                                                                           FILED
                                                                       Dec 13 2018, 9:53 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                              ATTORNEYS FOR APPELLEE
Clifford M. Davenport                               Curtis T. Hill, Jr.
Davenport Law Offices                               Attorney General of Indiana
Anderson, Indiana                                   Jesse R. Drum
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Matthew Edward Greer,                                     December 13, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-404
        v.                                                Appeal from the Madison Circuit
                                                          Court
State of Indiana,                                         The Hon. Thomas Newman,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          48C03-1706-F1-1581



Bradford, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-404 | December 13, 2018                           Page 1 of 10
                                           Case Summary
[1]   In 2016, Matthew Greer convinced his wife Christina to teach their minor son

      D.G. about sex. To that end, Christina fellated D.G. in the bathroom as Greer

      watched and masturbated. Several months later, Greer notified the Indiana

      Department of Child Services (“DCS”) that Christina had molested D.G. After

      DCS interviewed D.G. and police interviewed Christina, the State arrested

      Greer and charged him with several crimes.


[2]   Two weeks before Greer’s trial, D.G. testified at a deposition that Greer had

      not participated in his molestation, merely walking in, witnessing what

      Christina was doing, and leaving. The prosecutor told D.G. that he thought he

      was lying and reminded him that he could get in “trouble” if he did not tell the

      truth at trial. D.G. then testified in a way consistent with his statements during

      his DCS interview and ultimately testified against Greer at trial, as did

      Christina. A jury found Greer guilty as charged, and the trial court sentenced

      him to forty-three and one-half years of incarceration. Greer alleges that the

      prosecutor’s remarks during D.G.’s deposition amounted to prosecutorial

      misconduct that rises to the level of fundamental error. Because the

      prosecutor’s conduct was reasonable and non-threatening, we disagree and

      affirm.



                             Facts and Procedural History



      Court of Appeals of Indiana | Opinion 18A-CR-404 | December 13, 2018        Page 2 of 10
[3]   In the fall of 2016, Greer, after asking many times, finally convinced his wife

      Christina to teach their son D.G. about sex so that his “first time wouldn’t be

      awkward.” Tr. Vol. I p. 68–69. In October of 2016, approximately one week

      after D.G.’s thirteenth birthday and after doing methamphetamine with Greer,

      Christina woke D.G. up early in the morning and performed oral sex on him in

      the bathroom while Greer stood nearby, watched, masturbated, looked at

      pornography on his mobile telephone, and showed the pornography to D.G.

      Greer told D.G. that “this [was] the best b*** j** [he was] ever going to get.”

      Tr. Vol. I p. 80. After fellating D.G., Christina fellated Greer in the bathroom

      in front of D.G.


[4]   By June of 2017, Greer and Christina had separated and frequently argued.

      Around this time, Greer contacted DCS and reported that Christina had

      molested D.G. On June 16, 2017, D.G. was interviewed by DCS. Based on

      the results of D.G.’s interview, Christina was arrested later that day and

      confessed six days later when interviewed by police. Despite not having spoken

      with D.G. about his interview, Christina told a police detective before her

      interview that her statement would “mirror” D.G.’s. Tr. Vol. I p. 176. Later,

      when police tried to arrest Greer, he forcibly resisted. On June 23, 2017, the

      State charged Greer with Level 1 felony child molesting, Level 3 felony

      vicarious sexual conduct, Level 4 felony incest, Level 6 felony performing

      sexual conduct in the presence of a minor, and Class A misdemeanor resisting

      law enforcement.




      Court of Appeals of Indiana | Opinion 18A-CR-404 | December 13, 2018     Page 3 of 10
[5]   Approximately two weeks before trial, D.G. was deposed. At first, D.G.

      testified that Greer had “walked in to the bathroom[,] was shocked at what he

      observed[,] and went back to bed.” Tr. Vol. I p. 107. The prosecutor told D.G.

      that he did not think that he was telling the truth and that he could get into

      trouble for lying under oath. D.G. then admitted that he had lied and asked “to

      restart[.]” Tr. Vol. I p. 107. D.G.’s subsequent deposition testimony

      incriminated Greer, as did his trial testimony. On January 19, 2018, the jury

      found Greer guilty as charged, and the trial court sentenced him to forty-three

      and one-half years of incarceration.



                                 Discussion and Decision
[6]   Greer claims that the prosecutor’s alleged misconduct during D.G.’s deposition

      denied him his right to present witnesses in his own defense at trial.


