MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 11 2017, 6:00 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael C. Borschel Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Bradley Baldwin, May 11, 2017 Appellant-Defendant, Court of Appeals Case No. 49A05-1609-CR-2025 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Kurt Eisgruber, Appellee-Plaintiff Judge Trial Court Cause No. 49G01-1501-MR-2632
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017 Page 1 of 14 [1] Bradley Baldwin appeals his convictions of murder 1 and attempted murder. 2
Baldwin raises two issues, which we restate as:
(1) Whether the trial court abused its discretion by excluding exculpatory evidence; and
(2) Whether the trial court abused its discretion when it denied Baldwin’s motion for mistrial based on confirmed juror misconduct.
[2] We affirm. 3
Facts and Procedural History [3] Around 9 p.m. on January 19, 2015, Baldwin invited Lisa Davis 4 to use
methamphetamines with him. The pair drove Baldwin’s Chrysler Sebring to a
“trap house” 5 at 3675 Creston Drive in Marion County. While there, Baldwin
showed his revolver to Lisa and placed it on her lap. Davis described Baldwin’s
revolver as older, and “dark in color,” with wooden grips. (Tr. Vol. 2 at 108-9.)
Another person at the house, Dustin Houghton, was also in possession of a
1 Ind. Code § 35-42-1-1(1) (2014). 2 Ind. Code §§ 35-42-1-1(1) (murder) (2014), 35-41-5-1 (attempt) (2014). 3 We held oral argument on April 20, 2017, at Tri-West High School in Lizton, Indiana. We thank counsel for their advocacy, and the students and staff of Tri-West for their warm welcome. 4 In January 2015 when these events unfolded, Lisa’s last name was Davis, but by the time of trial, she married and her name was “Lisa Neville.” (Tr. Vol. 2 at 99.) To avoid confusion, we refer to her as Davis throughout this opinion. 5 Davis agreed a “trap house” is a “place where you could go to get high.” (Tr. Vol. 2 at 106.)
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017 Page 2 of 14 revolver. Houghton showed his revolver to Baldwin, who then refused to
return it to Houghton. Davis believed Houghton’s revolver was newer. Davis
heard Houghton apologize multiple times to Baldwin and to another man at the
trap house, Timothy Browers, but she did not know why he was apologizing.
Baldwin’s response to Houghton was to say “it’s okay – it’s no big deal.” (Id. at
111.)
[4] About six hours later, the couple left the house on Creston. Baldwin asked
Davis to drive his car and follow the white Chevy Cavalier in which Baldwin
would ride because they were going to drop off the Cavalier. Also in the
Cavalier with Baldwin were Houghton, Cecil Warner, and Ronald Scheible.
Davis, driving Baldwin’s car, followed the Cavalier for about “five minutes” to
an alley off West Washington Street. (Id. at 115.) The Cavalier pulled into a
parking space next to a garage, and Davis parked Baldwin’s car down the alley
about ten feet past where the Cavalier parked, as Baldwin had instructed her.
The alley was behind a house at 114 North Belmont Avenue.
[5] After the cars parked, Baldwin and Warner exited the Cavalier and entered the
house at 114 North Belmont for five or ten minutes. Houghton and Scheible
remained in the Cavalier. Baldwin and Warner used some drugs with the
people in the house, and Baldwin unsuccessfully attempted to trade Houghton’s
revolver for additional drugs. At one point, Houghton got nervous and began
to drive away from the scene. When Davis saw the Cavalier back out of the
parking space by the garage, she was confused because she thought they were
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017 Page 3 of 14 dropping the car off, but then Houghton parked the Cavalier in the alley behind
where Davis was sitting in Baldwin’s car.
[6] Baldwin and Warner left the house to return to the Cavalier, but Warner
realized he had forgotten his bottle of alcohol inside the house, so he went back
for it. Baldwin climbed into the Cavalier, exchanged words with Houghton,
and then shot Houghton in the head with a revolver. As Warner walked
toward the Cavalier a second time, he heard a shot fired, but he thought
Baldwin was shooting into the air.
