Darryl Leigh Kilgore, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 4, 2017
• Docket: 45A04-1704-CR-882
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Oct 04 2017, 8:10 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 Kristin A. Mulholland Curtis T. Hill, Jr. Appellate Public Defender Attorney General of Indiana Crown Point, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Darryl Leigh Kilgore, Jr., October 4, 2017 Appellant-Defendant, Court of Appeals Case No. 45A04-1704-CR-882 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Plaintiff Judge Trial Court Cause No. 45G01-1501-FB-1

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 45A04-1704-CR-882 | October 4, 2017 Page 1 of 8 Case Summary [1] Following a jury trial, Darryl Leigh Kilgore, Jr., appeals his conviction for class

B felony robbery resulting in bodily injury. He argues that the trial court erred

in denying his motion for mistrial following an unprompted remark by his ex-

girlfriend. We find no error and therefore affirm.

Facts and Procedural History [2] Around 8:30 a.m. on June 27, 2014, octogenarian Kenneth Meier walked from

his home to the nearby commuter train station in Hammond, got a newspaper

on the platform, and started walking homeward. An African-American male

“got behind [him] and put [him] in a bear hug.” Tr. Vol. 1 at 24. Meier yelled

for help. The man lifted Meier up and pushed him down onto the platform.

The man then grabbed Meier’s wallet, containing over $100 in cash, out of his

left front pants pocket and “took off” down the platform. Id. Meier suffered

“bad scratch[es]” on his elbow and back during the assault. Id. at 25. Meier

did not see his assailant’s face.

[3] Meier’s neighbor, Nancy Roberts, was outside her home preparing for a yard

sale with her friend Jean Wells when she heard Meier’s cries for help. Roberts

ran to the train station and saw a “husky” black male running down the

platform stairs. Id. at 64. She “looked up at him” and “saw his face and eyes.”

Id. at 44, 72. Roberts moved aside “so he could run down and [she] ran up” the

stairs and helped the “banged up” Meier off the ground. Id. at 44, 45. Wells,

who was approximately 300 to 400 feet away, saw a “husky” black male in

Court of Appeals of Indiana | Memorandum Decision 45A04-1704-CR-882 | October 4, 2017 Page 2 of 8 profile as he “[ran] down the stairs of the platform and [took] off running down

the street going south.” Id. at 86, 76. Roberts and Wells provided a description

of the man to Northern Indiana Commuter Transportation District (“NICTD”)

police, who distributed security camera footage of the robbery to local media

“to seek[] the public’s help and assistance in identifying the suspect.” Id. at 95.

[4] On June 28, Kilgore’s ex-girlfriend, Michelle Cleveland, who had dated him

“off and on” for approximately eight months, saw video and a still image from

the security footage on television. Id. at 126. She called NICTD Police

Sergeant Howard Morgan and identified the robbery suspect as Kilgore based

on the distinctive markings of name-brand jeans and shoes that she had bought

for him, a “gray cut-off shirt he always wore[,]” the way he walked, and the

way he carried his left arm due to an injury. Id. at 123.

[5] On July 1, Kilgore called NICTD Police Chief Robert Byrd and said that “he

wanted to clear his name.” Id. at 96. Kilgore said that he had been at the

Hammond station on June 26 between 2:00 and 3:00 p.m. and that if police

“reviewed the security camera videos at the station that he would be easily

identifiable because he was wearing a black t-shirt with … large white letters on

the shirt that said Arsenal Tech.” Id. at 97. Sergeant Morgan reviewed the

Hammond station camera footage from 1:00 to 4:00 p.m. on June 26 and “did

not see anybody wearing that kind of clothing either inside the station” or “on

the platform.” Id. at 164. Sergeant Morgan reported this to Kilgore, who said

that “possibly” he had been at the East Chicago station. Id. Sergeant Morgan

Court of Appeals of Indiana | Memorandum Decision 45A04-1704-CR-882 | October 4, 2017 Page 3 of 8 reviewed the camera footage from that station “and again did not see anybody

wearing that type of clothing.” Id. at 165.

[6] With the assistance of a Hammond police detective, Sergeant Morgan

developed an array containing frontal photos of six different men, including

Kilgore. The sergeant showed the array to Roberts on July 5 and Wells on July

9. He told them that he

want[ed] them to look at the series of pictures, if they recognize anybody. The person [police] are looking for may or may not be on there and not to get too caught up on hairstyles in case anything has changed, and … to basically look at facial features, eyes, things like that.

Id. at 167. According to Sergeant Morgan, Wells “immediately” identified

Kilgore as the person she had seen on June 27, and Roberts also identified

Kilgore “as the offender that she saw.” Id. at 160, 161-62.

[7] The State charged Kilgore with class B felony robbery resulting in bodily injury.

