Question: When Does The “Incredible Dubiosity Rule” Apply To A Criminal Conviction?
Answer: There must be: 1) a sole testifying witness; 2) testimony that is inherently contradictory, equivocal, or the result of coercion; and 3) a complete absence of circumstantial evidence.
In December 2012, the defendant was living with his girlfriend Nicole Greenlee in Mishawaka, Indiana, when the defendant and Greenlee started arguing about money and the defendant brought up the idea of breaking into Greenlee’s job and taking the daily deposit. Greenlee was a manager of a Dollar General store and had keys, alarm code and safe codes. Thereafter, Dollar General camera’s recorded images of an individual unlocking the front doors, turning off the alarm, opening the safes, and leaving the store with nearly $3,500. The individual inside the store can be seen talking on a cell phone, and cell phone records show that Greenlee and the defendant exchanged 3 phone calls at times that match the time of the burglary as displayed on the security camera footage. While the person’s identity in the video was obscured by gloves and two hooded sweatshirts. Shortly after the burglary, the police investigation focused on Greenlee. Greenlee was interviewed by police, and she gave 3 conflicting stories about the night of the burglary. One of her stories implicated the defendant’s involvement, but the last story she gave implicated only herself. During Greenlee’s interview, South Bend Police Department Detective Kelly Waite walked outside the police station and saw the defendant sitting in the driver’s seat of a white car with temporary license plates. During her testimony, Greenlee stated that she and the defendant walked to the Dollar General on the night of the burglary because she and the defendant didn’t have a car at the time. While Greenlee was in jail awaiting trial, she called the defendant, and the defendant was recorded asking Greenlee if he should turn himself in, telling her he would do whatever she wants. Eventually, Greenlee entered a plea. At no point during her plea hearing was Greenlee asked if anyone else was involved in the burglary. In addition to charging Greenlee and securing her guilty plea, the police also arrested and charged the defendant with Class C felony Burglary for the same incident. In the probable cause affidavit, the State relied on statements made by Greenlee that the defendant “acted as a look-out during the burglary” and that she gave the money taken from the Dollar General to [the defendant] after the burglary was completed. The State also relied on the cell phone records, which show the defendant’s phone conversations with Greenlee during the commission of the burglary, and the cell phone tower records, which the State claims were picked up by cell phone towers much closer to Dollar General than the defendant’s residence, where he stated he had been during the commission of the burglary. At trial, the State’s witnesses were Greenlee, then Detective Waite (testifying as to seeing the defendant in the car with temporary plates), and finally South Bend Police Officer Timothy Wiley (testifying as to the cell phone records). But Greenlee was the State’s primary witness, and her testimony is the center of this appeal. The jury found the defendant guilty of Burglary as a Class C felony.
On appeal, the defendant seeks application of Indiana’s rule of Incredible Dubiosity. He alleges that his conviction should be vacated because Greenlee’s testimony as a State witness was so dubious and contrary to the facts that it must be disregarded, leaving insufficient evidence to sustain the conviction. In essence, the defendant asserts that because the store video images show that the burglar was Caucasian, Greenlee’s testimony identifying the burglar as the defendant, an African American, is incredibly dubious, requiring that his conviction be vacated. From testimony and statements at trial, we understand that Greenlee is Caucasian and defendant is African–American. In opposition to this argument, the State counters that the rule of incredible dubiosity only applies to testimony beyond the realm of human experience and conflicts within a single statement or testimony; it does not apply to inconsistencies between multiple statements.
Application of the incredible dubiosity rule is limited to cases with very specific circumstances because we are extremely hesitant to invade the province of the jury. We recently summarized that, to warrant application of the incredible dubiosity rule, there must be: 1) a sole testifying witness; 2) testimony that is inherently contradictory, equivocal, or the result of coercion; and 3) a complete absence of circumstantial evidence. Applying these factors to the present case, we find as to the first factor that, while Greenlee was not the sole testifying witness, the testimony of the two other witnesses would have been an insufficient basis for the jury to find the defendant guilty. The second and third factors, however, are not satisfied. While at variance with prior statements or arguably with the video images, Greenlee’s trial testimony was not internally contradictory. And there was not a complete absence of circumstantial evidence. In a case where there is circumstantial evidence of an individual’s guilt, reliance on the incredible dubiosity rule is misplaced. The incredible dubiosity doctrine does not warrant reversal of the defendant’s conviction in this case. 34 N.E.3d 1211