[7] Baldwin then told Scheible, “come on,” (id. at 158), and the two of them exited
the Cavalier and walked toward Baldwin’s car. Warner sat in the front seat of
Houghton’s car and began talking to Houghton. Warner did not know
Houghton was shot until he nudged Houghton and Houghton’s head fell
forward. About the time Warner realized Houghton had been shot, Baldwin
was about to enter the front passenger door of Baldwin’s car and Scheible was
about to enter the rear passenger door of Baldwin’s car. Instead, Baldwin
suddenly said, “no, you ain’t going nowhere neither,” (id.), and shot Scheible.
Scheible fell to the ground. Baldwin stepped over Scheible and shot him three
more times. Warner testified Baldwin shot Scheible five times. Scheible rolled
under a nearby car and pretended to be dead. Davis “heard some pops,” (id. at
117), coming from behind where she was sitting in Baldwin’s car, and she
assumed they were gunshots, but she could not see what was happening.
Baldwin then jumped into the passenger seat of his car and yelled for Davis to
“go, go, go.” (Id. at 120.)
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017 Page 4 of 14 [8] Davis and Baldwin returned to the trap house on Creston. When they arrived,
Baldwin asked a resident of the home, Michael Myers, to clean the two
revolvers. Myers first refused, but Baldwin continued to ask, so Myers took the
guns apart, wrapped them in towels without cleaning them, and shoved them in
the flu pipe of a fireplace in the basement of the house. Police and SWAT came
to the house later that day to arrest Baldwin. Myers gave the police a statement
of the events and showed the police where he had placed the guns.
[9] The State charged Baldwin with the murder of Houghton, the attempted
murder of Scheible, and Level 4 felony unlawful possession of a firearm by a
serious violent felon, 6 and it also alleged Baldwin is a habitual offender. 7 The
trial court conducted a three-day jury trial. A jury found Baldwin committed all
three crimes and is a habitual offender. 8
[10] On June 1, 2016, Baldwin filed a motion for mistrial based on juror
misconduct, and the trial court held a hearing thereon. The undisputed
evidence is that on the evening of May 10, 2016, between the second and third
days of Baldwin’s trial, the juror who would be elected jury foreperson, K.W.,
texted friends who are licensed attorneys to ask multiple questions about the
6 Ind. Code § 35-47-4-5(c) (2014). 7 Ind. Code § 35-50-2-8(a) (2014). 8 Although Baldwin does not challenge his sentences, we note the trial court ordered him to serve consecutive sentences of fifty years for murder, thirty years for attempted murder, and twenty years for being a habitual offender. The Sentencing Order also indicates the count of unlawful possession of a firearm by a serious violent felon was “Dismissed.” (Appellant’s App. Vol. 2 at 20.)
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017 Page 5 of 14 burden of proof in a criminal case and how it is defined. (See Appellant’s App.
Vol. 2 Confidential at 137-148.) When the attorney-friends found out K.W.
had asked the questions because she was sitting as a juror on a case, they
became very concerned that K.W.’s behavior was improper and that their
talking to K.W. about legal standards while she was a seated juror could be
considered unethical behavior by a lawyer. The attorney-friends therefore hired
counsel and, on May 13, 2016, submitted to the Judge who presided over
Baldwin’s trial a letter of explanation and copies of all the text messages. At the
hearing on Baldwin’s motion for mistrial, K.W. testified she did not tell the
other jurors about her conversation with attorney-friends, she did not use her
attorney-friends’ comments to influence her decisions about Baldwin, she relied
on the instructions given by the trial court during deliberations, and she
believed the jury rendered a fair and impartial verdict. The trial court denied
Baldwin’s motion for a mistrial because Baldwin was not prejudiced by K.W.’s
conversations with her attorney-friends about how to define the standard of
proof in a criminal case.
Discussion and Decision Exclusion of Alleged Exculpatory Evidence [11] “Trial courts have broad discretion to admit or exclude evidence, and our
review is limited to whether the trial court abused that discretion.” Satterfield v.
