Derrick Demarco Armstead v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 12, 2015
• Docket: 65A01-1408-CR-232
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 12 2015, 10:22 am 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 John Jacob Warrum Gregory F. Zoeller Mount Vernon, Indiana Attorney General of Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Derrick Demarco Armstead, February 12, 2015

Appellant-Defendant, Court of Appeals Cause No. 65A01-1408-CR-232 v. Appeal from the Posey Superior Court The Honorable S. Brent Almon, State of Indiana, Judge Appellee-Plaintiff. Cause No. 65D01-1307-FA-337

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 65A01-1408-CR-232 | February 12, 2015 Page 1 of 11 Case Summary [1] On July 29, 2013, Appellant-Defendant Derrick Demarco Armstead engaged in

an altercation outside a mobile-home community which resulted in two men

being stabbed and beaten. Although Armstead admitted to stabbing one of the

victims, he argues that he did so in self-defense after the victim poured gasoline

on him. At trial, Appellee-Plaintiff the State of Indiana (the “State”) introduced

evidence of a cell phone video which captured a portion of the events.

Armstead attempted to elicit testimony from a detective regarding what is

shown on the video. The State objected to the detective’s opinion testimony and

the trial court sustained the objection. Soon thereafter, the State began asking

the detective a question about whether Armstead requested that the detective

test his clothes for accelerant. Armstead objected and the trial court sustained

the objection. On appeal, Armstead argues (1) it was prosecutorial misconduct

for the State to have asked the question regarding accelerant testing and (2) the

trial court abused its discretion by not allowing him to question the detective

about the contents of the video. We affirm.

Facts and Procedural History [2] On July 29, 2013, Armstead and Christopher Bradshaw began arguing outside

at the mobile-home community in which Christopher lived. Property manager

Tyfney Bennett intervened and attempted to settle the dispute between the two.

After Armstead’s girlfriend and Christopher’s wife began to argue, Bennett told

Court of Appeals of Indiana | Memorandum Decision 65A01-1408-CR-232 | February 12, 2015 Page 2 of 11 Christopher’s wife to call the police. Armstead then backed off, began walking

away and said, “I will f***ing kill you all.” Tr. p. 256.

[3] Soon thereafter, Larry Bradshaw, Christopher’s father, arrived at the mobile

home. Larry worked as a handyman for the property and was delivering

materials to another trailer. When he arrived, Larry was unaware of the prior

altercation between Christopher and Armstead. Upon exiting his truck, Larry

noticed Armstead standing nearby and asked him if there was a problem.

Armstead replied, “F*** yes there is, I am going to cut your f***ing throat.”

Tr. p. 290. Armstead then removed a folded knife from his pocket and

approached Larry. Armstead’s girlfriend also approached Larry carrying a

baseball bat. The two attacked Larry, Armstead stabbing him multiple times in

the chest, arm, and back, and Armstead’s girlfriend striking Larry in the head

with the baseball bat. Christopher ran to aid his father but was in turn stabbed

by Armstead in the chest and neck. Armstead admitted to stabbing Larry but

contends that it was in retaliation after Larry poured gasoline on him. Larry

testified that he did not pour or attempt to pour gasoline on Armstead.

[4] At trial, the State introduced a short video recording taken by neighbor Lynn

Owens. Owens testified that she saw Armstead, his girlfriend, and two other

men approach and attack Larry. At no point did Owens see Larry pour

gasoline on Armstead. Owens began recording the altercation with her cell

phone after Christopher ran to help his father. Owens testified as to the events

recorded in the video which showed Christopher rolling on the ground after

being attacked followed by two men attempting to assist Christopher. Later in

Court of Appeals of Indiana | Memorandum Decision 65A01-1408-CR-232 | February 12, 2015 Page 3 of 11 the trial, defense counsel questioned Detective Jeremy Fortune about Owens’s

video:

Q: Detective, you have had an opportunity to view that video multiple times, I believe that I was saying after [Armstead] knocks Chris down were you able to tell that somebody comes from right to left and gets back into, or gets into the fight? A. Yes. [The State objects] The State: He is asking him to give an opinion as to what is on the video, he was not a party to that video, he didn’t make the video, he is not one of the witnesses on the video, what he is asking him to do is give an opinion which is in the purview of the Jury …

Tr. p. 441. Armstead responded that the detective’s testimony was permissible

under Rule 701 of the Indiana Rules of Evidence. The trial court sustained the

State’s objection but allowed Armstead to continue questioning Detective

Fortune about other events depicted on the video.

Q: Detective Fortune, the video that you reviewed, there is a gentleman walking up the road, looks like he has a blood stained shirt on, did you see that? A: Yes, excuse me, yes. Q: Gentleman with a gray shirt with blood on it, did you believe that to be Larry Bradshaw? The State: Again, Your Honor, these are the same questions that go to the objection that I made. The Court: Alright, maybe, but I am going to let him answer this one, you may answer. A: Yes. Q: I will show you what I have marked as Defendant’s Exhibit “B” and you have already looked at this once – A: Yes. Q: – and that was the shirt you collected from the hospital and that was the shirt that Larry Bradshaw was wearing. A: Yes. Court of Appeals of Indiana | Memorandum Decision 65A01-1408-CR-232 | February 12, 2015 Page 4 of 11 Q: Do you believe that is the same shirt you saw him in walking up the hill in the video? A: Yes, yes.

