MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Mar 11 2016, 8:40 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Peter D. Todd Gregory F. Zoeller Elkhart, Indiana Attorney General of Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Darian S. Bowman, March 11, 2016 Appellant-Defendant, Court of Appeals Case No. 20A05-1503-CR-111 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Evan S. Roberts, Appellee-Plaintiff. Judge Trial Court Cause No. 20D01-1306-FB-71
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-111 | March 11, 2016 Page 1 of 17 Statement of the Case [1] Darian S. Bowman (“Bowman”) appeals, following a jury trial, his convictions
for Class C felony intimidation1 and Class D felony pointing a firearm at
another person.2 During the jury trial, the trial court struck a portion of the
testimony of the victim, who was a defense witness, after she invoked
protection from self-incrimination under the Fifth Amendment to the United
States Constitution during cross-examination. Bowman argues that the trial
court erred by striking the victim’s testimony. Because Bowman raises grounds
on appeal that he did not raise at trial, we conclude that he has waived
appellate review of this argument. Waiver notwithstanding, we conclude that
the trial court did not abuse its discretion by striking the testimony, and we
affirm his convictions.3
[2] We affirm.
Issue Whether the trial court erred by striking a portion of the testimony of the victim, who was a defense witness, after she invoked protection from self-incrimination under the Fifth Amendment to the United States Constitution.
1 IND. CODE § 35-45-2-1. We note that, effective July 1, 2014, a new version of the intimidation statute was enacted and that Class C felony intimidation is now a Level 5 felony. Because Bowman committed his offense in 2013, we will apply the statute in effect at that time. 2 I.C. § 35-47-4-3. Pursuant to the 2014 version of this statute, this Class D felony pointing a firearm at another person offense is now a Level 6 felony. 3 Bowman was also convicted of Class B felony unlawful possession of a firearm by a serious violent felon, but—as he pled guilty to this charge—he does not appeal this conviction.
Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-111 | March 11, 2016 Page 2 of 17 Facts [3] In February 2013, Bowman was married to April Sylvester, but the two were
separated and not living together. At that time, Sylvester lived in Elkhart,
Indiana with her three children.
[4] Around 2:30 a.m. on February 4, 2013, Sylvester called 911 and reported that
Bowman had gone to her house, pulled a gun on her, threatened to kill her, and
then left in his truck. 4 Elkhart Police Corporal Jackie Davis (“Corporal Davis”)
was dispatched to Sylvester’s house and arrived within five minutes. When the
corporal arrived, she noticed recent tire tracks in the snow on Sylvester’s
driveway. Sylvester, who was shaking and upset and had tears in her eyes, told
Corporal Davis that Bowman had come to her house wanting to get back
together with her and that she had rebuked Bowman’s request. Sylvester told
the corporal that Bowman then went to his truck, returned with a nine-
millimeter handgun, and pointed it at her, saying, “I’m going to kill you. If I
can’t have you then nobody can have you[.]” (Tr. 260). Sylvester told
Corporal Davis that she then closed the door and called for the police. As
Sylvester stood next to Corporal Davis, she received multiple threatening texts
from Bowman, and the corporal saw the texts. Sylvester also wrote out a sworn
witness statement and recounted the events of February 4, 2013.
4 A redacted version of the CD recording of the 911 call was admitted into evidence, but the trial court reporter did not transmit the CD in the Exhibit Volume.
Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-111 | March 11, 2016 Page 3 of 17 [5] Thereafter, on June 7, 2013, the State charged Bowman with Count I, Class B
felony unlawful possession of a firearm by a serious violent felon; Count II,
Class C felony intimidation; and Count III, Class D felony pointing a firearm at
another person. On October 28, 2013, during a bail reduction hearing,
Sylvester testified under oath that she had lied about the events of February 4,
2013. Specifically, Sylvester testified that Bowman had not gone to her house,
had not pointed a gun at her, and had not threatened to kill her.
