MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 17 2020, 10:00 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE James Harper Ian McLean Deputy Public Defender Supervising Deputy Attorney Harper & Harper, LLC General Valparaiso, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian Taylor, June 17, 2020 Appellant/Defendant, Court of Appeals Case No. 18A-CR-2086 v. Appeal from the LaPorte Circuit Court State of Indiana, The Hon. Thomas Alevizos, Judge Appellee/Plaintiff. Trial Court Cause No. 46C01-1403-MR-110
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 1 of 28 Case Summary [1] On the morning of March 14, 2014, Brian Taylor was at the Michigan City
home of his girlfriend Simone Bush when the two began to argue. They
struggled; Taylor shot Bush once in the neck, killing her; and Taylor fled.
Police began an investigation when Taylor and his grandfather arrived soon
thereafter at a Michigan City police station. Officers found Bush dead at her
house and obtained search warrants for the house, Taylor’s vehicle, and
Taylor’s person, all of which were executed that day. Taylor was arrested at
3:20 p.m.
[2] At 4:12 p.m., Taylor met with his attorney in an interview room at the police
station, and police officers in an adjacent room were able to eavesdrop on their
conversation and illegally did so. The conversation included discussion about
Taylor disposing of a firearm, which led to the recovery of a firearm from an
apartment complex. On March 16, 2014, the State charged Taylor with
murder.
[3] After the State informed Taylor that the conversation with his attorney had
been overheard, he moved to suppress all evidence collected after 4:12 p.m.,
and, after a hearing, the trial court ruled, inter alia, that evidence related to the
handgun recovered from the apartment complex was to be suppressed. The
Indiana Supreme Court affirmed the suppression of the handgun but concluded
that evidence collected after 4:12 p.m. that could be shown to have come from a
source independent of the overheard conversation was admissible.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 2 of 28 [4] After a mistrial was declared in Taylor’s first jury trial, he was tried a second
time in June of 2018. Over Taylor’s objections of witness taint, Detective
Patrick Cicero was allowed to testify regarding his analysis of blood patterns at
the scene and on Taylor’s clothing, and forensic pathologist Dr. Joseph
Prahlow was allowed to testify that Bush’s manner of death was homicide. The
jury found Taylor guilty as charged, and the trial court sentenced him to sixty
years of incarceration. As reordered, Taylor contends that (1) the trial court
abused its discretion in allowing Detective Cicero and Dr. Prahlow to testify
and in admitting evidence related to certain messages on Facebook and Dr.
Prahlow’s testimony that the manner of Bush’s death was homicide; (2) the
State produced insufficient evidence to sustain his murder conviction; and (3)
his sentence is inappropriately harsh. Because we disagree with all of Taylor’s
contentions, we affirm.
Facts and Procedural History Facts of Bush’s Death and the Police Investigation [5] On the evening of March 13, 2014, Taylor spent the night with Bush in the
house she shared with her grandmother Louise Kelly, her step-grandfather
Darrell Kelly, Sr., and Chanel Turner, among others. Early the next morning,
Turner, who lived in the basement with her children, heard wrestling in Bush’s
bedroom above her followed by what sounded like a gunshot. Darrell heard a
“thump, like something being knocked over” at around 6 a.m. and saw Taylor
quickly drive away shortly thereafter. Tr. Vol. IV p. 19. At approximately 7:35
a.m., Taylor arrived at a Michigan City police station with his grandfather, who
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 3 of 28 gave Taylor’s driver’s license to the police, told them that “something had gone
on,” and advised Taylor not to say a word until his attorney arrived. Tr. Vol. II
p. 55. Taylor had Bush’s blood on his shirt, pants, and hands.
[6] At 8:20 a.m., Detective Francisco Rodriguez of the Michigan City Police
Department (“MCPD”) searched Facebook and found an account under
Taylor’s name which included a photograph of him. Another officer had
learned that Taylor had a girlfriend who was possibly named Simone, so
Detective Rodriguez searched the Facebook account and found that Taylor had
a Facebook friend named Simone Bush. The Facebook page showed several
messages from around 5:00 a.m. that morning, including “I’m dat n[****] with
the fat heat keep you runnin like a track meet” and “How you don’t think you
dont gotta please yo man … Goofy[.]” State’s Ex. 7. After Detective
Rodriguez learned Bush’s address, several police officers went to investigate.
[7] When police arrived, they asked to check Bush’s bedroom, and MCPD
Detective Matthew Barr forced her bedroom door open far enough to see her
behind the door; she was dead, her eyes were open, her face was bloody, and
she was lying in a large pool of blood. Officers also noticed a hole in the wall
outside the bedroom, a mark in the ceiling of an adjacent room, and what was
later determined to be the fatal bullet on a couch underneath the mark in the
ceiling. There were footprints in the snow leading from Bush’s bedroom
window to the driveway, the bedroom window was partially open, and the
windowsill bore what appeared to be bloodstains.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 4 of 28 [8] A search warrant for the house was issued at approximately 11:00 a.m., and
officers who executed the warrant included Detective Cicero of the LaPorte
County Sheriff’s Department and Detective David Cooney of the MCPD.