Tr. pp. 442-443.

[5] Soon thereafter, defense counsel asked Detective Fortune whether the police

had tested Armstead’s clothes for the presence of accelerants. Detective

Fortune stated that the police lab would not accept Armstead’s clothing for

accelerant testing because it was not an arson case. On redirect, Detective

Fortune stated that he did not smell gasoline on Armstead’s clothing, after

which the following exchange occurred:

[6] The State: [addressing Detective Fortune] Did [defense counsel] ever provide

you with a court order that would require you…

Defense Counsel: Judge, I am going to object. I have absolutely no obligation to prove or disprove anything, that’s the status of the law and that is the implication. The State: First of all, I haven’t finished the question, second of all, the fact that he doesn’t – he doesn’t have a burden to do anything, but that doesn’t mean he doesn’t have the opportunity to ask this Court to order the State… The Court: This is when I am going to ask you to come to the bench to finish your question.

Tr. pp. 451-52. Following a bench conference outside the jury’s presence, the

State withdrew the question. At the conclusion of Detective Fortune’s

testimony, Armstead moved for a mistrial, arguing that the State’s withdrawn

question to detective Fortune hindered Armstead’s ability to receive a fair trial

Court of Appeals of Indiana | Memorandum Decision 65A01-1408-CR-232 | February 12, 2015 Page 5 of 11 by suggesting to the jury that Armstead had a burden of proof. The trial court

denied Armstead’s motion.

[7] On April 11, 2014, the jury convicted Armstead of Class A felony

attempted murder, Class B felony aggravated battery, and two Class C felonies

for battery by means of a deadly weapon. After a bench trial, the trial court

found Armstead to be a habitual offender. At sentencing, the trial court vacated

two of the battery convictions finding them to be lesser-included offenses of

attempted murder. The trial court sentenced Armstead to thirty-eight years for

attempted murder, enhanced thirty years for being a habitual offender, and six

years for battery by means of a deadly weapon, to be served consecutively.

Discussion and Decision [8] Armstead raises two issues on appeal: (1) whether it was prosecutorial

misconduct for the State to ask Detective Fortune if defense counsel ever

obtained a court order to have Armstead’s clothes tested for accelerant, and (2)

whether the trial court abused its discretion by declining to allow defense

counsel to elicit testimony from Detective Fortune about the contents of

Owens’s video.

I. Prosecutorial Misconduct [9] “In reviewing a claim of prosecutorial misconduct properly raised in the trial

court, we determine (1) whether misconduct occurred, and if so, (2) ‘whether

the misconduct, under all of the circumstances, placed the defendant in a

Court of Appeals of Indiana | Memorandum Decision 65A01-1408-CR-232 | February 12, 2015 Page 6 of 11 position of grave peril to which he or she would not have been subjected’

otherwise.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014), reh’g denied (quoting

Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)). To preserve a claim of

prosecutorial misconduct on appeal, a defendant must (1) raise a

contemporaneous objection, (2) request an admonishment, and (3) if the

admonishment is not given or is insufficient to cure the error, then he must

request a mistrial. Washington v. State, 902 N.E.2d 280, 289-90 (Ind. Ct. App.

2009) (citing Flowers v. State, 738 N.E.2d 1051, 1058 (Ind. 2000)). “Failure to

request an admonishment or to move for mistrial results in waiver.” Dumas v.

State, 803 N.E.2d 1113, 1117 (Ind. 2004) (citing Brewer v. State, 605 N.E.2d 181,

182 (Ind. 1993)).

[10] Armstead properly objected to the alleged misconduct at trial but failed to

request an admonishment. As such, he has waived this issue for review.

Our standard of review is different where a claim of prosecutorial misconduct has been procedurally defaulted for failure to properly raise the claim in the trial court, that is, waived for failure to preserve the claim of error. The defendant must establish not only the grounds for prosecutorial misconduct but must also establish that the prosecutorial misconduct constituted fundamental error. Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant’s rights as to make a fair trial impossible. In other words, to establish fundamental error, the defendant must show that, under the circumstances, the trial judge erred in not sua sponte raising the issue because alleged errors (a) constitute clearly blatant violations of basic and elementary principles of due process and (b) present an undeniable and substantial potential for harm. The element of such harm is not established by the fact of ultimate conviction but rather depends upon whether the defendant’s

Court of Appeals of Indiana | Memorandum Decision 65A01-1408-CR-232 | February 12, 2015 Page 7 of 11 right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he otherwise would have been entitled. In evaluating the issue of fundamental error, our task in this case is to look at the alleged misconduct in the context of all that happened and all relevant information given to the jury—including evidence admitted at trial, closing argument, and jury instructions—to determine whether the misconduct had such an undeniable and substantial effect on the jury’s decision that a fair trial was impossible.

Ryan, 9 N.E.3d at 667-68. (quotations and citations omitted).

