he was innocent.” 770

       N.E.2d at 772. Our Indiana Supreme Court held that the erroneous exclusion

       of the whole of Dr. Ofshe’s testimony affected the substantial rights of the

       defendant and granted a new trial. Id. at 774.


[15]   After discussing the holding in Callis, the Court wrote:




       2
         Rule 704(b) provides: “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.”

       Court of Appeals of Indiana | Opinion 52A02-1510-CR-1538 | June 28, 2016                          Page 7 of 13
               We understand Callis to prohibit expert opinion testimony
               regarding the truth or falsity of one or more witnesses’ testimony,
               but it does not generally prohibit expert testimony regarding
               police techniques used in a particular interrogation. . . . From
               our review of the circumstances in the present case, the general
               substance of Dr. Ofshe’s testimony would have assisted the jury
               regarding the psychology of relevant aspects of police
               interrogation and the interrogation of mentally retarded persons,
               topics outside common knowledge and experience. In the event
               that some of Dr. Ofshe’s testimony to the jury would have
               invaded Rule 704(b)’s prohibition of opinion testimony as to the
               truth or falsity of the defendant’s statements, the trial court could
               have sustained individualized objections at trial. We hold that
               excluding the proffered expert testimony in its entirety deprived
               the defendant of the opportunity to present a defense.


       Id.


[16]   In Shelby, a panel of this Court again addressed the proper parameters of

       testimony from an expert on false or coerced confessions. Dr. Leo had been

       permitted to testify at some length regarding false confessions and the methods

       police use during interrogation. 986 N.E.2d at 368. He also testified about

       what he considered problems with the Reid method used by police who

       interrogated Shelby; however, the trial court sustained the State’s objection

       when Shelby’s counsel asked Dr. Leo if he thought that the tactics used by the

       police when interrogating Shelby were coercive. Id.


[17]   Shelby made an offer of proof, demonstrating that Dr. Leo would have testified

       that several of the techniques used by the police while interrogating Shelby were

       consistent with the sort of factors that increase the risk of eliciting a false


       Court of Appeals of Indiana | Opinion 52A02-1510-CR-1538 | June 28, 2016     Page 8 of 13
       confession, including: suggesting that the crime was either self-defense or a

       horrible murder, thus suggesting that if Shelby admitted to killing Lexi, he

       might not be subject to criminal liability; the lengthy and repetitive nature of the

       interrogations; and lying about the amount of evidence implicating Shelby. Id.


[18]   The Shelby Court reviewed the Callis and Miller decisions, then wrote:


               We understand the Miller court’s general approval of Callis to
               mean that experts may testify on the general subjects of coercive
               police interrogation and false or coerced confessions. Miller, 770
               N.E.2d at 773. Experts may also testify regarding the techniques
               the police used in a particular interrogation. Id. Experts may
               not, however, comment about the specific interrogation in
               controversy in a way that may be interpreted by the jury as the
               expert’s opinion that the confession in that particular case was
               coerced or false, as this would invade the province of the jury and
               violate Evidence Rule 704(b).


               Applying this reading to the facts of the present case, it is not
               readily clear whether the trial court erred in excluding portions of
               Dr. Leo’s testimony. The trial court permitted Dr. Leo to testify
               at length regarding the tactics that increase the risk of a coerced
               confession or a false confession. Thus, the facts of the present
               case align more with what occurred in Callis than what occurred
               in Miller. The trial court here, unlike the trial court in Miller, did
               not wholly exclude the expert witness’s testimony regarding the
               phenomenon of false confessions and the tactics that can lead
               thereto. Instead, like the trial court in Callis, the trial court here
               excluded only those portions of the expert’s testimony that dealt
               with the specifics of the police interrogation of the defendant.
               But Miller specifically held that an expert could testify “regarding
               police techniques used in a particular interrogation.” Miller, 770
               N.E.2d at 773.