              A fundamental element of due process of law is the right of an
              accused to present witnesses in his own defense. United States v.
              Hooks, 848 F.2d 785, 799 (7th Cir. 1988). Those witnesses must
              be “free to testify without fear of governmental retaliation.” Id.
              (quoting United States v. Blackwell, 694 F.2d 1325, 1334 (D.C. Cir.
              1982)). […] 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. [Diggs v. State, 531 N.E.2d 461, 464
              (Ind. 1988)]. A prosecutor may not prevent nor discourage a
              defense witness from testifying. Id.
      Collins v. State, 822 N.E.2d 214, 220 (Ind. Ct. App. 2005), trans. denied.




      Court of Appeals of Indiana | Opinion 18A-CR-404 | December 13, 2018         Page 4 of 10
[7]   Greer acknowledges that he failed to raise this issue in the trial court but

      attempts to avoid the effect of his waiver by claiming that the error was

      fundamental. “The fundamental error exception is ‘extremely narrow, and

      applies only when the error constitutes a blatant violation of basic principles,

      the harm or potential for harm is substantial, and the resulting error denies the

      defendant fundamental due process.’” Delarosa v. State, 938 N.E.2d 690, 694

      (Ind. 2010) (quoting Matthews v. State, 849 N.E.2d 578, 587 (Ind. 2006)). To be

      fundamental, the error “must either ‘make a fair trial impossible’ or constitute

      ‘clearly blatant violations of basic and elementary principles of due process.’”

      Id. (quoting Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009)). The exception

      applies “only in ‘egregious circumstances.’” Id. at 694–95 (quoting Brown v.

      State, 799 N.E.2d 1064, 1068 (Ind. 2003)). A finding of fundamental error is

      essentially a conclusion that the trial court erred by failing to sua sponte correct

      an error. Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014).


[8]   We conclude that Greer has failed to establish that anything the prosecutor did

      was improper, much less egregious or blatant. Although the record does not

      contain a transcript of D.G.’s pretrial deposition, portions of it were made part

      of the record during Greer’s cross-examination of D.G.:


              Q      Okay but then [the prosecutor] was talking to you and he
              says do you remember these series of questions and answers
              “[D.G.] I’m going to be quite honest with you I’ve been doing
              this this is my twenty-second year and I can just tell from your
              demeanor that you’re not being truthful here today”?
              A        Yes I [re]member that.



      Court of Appeals of Indiana | Opinion 18A-CR-404 | December 13, 2018        Page 5 of 10
              Q        Did that frighten you?
              A        Yes.
      Tr. Vol. I p. 93.


[9]   In the deposition, the prosecutor suggested to D.G. that he had concocted a

      story with his grandfather to protect Greer, which led to the following:


              Q      Okay let[’]s get back to [the prosecutor] and the
              deposition. Umm… he says umm… I know because I think it’s
              your grandpa and you answered it’s not my grandpa umm… you
              want to know how I know that [the prosecutor] says and you
              says he hasn’t told me anything I swear he hasn’t told me
              anything and then [the prosecutor] reminds you that he saw the
              two (2) of you talking or no he says because you were outside of
              the room last week before we talked your grandpa told me [D.G.]
              is going to say something different [than] what he said in his
              video. Did your grandpa tell you to say something different?
              A        He did not.
              Q       But when [the prosecutor] suggested that to you you said
              umm… umm… yet I have no clue. You said I have no clue I
              swear and then [the prosecutor] says well that was like four (4),
              five ([5]) six (6) days ago you were making sense then in this case
              and now you’re saying something different. Did that scare you?
              A        Yes.
              [….]
              Q       Okay and umm… back to the deposition do you remember
              when [the prosecutor] said to you and she[,] referring to your
              Mother[,] is doing thirty (30) years and lying about it. That
              doesn’t make any sense [D.G.] look I understand this is your
              parents and you’re not happy about the situation but there is no
              use in you getting jammed up for something that your mom is
              still going to come and testify and tell the truth so what’s going to