Bloodstains on the wall behind Bush’s body bore arcing characteristics of
arterial gush or spurt, while other stains on the wall had the characteristics of
transfer stains. Bush had died from a gunshot wound to her neck at contact
range. The direction of the gunshot was from her left to right, front to back,
and upwards. The bullet had travelled through the base of Bush’s brain,
severing her spinal cord, fracturing her skull, and severing her carotid artery,
causing her circulatory system to pump blood out of the wound for a short
while until blood loss caused unconsciousness and death.
[9] Officers determined that the fatal bullet had come from a gun fired in Bush’s
bedroom, striking her and passing through the wall at a height of approximately
five feet at an upward angle before hitting the ceiling in the next room and
falling to the couch. Although officers did not find any firearms at the scene,
they did find a shipping invoice addressed to Taylor for an SGM tactical Glock
magazine for .40 caliber ammunition and several spent casings for .40 caliber
rounds in Bush’s room. Bush was also known to have a mobile telephone, but
it was not found at the scene. Officers later attempted to recover both Taylor’s
and Bush’s mobile telephones, with no success. Officers finished processing the
scene between 3:00 p.m. and 4:00 p.m. A search of Taylor’s vehicle yielded,
inter alia, a backpack that contained empty boxes for two Glock handguns, one
model 22 and one model 23, both of which take .40 caliber ammunition.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 5 of 28 [10] Taylor was arrested at 3:20 p.m., and attorney David Payne arrived at the
police station while officers were executing a search warrant for Taylor’s
person, which revealed several scratches on his chest and arms. At 4:12 p.m.,
MCPD Detective Stephen Westphal and LaPorte County Chief Deputy
Prosecuting Attorney Robert Neary showed Payne into an interview room,
where Taylor was waiting. Detective Westphal told Payne to flip a toggle
switch to prevent anyone outside the room from hearing his conversation with
Taylor, and Payne did so. An adjacent room, referred to as the “war room,”
was used by officers to work on cases. As it happened, the switch Payne had
activated in the interview room did not prevent persons in the war room from
hearing conversations in the interview room.
For the next thirty to forty minutes, the War Room group listened in as Taylor and his attorney discussed “all aspects” of the case, including location of evidence and defense trial strategy. According to Chief Deputy Prosecutor Neary, the officers cut off the audio feed immediately after Taylor revealed the location of a handgun. State v. Taylor, 49 N.E.3d 1019, 1021 (Ind. 2016) (“Taylor I”).
[11] Detective Cooney was among those present in the war room and overheard at
least some of the conversation between Payne and Taylor, which included
discussion of the disposal of a firearm. Despite Neary’s instruction not to
search for the firearm, some officers did, which led to the recovery of a Glock
22 whose serial number matched the serial number on one of two Glock
containers found in Taylor’s vehicle. Officers followed up on the other Glock
container found in Taylor’s backpack and determined that the Glock 23 with
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 6 of 28 the matching serial number had been purchased by Bush. The Glock 23 was
later recovered by Chicago police and examined by South Bend Police Officer
Ray Wolfenbarger. Officer Wolfenbarger determined that the Glock 23 was
fully operational and could have fired the bullet that killed Bush.
[12] Detective Cooney, in addition to assisting at the scene, also helped execute the
search warrant on Taylor’s vehicle and helped Detective Cicero move Taylor’s
clothing to the basement. Detective Cicero examined Taylor’s clothing
beginning shortly after 4:40 p.m. on March 14, 2014. Detective Cicero could
not specifically remember sharing his opinions and thoughts when processing
Taylor’s clothes but testified later that his examination was consistent with his
normal practices and that he may have spoken with Detective Cooney.
Detective Cicero, who had already examined bloodstains at the scene,
documented bloodstains found on Taylor’s clothing and later prepared initial
and supplemental bloodstain pattern analysis reports detailing his findings. On
April 15, 2014, Detective Cicero further examined the interior of Taylor’s
clothing, including a microscopic examination.
