FOR PUBLICATION                                            FILED
                                                         May 25 2012, 8:54 am


                                                                CLERK
                                                              of the supreme court,
                                                              court of appeals and
                                                                     tax court




ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

KRISTIN A. MULHOLLAND                        GREGORY F. ZOELLER
Appellate Division                           Attorney General of Indiana
Office of the Public Defender
Crown Point, Indiana                         GARY R. ROM
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

ANTHONY DORELLE-MOORE,                       )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )      No. 45A04-1109-CR-482
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                     APPEAL FROM THE LAKE SUPERIOR COURT
                        The Honorable Clarence D. Murray, Judge
                             Cause No. 45G02-0910-MR-8



                                    May 25, 2012


                             OPINION - FOR PUBLICATION


BAILEY, Judge
                                              Case Summary

          Anthony Dorelle-Moore (“Dorelle-Moore”) appeals his conviction for Murder, a

felony.1 We affirm.

                                                     Issue

          Dorelle-Moore presents a single, consolidated issue for appeal: Whether the trial

court abused its discretion in separate rulings relating to the prosecutor’s communications

with a potential witness.2

                                    Facts and Procedural History

          On October 16, 2009, Dorelle-Moore returned to his Gary, Indiana residence and

discovered that it had been burglarized. He contacted his girlfriend, Carla Dawson

(“Dawson”), who came home from work and called the Gary Police Department.

          Dorelle-Moore began to voice his suspicions that Isaiah Claxton (“Claxton”), Bernard

Hamilton (“Hamilton”), and Chris Martin (“Martin”) were the burglars. He went to the home

of Martin’s cousin, making an offer that “everything will go away” if Martin and his

companions would return the stolen items. (Tr. 523.) Dorelle-Moore went back home to

wait for the police to arrive, and Claxton came to the residence to buy marijuana.

          Claxton waited on the living room sofa while Dorelle-Moore paced back and forth, in


1
    Ind. Code § 35-42-1-1.
2
  Dorelle-Moore contends that the prosecutor committed misconduct and thereafter the trial court abused its
discretion by refusing to take remedial measures (grant a continuance, a mistrial, or a motion to correct error).
He presents a single, consolidated argument with respect to the motions, each of which was addressed to the
correction of the same purported impropriety. The crux of Dorelle-Moore’s allegations is that the prosecutor
discouraged a witness from testifying for the defense, depriving Dorelle-Moore of his due process and his right
to compel a witness in his favor.
                                                       2
and out of the residence, talking with some men on the porch, and becoming more and more

agitated. At one point, Claxton attempted to leave but Dorelle-Moore’s friend asserted that

this made Claxton “look guilty.” (Tr. 539.) Dorelle-Moore went into another room, talked

with a friend, and returned with a gun. He then fired nine shots into Claxton, saying “over

kill, bitch.” (Tr. 545.)

       Claxton’s sister and her friend were attempting to reach Dorelle-Moore on his cell

phone when they overheard shots. Dorelle-Moore answered the cell phone and said, “This

bitch ass n----- want to steal from me. Now he laying down.” (Tr. 145.) Dorelle-Moore

went outside, still holding his weapon, and left in his vehicle. Claxton died in the doorway of

Dorelle-Moore’s home.

       Later that morning, Dorelle-Moore’s stepfather contacted police to arrange for

Dorelle-Moore’s surrender. He was charged with murder, and his jury trial commenced on

March 14, 2011. At the conclusion of the trial, Dorelle-Moore was found guilty as charged.

He was sentenced to fifty-five years imprisonment. Following the denial of a motion to

correct error, Dorelle-Moore now appeals.

                                  Discussion and Decision

                                     Standard of Review

The decision whether to grant or deny a motion to correct error rests within the sound

discretion of the trial court. Hall v. State, 796 N.E.2d 388, 394 (Ind. Ct. App. 2003), trans.

denied. A decision to grant or deny a motion for a mistrial also lies within the discretion of

the trial court. Randolph v. State, 755 N.E.2d 572, 575 (Ind. 2001). The defendant is not

                                              3
entitled to a mistrial unless he is able to show that he was placed in a position of grave peril

to which he should not have been subjected. Id. Finally, a decision to grant or deny a non-

statutory continuance is likewise within the trial court’s discretion. Stafford v. State, 890

N.E.2d 744, 750 (Ind. Ct. App. 2008). An abuse of discretion is demonstrated when the trial

court’s decision is against the logic and effect of the facts and circumstances before the court.

Id.

                                           Analysis

       During pretrial discovery, it came to light that a gun stolen from the burglary of

Dorelle-Moore’s residence had been recovered when Willie Lee James (“James”), who is

Dawson’s ex-boyfriend, was arrested for an unspecified offense. According to information

provided to the prosecutor, James claimed to have received the gun from Hamilton.

       Hamilton testified as a State’s witness and during cross-examination denied knowing

James. Detective Arturo Azcona then testified that the Glock .357 stolen from the Dorelle-

Moore home had been found on James when he was searched incident to an arrest. At the

conclusion of the testimony, the trial court asked Dorelle-Moore’s counsel whether he would

be calling Hamilton as a witness on the following day. Counsel responded that he would be

attempting that evening to procure James as a witness.