[6] The trial court held a three-day jury trial on December 16-18, 2015. While
discussing procedural matters before jury selection, the State informed the trial
court that Sylvester had stated that she was not going to testify for the State and
that she would, instead, testify for the defense. The State indicated that
Sylvester “ha[d] represented repeatedly that she lied to the police” and that if
she were to testify during trial that she had lied to police in reporting a crime—
thus, admitting to a crime—then the trial court should appoint counsel to advise
her of the potential consequences of doing so. (Tr. 193). After Bowman’s
counsel stated that he would call Sylvester as a defense witness, the trial court
advised Sylvester of her Fifth Amendment rights and appointed a public
defender to represent and advise her. After Sylvester met with the public
defender, he informed the trial court that he had advised Sylvester “that any
testimony she [would] give[] could be construed as perjury or lead to false
informing charges.” (Tr. 206).
[7] Before the State called its first witness, it informed the trial court that it would
need to call Sylvester to the stand for the limited purpose of having her identify
Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-111 | March 11, 2016 Page 4 of 17 Bowman. During Corporal Davis’s testimony, Sylvester’s statements made to
the 911 operator and to Corporal Davis on the night of the offenses were
admitted into evidence under the exited utterance exception to hearsay.
[8] Prior to the State calling Sylvester as a witness for identification purposes, the
trial court, outside the presence of the jury, again advised Sylvester of her Fifth
Amendment rights. Thereafter, Sylvester testified, and her testimony was
limited to an in-court identification of Bowman. The State did not question her
regarding the events or Bowman’s actions on February 4, 2013. Bowman made
no objection at the time of Sylvester’s testimony and did not cross-examine her.
[9] After the State rested, Bowman moved for a directed verdict, which the trial
court denied. Bowman then moved for a mistrial, arguing that he had a “right
to see, confront and cross examine his accuser” because the scope of his cross-
examination was limited to her identification testimony. (Tr. 359). The State
responded that Bowman could confront his accuser by calling her as a witness
and pointed out that “the State ha[d] an ethical obligation not to suborn
perjury,” which is what the State “anticipate[d] would [have] happen[ed] if [it]
called her to testify any further.” (Tr. 360). The trial court then denied
Bowman’s motion for mistrial.
[10] Thereafter, Bowman called Sylvester as a defense witness. On direct
examination, she testified that, at the time of the offenses, she and Bowman
were separated but had been “trying to work things out.” (Tr. 364). She also
testified that Bowman had not come to her house on the night of the offenses,
Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-111 | March 11, 2016 Page 5 of 17 had not pointed a gun at her, and had not threatened her. Additionally,
Sylvester acknowledged that she had called 911 but testified that she called and
made a report out of “revenge” because she had learned that Bowman was
having an affair. (Tr. 376). Sylvester admitted that she had given a false
statement to the 911 operator and to the police, and she testified that she had
done so because she “just wanted [Bowman] to go away at the time.” (Tr. 380).
Furthermore, she testified that she had “made . . . up” the fact that he had a
nine-millimeter handgun. (Tr. 380).
[11] When the State cross-examined Sylvester, she admitted that she had called 911
to report that Bowman had gone to her house, pulled a gun on her, threatened
to kill her, and then left in his truck. Sylvester, however, testified that “what
[she had] said was a lie.” (Tr. 438). She claimed that she “called 911 out of
spite” and because she wanted to have Bowman arrested. (Tr. 437).
[12] The second day of trial ended before the State finished its cross-examination of
Sylvester. The following day, before Sylvester retook the witness stand and
outside the presence of the jury, Sylvester’s appointed public defender requested
the trial court to again admonish Sylvester regarding her rights. The trial court
then re-advised Sylvester regarding her Fifth Amendment rights. Thereafter,
when testifying, Sylvester admitted that she had told Corporal Davis that
Bowman went to her house, pointed a nine-millimeter handgun at her,
threatened to kill her, and told her, “If I can’t have you, nobody can[.]” (Tr.
490). She then testified that she had “made up . . . the whole story.” (Tr. 490).
Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-111 | March 11, 2016 Page 6 of 17 [13] Thereafter, when the State questioned Sylvester about her account of Bowman’s
actions to Corporal Davis on the evening of the offenses, the following
exchange occurred between the State and Sylvester:
[State:] And isn’t it true that you never changed your story at all during the time that the officer was at your home?
[Sylvester:] I changed it later on and you guys wouldn’t accept it.
[State:] That’s not what I asked you, Mrs. Sylvester.
[Sylvester:] You’re manipulating me.
[State:] Mrs. Sylvester –
THE COURT: Okay.
[Sylvester:] I plead the Fifth.
THE COURT: All right.
THE COURT: All right. I think this would be a good time to take –
[Sylvester:] Badgering me.
THE COURT: – a recess. Stop. Ms. Sylvester, please stop.
(Tr. 491-92). The trial court removed the jury from the courtroom and
instructed Sylvester’s appointed public defender to remove her from the
courtroom for consultation. Thereafter, the State moved to strike Sylvester’s
testimony in its entirety except for her identification testimony when called as a
State’s witness, arguing that her invocation of her Fifth Amendment privilege Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-111 | March 11, 2016 Page 7 of 17 had precluded “the opportunity to meaningfully cross examine” her direct
examination testimony. (Tr. 497).5
[14] In response to the State’s motion, Bowman argued that Sylvester “ha[d] already
perjured herself” and had “pretty well waived the Fifth Amendment
privilege[,]” and he asserted that the trial court should “direct her to continue to
testify[.]” (Tr. 498). Additionally, Bowman argued that the State should “take
[the] witnesses as they come” and that he did not “believe that the State ha[d] . .
. as its remedy, the right to entirely stricken [sic] the record of the alleged victim
in this case[.]” (Tr. 498-99). Bowman asserted that, if the trial court were to
grant the motion to strike Sylvester’s testimony, it would “cause unnecessary
confusion and prejudice in the mind of the jury, such that they c[ould] not
render a fair and impartial judgment[.]” (Tr. 499). He also argued that “in
terms of his constitutional rights and in mind of keeping [sic] a fair trial,”
striking her testimony was “not [an] appropriate remedy” because she could go
back on the stand.6 (Tr. 500). Bowman suggested that if, upon returning to the
stand, Sylvester would be “obstinate in her responses to the State’s questions on
further cross examination,” the State would have an alternate remedy of
directing her to answer the question or it could rephrase the question. (Tr. 501).
5 In support thereof, the State cited to Drake v. State, 555 N.E.2d 1278 (Ind. 1990), for the proposition that it was “not reversible error for the Court to strike in its entirety the testimony of a critical defense witness who invoked the right against Fifth Amendment self-incrimination during cross examination[.]” (Tr. 497). 6 Bowman did not specify any specific constitutional rights or specifically refer to a federal or state constitutional provision.
Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-111 | March 11, 2016 Page 8 of 17 The trial court granted the State’s motion to strike Sylvester’s testimony, thus
excluding the requested portion of her testimony from evidence.
[15] Subsequently, Bowman moved for a mistrial, arguing that he was unable “to
conduct a proper and fair defense” and to “confront and cross examine his
accuser.” (Tr. 509). He also asserted that Sylvester should be allowed to recant
her accusations against him, and he suggested that the State had
“unintentionally” intimidated the witness. (Tr. 509). In response, the State
argued that this case did not involve a mere recantation because Sylvester had
invoked her Fifth Amendment privilege “as she ha[d] the right to do[.]” (Tr.
510). The State also pointed out that Bowman had been provided the
opportunity to cross examine Sylvester, and it asserted that there had “been no
implication of witness intimidation[.]” (Tr. 510). The trial court denied
Bowman’s mistrial motion.