State, 33 N.E.3d 344, 352 (Ind. 2015). A trial court abuses its discretion if its
decision is “against the logic and effect of the facts and circumstances before the
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017 Page 6 of 14 court.” Jacobs v. State, 22 N.E.3d 1286, 1288 (Ind. 2015). We may affirm the
trial court on a different basis than the court ruled, as long as the court’s
ultimate decision was correct. Id. at 1290 n.3.
[12] Baldwin asserts the trial court abused its discretion by excluding exculpatory
evidence, which prohibited him from presenting his defense.
Although a defendant’s right to present a defense is of the utmost importance, it is not absolute. The accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.
Id. at 1288 (internal quotations and citations omitted).
[13] The evidence that Baldwin wanted to have admitted was evidence that, on the
same night Houghton and Scheible were shot, Timothy Browers, the second
man to whom Houghton had been apologizing that evening at the trap house,
used a firearm to shoot at a car parked outside the trap house on Creston Drive
while his girlfriend was asleep in that car. As an offer of proof, Baldwin
presented testimony, outside the presence of the jury, of Detective Mark
Howard who was investigating the shooting of a white Mazda on Creston
Drive. Detective Howard testified Browers was the suspect in that shooting on
Creston Drive, which occurred on the same night Houghton and Scheible were
shot. However, Detective Howard also testified he had no information
suggesting Browers was near Belmont Avenue when Houghton and Scheible
were shot.
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017 Page 7 of 14 [14] The State argues the evidence of Browers shooting a gun outside the house on
Creston Drive on the same night as the shootings at issue herein is not relevant
to a determination of who shot Houghton and Scheible in the alley behind the
house on Belmont Avenue. Evidence is “relevant” if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
Ind. Evidence Rule 401. If evidence is not relevant, then it “is not admissible.”
Evid. R. 402.
[15] The State notes there was “no evidence that Browers was present at Belmont,”
(Appellee’s Br. at 21), and all the evidence indicated Browers possessed a semi-
automatic weapon but “Houghton and [Scheible] were shot with a revolver.”
(Id.) Based on those same facts, the State also argues Detective Howard’s
testimony was not “exculpatory.” Exculpatory evidence is evidence that tends
to clear a person of alleged guilt. Tibbs v. State, 59 N.E.3d 1005, 1013 (Ind. Ct.
App. 2016), trans. denied. If evidence is not relevant, it cannot be exculpatory.
Id.
[16] In response, Baldwin notes “Scheible had testified that Mr. Browers had
orchestrated or was involved in the incident at Belmont.” (Br. of Appellant at
17.) Scheible did testify he believed Browers had something to do with his
shooting; he also testified Browers had pointed guns at him earlier in the
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017 Page 8 of 14 evening at the trap house and he believed Browers was mad at Houghton for
stopping to pick up Scheible on the way to the trap house.
[17] Nevertheless, Baldwin has not demonstrated that Detective Howard’s
testimony about Browers shooting a semi-automatic handgun at a car parked
on Creston Drive would make more or less probable any fact of consequence to
the determination of who shot Houghton or Scheible near Belmont Avenue,
which was a five-minute drive away, when all the evidence indicted Houghton
and Scheible were shot with a revolver, not a semi-automatic weapon. Nor
would proof that Browers was involved in “orchestrating” the shooting of
Houghton and Scheible relieve Baldwin of guilt for committing the actual
shootings. Thus, we hold the trial court did not abuse its discretion when it
excluded as irrelevant Detective Howard’s testimony about Browers shooting a
semi-automatic handgun at a car parked on Creston Drive. See Tibbs, 59
N.E.3d at 1013 (“The evidence Tibbs sought to introduce . . . was neither
exculpatory nor relevant. None of the excluded evidence made it less probable
that Tibbs murdered Rison or that McCarty was responsible for her murder as
required under Rule of Evidence 401.”).
