Disposition of a Co-Defendant's Case
• [E]vidence of a conviction or guilty plea of others charged with the same offense as the defendant is not substantive evidence of the defendant's guilt or innocence.
Hunter v. State, 578 N.E.2d 353, 356 (Ind. 1991), reh’g denied
Hughes v. State, 546 N.E.2d 1203, 1210 (Ind. 1989)(citing Phelps v. State, 453 N.E.2d 350, 354 (Ind. Ct. App. 1983))
See Borders v. State, 688 N.E.2d 874, 880 (Ind. 1997)(“In Hunter, we reiterated the long-standing principle that evidence of a conviction or guilty plea of others charged with the same offense as the defendant is not substantive evidence of the defendant's guilt or innocence.”)
Admissibility
• Indiana case law . . . has decided that a conviction or guilty plea of one defendant indicted for the same offense as other co-defendants is not substantive evidence of the remaining defendants' criminality and is therefore generally inadmissible.
Jefferson v. State, 399 N.E.2d 816, 825 (Ind. Ct. App. 1980)(citing Zarnik v. State, 361 N.E.2d 202, 206 (Ind. Ct. App. 1977))(emphasis added)
See Lincoln v. State, 133 N.E. 351, 352 (Ind. 1921)(“The fact that others indicted for the same offense had been found guilty was not evidence against the [defendant], who was being tried separately, and should not have been considered by the jury.”)
• Although [previous cases] involved situations where . . . the State was erroneously allowed to make references to a co-defendant's prior conviction or guilty plea for the purpose of proving the defendant's guilt, the same rationale applies to make improper any attempt by a defendant to disclose the previous conviction or guilty plea of a co-defendant in hopes of establishing his innocence of the crime charged.
Jefferson v. State, 399 N.E.2d 816, 825 (Ind. Ct. App. 1980)(emphasis added)
Whether admission requires reversal
• The question of whether the admission of a co-defendant's conviction requires reversal depends on the facts and circumstances surrounding the case.
Moore v. State, 515 N.E.2d 1099, 1103 (Ind. 1987)(citing Zarnik v. State, 361 N.E.2d 202, 206 (Ind. Ct. App. 1977))
• The admission [in Lincoln] of the co-defendants' conviction rose to the level of reversible error only because the prosecutor made constant, improper reference to the co-defendants' conviction in arguing the defendant's guilt and because the judge refused to admonish the jury that only the evidence against the defendant should be considered.
Moore v. State, 515 N.E.2d 1099, 1103 (Ind. 1987)
• In this case, only a brief mention of [the co-defendant’s] conviction was made in the testimony of the investigating officer. The prosecutor made few references to [the co-defendant] in final argument. . . . [The prosecutor] did not use [the defendant’s] conviction directly to argue [the defendant’s] guilt. The prejudice to [the defendant] was insubstantial. Moreover, [the defendant] did not object to the admission of [the co-defendant’s] conviction. We agree with the State that this could be a tactical decision to shift blame to [the co-defendant] and away from [the defendant]. Under these circumstances, the admission of [the co-defendant’s] guilty plea does not require reversal.
Moore v. State, 515 N.E.2d 1099, 1103 (Ind. 1987)
For purposes of impeachment
• [D]uring the trial . . . [the] guilty plea evidence was properly admitted for purposes of impeachment and not substantive evidence. … As such, the rule of Hunter (and Lincoln) did not prevent the admission of the guilty plea evidence at trial because that rule does not prohibit the use of guilty pleas for purposes of impeachment.
Borders v. State, 688 N.E.2d 874, 880 (Ind. 1997)(footnote omitted)
See Zarnik v. State, 361 N.E.2d 202, 206 (Ind. Ct. App. 1977)(“[I]ts purpose was not to intimate to the jury [the defendant’s] guilt from the fact of the co-defendant's guilty plea, but rather to challenge the witness. As such, the case is distinguishable from Lincoln.”)
In-trial change of plea by a co-defendant
• The Indiana Court of Appeals has held that the change of a plea by a co-defendant does not occasion substantial prejudice to the remaining defendants' rights.
Leavell v. State, 455 N.E.2d 1110, 1113 (Ind. 1983)(citing Webb v. State, 403 N.E.2d 359, 360 (Ind. Ct. App. 1980))
See Owensby v. State, 467 N.E.2d 702, 706 (Ind. 1984)(“The contention of [the defendant] that the in-trial change of plea created a danger that the jury would infer his guilt from the fact of the plea of the co-defendant has also been considered and rejected by the Court of Appeals in Webb.”)
• The proper inquiry is whether, under all of the circumstances, the defendant was deprived of a fair trial by the prejudice allegedly arising from a change of plea.
Leavell v. State, 455 N.E.2d 1110, 1113 (Ind. 1983)(citing Webb v. State, 403 N.E.2d 359, 361 (Ind. Ct. App. 1980))
See Owensby v. State, 467 N.E.2d 702, 706 (Ind. 1984)(“The Webb court found that the appropriate inquiry is whether under all the circumstances the [defendant] was deprived of a fair trial by the prejudice allegedly arising from the change of plea . . . .”)
• Among the circumstances to be considered in determining whether a co-defendant was deprived of a fair trial are “the strength of the evidence of guilt and the sufficiency of the cautionary instruction if one is given.”
Leavell v. State, 455 N.E.2d 1110, 1113 (Ind. 1983)(quoting Scott v. State, 409 N.E.2d 1184, 1188 (Ind. Ct. App. 1980), reh’g denied)