[16] Immediately thereafter, Bowman’s counsel asked the trial court to “recall”
Sylvester to the witness stand and to be allowed to continue her cross-
examination where the State had stopped.7 (Tr. 511). Sylvester’s appointed
public defender brought her to the witness stand and asked her if she wished to
continue to invoke her Fifth Amendment right to remain silent, and she
responded that she did. Bowman then renewed his motion for mistrial, and the
trial court denied it.
7 Sylvester had not been released from her subpoena.
Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-111 | March 11, 2016 Page 9 of 17 [17] Upon bringing the jury back to the courtroom, the trial court informed the jury
that Sylvester had invoked her Fifth Amendment privilege and that part of her
testimony had been stricken and was not to be considered during deliberations.
Bowman then presented a witness, who testified that Bowman was at her house
on the evening of the offenses and that she did not see him leave the house.
[18] Thereafter, outside the presence of the jury, Bowman moved to admit a
redacted version of his October 28, 2013 bail reduction hearing, during which
Sylvester testified that she had lied about the events of February 4, 2013. The
trial court denied Bowman’s motion. Bowman then renewed his motion for a
mistrial, which the trial court denied.
[19] Thereafter, still outside the presence of the jury, Bowman informed the trial
court that he was thinking of recalling Sylvester as a witness. The trial court
ruled that Bowman would not be allowed to do so because Sylvester had
“indicated unequivocally that she wanted to invoke the protection of the Fifth
Amendment and she did not wish to testify.” (Tr. 566). Bowman then called
Sylvester’s son and his stepson, Hunter Williams (“Williams”) as a witness.
Williams testified that he had not seen Bowman at the house on the evening of
the offenses.
Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-111 | March 11, 2016 Page 10 of 17 [20] The jury found Bowman guilty as charged on Counts II and III. Thereafter, the
trial court proceeded with the bifurcated trial on Count I. After the State had
presented its evidence and rested, Bowman pled guilty to Count I.8
[21] At the sentencing hearing, the trial court imposed an aggregate sentence for
Bowman’s three convictions of twenty (20) years, with seventeen (17) years
executed9 and three (3) years suspended to probation.10 Bowman now appeals.
Decision [22] Bowman appeals his convictions for Count II, Class C felony intimidation, and
Count III, Class D felony pointing a firearm at another person.
[23] Before we address Bowman’s appellate argument, we note that he has raised
incomplete strands of arguments and has failed to set forth a standard of review
for any of these arguments, which is contrary to our Indiana Appellate Rule
46(A)(8)(b) (“The argument must include for each issue a concise statement of
the applicable standard of review; this statement may appear in the discussion
of each issue or under a separate heading placed before the discussion of the
8 As part of his plea, Bowman and the State agreed that the trial court would order his sentences in Counts I, II, and III to be served concurrently and that sentencing would, otherwise, be left to the trial court’s discretion. 9 The trial court ordered that Bowman’s first fourteen years of his executed sentence would be served in the Department of Correction while the remaining three years would be served, if he qualified, on either work release or home detention. 10 At the sentencing hearing, the trial court also sentenced Bowman for drug-related offenses to which he pled guilty in another cause, 20D01-1208-FD-918. He does not appeal the sentence in that cause because he apparently waived his right to appeal his sentence as part of his guilty plea.
Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-111 | March 11, 2016 Page 11 of 17 issues.”). Nevertheless, from what we can untangle from Bowman’s appellate
brief, it appears that he attempts to argue that: (1) the trial court and the State
intimidated and pressured Sylvester into testifying; (2) Bowman was forced to
call Sylvester as a defense witness; and (3) the trial court erred by striking
Sylvester’s testimony after she invoked her Fifth Amendment privilege against
self-incrimination. With the exception of the last argument, we conclude that
he has waived appellate review of the other arguments due to his lack of cogent
argument. See Ind. App. R. 46(A)(8)(a) (providing that an appellant’s argument
must be supported by cogent reasoning); Shane v. State, 716 N.E.2d 391, 398 n.
