Hayden J. Nix v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: October 26, 2020
• Docket: 20A-CR-521
• Status: Published

Opinion

FILED Oct 26 2020, 10:06 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Susan D. Rayl Curtis T. Hill, Jr. Michael Ray Smith Attorney General of Indiana Hand Ponist Horvath Smith & Rayl Indianapolis, Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Hayden J. Nix, October 26, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-521 v. Appeal from the Hancock Superior Court State of Indiana, The Honorable Terry K. Snow, Appellee-Plaintiff. Judge Pro Tempore Trial Court Cause No. 30D01-1901-F3-209

Najam, Judge.

Statement of the Case [1] Hayden J. Nix appeals his conviction for rape, as a Level 3 felony, following a

jury trial. Nix raises four issues for our review, which we restate as the

following three issues:

Court of Appeals of Indiana | Opinion 20A-CR-521 | October 26, 2020 Page 1 of 13 1. Whether Nix preserved for appellate review his arguments that he was denied an impartial jury and that the trial court erred when it denied his motion for a change of venue.

2. Whether the trial court committed fundamental error when it did not sua sponte prohibit the State from asking certain questions of witnesses, which Nix asserts amounted to a drumbeat repetition of the victim’s testimony.

3. Whether the trial court abused its discretion when it denied Nix’s motion for funds to hire a mitigation specialist to aid his defense at sentencing.

[2] We affirm.

Facts and Procedural History [3] In October of 2017, when they were freshmen at New Palestine High School

and on fall break, fourteen-year-old R. and her friend B. went to a party

together. As R. and B. could not drive, they enlisted the assistance of a male

acquaintance from the high school, E., who drove the two girls to the party.

After a few hours, the girls wanted to leave, but E. was “unable to drive.” Tr.

Vol. II at 109. E. then asked his friend, Nix, whom the girls did not know, to

drive all three of them home.

[4] Around 3:00 a.m., Nix drove the three of them to E.’s house first. There, E. got

out of the car, and B. also got out of the car to use the restroom. Nix then

moved from the driver’s seat to the backseat with R. He began touching R.’s

Court of Appeals of Indiana | Opinion 20A-CR-521 | October 26, 2020 Page 2 of 13 legs and ignored her requests for him to stop. Nix then forced himself on top of

R., removed both of their pants, held her down, and raped her. During the

attack, R. was “yelling.” Id. at 120. She was able to open the nearest car door

“[t]wice,” but Nix “was able to pull it shut before [R.] could get it open all the

way.” Id. at 139-40.

[5] Meanwhile, E. told B. that they had to enter his house through the back door.

When the two arrived at the back door, it was locked, and E. told B. that she

should “just hang out with me in the woods.” Id. at 183. B. thought E.’s

request was “weird,” but she went with him. Id. After several minutes, B.

wanted to go back home, and she went back to the car and knocked on the back

window, which B. could not see through. Nix opened the door, told her to go

away, and then shut the door again. B. then went back to the woods with E.

and, after some more time, again knocked on the window of the car, only to

have Nix again open the door, tell her to go away, and close it again. B.

thought this was “weird,” and she was “uncomfortable.” Id. at 187-88. She

also heard R. and Nix “arguing,” “yelling,” and “being loud,” but she could not

make out what was being said. Id. at 188. After B. tried to enter the car a third

time and failed, she began walking home.

[6] At that point, E. intervened and picked up B. in the car. Nix and R. were in the

backseat when E. picked up B. B. recalled that, at that time, “[n]o one was

talking” inside the car. Id. at 190. After getting to R.’s house, R. and B. both

exited the car. Some time in the next day or two, R. told B. that Nix had raped

Court of Appeals of Indiana | Opinion 20A-CR-521 | October 26, 2020 Page 3 of 13 her in the back of the car. At R.’s insistence, B. promised not to tell anyone.

Later, R. told another of her school friends, J., of the attack.

[7] Following the attack, R. quit cheerleading and softball. Her attendance at the

high school faltered, and her grades dropped. She began to “isolate[]” herself

from her friends and family. Id. at 130. In February of 2018, R.’s grandmother

engaged her about what had happened. R. then told her grandmother about the

attack, and R.’s grandmother promised not to tell anyone, a promise which R.’s

grandmother kept for about six months. Then R.’s grandmother informed R.’s

father, who reported it to the Hancock County Sheriff’s Department.