[13] Detective Cicero determined that bloodstains found on the front of Taylor’s
undershorts displayed small-diameter stains, indicating that Bush’s blood had
been dispersed into individualized droplets. Stains on the left rear side
displayed a different type of pattern, indicating that the shorts had come into
contact with the source of the bloodstains. Stains on the inside front waistband
of Taylor’s blue jeans near the fastening button, the lower outside left leg near
the cuff, the rear outside waist area, and on the outside front left pocket of the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 7 of 28 jeans were all made leaving a contact pattern, consistent with a bloody hand
making contact with the undershorts. The outside of Taylor’s shirt displayed
similar contact stains, although one area might have been made by pattern
transfer, which is left when a patterned object with blood on it presses into the
surface leaving a mark. As for the scene, the bloodstain on the heater vent
under Bush’s bedroom window displayed the characteristics of a gravity stain,
made by blood falling onto a surface. Detective Cicero’s written reports also
relied on DNA analysis showing that Taylor’s skin was found under Bush’s
fingernails. Detective Cicero’s supplemental report included the following
conclusion:
At the time of the bloodletting event it is believed the suspect was in contact and/or close proximity to the decedent only wearing the aforementioned polyester shorts and ankle length socks. The suspect subsequently dressed while the bloodstains on his being were still wet which created the bloodstain patterns consistent with being contact transfer on the interior and exterior sides of his clothing. Supp. App. p. 57.
[14] Neither of Detective Cicero’s reports concluded that Taylor had been the
shooter or that there had been a physical conflict immediately before the
shooting. Detective Cicero’s work on the case followed standard procedures
and relied on his inspection of physical evidence. Detective Cicero was never
in the war room on March 14, 2014, and did not hear any of the conversation
between Taylor and Payne, only learning about it “a considerable time” later
from another person. Tr. Vol. III p. 116. Detective Cicero could not recall who
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 8 of 28 this person was, but recalled that the person had said “something to do with a
firearm.” Tr. Vol. III p. 103.
[15] On March 17, 2014, Bush’s autopsy was performed by Dr. Prahlow and was
attended by Detective Cooney and LaPorte County Deputy Coroner Mark
Huffman. Detective Cooney recalled speaking with Dr. Prahlow and
explaining a “scenario that [Bush] had received a gunshot wound” and “the
circumstances surrounding the scene itself. How she was found. Where she
was in the room. The extent of what we knew of the injuries.” Tr. Vol. II pp.
101, 145–46. At some point, Detective Cooney shared with Dr. Prahlow his
theory that a struggle or some kind of confrontation had occurred between Bush
and Taylor. Detective Cooney’s hypothesis was based on the presence of blood
on Taylor’s hands and the “directionality of the bullet that was discovered
showed that she was up against a wall, that the round entered through the left
side of her neck[.]” Tr. Vol. III p. 68. Detective Cooney’s theory was also
based on the scratches found on Taylor’s chest and arm. Detective Cooney
later testified that his opinions were not influenced by anything Taylor and
Payne had said to one other in the interview room.
[16] Dr. Prahlow’s report was issued on April 22, 2014, and, inter alia, noted under
the heading “circumstantial history” that “the decedent was reportedly shot in
the neck by her boyfriend during an altercation.” Supp. Ex. Vol. p. 60. Dr.
Prahlow could not recall who had told him about a struggle or altercation
between Bush and Taylor: “Again, I don’t have the specific person. It would
either be the deputy corner in attendance, Mr. Mark Huffman, or perhaps a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 9 of 28 police officer in attendance, Officer David Cooney. I also have [Detective]
Cicero listed on my intake form as well.” Tr. Vol III p. 162.
Procedural Facts [17] Meanwhile, on March 16, 2014, the State had charged Taylor with Bush’s
murder. On June 10, 2014, Taylor filed a motion to suppress after the State
notified Payne that officers had overheard their conversation in the interview
room. On June 16 and 17, 2014, the trial court held a suppression hearing at
which Taylor argued that all evidence obtained after 4:12 p.m. on March 14,
2014, should be suppressed. On June 17, 2014, the trial court ruled that
evidence related to the Glock 22 recovered by police in Michigan City should
be suppressed, that numerous other pieces of physical evidence did not need to
be suppressed, and deferred ruling on the admissibility of certain other items.
The trial court also ruled that several police witnesses who had asserted the
privilege against self-incrimination at the suppression hearing were barred from
testifying as the case progressed. On June 19, 2014, the trial court later clarified
its order to allow the admission of evidence collected before 4:12 p.m. on
March 14, 2014, and reiterated that the burden was on the State to establish that
evidence collected after 4:12 p.m. was admissible at trial.
[18] The State appealed, and while the Indiana Supreme Court ultimately affirmed
the trial court’s rulings regarding the admissibility of physical evidence, it
concluded that the trial court’s blanket suppression of witness testimony was an
inappropriate remedy. See Taylor I, 49 N.E.3d 1026–28. The Taylor I Court
determined that the appropriate remedy was to remand for the trial court to
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 10 of 28 determine “as to each presumptively tainted witness whether the State has
proven beyond a reasonable doubt an independent source for that witness’s
testimony[.]” Id. at 1029 (emphasis in Taylor I). The Taylor I Court did not
address Taylor’s prosecutorial misconduct claim because the impact of
prosecutorial misconduct is measured by its probable persuasive effect on the
jury’s decision and no trial had yet occurred. Id.
[19] On August 28 and 29, 2017, the trial court held a second suppression hearing.
