      MEMORANDUM DECISION
                                                                     Apr 09 2015, 9:02 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Marielena Duerring                                       Gregory F. Zoeller
      South Bend, Indiana                                      Attorney General of Indiana
                                                               Cynthia L. Ploughe
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Todd Stewart,                                            April 9, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               20A03-1406-CR-200
              v.                                               Appeal from the Elkhart Circuit
                                                               Court

      State of Indiana,                                        The Honorable Terry Shewmaker,
                                                               Judge
      Appellee-Plaintiff.
                                                               Cause No. 20C01-1304-MR-000002




      Mathias, Judge.

[1]   Following a jury trial, Todd Stewart (“Stewart”) was convicted of murder and

      sentenced to sixty-five years in the Department of Correction. On appeal,

      Stewart presents one issue for our review, which we restate as whether the trial




      Court of Appeals of Indiana | Memorandum Decision 20A03-1406-CR-200 | April 9, 2015        Page 1 of 8
      court erred in limiting Stewart’s cross-examination of one of the State’s

      witnesses.

[2]   We affirm.


                                    Facts and Procedural History

[3]   Mark Miller (“Miller”) was the owner of a small tattoo shop in Elkhart,

      Indiana. Stewart and Matt Howard (“Howard”) worked for Miller at his shop,

      Stewart as a piercer and Howard as a tattoo artist.

[4]   On the morning of September 8, 2012, Miller missed a breakfast meeting he had

      arranged the previous day with his sister, Dawn Miller (“Dawn”). On

      September 10, after Miller failed to appear at a child custody-related court

      proceeding, Dawn contacted the police. Later that day, she, Stewart, Miller’s

      wife, Gwen Miller (“Gwen”), and a few other people met at the tattoo shop to

      search for Miller. The shop was tidy, and no sign of Miller existed. Dawn

      noticed that Stewart and Gwen failed to help the others search. At some point

      while the group was at the tattoo shop, Stewart took Dawn aside and showed

      her a single-page document, which he claimed Miller drafted and signed to give

      Stewart control of the shop during Miller’s “leave of absence.” Tr. p. 67. Dawn

      did not believe that the signature on the document was her brother’s signature.

[5]   When Dawn left the tattoo shop that night, she parked her car in a parking lot

      across the street and watched the shop for a time, hoping to see her brother

      sneak into the shop after everyone left. Instead she saw Stewart and Gwen exit

      the shop, laughing and playing with a rolling officer chair in the parking lot.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1406-CR-200 | April 9, 2015   Page 2 of 8
[6]   The police soon began their investigation into Miller’s disappearance and set up

      interviews with his friends and family. During their interviews with police, both

      Stewart and Howard denied any knowledge of Miller’s whereabouts. Howard

      agreed to take a polygraph examination. However, during the examination,

      Howard admitted to the examiner that he had researched methods to

      manipulate the polygraph examination results and that he had tested those

      methods by lying about his last name during the examination.


[7]   Nearly two weeks after Miller was last seen alive, his body was discovered

      inside a steel barrel in the St. Joseph River. He had been shot with a small

      caliber gun in the head and in his right thigh. A distant cousin of Stewart’s

      contacted the police shortly after Miller’s body was discovered and told police

      that Stewart had asked him about the location of the deepest point in the St.

      Joseph River. Barry Coy (“Coy”), a friend of Stewart’s with whom Stewart

      shared use of a pickup truck, told police that Stewart had used the truck on the

      evening of September 7 or the morning of September 8. On the evening of

      September 7, Coy had noticed an empty steel barrel in the truck bed and a

      shotgun in the truck cab. The following morning, when Coy arrived at

      Stewart’s house to use the truck again, he noticed that the cab and the bed of

      the truck were freshly scrubbed and that the exterior of the truck had damage

      that was not present the night before. A subsequent search by police of

      Stewart’s house revealed guns, ammunition, and several barrels similar to the

      one in which Miller’s body was found.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1406-CR-200 | April 9, 2015   Page 3 of 8
[8]    On April 29, 2013, the State charged Stewart with murder. A jury trial was held

       from April 28, 2014, to May 1, 2014. At trial, Howard testified that he, Stewart,

       and Miller were all working at Miller’s tattoo shop on the night of September 7,

       2012. Howard heard a popping sound then turned to see Stewart standing in the

       shop’s back doorway, holding a pistol with a homemade silencer. Howard also

       saw Miller lying motionless on the concrete slab just outside the door. Terrified,

       Howard obliged when Stewart ordered him to help load Miller’s body into a

       barrel, then load the barrel into the back of Stewart’s truck.


[9]    On cross-examination, Stewart’s counsel attempted to impeach Howard by

       eliciting testimony about his admitted deception during his polygraph

       examination. The trial court, however, excluded any testimony related to the

       polygraph examination.


[10]   The jury found Stewart to be guilty of murder. On May 29, 2014, the trial court

       sentenced Stewart to sixty-five years executed in the Department of Correction.


[11]   Stewart now appeals.


                                        Discussion and Decision

[12]   Stewart argues that the trial court erred in excluding evidence of Howard’s

       intentional manipulation of the polygraph examination results. Specifically, he

       argues that, because Howard’s testimony against Stewart was so damaging and

       Howard’s credibility so important to the State’s case, Stewart was “denied his

       fundamental right to effectively confront and cross examine Howard.”

       Appellant’s Br. at 6.