[18] Moreover, there is no evidence of anyone but Baldwin shooting a gun in the
alley behind Belmont Avenue at the relevant time. Scheible testified he was in
the car when Baldwin shot Houghton in the head, and Warner testified he had
never seen Scheible with a gun. Scheible testified Baldwin shot him repeatedly
outside Baldwin’s car, and Warner testified he saw Baldwin shoot Scheible five
times in the alley. Davis testified shots were fired and then Baldwin jumped
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017 Page 9 of 14 into his car and told Davis to “go, go, go.” (Tr. Vol. 2 at 120.) Myers testified
Baldwin repeatedly asked Myers to clean the two revolvers. Exclusion of
evidence is harmless “if its probable impact on the jury, in light of all of the
evidence in the case, is sufficiently minor so as not to affect the defendant’s
substantial rights.” Montgomery v. State, 21 N.E.3d 846, 857 (Ind. Ct. App.
2014), trans. denied. The evidence implicating Baldwin in the shootings of
Houghton and Scheible was such that, even if the exclusion of Detective
Howard’s testimony had been in error, it would have been harmless error for
which we could not reverse his conviction. See Ind. Appellate Rule 66(A)
(harmless errors are not grounds for reversal).
Juror Misconduct [19] Baldwin also asserts the court abused its discretion when it denied his motion
for mistrial.
Because the trial court evaluates first-hand the relevant facts and circumstances at issue and their impact on the jury, it is in the best position to evaluate whether a mistrial is warranted. We accordingly review the trial court’s denial of a motion for mistrial for an abuse of discretion.
Weisheit v. State, 26 N.E.3d 3, 15 (Ind. 2015) (internal citations omitted), reh’g
denied, cert. denied 136 S. Ct. 901 (2016). The court abuses its discretion when
its decision is “clearly against the logic and effect of the facts and circumstances
before the court.” Vaughn v. State, 971 N.E.2d 63, 68 (Ind. 2012).
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017 Page 10 of 14 [20] Baldwin’s motion was based on the foreperson of his jury, K.W., texting with
attorney-friends on the evening between the second and third days of Baldwin’s
trial about the burden of proof in a criminal case. In 2014, our Indiana
Supreme Court clarified how Indiana courts should determine whether a
mistrial is required in circumstances such as these:
Defendants seeking a mistrial for suspected jury taint are entitled to the presumption of prejudice only after making two showings, by a preponderance of the evidence: (1) extra-judicial contact or communications between jurors and unauthorized persons occurred, and (2) the contact or communications pertained to the matter before the jury. The burden then shifts to the State to rebut this presumption of prejudice by showing that any contact or communications were harmless. If the State does not rebut the presumption, the trial court must grant a new trial. On the other hand, if a defendant fails to make the initial two-part showing, the presumption does not apply. Instead, the trial court must apply the probable harm standard for juror misconduct, granting a new trial only if the misconduct is “gross and probably harmed” the defendant. But in egregious cases where juror conduct fundamentally compromises the appearance of juror neutrality, courts should skip [the] two-part inquiry, find irrebuttable prejudice, and immediately declare a mistrial. At all times, trial courts have discretion to decide whether a defendant has satisfied the initial two-part showing necessary to obtain the presumption of prejudice or a finding of irrebuttable prejudice.
Ramirez v. State, 7 N.E.3d 933, 939 (Ind. 2014).
[21] The State concedes K.W.’s contact with attorney-friends about the burden of
proof in the case for which she was a juror satisfies the two-part test from
Ramirez and creates a presumption of prejudice that the State then had the
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017 Page 11 of 14 burden to rebut. 9 Baldwin asserts, first, that K.W.’s behavior was so egregious
that the prejudice to him should be irrebuttable and, second, that if the
prejudice is rebuttable, the trial court erred in finding the State rebutted the
prejudice to him.
[22] Baldwin argues K.W.’s behavior is akin to the facts in the three cases in which
our Indiana Supreme Court has held the facts are so “egregious” that the
prejudice to the defendant was irrebuttable – May v. State, 716 N.E.2d 419 (Ind.