3 (Ind. 1999) (holding that the defendant waived argument on appeal by failing
to develop a cogent argument).11
[24] Thus, we turn to Bowman’s challenge to the trial court’s decision to grant the
State’s motion to strike Sylvester’s testimony after she invoked her Fifth
Amendment privilege against self-incrimination. As this decision was,
ultimately, an evidentiary ruling to exclude evidence, we note that the
admission and exclusion of evidence falls within the sound discretion of the
trial court, and we review the admission of evidence only for abuse of
discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002).
[25] Here, on the night of the offenses, Sylvester told the 911 operator and Corporal
Davis that Bowman had threatened her and pointed a gun at her, and she gave
11 Moreover, the appellate record does not support his contentions that the trial court and the State intimidated and pressured Sylvester into testifying or that he was forced to call Sylvester as a defense witness.
Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-111 | March 11, 2016 Page 12 of 17 a written police statement in which she swore under oath to the same facts.
However, when testifying as a defense witness at trial, Sylvester recanted the
veracity of these prior statements and asserted that Bowman had not gone to
her house on the night of the offenses and had neither threatened her nor
pointed a gun at her. When the State cross examined her about her direct
examination testimony, she invoked her Fifth Amendment privilege and
refused to further testify.
[26] “The Fifth Amendment’s Self-incrimination Clause provides that no person
‘shall be compelled in any criminal case to be a witness against himself.’”
Bleeke v. Lemmon, 6 N.E.3d 907, 925 (Ind. 2014) (quoting U.S. CONST. amend.
V). “[T]his prohibition not only permits a person to refuse to testify against
himself at a criminal trial . . . but also privileges him not to answer official
questions put to him in any other proceeding, civil or criminal, formal or
informal, where the answers might incriminate him in future criminal
proceedings.” Id. (quoting Minnesota v. Murphy, 465 U.S. 420, 426 (1984))
(internal quotation marks omitted).
[27] Bowman does not challenge the fact that Sylvester was protected under the
Fifth Amendment from testifying about her recantation of the statements. Nor
does he challenge the possibility that Sylvester’s admission that she had lied to
the police and in her sworn police statement could have subjected her to
prosecution for perjury or false informing. Additionally, he does not appeal the
denial of his various motions for mistrial. Instead, Bowman’s appellate
challenge to the trial court’s ruling to strike a portion of Sylvester’s testimony is
Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-111 | March 11, 2016 Page 13 of 17 premised upon his general assertion that it resulted in a violation of his right to
present a defense and his right to due process.
[28] “Whether rooted directly in the Due Process Clause of the Fourteenth
Amendment or in the Compulsory Process or Confrontation clauses of the
Sixth Amendment, the Constitution guarantees criminal defendants a
meaningful opportunity to present a complete defense.” Kubsch v. State, 784
N.E.2d 905, 923-24 (Ind. 2003) (quoting Crane v. Kentucky, 476 U.S. 683, 690
(1986)) (internal quotation marks omitted). “We recognize . . . that the Sixth
Amendment assures a criminal defendant of the right to mount a defense—but
that right must coexist with the government’s right to test the truth of testimony
proffered by the defense through the medium of cross-examination.” United
States v. Castro, 129 F.3d 226, 230-31 (1st Cir. 1997), cert. denied. Additionally,
we recognize that “[a] fundamental element of due process is the right of the
accused to present witnesses in his own defense[,]” however, a “defendant’s
right to present witnesses . . . is tempered by the witness’s Fifth Amendment
privilege not to provide incriminating testimony.” United States v. Johnson, 437
F.3d 665, 677 (7th Cir. 2006).
[29] Bowman has waived appellate review of the trial court’s evidentiary ruling in
which it struck a portion of Sylvester’s testimony. When the State moved to
strike Sylvester’s testimony after she invoked her Fifth Amendment privilege,
Bowman’s objection and argument against the motion to strike was not based
Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-111 | March 11, 2016 Page 14 of 17 on the grounds that he now asserts on appeal.12 Instead, he argued that
Sylvester had waived her Fifth Amendment privilege and should be directed to
testify. Accordingly, he has waived appellate review of this argument. See
Lampkins v. State, 682 N.E.2d 1268, 1274 (Ind. 1997) (holding that “a defendant
may not present one ground for an objection at trial and advance another
ground on appeal” and that an attempt to raise a new ground on appeal will
result in waiver), modified on reh’g on other grounds by 685 N.E.2d 698 (Ind.