On January 23, 2018, the court ruled that (1) all physical evidence collected and
testimony regarding officers’ observations made prior to 4:12 p.m. on March
14, 2014, was admissible; (2) evidence related to the Glock 22 recovered by
officers in Michigan City was inadmissible; and (3) evidence related to the
Glock 23 recovered by police in Chicago was inadmissible, although the
question could be revisited in further proceedings. The trial court also found
that to the extent that an officer or officers had told Dr. Prahlow about an
altercation, it had been the result of what the officers had already believed or
known before 4:12 p.m. on March 14, 2014, namely, their belief that Taylor
had shot Bush and their knowledge of the scratch marks on Taylor’s body and
that Taylor had appeared at MCPD with bloodstains on his clothing and hands.
[20] On February 26, 2018, Taylor was tried before a jury, after which a mistrial was
declared when the jury could not reach a verdict. On June 18 through 20, 2018,
Taylor was tried a second time before a jury. The Facebook messages from
5:00 a.m. on March 14, 2014, were admitted over Taylor’s objection that they
could not be attributed to him. Detective Cicero testified, over objection of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 11 of 28 taint, regarding his analysis of bloodstains at the scene and on Taylor’s
clothing. Detective Cicero was not asked, and did not opine on, whether the
bloodstains found on the scene or Taylor’s clothing indicated that an alteration
had occurred between Taylor and Bush before her death. Neither of Detective
Cicero’s written reports were offered into evidence.
[21] Dr. Prahlow testified, over objection, that “homicide” was the manner of
Bush’s death, meaning “death at the hands of another individual.” Tr. Vol. IV
p. 182. Dr. Prahlow testified that the gunshot was at contact range due to the
presence of soot and stippling at the entrance wound, meaning that there was
“either no space or little space” between her and the handgun when it fired. Tr.
Vol. IV p. 200. While acknowledging that he could not exclude suicide as the
manner of Bush’s death, Dr. Prahlow testified that he had relied on information
he had received and his own judgment to conclude that her death had, in fact,
not been a suicide. Specifically, Dr. Prahlow emphasized that the location of
the gunshot wound in the neck was quite unusual for a suicide, the “classic
locations” being the chest, forehead, temple, mouth, or underneath the chin.
Tr. Vol. IV p. 197. As for the possibility of an accidental shooting, Dr. Prahlow
acknowledged on cross-examination that he could not exclude the possibility
that the gun had been discharged while Taylor and Bush were wrestling over its
possession. Dr. Prahlow’s autopsy report, as admitted into evidence, did not
include the circumstantial history that he had been told that Bush had
reportedly been shot by her boyfriend.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 12 of 28 [22] During closing, Taylor argued that the evidence was consistent with Taylor and
Bush arguing, Bush picking up a handgun, and an accidental discharge
occurring during a struggle for the handgun, possibly due to a malfunction.
The jury found Taylor guilty as charged. On July 31, 2018, the trial court
sentenced Taylor to sixty years of incarceration.
Discussion and Decision I. Admission of Evidence [23] Taylor contends that the trial court abused its discretion in allowing Detective
Cicero and Dr. Prahlow to testify, admitting certain Facebook messages from
Taylor’s account, and allowing Dr. Prahlow to opine that Bush’s manner of
death was homicide. A trial court’s ruling on the admission or exclusion of
evidence is reviewed for an abuse of discretion that results in prejudicial error.
Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). A trial court’s evidentiary
decision will be reversed for an abuse of discretion only where the court’s
decision is clearly against the logic and effect of the facts and circumstances, or
when the court misinterprets the law. Id.
A. Detective Cicero’s and Dr. Prahlow’s Testimony [24] Taylor contends that the testimony of Detective Cicero and Dr. Prahlow was
tainted by the eavesdropping on his conversation with Payne and that the State
failed to establish beyond a reasonable doubt that they had a source
independent of the eavesdropping for their testimony. Here, it was for the trial
court to determine whether the State’s burden had been met. Generally, a trial
court determines factual questions regarding admissibility by a preponderance
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 13 of 28 of the evidence, Ind. Evidence Rule 103(f), but the Indiana Supreme Court has
determined, at least under the circumstances of this case, that the State’s burden
of proof was to be beyond a reasonable doubt. See Taylor I, 49 N.E.3d at 1029.
1. Detective Cicero [25] Taylor contends that the State failed to establish beyond a reasonable doubt that
Detective Cicero’s testimony regarding bloodstain patterns had a source
independent of the eavesdropping of Taylor’s conversation with Payne. Taylor
seems to argue that Detective Cicero’s reports and testimony must have been
affected by hearing that Taylor and Bush had been involved in some sort of
altercation before her shooting, giving rise to a presumption of taint that the
State failed to rebut. We disagree.