1999); Kelley v. State, 555 N.E.2d 140 (Ind. 1990); and Woods v. State, 233 Ind.
320, 119 N.E.2d 558 (Ind. 1954), disapproved on other grounds by Ketcham v.
State, 240 Ind. 107, 110-14, 162 N.E.2d 247, 248-50 (Ind. 1959). Our Indiana
Supreme Court reversed May’s convictions for a new trial because irrebuttable
prejudice arose when, at a restaurant during a lunch break in the middle of a
witness’s cross-examination, that witness had a conversation with one of the
jurors and the juror invited the witness to come to his house the next weekend
for a social gathering. May, 716 N.E.2d at 422-23. In Kelley, irrebuttable
prejudice arose when three of six jurors sat at lunch with the State’s witness
because: “[d]espite the lack of clear evidence that the [witness] and the jurors
discussed the trial proceedings and despite the three jurors’ assertions that their
impartiality was intact, the enhancement of the credibility of the prosecution’s
9 In light of the broad reading our Indiana Supreme Court has given to that two-part test outlined in Ramirez, see Weisheit, 26 N.E.3d at 13-16 (two-part test met where juror’s wife attached the following note to cookies she baked for the jury: “Thank you for your service for the family of [the child victims of the alleged crime]. I will pray for you all to have strength and wisdom to deal with the days ahead. God bless!”), we appreciate the State’s explicit concession of this point at oral argument.
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017 Page 12 of 14 witness seems highly probable.” Kelley, 555 N.E.2d at 142. Woods’
convictions were reversed for “prima facie prejudice” after the State’s witnesses
visited with the jury during intermissions and recesses, even though no evidence
suggested the witnesses and jurors discussed the case. Woods, 233 Ind. at 322-
24, 119 N.E.2d at 560-61.
[23] We disagree with Baldwin’s assertion that the facts herein are like those in
Woods, Kelley, and May. K.W. did not interact with any witness such that her
ability to be impartial when assessing witness credibility or weighing the
evidence could be questioned. While her behavior was clearly inappropriate, it
was not so egregious that it created an irrebuttable presumption of prejudice.
See, e.g., Bisard v. State, 26 N.E.3d 1060, 1069 (Ind. Ct. App. 2015) (holding
juror’s internet search on the reliability of blood test results, the results of which
were shared with other jurors, did not fall into the category of cases where
egregious behavior creates an irrebuttable presumption of prejudice), trans.
denied.
[24] Next, Baldwin argues the trial court abused its discretion when it concluded the
State adequately rebutted the presumption of prejudice created by K.W.’s
behavior. To rebut that presumption, the State had to show “any contact or
communications were harmless.” Ramirez, 7 N.E.3d at 939. At the hearing on
Baldwin’s motion for mistrial, K.W. testified she did not share her text
conversations with the rest of the jury, she did not receive information from
those conversations that conflicted with the trial court’s instructions, and she
believed the jury rendered an impartial verdict based only on the trial court’s
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017 Page 13 of 14 instruction defining reasonable doubt. “The trial court is in the best position to
gauge the surrounding circumstances of an event and its impact on the jury, we
will not second-guess the trial court in this regard.” Bisard, 26 N.E.3d at 1069.
The record supports the trial court’s determination that Baldwin was not
prejudiced by K.W.’s conversations with friends about the burden of proof, and
we thus find no abuse of discretion therein. See id. (affirming trial court’s
decision that removal of juror who committed misconduct was sufficient to
alleviate any possible prejudice).
Conclusion [25] The trial court did not abuse its discretion by excluding evidence that Browers
shot his semi-automatic handgun at a car parked on Creston Drive on the same
night that Scheible and Houghton were shot, as that evidence was neither
relevant nor exculpatory and Baldwin cannot demonstrate he was harmed by its
exclusion. Nor did the court abuse its discretion when it determined the State
adequately rebutted the presumption that Baldwin was prejudiced by his jury
foreperson’s contacting friends about the burden of proof in a criminal case.
We accordingly affirm.
[26] Affirmed.
Baker, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017 Page 14 of 14