      Court of Appeals of Indiana | Opinion 18A-CR-404 | December 13, 2018       Page 6 of 10
        happen is your dad can still get convicted and you’re in trouble
        for lying do you remember him saying that?
        A        Yes.
        Q        Did that scare you?
        A        Yes.
        Q        What does jammed up mean to you?
        A        Put [into] a situation.
        Q        What kind of a situation?
        A      Umm… a bad spot where I don’t want to be liking getting
        in trouble.
        Q      Okay and what in your mind at fourteen (14) thirteen (13)
        years old what does getting in trouble mean in this context? Did
        you think you could go jail?
        A        I thought that’s what he was talking about yes.
        Q      And then he says this is not a joke anymore and you say I
        know. And then later on do you recall this series of question and
        answer[s]? [D.G.] you got to tell the truth right now. This is
        how you can get yourself out of trouble. Did you believe when
        he said that, that you were in trouble?
        A        I thought I was going to be yes.
        Q      Okay. By admitting you’re trying to save your dad here
        and you say okay aren’t you and you say yes okay not that’s not
        going to work now he says to you. What did you take that to
        mean?
        A     I thought he was saying you know it’s not going to it
        doesn’t matter if you’re trying to protect him or not.
        Q      Yeah in other words if you don’t say the same thing today
        that you said before [during your DCS interview] you’re in
        trouble. Is that what went through your mind?
        A        Yeah.




Court of Appeals of Indiana | Opinion 18A-CR-404 | December 13, 2018       Page 7 of 10
               Q      You have to tell the truth. You do[] not want to get up in
               front of a Judge and say what you’re saying here because that’s
               not going to end well for you or your dad. Do you remember
               that statement?
               A        Yes.
               Q        And you said yes sir. Did that scare you?
               A        Kind of yes.
               Q      Did that bring to mind that you were going to get punished
               if you didn’t come in to court and say what you had originally
               said?
               A        A little bit yeah.
       Tr. Vol. I pp. 94–95, 96–98.


[10]   Under the circumstances of this case, we conclude that none of this, despite the

       warnings of “trouble” if D.G. failed to testify truthfully, amounts to

       misconduct. First and foremost, the only reason that any of this even occurred

       is that D.G. radically changed his story two weeks before a trial in which he

       was expected to be one of the State’s leading witnesses. We think that the

       prosecutor was entitled to fully explore this change, including informing the

       witness that there could be consequences for lying on the stand. Moreover, the

       prosecutor did not explicitly threaten D.G. with prosecution and repeatedly

       reminded him that he would be in trouble only if he did not tell the truth, not if

       he testified on Greer’s behalf. Finally, it is not as though the prosecutor lacked

       an objective, good-faith basis for believing that D.G. was lying. The prosecutor

       was fully aware that, not only had D.G. incriminated his father in earlier

       statements, he had done so in a way that was almost entirely consistent with—




       Court of Appeals of Indiana | Opinion 18A-CR-404 | December 13, 2018        Page 8 of 10
       and therefore corroborated by—Christine’s extremely self-incriminating

       statements.


[11]   Greer draws our attention to the case of Diggs v. State, 531 N.E.2d 461 (Ind.

       1988), in which the Indiana Supreme Court concluded that conduct by a

       prosecutor improperly denied the defendant the right to present witnesses on his

       behalf. In Diggs, the prosecutor approached a potential defense witness during

       trial and told him “that if he testified to ‘the same statements he did in his

       deposition, he [would] be charged, according to his own testimony.’” Id. at 464

       (brackets in original). The witness refused to testify when called, invoking his

       Fifth Amendment right against self-incrimination, and the Court concluded that

       this amounted to an erroneous denial of Diggs’s right to present witnesses. Id.

       This case is readily distinguishable from Diggs on the facts. Perhaps the most

       compelling difference between the cases is that the prosecutor in Diggs explicitly

       threatened the witness with prosecution for perjury if he testified a certain way,

       which did not occur here. Moreover, in Diggs there is no indication that the

       witness in question abruptly changed his story on the eve of trial or that the

       prosecutor had any good-faith reason to question the witness’s veracity. Simply

       put, the prosecutor’s conduct here is not in the same league as the prosecutor’s

       conduct in Diggs. We conclude that Greer’s reliance on Diggs is unavailing.


[12]   The prosecutor’s conduct in this case strikes us much more as a reasonable

       inquiry into why a prosecution witness had suddenly changed his story two

       weeks before trial than an attempt to browbeat him into not testifying for the

       defendant. Were we to hold otherwise, we would essentially be ruling that it is

       Court of Appeals of Indiana | Opinion 18A-CR-404 | December 13, 2018       Page 9 of 10
       “egregious” misconduct for a prosecutor to vigorously question a witness about

       why he had told one story for months only to change his tune two weeks before

       trial. We will not issue such a ruling. We conclude that Greer has failed to

       establish error under the circumstances of this case, much less fundamental

       error.


[13]   The judgment of the trial court is affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-404 | December 13, 2018   Page 10 of 10