At Kilgore’s jury trial, the State called Cleveland as a witness and asked her

about a phone conversation that she had with Kilgore on June 26. Cleveland

replied, “Well, he needed a job and he needed a card from the office in Miller,

so he asked if I could come and get him. I stated no, I cannot, because there’s

drug activity in the home.” Id. at 115. Kilgore’s counsel objected and moved

for a mistrial, acknowledging his belief that not “by any stretch of the

imagination did the prosecutor prompt this.” Id. at 116. The trial court denied

the motion but admonished the jury as follows:

Court of Appeals of Indiana | Memorandum Decision 45A04-1704-CR-882 | October 4, 2017 Page 4 of 8 That last comment by the witness was absolutely unsolicited by the state. It was quite frankly improper. This case has nothing to do with drug usage, drug activity, drug anything whatsoever. That comment should not, and I’m instructing you that it will not enter into your discussions at any regard in further discussion about this case. Whether it’s during these breaks where you are allowed to discuss this case at all or during deliberations when you finally receive the case, this comment should not in any regard influence you on any issue involved in this case. It’s a robbery case, robbery allegation. It was not evidence, and I am striking that from your consideration. Please keep this in mind as we move forward.

Id. at 119-20.

[8] Following this admonition, Cleveland testified that Kilgore called her on June

26. He asked her to pick him up at the Miller train station on June 27 and said

that he would give her a call. Cleveland “didn’t hear from him” until around

9:30 a.m. on June 27, when he called her “and said he went for a run because

he was out of breath.” Id. at 121. Kilgore “said he had money” and wanted

Cleveland to pick him up because he could pay for her gas, but she refused. Id.

at 125.

[9] The jury found Kilgore guilty as charged, and the trial court sentenced him to

eight years executed. This appeal followed.

Discussion and Decision [10] Kilgore contends that the trial court erred in denying his motion for mistrial. A

mistrial is an extreme remedy that is justified only when other remedial

Court of Appeals of Indiana | Memorandum Decision 45A04-1704-CR-882 | October 4, 2017 Page 5 of 8 measures are insufficient to rectify the situation. Shouse v. State, 849 N.E.2d

650, 655 (Ind. Ct. App. 2006), trans. denied. “On appeal, the trial judge’s

discretion in determining whether to grant a mistrial is afforded great deference

because the judge is in the best position to gauge the surrounding circumstances

of an event and its impact on the jury.” Id. Therefore, we review the trial

court’s decision solely for an abuse of discretion. Id. “An abuse of discretion

occurs when the trial court’s 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). To prevail on appeal, Kilgore must demonstrate that

Cleveland’s statement was so prejudicial and inflammatory that he was placed

in a position of grave peril to which he should not have been subjected. Norton

v. State, 785 N.E.2d 625, 627 (Ind. Ct. App. 2003).1 “To determine the gravity

of peril, an appellate court considers the probable persuasive effect of the

misconduct on the jury’s decision, not the degree of impropriety of the conduct.

Generally, a timely and accurate admonition is an adequate curative measure

for any prejudice that results.” Id. (citation omitted). “We seldom find

reversible error when the trial court admonishes the jury to disregard [a]

statement made during the proceedings.” Davidson v. State, 580 N.E.2d 238,

241 (Ind. 1991).

1 The parties disagree about whether Cleveland’s statement constitutes an evidentiary harpoon, but they agree that the prosecutor did not intentionally elicit the statement. Therefore, we need not resolve the terminology dispute.

Court of Appeals of Indiana | Memorandum Decision 45A04-1704-CR-882 | October 4, 2017 Page 6 of 8 [11] Kilgore argues that the trial court’s admonition in this case “was not sufficient

to overcome the taint of the allegation” that he was involved in drug activity

because “[t]he State’s case was entirely based” on what he characterizes as

“suspect eyewitness identifications.” Appellant’s Br. at 11, 12. We first

observe that Cleveland’s statement was brief and did not implicate Kilgore

directly in drug activity or describe that activity in any detail. We further

observe that the State’s case was also based on Cleveland’s identification of

Kilgore from the security footage, as well as the police officers’ testimony about

Kilgore’s attempt to clear his name, which did not pan out as well as Kilgore

might have hoped. Kilgore criticizes the clarity of the footage and questions

Cleveland’s ability to recognize his clothing, but we note that Cleveland also

based her identification on Kilgore’s gait and the posture of his left arm. The

jurors were able to see the footage for themselves and evaluate Cleveland’s

credibility accordingly.

[12] Likewise, the briefness of Roberts’s encounter with Kilgore, Wells’s distance

from and profile view of Kilgore, and the alleged suggestiveness of the photo

array regarding the subjects’ physiques and clothing were all thoroughly

explored before the jury on direct, cross, and redirect examination. Kilgore

disregards Roberts’s testimony that she “saw his face and eyes” as he ran down

the platform stairs, Sergeant Morgan’s testimony that Wells “immediately”

identified Kilgore as the robbery suspect in the photo array, and Cleveland’s

testimony that Kilgore called her shortly after the robbery and said that he had

money and was out of breath from running. Tr. Vol. 1 at 72, 160.

Court of Appeals of Indiana | Memorandum Decision 45A04-1704-CR-882 | October 4, 2017 Page 7 of 8 [13] Based on the foregoing, we conclude that the probable persuasive effect of

Cleveland’s brief statement on the jury’s decision was minimal. We further

conclude that the trial court’s prompt and thorough admonition instructing the

jury to disregard Cleveland’s statement cured any resulting prejudice.

Therefore, we conclude that the trial court did not abuse its discretion in

denying Kilgore’s motion for mistrial. His conviction is affirmed.

[14] Affirmed.

Vaidik, C.J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 45A04-1704-CR-882 | October 4, 2017 Page 8 of 8