[26] At the first suppression hearing on June 16, 2014, Detective Cicero testified that
he had not photographed Taylor’s clothing as a result of any overheard
conversation between Taylor and Payne, he had not been provided with any
information that there may have been a struggle or altercation between Taylor
and Bush, and his reports had not been prepared as a result of the conversation
between Taylor and Payne. Detective Cicero also testified that his reports were
prepared as part of a normal course of action when investigating a crime scene.
Moreover, at the second suppression hearing on August 28, 2017, Detective
Cicero testified that he had not overheard any of the conversation between
Taylor and Payne on March 14, 2014, and had not heard anything about the
conversation from anyone that had influenced his reports. It was within the
trial court’s discretion to credit Detective Cicero’s testimony that his
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 14 of 28 investigation and conclusions were based on an independent source, and it did.
Taylor’s argument is, essentially, that Detective Cicero’s analysis and testimony
must have been tainted by whatever it is that he heard about the conversation
between Taylor and Payne. This is nothing more than an invitation to reweigh
the evidence, which we will not do. 1
2. Dr. Prahlow [27] Taylor also contends that the State failed to establish that Dr. Prahlow’s
testimony had a source independent of the eavesdropping. Dr. Prahlow was
not present in the war room at any time on March 14, 2014, so the Taylor I
presumption of taint does not apply directly to him. Taylor, however, argues
that Dr. Prahlow’s conclusions are tainted because Detective Cooney’s theory
that a struggle occurred, which he relayed to Dr. Prahlow, was tainted. The
record does reflect that Detective Cooney was in the war room after 4:12 p.m.
on March 14, 2014, and did, in fact, later relate to Dr. Prahlow his theory that
Taylor and Bush had struggled before she was shot. We conclude, however,
that the State has produced evidence sufficient to establish that Detective
Cooney’s theory of a struggle was based on evidence independent of any
eavesdropping that may have occurred.
1 Taylor argues that Detective Cicero’s conclusions were tainted without ever actually identifying those conclusions. As it happens, the only conclusion of consequence drawn in either report was that Taylor was standing near to Bush when she was shot, something that Taylor does not dispute. Neither of Detective Cicero’s reports concluded that Taylor was the shooter (much less that he shot intentionally) or that a struggle preceded Bush’s death. In any event, the reports were not offered into evidence at trial.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 15 of 28 [28] Even if we assume that Detective Cooney overhead some—or even all—of the
conversation between Taylor and Payne from the war room, he testified at the
second suppression hearing that he had already concluded before 4:12 p.m. that
there had been a “scuffle or a fight or a confrontation […] from the totality of
everything that we collected from the residence, and then the suspect himself
coming to the station that had blood on his hands; the scratch marks,
everything, lead me to believe -- my hypothesis was that some kind of conflict
happened.” Tr. Vol. III p. 76. As with Detective Cicero’s testimony, the trial
court was entitled to credit Detective Cooney’s testimony that his theory that a
struggle occurred was drawn from a source independent of Taylor and Payne’s
conversation, and it did. We again decline Taylor’s invitation to reweigh the
evidence.
3. Prosecutorial Misconduct [29] Taylor also argues that Detective Cicero’s and Dr. Prahlow’s testimony should
have been excluded “because it was a fruit of prosecutorial misconduct.”
Appellant’s Br. p. 26. As the Taylor I Court emphasized, a successful claim of
prosecutorial misconduct consists of two components:
First, there must be misconduct; and second, the misconduct must have placed the defendant in a position of grave peril. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). “The gravity of the peril is measured by the probable persuasive effect of the misconduct on the jury’s decision rather than the degree of impropriety of the conduct.” Id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 16 of 28 49 N.E.3d at 1029 (emphasis in Taylor I). Put another way, even the most
egregious official misconduct does not entitle a defendant to relief unless it can
be shown to have likely affected the jury’s decision.
[30] While we certainly agree that the official misconduct here was “flagrant[,]
unconscionabl[e, and] shameful[,]” id. at 1023–24, Taylor simply has not
established that it ultimately had any probable persuasive effect on the jury’s
decision. As mentioned, all evidence regarding the Glock 22 handgun found in
Michigan City was suppressed, and, as we have already determined, the State
sufficiently overcame the presumption of taint with regard to the testimony of
Detective Cicero and Dr. Prahlow. If the jury did conclude that a struggle
occurred before Bush’s death, it was not because it heard any witness testify
that such a struggle occurred or saw any exhibit that contained such a
conclusion because no such evidence was admitted. In fact, the jury may very
well have concluded that a struggle occurred because Taylor himself urged it to
by arguing that Bush was shot accidentally during a struggle. However
egregious the official misconduct was in this case, Taylor has failed to establish
that it placed him in any peril at all, much less grave peril.
B. Facebook Messages [31] Taylor contends that the trial court abused its discretion in admitting Facebook
messages that he argues were insufficiently authenticated.