1997); Harvey v. State, 546 N.E.2d 844, 846 (Ind. 1989) (holding that a
“defendant’s failure to present a record demonstrating the specific objection
waives the consideration of the error he alleges”); see also Stroud v. State, 809
N.E.2d 274 (Ind. 2004) (explaining that a death penalty defendant had waived
review of his claim that his due process rights were violated where he did not
object on that ground at trial).
[30] Waiver notwithstanding, the trial court’s decision to strike part of Sylvester’s
testimony was not erroneous and did not violate Bowman’s right to present a
defense.
[31] “[W]hen a defense witness in a criminal prosecution cuts off cross-examination
by invocation of [a Fifth Amendment] privilege, the defendant’s constitutional
right to present witnesses in his own defense is implicated.” Lawson v. Murray,
837 F.2d 653, 655 (4th Cir. 1988), cert. denied. However, the right to present a
12 While Bowman alluded to a right to present a defense when making his second motion for mistrial, he has not raised an appellate argument challenging the denial of this mistrial motion.
Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-111 | March 11, 2016 Page 15 of 17 defense “is not unlimited and may ‘bow to accommodate other legitimate
interests in the criminal trial process.’” Horton v. Litscher, 427 F.3d 498, 504-05
(7th Cir. 2005) (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973)).
[32] Our Indiana Supreme Court has explained that a trial court errs if it does not
grant a party’s request to admonish a jury after a witness, who the parties knew
would invoke his Fifth Amendment privilege, was called to the stand and
invoked the privilege. See, e.g., Tucker v. State, 534 N.E.2d 1110, 1111 (Ind.
1989) (holding that it was improper for a prosecutor to call as a witness a
codefendant when the prosecutor knows in advance that the witness will invoke
the Fifth Amendment and refuse to testify and that the trial court erred by
refusing the defendant’s request “to admonish the jury to disregard the
situation”). See also United States v. Castro, 129 F.3d 226, 231 (1st Cir. 1997)
(explaining that “trial courts should not permit witnesses who have indicated
that they will refuse to answer questions on legitimate Fifth Amendment
grounds to take the witness stand and assert the privilege in front of the jury)
(citing Namet v. United States, 373 U.S. 179, 186 (1963)), cert. denied.
[33] While striking the testimony can be considered a “drastic remedy[,]” a trial
court’s act of “[s]triking all of the testimony of the witness may be the only
appropriate remedy when refusal to answer the questions of the cross-examiner
frustrates the purpose of the process.” Lawson, 837 F.2d at 656. Indeed, “the
purpose of cross-examination is to test the credibility of the witness and the
truthfulness of [her] earlier testimony[,]” and “[i]mportant public policy
protects even the prosecution’s right to fair trials and the pursuit of truth, so that
Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-111 | March 11, 2016 Page 16 of 17 a similar principle should govern whether the recalcitrant witness was offered
by the prosecution or by the defendant.” Id.
[34] Here, the record reveals that the parties were aware that Sylvester did not want
to testify for the State and that she would likely invoke her Fifth Amendment
privilege upon cross-examination by the State. When that situation came to
fruition, the State then moved to strike her testimony, and the trial court
granted the State’s request. Bowman, however, has failed to show that the trial
court’s evidentiary ruling to strike the testimony was an abuse of discretion
where the State’s ability to cross-examine the witness was undermined by the
witness’s invocation of her Fifth Amendment privilege. Accordingly, we
conclude that the trial court did not err in its ruling, and we affirm Bowman’s
convictions.
[35] Affirmed.
Baker, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-111 | March 11, 2016 Page 17 of 17