       Court of Appeals of Indiana | Opinion 52A02-1510-CR-1538 | June 28, 2016     Page 9 of 13
               However, even if the court erred in limiting Dr. Leo’s testimony,
               the error would not require reversal. Dr. Leo was required to
               testify at length about police interrogation tactics that can
               increase the risk of a false or coerced confession. The jury was
               also presented with extensive evidence regarding the police
               interrogations of Shelby in written, video, and audio formats, and
               could observe whether his interrogation included the tactics and
               techniques that Dr. Leo testified could lead to a false or coerced
               confession. Thus, the jury was able to apply the concepts about
               which Dr. Leo testified to the facts and circumstances of Shelby’s
               interrogation and subsequent confession. This is all that Dr. Leo
               could have testified to under our reading of Miller and Callis.
               Shelby’s counsel also cross-examined Detective Gardner at
               length regarding the Reid technique and the tactics he used while
               interrogating Shelby. He also explored the inconsistencies
               between Shelby’s confession and the physical evidence presented
               by the State at trial. Under these facts and circumstances, we
               conclude that the trial court’s limitations of Dr. Leo’s testimony
               did not amount to reversible error.


       986 N.E.2d at 369-70.


[19]   Jimerson argues that Shelby can be read to “suggest” that Miller provides for

       admissibility of expert testimony on “techniques used in the particular

       interrogation.” Appellant’s Br. at 16. The State responds that Miller may not

       be construed so broadly as to permit expert testimony to invade the province of

       the jury. The State asserts that, while an expert witness may testify regarding

       techniques he deems problematic, he may not go on to comment on the

       operation of a problematic technique in the case at bar. According to the State,

       this would amount to a form of “reverse vouching.” State’s Brief at 14. In the




       Court of Appeals of Indiana | Opinion 52A02-1510-CR-1538 | June 28, 2016   Page 10 of 13
       State’s view, if a witness may not vouch for the truthfulness of a witness

       statement, a witness may not vouch for the falsity of a confession.


[20]   At the outset, we acknowledge that the Miller decision included the observation

       that “Callis … does not generally prohibit expert testimony regarding police

       techniques used in a particular interrogation.” 770 N.E.2d at 773. This is not

       to say that such testimony is always admissible or that an expert may review a

       confession frame by frame for the jury. “Expert testimony is appropriate when

       it addresses issues not within the common knowledge and experience of

       ordinary persons and would aid the jury.” Id. (citing Evid. R. 702(a)). The

       expert witness is to function as a ‘“specialist to supplement the jurors’ insight.”’

       Id. (quoting Carter v. State, 754 N.E.2d 877, 882 (Ind. 2001)). We understand

       this to mean that an expert should not be invited to cross the line at which the

       jury can proceed without further aid.


[21]   Here, Dr. Leo testified at length about certain tactics he considered “too

       effective” at times. (Tr. at 1048.) In the offer of proof, Jimerson’s counsel

       sought to describe particular exchanges during Jimerson’s interrogation and

       elicit Dr. Leo’s opinion as to whether such “fit the category.” (Tr. at 1146.)

       The trial court concluded that it was within the province of the jury – as

       opposed to Dr. Leo – to apply the concepts he had discussed. The trial court

       then excluded Jimerson’s proffered categorization and application evidence.

       We are not persuaded that this exclusion was an abuse of discretion.




       Court of Appeals of Indiana | Opinion 52A02-1510-CR-1538 | June 28, 2016   Page 11 of 13
[22]   The instant circumstances do not mirror those of Miller. That case involved a

       complete exclusion of expert testimony and a defendant of particular

       vulnerability, where the appellate court noted that the interrogation of a

       mentally retarded person is outside the common knowledge and experience of

       the jury. Miller, 770 N.E.2d at 774. Here, there was no need for an expert to

       point out the techniques allegedly employed to secure Jimerson’s confession.


[23]   Together with extensive background testimony from Dr. Leo, the jury was

       provided with Jimerson’s statement in audio, video, and written form.

       Moreover, Jimerson testified and explained his subjective view, that is, he had

       said certain things he later recanted because he was “very scared.” (Tr. at

       1163.) He testified that he had been led into scenarios, told that his DNA was

       all over Spicer’s body and house, and encouraged to demonstrate that he was

       not a monster. As such, the jury had been given adequate information to apply

       its common knowledge and experience. Where a jury is able to apply concepts

       without further assistance, highlighting individual exchanges or vouching for

       the truth or falsity of particular evidence is invasive.



                                                Conclusion
[24]   Jimerson has not demonstrated that the trial court abused its discretion in the

       restriction of expert testimony.




       Court of Appeals of Indiana | Opinion 52A02-1510-CR-1538 | June 28, 2016   Page 12 of 13
[25]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 52A02-1510-CR-1538 | June 28, 2016   Page 13 of 13