“To lay a foundation for the admission of evidence, the proponent of the evidence must show that it has been authenticated.” Hape v. State, 903 N.E.2d 977, 989 (Ind. Ct. App. 2009), trans. denied. Indiana Rule of Evidence 901(a) provides that “[t]o satisfy the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 17 of 28 requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Absolute proof of authenticity is not required. M.T.V. v. State, 66 N.E.3d 960, 963 (Ind. Ct. App. 2016), trans. denied. Rather, the proponent of the evidence must establish only a reasonable probability that the evidence is what it is claimed to be, and may use direct or circumstantial evidence to do so. Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied. Once this reasonable probability is shown, any inconclusiveness of the evidence’s connection with the events at issue goes to evidential weight, not admissibility. Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied. “Letters and words set down by electronic recording and other forms of data compilation are included within Rule 901(a).” Wilson v. State, 30 N.E.3d 1264, 1268 (Ind. Ct. App. 2015), trans. denied. Richardson v. State, 79 N.E.3d 958, 962–63 (Ind. Ct. App. 2017) (paragraph
numbers omitted), trans. denied. An adequate foundation may also be provided
by circumstantial evidence “peculiar to the facts of the particular case” that
“establish at least a prima facie showing of authentication.” Pavlovich, 6 N.E.3d
at 977 (quotation omitted). This foundation need not be based on evidence that
is itself admissible. Evid. R. 101(d). Moreover, facts establishing a foundation
do not have to be established solely by witnesses testifying at a trial as opposed
to an earlier hearing. Jeter v. State, 888 N.E.2d 1257, 1267 (Ind. 2008); McFall v.
State, 71 N.E.3d 383, 388–89 (Ind. Ct. App. 2017).
[32] The record contains ample evidence known to the trial court which
authenticates Taylor’s Facebook page and messages. First, the page in question
was found by searching for Taylor’s name on March 14, 2014, and the page
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 18 of 28 displays a photograph of Taylor. Moreover, Detective Barr found Taylor’s
Facebook identification and a link to his Facebook account on a computer in
Bush’s house. Accessing the Facebook page would have required the account
owner’s email address and password, and the trial court heard evidence that
Taylor had used a computer in Bush’s house the night before her death.
[33] Moreover, circumstances also tend to show that the messages in question were
made by Taylor. “How you don’t think you don’t gotta please yo man ...
Goofy” was posted shortly before Bush was killed and indicates that the poster
was displeased with how he was being treated by a paramour, and it is
undisputed that Taylor and Bush were romantically involved. State’s Ex. 7.
Taylor’s Facebook page also contains a message indicating that the poster had
“fat heat[,]” which is a slang term for a firearm. State’s Ex. 7. Because the
evidence identifies Taylor as the owner of the Facebook account and the
Facebook page contains messages whose content can be explained by the
circumstances of Bush’s death shortly after they were made, it is sufficient to
support a finding of authenticity. See Wilson v. State, 30 N.E.3d 1264, 1269
(Ind. Ct. App. 2015) (concluding that testimony identifying a Twitter account
as belonging to the defendant and evidence of content posted on the account
corresponding to events developed in the investigation were “more than
sufficient to authenticate the Twitter posts as being authored by Wilson”), trans.
denied.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 19 of 28 C. Dr. Prahlow’s Opinion Regarding Bush’s Manner of Death [34] Taylor contends that the trial court abused its discretion in allowing Dr.
Prahlow to testify regarding his conclusion that the manner of Bush’s death was
homicide, claiming that this was equivalent to opining that Taylor was guilty of
murdering Bush. It is true that Indiana Evidence Rule 704(b) provides that
“[w]itnesses may not testify to opinions concerning intent, guilt, or innocence
in a criminal case[.]” Dr. Prahlow did not, however, opine that Taylor was
guilty of murder, only that her death was a homicide; he merely offered
testimony that supports an inference of guilt, which is unquestionably
admissible. For one thing, Taylor’s argument ignores Evidence Rule 704(a),
which provides that “[t]estimony in the form of an opinion or inference
otherwise admissible is not objectionable just because it embraces an ultimate
issue.” While evidence that Bush’s manner of death was homicide and that
Taylor was the only other person in the room at the time may be damning, Dr.
Prahlow simply did not testify that he believed Taylor to be guilty of murder.
Essentially, Taylor would have us hold that evidence that allows an inference of
guilt—all prejudicial evidence, in other words—is somehow equivalent to
opinion testimony that a criminal defendant is guilty and therefore inadmissible
in a criminal case. We will not consider adopting this clearly overbroad
proposition. Taylor has failed to establish that the trial court abused its
discretion in admitting Dr. Prahlow’s testimony regarding Bush’s manner of
death.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 20 of 28 II. Sufficiency of Evidence [35] Taylor contends that the State produced insufficient evidence to support his
murder conviction. When a defendant challenges the sufficiency of the
evidence used to convict him of a crime, we consider only the probative
evidence and reasonable inferences arising therefrom supporting the conviction.
Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm a conviction
unless no reasonable factfinder could find the elements of the crime proven
beyond a reasonable doubt. Young v. State, 973 N.E.2d 1225, 1226 (Ind. Ct.
App. 2012). Put another way, reversal of a defendant’s conviction “is
appropriate only when a reasonable trier of fact would not be able to form
inferences as to each material element of the offense.” Purvis v. State, 87 N.E.3d
1119, 1124 (Ind. Ct. App. 2017), aff’d on reh’g, 96 N.E.3d 123 (Ind. Ct. App.
2018). This standard of review does not permit us to reweigh the evidence or
allow us to judge the credibility of the witnesses. McCallister v. State, 91 N.E.3d
554, 558 (Ind. 2018). Where there is conflicting evidence in the record, we
consider the evidence in the light most favorable to the judgment. Drane, 867
N.E.2d at 146.
[36] Pursuant to Indiana Code section 35-42-1-1(1), the State was required in this
case to establish that Taylor knowingly or intentionally killed Bush. It is not
disputed that Taylor was in Bush’s bedroom when she was killed by a single
gunshot fired from contact range, and blood-splatter evidence establishes that
Taylor was in close proximity to Bush at the time. There is also ample evidence
that Taylor and Bush were involved in a confrontation that became physical
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 21 of 28 before she was shot. At 5:00 a.m. on March 14, 2014, Taylor posted a
Facebook message indicating that he was upset with Bush for not pleasing him.
Turner, who was in the room below Bush’s bedroom, heard “wrestling”
followed by a gunshot. Taylor’s chest bore scratches when he was examined
later in the day, and his DNA was found under Bush’s fingernails.
[37] The State also produced evidence of Taylor’s flight and destruction and/or
attempted concealment of evidence, which supports an inference of guilt. An
eyewitness, physical evidence, and later recovery of the Glock 23 tend to show
that, after Bush was shot, Taylor dressed, climbed out of her bedroom window,
and quickly drove off, taking evidence with him. The State also produced some
evidence that Taylor took Bush’s mobile telephone with him when he left and
later disposed of it together with his own. This evidence further supports an
inference of guilt. See, e.g., Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001)
(“Flight and related conduct may be considered by a jury in determining a
defendant’s guilt.”); Stone v. State, 555 N.E.2d 475, 477 (Ind. 1990) (concluding
that attempts to conceal evidence may be considered as proving consciousness
of guilt).
[38] As for the question of whether the handgun that killed Bush was fired
deliberately , the State produced evidence that the Glock 23 handgun, which
could have fired the fatal shot, functioned normally, requiring a deliberate pull
of the trigger to fire in addition to the prior action of deliberately pulling the
slide rearwards to chamber a round. This evidence tends to show deliberate
action. See, e.g., Pierce v. State, 705 N.E.2d 173, 175 (Ind. 1998) (“As for proof
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 22 of 28 that Pierce killed knowingly, an expert witness testified that the Lorcin pistol in
question could only be fired by pulling the trigger; thus, other types of
mishandling could not have caused the gun to discharge as Pierce claims.”).
[39] The jury also heard evidence tending to show that Bush was not the person who
fired the fatal shot. Dr. Prahlow, a board-certified forensic pathologist who had
worked exclusively as a medical examiner and forensic pathologist for over
twenty years, testified that a typical suicide involved a gunshot “to center chest,
center forehead, temple, intraoral, or also underneath the chin[.]” Tr. Vol. IV.
p. 197. Bush, however, was shot on the left side of her neck. In order for the
right-handed Bush to shoot herself in the neck with her dominant hand, she
would have had to have reached far underneath her chin and across her chest to
angle the gun back to her neck. Taylor is also right-handed, though, and in
order to put a gun to Bush’s neck and pull the trigger, all that would have been
required was a much more natural reaching motion with his dominant hand.
In summary, the State produced evidence that Taylor was present when Bush
died, he was in close proximity when she was shot, he fled and concealed
evidence afterwards, the fatal gunshot was fired deliberately, and Bush was not
the person who fired the handgun. We conclude that this is more than
sufficient to sustain a finding that Taylor murdered Bush.
[40] Taylor relies on Willis v. State, 27 N.E.3d 1065, 1067 (Ind. 2015), for the
proposition that his flight is not probative of his guilt. Willis, in which the
defendant was convicted of criminal trespass solely on evidence that officers
responding to a building saw him running in a field 100 yards away, is easily
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 23 of 28 distinguished. Id. The Willis Court concluded that the simple act of running
through a field was not probative of whether Willis “interfered with the
possession or use of the property of the Watkins Family Recreational Center.”
Id. Here, however, there is no dispute that Taylor was in the same room with
Bush when she was shot, and the State produced evidence that he dressed
himself, snuck out the window, and drove away from the house with such haste
that he almost struck a wall. To the extent that Willis stands for the proposition
that the mere act of running in the general vicinity of an alleged crime scene is
insufficient to support a criminal conviction, it has no applicability to this case.