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       “[T]he Confrontation Clause guarantees an opportunity for effective cross-

       examination, not cross-examination that is effective in whatever way, and to

       whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20

       (1985). “Furthermore, the right to confront witnesses ‘may, in appropriate

       cases, bow to accommodate other legitimate interests in the criminal trial

       process.’” Tague v. Richards, 3 F.3d 1133, 1137 (7th Cir.1993) (quoting Chambers

       v. Mississippi, 410 U.S. 284, 295 (1973)). The scope and extent of cross-

       examination is largely within the trial court's discretion. Pulliam v. State, 264

       Ind. 381, 345 N.E.2d 229 (1976). Only where a total denial of access during

       cross-examination to an area bearing upon the credibility of a crucial state

       witness is a Sixth Amendment issue raised. Any lesser curtailment is reviewable

       only for an abuse of discretion, and we will reverse only when the trial court’s

       decision is clearly against the logic and effect of the facts and circumstances

       before it. Brooks v. State, 259 Ind. 678, 291 N.E.2d 559 (1973).


[13]   Indiana Rule of Evidence 608 provides:

               (a) Opinion and Reputation Evidence of Character. The credibility of
               a witness may be attacked or supported by evidence in the form of
               opinion or reputation, but subject to these limitations: (1) the evidence
               may refer only to character for truthfulness, and (2) evidence of
               truthful character is admissible only after the character of the witness
               for truthfulness has been attacked by opinion or reputation evidence or
               otherwise.
               (b) Specific Instances of the Conduct of a Witness. For the purpose of
               attacking or supporting the witness’s credibility, other than conviction
               of a crime as provided in Rule 609, specific instances may not be
               inquired into or proven by extrinsic evidence. They may, however, in
               the discretion of the court, if probative of truthfulness or

       Court of Appeals of Indiana | Memorandum Decision 20A03-1406-CR-200 | April 9, 2015   Page 5 of 8
               untruthfulness, be inquired into on cross-examination of the witness
               concerning the character for truthfulness or untruthfulness of another
               witness as to which character the witness being cross-examined has
               testified.

[14]   Stewart’s proffered evidence was not in the form of opinion or reputation

       evidence and was therefore not admissible under Rule 608(a). Instead, Stewart

       wished to delve into specific instances of Howard’s conduct, i.e., his attempt to

       manipulate the results of his polygraph examination. Rule 608(b) specifically

       states that specific instances of conduct, like the conduct at issue here, may

       neither be inquired into nor proven by extrinsic evidence. Rule 609 is not

       applicable here because the conduct at issue was never the subject of a criminal

       conviction. The limited exception mentioned in the last sentence of Rule 608(b)

       is inapplicable because Howard did not testify regarding the truthfulness of

       another witness. Therefore, the proffered evidence was not admissible to

       impeach Howard under the Indiana Rules of Evidence.


[15]   Stewart, however, claims that he sought to admit the evidence to show the bias

       or prejudice of Howard, not impeach his character. In Hatchett v. State, 503

       N.E.2d 398, 403 (Ind. 1987), the defendant offered proof concerning the prior

       convictions of one witness and proof of the criminal acts of another witness.

       Our supreme court held that although this proof was inadmissible as

       impeachment evidence, the defendant did not offer the evidence to impeach the

       witnesses’ character. Id. at 404. Instead, Hatchett offered the proof as evidence

       of the witnesses’ bias, i.e., their desire to curry favor with the State, and that

       their prior criminal activities gave them added incentive to cooperate with the


       Court of Appeals of Indiana | Memorandum Decision 20A03-1406-CR-200 | April 9, 2015   Page 6 of 8
       State. Id. The court held, however, that the trial court’s exclusion of the

       proffered evidence was not reversible error because Hatchett had sufficient

       opportunity to explore the witnesses’ biases during cross examination. Id. Both

       of the witnesses admitted that they were testifying as a result of an agreement

       with the State. Id. Under such circumstances, our supreme court held that the

       trial court’s limitation of cross-examination of these witnesses was not an abuse

       of discretion. Id.


[16]   We reach the same conclusion here. Even if Stewart’s purpose in proffering

       evidence of Howard’s conduct was to show bias rather than to attack his

       character, the trial court did not abuse its discretion in excluding this evidence.

       The jury heard evidence that Howard helped Stewart dispose of Miller’s body,

       that Howard owned a small-caliber gun similar to the one used to murder

       Miller, and that Howard had made contradictory statements to police during

       their investigation. The jury was therefore well aware of Howard’s possible

       bias, i.e., his interest in pointing the blame for Miller’s murder at Stewart

       instead of himself. Therefore, under these facts and circumstances, Stewart was

       not denied an opportunity to effectively cross-examine Howard. See Beaty v.

       State, 856 N.E.2d 1264 (Ind. Ct. App. 2006) (even if defendant’s purpose in

       proffering evidence of witness’s prior thefts from witness’s employer was to

       show bias rather than generally attack witness’s character, trial court did not

       abuse its discretion in excluding such evidence, in prosecution for theft and

       receiving stolen property, as jury was well aware of witness’s possible bias, i.e.,

       his desire to curry favor with the state, because evidence of witness’s plea

       Court of Appeals of Indiana | Memorandum Decision 20A03-1406-CR-200 | April 9, 2015   Page 7 of 8
       agreement with the state was admitted into evidence and explored at some

       length by both parties, and defendant was able to place before jury some

       evidence of witness’s prior misconduct with respect to his employer which did

       not involve defendant, such that defendant was sufficiently able to explore

       witness’s bias); see also Manuel v. State, 971 N.E.2d 1262 (Ind. Ct. App. 2012)

       (evidence that victim previously recanted a prior allegation of domestic battery

       was not admissible to impeach the victim’s credibility in prosecution for

       domestic battery against same alleged perpetrator).

[17]   For all of these reasons, we conclude that the trial court did not err in excluding

       evidence that Howard, one of the State’s key witnesses against Stewart, had

       intentionally attempted to manipulate the results of his polygraph examination

       during the investigation into Miller’s murder.


[18]   Affirmed.


       Najam, J., and Bradford, J., concur.




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