[8] In January of 2019, the State charged Nix in relevant part with rape, as a Level

3 felony. In October, Nix moved for a change of venue because, in the six

months prior to his motion, he had been sentenced in three other, similar cases

that had been reported in the local media. At a hearing on that motion, the

State argued that there was no evidence of actual prejudice at the moment, but

if that evidence came up during the voir dire of prospective jurors the court

could reconsider the motion. The court then denied Nix’s motion.

[9] During the ensuing voir dire, six prospective jurors 1 reported having read about

Nix’s other cases and suggested that they had already formed an opinion as to

his guilt in the instant case. The court then permitted, without objection from

1 Those prospective jurors were jurors 5, 31, 34, 51, 53, and 55. Another prospective juror, juror 30, stated that, if Nix had “been in here before for the same thing” and “he’s gotten off [for] insufficient evidence,” he must be “[g]uilty.” Tr. Vol. II at 44. The court removed juror 30 for cause. Id. at 67.

Court of Appeals of Indiana | Opinion 20A-CR-521 | October 26, 2020 Page 4 of 13 Nix, to have those prospective jurors share a waiting room with other

prospective jurors without instructing them not to discuss the matter and not to

read media reports. The parties and the court then discussed which prospective

jurors to strike. Following that discussion and additional voir dire, none of the

six prospective jurors who had read about Nix in the media reports were

selected to sit on his jury. Id. at 78.

[10] During Nix’s jury trial, R. testified about Nix’s attack on her. After R. testified,

B. testified about her observations and recollections from that night. The State

also called J., R.’s grandmother, and an investigating detective, who each

testified that R. had told them of the attack. Nix did not object to this

testimony.

[11] The jury found Nix guilty of rape, as a Level 3 felony, and the trial court set the

matter for a sentencing hearing. Nix, who was represented by private counsel,

then asked the court for public funds to aid in the costs of obtaining a

“mitigation specialist” to assist Nix with his arguments at sentencing.

Appellant’s App. Vol. II at 179. The court denied Nix’s request. Nonetheless,

Nix was able to obtain a mitigation specialist, who filed a report with and then

testified to the court, stating among other things that Nix suffered from “fetal

alcohol spectrum disorder.” Tr. Vol. III at 192.

[12] During its closing argument to the court at the sentencing hearing, the State

argued in relevant part as follows:

Court of Appeals of Indiana | Opinion 20A-CR-521 | October 26, 2020 Page 5 of 13 I want to specifically comment with regard to [Nix being] asked [in the preparation of the pre-sentence investigation report] . . . why he believed he was . . . convicted in this case and . . . [Nix] indicated . . . that . . . he feels the jury members knew about his prior . . . convictions, which le[d] them to convict him [in] the [present] case. I want to be very clear that at no point in time during the trial did the [S]tate elicit any information with regard to [his prior convictions]. . . . [N]ot at any point during voir dire . . . was there discussion put forth by the [S]tate as to prior convictions.

Tr. Vol. III at 207. Nix’s counsel responded to that part of the State’s argument

by asserting:

In terms of the [S]tate’s argument about . . . the jury, and I don’t know why it was brought up because it’s really kind of neither here nor there, but they brought it up so I’m going to comment on it. . . . [N]o one talked about his prior cases during the trial. That is true. However, after the trial when the defense and the [S]tate spoke to the jury, the jury foreperson said[,] “I know about his prior cases. He’s already proven himself to be a piece of sh[*]t.” And there were other jurors back there [who] concurred and also said that they had read in the news about [Nix’s] other cases. So, even though it wasn’t brought up during the trial . . . [,] based off of what we were told in the jury room that was something that was considered. And I relayed that information to [Nix]. And so, that’s likely why he said that in the PSI . . . .

Id. at 209-10. After hearing the evidence and arguments, the court stated that it

did not find Nix’s evidence or arguments persuasive, and the court then

sentenced him to sixteen years, with three years suspended to probation. This

appeal ensued.

Court of Appeals of Indiana | Opinion 20A-CR-521 | October 26, 2020 Page 6 of 13 Discussion and Decision Issue One: Nix’s Impartial-Jury and Change-of-Venue Arguments

[13] We first address Nix’s several arguments that he was denied an impartial jury

and his related argument that he should have received a change of venue. As

for his impartial-jury arguments, Nix recognizes that the right to an impartial

jury is protected by the state and federal constitutions. Appellant’s Br. at 41.