[11] We are unpersuaded by the logical leap Armstead makes in suggesting that the

prosecutor’s question – or half question – “operated to shift the burden of proof

from the State to the defendant,” and thus placed Armstead in “grave peril.”

Appellant’s Br. p. 7. Asking whether Armstead ever requested that the State

test his clothes for accelerant does not imply that he had an obligation to do so.

Furthermore, even if the question had been asked in its entirety, it was an

invited response to defense counsel’s questions concerning the testing of the

shirt for accelerants. “Prosecutors are entitled to respond to allegations and

inferences raised by the defense even if the prosecutor’s response would

otherwise be objectionable.” Dumas v. State, 803 N.E.2d 1113, 1118 (Ind. 2004)

(citing Brown v. State, 746 N.E.2d 63, 68 (Ind. 2001)).

[12] In any case, the State was not allowed to finish asking the allegedly

inappropriate question, and ultimately withdrew the question. We are

unconvinced that the jury anticipated the unasked portion of the question, and

then proceeded to infer that the burden of proof had shifted to Armstead. This

seems particularly unlikely considering that the jury was repeatedly informed Court of Appeals of Indiana | Memorandum Decision 65A01-1408-CR-232 | February 12, 2015 Page 8 of 11 that the State carried the burden of proof, including a specific oral and written

instruction that “[t]he State has the burden of proving beyond a reasonable

doubt that the Defendant did not act in self-defense …. It is a strict and heavy

burden.” Tr. pp. 479-480. We find no merit in the argument that the

prosecutor’s alleged misconduct put Armstead in a position of grave peril,

depriving him of a fair trial, much less that the trial court committed

fundamental error in declining to find as much.

II. Exclusion of Opinion Testimony [13] Rule 701 of the Indiana Rules of Evidence provides: “If a witness is not

testifying as an expert, testimony in the form of an opinion is limited to one that

is: (a) rationally based on the witness’s perception; and (b) helpful to a clear

understanding of the witness’s testimony or to a determination of a fact in

issue.” While the person giving opinion testimony under Rule 701 need not be

qualified as an expert, he should possess knowledge beyond that of the ordinary

juror. Prewitt v. State, 819 N.E.2d 393, 413 (Ind. Ct. App. 2004) trans. denied.

Trial courts have broad discretion in determining whether lay opinion

testimony satisfies the requirements of admissibility under Rule 701. State v.

Snyder, 732 N.E.2d 1240, 1245 (Ind. Ct. App. 2000). “Accordingly, we will

reverse a trial court’s ruling on the admissibility of evidence only when the trial

court abused its discretion. An abuse of discretion involves a decision that is

clearly against the logic and effect of the facts and circumstances before the

court.” Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003) (citations

omitted). Finding that the trial court erred in the admission or exclusion of

Court of Appeals of Indiana | Memorandum Decision 65A01-1408-CR-232 | February 12, 2015 Page 9 of 11 evidence is not alone enough to warrant reversal. Corbett v. State, 764 N.E.2d

622, 628 (Ind. 2002). Such errors are to be disregarded as harmless unless they

affect the substantial rights of the party. Id.

[14] Armstead attempts to draw comparisons to Smith v. State, 829 N.E.2d 64 (Ind.

Ct. App. 2005). In Smith, another panel of this court affirmed the admission of

a detective’s lay opinion testimony about what Smith appeared to be doing in a

videotape made at the police station while Smith waited alone in an interview

room. Id. at 72. Specifically, the detective testified that Smith appeared to be

pulling money from a body cavity. Id. In reaching this conclusion, we noted

that the detective had been a member of the drug task force for three-and-a-half

years, had received specific training at the United Drug Task Force beyond that

provided to police officers, and had conducted numerous controlled buys. As

such, the detective’s training and experience gave her knowledge beyond that of

the average juror with regard to the drug culture and helped the jury determine

whether Smith had been in possession of money from a controlled drug sale

with an informant.

[15] Armstead’s reliance on Smith is misplaced. In this instance case, Detective

Fortune had no specific knowledge or insight as to the events in the video

beyond that of the average juror. Detective Fortune did not record the video

nor was he present during the altercation. The jury heard testimony as to what

was on the video from Owens, who recorded the video, in addition to several

witness descriptions of the altercation. Detective Fortune had no additional

information which could provide the jury with insight as to what was shown on

Court of Appeals of Indiana | Memorandum Decision 65A01-1408-CR-232 | February 12, 2015 Page 10 of 11 the video. Furthermore, simply because the trial court in Smith was within its

discretion to allow a detective’s description of a video does not mean that the

trial court in the instant case was not within its broad discretion to disallow a

video description.

[16] Even assuming the trial court erred, any such error was harmless and would not

warrant reversal. In addition to the testimony of numerous witnesses which

discounted Armstead’s version of the events, Owens testified that Armstead

attacked Larry without provocation and that she at no point saw Larry with a

gas can. It is hard to imagine any potential evidence Detective Fortune could

have provided about the video which would bolster Armstead’s version of the

events, much less lead the jury to a different conclusion.

[17] The judgment of the trial court is affirmed.

Najam, J., and Mathias, J, concur.

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