[41] Taylor also contends that the State failed to establish that he intended to kill
Bush, relying on Landress v. State, 600 N.E.2d 938 (Ind. 1992). Landress is also
easily distinguished. First, in Landress the State was required to prove that
Landress intentionally killed the victim in order to impose the death penalty.
Id. at 940. Here, however, the State was only required to prove that Taylor
knowingly killed Bush, and “[a] person engages in conduct ‘knowingly’ if,
when he engages in the conduct, he is aware of a high probability that he is
doing so.” Ind. Code § 35-41-2-2(b); see also Ind. Code § 35-2-42-1-1(1) (“A
person who […] knowingly or intentionally kills another human being […]
commits murder, a felony.”).
[42] Landress is also factually distinguishable. In that case, the evidence established
only that (1) Landress participated in a robbery during which her accomplice
fatally stabbed the victim multiple times and (2) of the two knives at the scene—
one Landress brought to the robbery and one Landress took from the kitchen—
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 24 of 28 the victim’s blood was found on the knife Landress took from the kitchen. Id.
at 941–42. The Landress Court rejected the State’s argument that because the
victim had been stabbed with the knife Landress had taken from the kitchen,
the jury could infer that Landress had stabbed the victim and that she had
intended the victim to die. Id. at 942. In contrast, the evidence in this case does
not establish that Taylor’s connection to the fatal shot was simply giving the
pistol to Bush in the midst of a physical altercation. As discussed above, the
State produced evidence that the gun was fired by Taylor and not Bush.
Taylor’s reliance on Landress is unavailing. In the end, Taylor’s claim is
nothing more than an invitation to reweigh the evidence, which we will not do.
See Drane, 867 N.E.2d at 146.
III. Appropriateness of Sentence [43] Taylor contends that his sixty-year sentence for murder is inappropriately
harsh. We “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the Court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” Ind. Appellate Rule 7(B). “Although appellate review of sentences
must give due consideration to the trial court’s sentence because of the special
expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B)
is an authorization to revise sentences when certain broad conditions are
satisfied.” Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans.
denied (citations and quotation marks omitted). “[W]hether we regard a
sentence as appropriate at the end of the day turns on our sense of the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 25 of 28 culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other factors that come to light in a given case.” Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008). In addition to the “due
consideration” we are required to give to the trial court’s sentencing decision,
“we understand and recognize the unique perspective a trial court brings to its
sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.
2007). Taylor has the burden to show his sentence is inappropriate in light of
both the nature of the offense and his character. Gil v. State, 988 N.E.2d 1231,
1237 (Ind. Ct. App. 2013). This can only be done with “compelling evidence
portraying in a positive light the nature of the offense […] and the defendant’s
character.” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[44] The nature of Taylor’s offense contains nothing that puts it in “a positive light.”
Id. Taylor shot and killed his girlfriend when he was a guest in her home,
apparently (at least in part) because she would not “please” him. State’s Ex. 7.
Taylor argues that the severity of this crime is lessened by evidence that Bush
scratched the skin of his chest and arm before he killed her. If scratching Taylor
was the act that got Bush killed, this, if anything, underscores the senselessness
of Bush’s killing. Instead of deescalating the situation and disengaging from the
struggle, Taylor put a loaded handgun against Bush’s neck and fired, killing her.
Taylor did not summon help but, rather, dressed himself and fled, taking
evidence with him. Taylor has failed to establish that the nature of his offense
warrants a more lenient sentence.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 26 of 28 [45] As for Taylor’s character, it is worth noting that while on pretrial release in this
case, he picked up additional charges of attempted murder, criminal
recklessness, and criminal recklessness by discharging a firearm into a building.
That case was disposed of in the same court as this case, and the trial court
observed that another person died as a result of Taylor’s conduct in that case.
Taylor had served the sentence for that other case by the time he was sentenced
in this one, but the fact that he committed that act after killing Bush does not
reflect well on his character, to say the least. Moreover, he murdered Bush
when her family and Turner’s children were asleep in their beds. As the trial
court noted, this, at the very least, indicates that Taylor had no qualms about
discharging a firearm when others in the home could have been struck by the
bullet after it passed though the wall of the bedroom. Taylor has not
established that his moderately-aggravated sixty-year sentence is inappropriate
in light of the nature of his offense and his character.
Conclusion [46] We conclude that the trial court did not abuse its discretion in allowing
Detective Cicero and Dr. Prahlow to testify or in admitting evidence related to
Taylor’s messages on Facebook and Dr. Prahlow’s testimony that the manner
of Bush’s death was homicide. Moreover, we conclude that the State produced
sufficient evidence to sustain Taylor’s murder conviction. Finally, we conclude
that Taylor has failed to establish that his sixty-year sentence is inappropriately
harsh.
[47] We affirm the judgment of the trial court.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 27 of 28 Baker, J., and Pyle, concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020 Page 28 of 28