He argues that he was denied that right for numerous reasons. But the premise

of his argument is his counsel’s statement to the court, at the close of the

sentencing hearing, that he had been told by the jury foreperson after the trial

that several jurors knew about Nix’s prior cases. From that statement, Nix

infers that some of the prospective jurors who acknowledged during voir dire

that they had read about Nix in the local media must have exposed the other

prospective jurors to those reports. According to Nix, that exposure reveals that

the trial court erred in the manner in which it conducted the voir dire and in not

instructing the prospective jurors not to discuss matters and not to research the

defendant while they were not in the courtroom.

[14] There are a number of flaws with Nix’s argument. First, the premise of his

argument—his own counsel’s statement to the court at the close of sentencing—

is not evidence, and Nix cites no other portion of the record to demonstrate any

apparent bias in a juror from his trial. Deen-Bacchus v. Bacchus, 71 N.E.3d 882,

886 (Ind. Ct. App. 2017). Indeed, Nix did not respond to the jury foreperson’s

purported disclosure after the trial by immediately informing the court and

Court of Appeals of Indiana | Opinion 20A-CR-521 | October 26, 2020 Page 7 of 13 calling the jurors to question them and make a record. Rather, he waited

several months to make a passing comment about it at the close of the

sentencing hearing, and he uses that passing comment on appeal to engage in

speculation about what it might mean. We conclude that Nix has not met his

burden of persuasion on appeal.

[15] Second, Nix was the party who used voir dire to inquire about potential biases

the prospective jurors might have had based on pretrial publicity. He did not

request that voir dire be individualized. If any exposure to Nix’s criminal

history among the unaware prospective jurors occurred during voir dire, Nix

cannot show that it is not the direct result of his own questioning. As such, he

invited any error in exposing the prospective jurors, and “invited error is not

reversible error.” B.C. v. Ind. Dep’t of Child Servs. (In re J.C.), 142 N.E.3d 427,

432 (Ind. 2020) (per curiam).

[16] Third, Nix’s unsubstantiated arguments and invited error notwithstanding, he

did not request the court to separate the prospective jurors before the court

removed them from the courtroom. He did not ask the court to admonish the

prospective jurors. He did not object to the procedure the court employed with

the prospective jurors or request an alternative procedure in any respect. For all

of those reasons, Nix has not preserved his arguments on appeal that the court

failed to empanel an impartial jury.

[17] Nonetheless, Nix asserts that we should review his claim that the court failed to

empanel an impartial jury because his claim of error is both structural and

Court of Appeals of Indiana | Opinion 20A-CR-521 | October 26, 2020 Page 8 of 13 fundamental. Nix’s assertion that we should review his unpreserved arguments

because they allege structural error is a nonstarter. Structural error means that

the error is never harmless; that is, once an appellant shows structural error, he

can skip the usual need to show that the error is also not harmless. E.g., Durden

v. State, 99 N.E.3d 645, 653 (Ind. 2018). But our Supreme Court has made

clear that “[t]he invited-error doctrine precludes a remedy for . . . structural

error.” Id. at 655. The Court has further made clear that “almost any claim,

structural or not, can be forfeited through procedural default.” Whiting v. State,

969 N.E.2d 24, 32 (Ind. 2012). Accordingly, we will not consider Nix’s invited

and unpreserved claims under the rubric of structural error.

[18] Likewise, Nix’s claim that we must review his arguments on this issue for

fundamental error is also not correct. “An error is fundamental, and thus

reviewable on appeal, if it made a fair trial impossible or constituted a clearly

blatant violation of basic and elementary principles of due process presenting an

undeniable and substantial potential for harm.” Durden, 99 N.E.3d at 652

(quotation marks omitted). But invited error “forecloses appellate review

altogether,” even for claims of fundamental error. Batchelor v. State, 119 N.E.3d

550, 556 (Ind. 2019). And, in any event, given that Nix’s arguments are

nothing more than speculation, he has not shown that a fair trial was

impossible. As such, we decline Nix’s invitation to consider his fundamental

error argument or his other arguments regarding jury impartiality.

[19] This brings us to Nix’s related claim that he was entitled to a change of venue

based on pretrial publicity. We review the trial court’s denial of Nix’s motion

Court of Appeals of Indiana | Opinion 20A-CR-521 | October 26, 2020 Page 9 of 13 for an abuse of discretion. Myers v. State, 887 N.E.2d 170, 181 (Ind. Ct. App.

2008), trans. denied. We will affirm the trial court’s denial of a motion for a

change of venue in a criminal trial where the defendant “fails to demonstrate

that the jurors were unable to render an impartial verdict.” Id. at 182. As

explained above, Nix cites no evidence in the record to show that the

empaneled jury was not impartial. Moreover, before the trial court denied

Nix’s motion for a change of venue, the State pointed out that, if an impartial

jury could not be empaneled, Nix could renew the motion, which he did not do.