       When the parties appeared for trial the next day, Dorelle-Moore’s counsel asked the

prosecutor if all exculpatory evidence had been disclosed, and a bench discussion regarding

James ensued. According to the prosecutor, during the previous day, Detective Azcona had

spoken with a person professing to be James and James denied knowledge of the burglary.

                                               4
The jury was reconvened, and Detective Azcona testified that he had spoken with James, and

had also handed the phone to the prosecutor.

       During Detective Azcona’s testimony, defense counsel interjected that he “believe[d]

that an effort was undertaken to deprive the defense of the availability and presence of a

witness favorable to the defense by action of the State.” (Tr. 703.) Again outside the

presence of the jury, a bench conference ensued. Defense counsel reported that Dawson had

located James and counsel had been able to speak with him by telephone. According to

defense counsel, the prosecutor had advised James that there was a warrant for his arrest, and

James had responded that he “can’t go to jail.” (Tr. 707.) Defense counsel told James he

would arrange transportation in order for James to testify. James indicated he would call

back. However, James did not call back or show up for trial.

       The prosecutor then advised the court that she had spoken with James on the phone

during a trial break, and she had asked if James had an outstanding warrant for his arrest.

James had responded that he had no warrant because he had hired an attorney and the matter

had been “taken care of.” (Tr. 708.) The defense counsel requested a continuance to procure

James’s testimony. Although there was some discussion as to the relevance of James’s

testimony, no offer of proof was made. The motion for a continuance was denied, as was

Dorelle-Moore’s motion for a mistrial.

       On appeal, Dorelle-Moore contends that the prosecutor overtly or implicitly threatened

James that, if he testified for Dorelle-Moore, he would be arrested. Dorelle-Moore asserts

that he was thus denied due process, and in support of this contention directs our attention to

                                              5
Diggs v. State, 531 N.E.2d 461 (Ind. 1988). In Diggs, just prior to the presentation of

evidence for the defense, the prosecutor had approached a potential witness in the hallway

and informed him that, if he testified to the same statements made in his deposition, he would

be charged. Id. at 464. The witness had then invoked his Fifth Amendment privilege and

refused to testify when called as a witness. Id. On appeal, Diggs contended that the action

amounted to prosecutorial misconduct which violated his due process rights guaranteed by

the Fifth and Fourteenth Amendments as well as his Sixth Amendment right to compel

witnesses in his favor. Id. Although the Court deemed the error harmless, it recognized the

impropriety of the prosecutor’s conduct:

            Various courts have held such prosecutorial conduct to violate the due
       process rights guaranteed by the Fifth and Fourteenth Amendments as well as
       the Sixth Amendment right to compel witnesses in a defendant’s favor.
            While a trial court judge may advise a witness of his right to avoid self-
       incrimination he may not do so in a threatening or browbeating manner. Webb
       v. Texas (1972), 409 U.S. 95, 93 S. Ct. 351, 34 L. Ed. 2d 330. A prosecutor’s
       warning of criminal charges during a personal interview with a witness
       improperly denies the defendant the use of that witness’s testimony regardless
       of the prosecutor’s good intentions. United States v. Morrison (3rd Cir. 1976),
       535 F.2d 223. A prosecutor may not prevent nor discourage a defense witness
       from testifying. Washington v. Texas (1967), 388 U.S. 14, 87 S. Ct. 1920, 18
       L. Ed. 2d 1019.

Diggs, 531 N.E.2d at 464. However, the Court recognized, “[t]o demonstrate reversible

error, appellant must make a plausible showing that the improperly suppressed testimony

would have been materially favorable to his defense in a way not merely cumulative to that

of available witnesses.” Id.




                                              6
       Here, assuming that the prosecutor’s reference to a warrant for James’s arrest

effectively discouraged his testimony, Dorelle-Moore did not identify materially favorable

testimony to be obtained from James. He made no offer of proof, but it appears from the

transcript of the bench conference that James would have been expected to testify that he had

obtained from Hamilton a handgun taken from Dorelle-Moore’s residence. In his appellant’s

brief, as before the trial court, Dorelle-Moore provided no explanation of how James’s

testimony would shed light on a material issue. When the deficiency was noted by the State

in its appellee’s brief, Dorelle-Moore responded in his reply brief that the testimony would

have been relevant to a claim of self-defense.

       We find any connection between James’s procurement of the weapon and Dorelle-

Moore’s assertion of self defense to be tenuous at best. The State did not contest that

Dorelle-Moore’s home had been burglarized and that his property had been taken. There was

evidence suggesting that Hamilton might have been involved. Nonetheless, Dorelle-Moore

fired nine shots into Claxton, with an eyewitness present. Several other witnesses saw

Dorelle-Moore in possession of a gun just after the shooting. The shooting was several hours

after the burglary. Dorelle-Moore’s comments after the shooting did not indicate that he was

motivated by fear, but rather by a need for retaliation. The evidence of Dorelle-Moore’s guilt

was overwhelming. Here, as in Diggs, any suppression of the witness’s testimony was no

more than harmless error.

       Affirmed.

ROBB, C.J., and MATHIAS, J., concur.

                                              7
