Najam, J.
Antonio Smith appeals his conviction for burglary, as a Class C felony, following a jury trial. He presents two issues for our review, but we address a single dispositive issue, namely, whether his conviction was obtained by the State’s knowing use of perjured testimony at his trial. In particular, Nicole Greenlee, Smith’s former girlfriend, testified that Smith had committed the burglary while she hid outside in the bushes to serve as a lookout. But previously Greenlee had been convicted of the same crime on a guilty plea. Greenlee stated under oath, as the factual basis for her plea, that it was she who had broken and entered the building and committed the burglary, and she did not implicate Smith. The State also introduced at Smith’s trial a surveillance video and a detective’s testimony that a white female had committed the burglary. Greenlee is white, and Smith is African-American.
We conclude that the State was aware of a high probability that if Greenlee were called as a witness against Smith she would commit perjury and that Greenlee perjured herself at Smith’s trial. In particular, in its opening statement the State informed the jury that Greenlee would give two versions of the burglary, and the State granted immunity to Greenlee for her guilty plea testimony prior to her trial testimony. And after Greenlee had testified, the State did not correct the perjury. A conviction based on the knowing use of perjured testimony constitutes a denial of due process, and the error here was not harmless. Thus, we reverse Smith’s conviction.
. . . .
Smith contends that, in light of Greenlee’s testimony at her guilty plea hearing that she was the one who had broken and entered the Dollar General store, Greenlee committed perjury when she testified at Smith’s trial that, instead, Smith had broken and entered the store while Greenlee waited outside. To determine whether Greenlee gave perjured testimony, we look to Indiana Code Section 35-44.1-2-1.5 That statute provides in relevant part that:
(a) A person who:
(1) makes a false, material statement under oath or affirmation, knowing the statement to be false or not believing it to be true; or
(2) has knowingly made two (2) or more material statements, in a proceeding [footnote omitted] before a court or grand jury, which are inconsistent to the degree that one (1) of them is necessarily false;
commits perjury . . . .
. . . .
But the State contends that Greenlee did not commit perjury because her guilty plea testimony was merely inconsistent with her trial testimony, and that “contradictory or inconsistent testimony by a witness does not constitute perjury.” Appellee’s Br. at 8. In support of its contention, the State relies on Timberlake v. State, 690 N.E.2d 243 (Ind. 1997) and Evans v. State, 489 N.E.2d 942 (Ind. 1986). In Timberlake, the defendant
contend[ed] that the prosecutor committed misconduct by knowingly using the false testimony of John Robbins, Richard McPeake, and Roy Hood. Defendant’s arguments concerning the three witnesses are as follows: (1) Shortly after the shooting, John Robbins gave a statement to the police that he had seen McElroy and defendant in his bar two days before the shooting and that he had heard McElroy tell Jim Gross (a patron) that, “The only good cop is a dead cop.” (R. at 5204.) At trial, the State called Robbins as a witness, and he testified that defendant had made the anti-police statement; (2) At trial, Richard McPeake testified that he saw defendant, while sitting on the trunk of the car, pull a gun. Defendant asserts that this statement cannot possibly be true; (3) Roy Hood’s testimony contains inconsistencies which defendant claims show his testimony to be false and fabricated.
690 N.E.2d at 252-53. Our supreme court held that “while the prosecutor presented witnesses who gave inconsistent accounts, there is no evidence that the prosecutor knowingly used false testimony.” Id. at 253. Thus, in Timberlake, because the defendant did not prove that the witnesses had committed perjury under the first subsection of the perjury statute, the prosecutor did not knowingly use false testimony. See I.C. § 35-44.1-2-1(a)(1) (a person who makes a false, material statement under oath knowing the statement to be false or not believing it to be true commits perjury). Likewise, the defendant in Evans alleged perjury under the first subsection of the perjury statute, which the court rejected.
But here, unlike in Timberlake and Evans, Greenlee committed perjury under the second subsection of the perjury statute. Moreover, again, Greenlee’s statements under oath were not merely contradictory or inconsistent, like the statements in Timberlake and Evans, but inconsistent to the degree that one of them is necessarily false. This is not a case where a witness changes her story during the course of an investigation or during her trial testimony and is merely impeached with her prior inconsistent statements and those inconsistencies are to be resolved by a fact-finder. Greenlee’s explanation and disclaimer of her guilty plea testimony at Smith’s trial does not obviate her perjury. The State’s reliance on Timberlake and Evans is misplaced. Greenlee’s statements were not merely inconsistent but mutually exclusive.
. . . .
Thus, while the State disclaims having had prior knowledge of how Greenlee would actually testify at Smith’s trial, the State’s grant of immunity and its opening statements demonstrate that the State was aware of a “high probability” that it was going to call a witness whose testimony would be directly contrary to prior statements made by that witness under oath in a court proceeding. And, of course, the grant of immunity did not eliminate the perjury, only the prosecution for it. Thus, the State knowingly proffered perjured testimony. And after Greenlee had testified, the State knew with certainty that she had committed perjury. At that point, the State had a duty to correct the perjury. See Wallace, 474 N.E.2d at 1008. The State should have joined in Smith’s motion for a mistrial.
. . . .
. . . We hold that Smith’s conviction was obtained by the State’s knowing use of perjured testimony, and we reverse his conviction.8
Reversed.
BAILEY, J., and PYLE, J., concur.
[8 The Indiana Supreme Court Disciplinary Commission (“Disciplinary Commission”) has exclusive jurisdiction to discipline an attorney, where appropriate, for acting in violation of the Rules of Professional Conduct. We are troubled that the State knowingly proffered perjured testimony but are even more concerned that the State granted the witness immunity from prosecution, which encouraged such testimony. Thus, we direct the Clerk of this Court to send a copy of this opinion to the Disciplinary Commission. We also note that instances of prosecutorial misbehavior continue to come before us on appeal notwithstanding our admonishments. See Joel Schumm, “Isn’t it Time to Get Serious About Prosecutor Misconduct?,” The Indiana Law Blog (July 7, 2014), http://indianalawblog.com/archives/ 2014/07/ind_courts_isnt.html.]