Instead, he accepted the jury. Accordingly, we cannot say the court abused its

discretion when it denied Nix’s motion for a change of venue.

Issue Two: Purported Drumbeat Evidence

[20] Nix next asserts that the trial court committed fundamental error when it did

not sua sponte prohibit the State from questioning B., R.’s grandmother, an

investigating officer, and J. regarding whether R. had told them that Nix raped

her. According to Nix, the testimony of those witnesses was “drumbeat

repetition” used by the State “to vouch for [R.’s] credibility.” Appellant’s Br. at

50, 54. Again, he did not object to the testimony at trial.

[21] Nix misapplies our fundamental-error doctrine here. Again, fundamental error

makes “a fair trial impossible.” Durden, 99 N.E.3d at 652. And “fundamental

error in the evidentiary decisions of our trial courts is especially rare.” Merritt v.

State, 99 N.E.3d 706, 709-10 (Ind. Ct. App. 2018), trans. denied. That is because

fundamental error

Court of Appeals of Indiana | Opinion 20A-CR-521 | October 26, 2020 Page 10 of 13 is extremely narrow and encompasses only errors so blatant that the trial judge should have acted independently to correct the situation. At the same time, if the judge could recognize a viable reason why an effective attorney might not object, the error is not blatant enough to constitute fundamental error.

Durden, 99 N.E.3d at 652 (emphasis added; quotation marks and citations

omitted).

[22] An attorney’s decision not to object to certain evidence or lines of questioning is

often a tactical decision, and our trial courts can readily imagine any number of

viable reasons why attorneys might not object. Cf. Merritt, 99 N.E.3d at 710

(“The risk calculus inherent in a request for an admonishment is an assessment

that is nearly always best made by the parties and their attorneys and not sua

sponte by our trial courts.”). Fundamental error in the erroneous admission of

evidence might include a claim that there has been a “fabrication of evidence,”

“willful malfeasance on the part of the investigating officers,” or otherwise that

“the evidence is not what it appears to be.” Brown v. State, 929 N.E.2d 204, 207

(Ind. 2010). But absent an argument along those lines, “the claimed error does

not rise to the level of fundamental error.” Id.

[23] Nix does not assert that the evidence against him was not what it appeared to

be. Rather, his argument is simply that the purportedly erroneous admission of

this evidence implicated his due-process rights because it made the State’s

evidence appear stronger than it might have actually been. See Appellant’s Br.

at 56-57. But Nix’s argument on this issue would turn fundamental error from

a rare exception to the general rule for appellate review. There are often tactical Court of Appeals of Indiana | Opinion 20A-CR-521 | October 26, 2020 Page 11 of 13 reasons for an attorney not to object to the admission of evidence or the

questioning of witnesses, and, however discerning our trial courts may be, they

are not expected or required to divine the mind of counsel. And, if a defense

counsel lacks a tactical reason for not objecting to prejudicial evidence that

would not have been admitted with a proper objection, the defendant has the

post-conviction process available to him to pursue relief. Accordingly, we reject

Nix’s argument on this issue and conclude that it fails to meet the high bar of

fundamental error.

Issue Three: The Trial Court’s Denial of Nix’s Motion for Funds to Hire Mitigation Specialist

[24] Nix’s final argument on appeal is that the trial court abused its discretion when

it denied his motion for funds to hire a mitigation specialist to assist Nix’s

arguments at the sentencing hearing. In particular, Nix asserts that the court

abused its discretion because it had found him indigent at his initial hearing and

had appointed him a public defender. Although his family later hired a private

attorney for him, he continues, he remained indigent.

[25] The trial court denied Nix’s motion on the ground that he apparently had

access to funds to obtain private counsel and therefore could cover his own

costs for a mitigation specialist. Nix’s argument on appeal is simply a request

for this Court to reassess the facts and circumstances that were before the trial

court, which we will not do. We therefore affirm the trial court’s denial of

Nix’s motion for funds to hire a mitigation specialist.

Court of Appeals of Indiana | Opinion 20A-CR-521 | October 26, 2020 Page 12 of 13 Conclusion [26] In sum, we affirm Nix’s conviction in all respects.

[27] Affirmed.

Bradford, C.J., and Mathias, J., concur.

Court of Appeals of Indiana | Opinion 20A-CR-521 | October 26, 2020 Page 13 of 13