Jermaine Issaiah Garnes v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: March 11, 2024
• Docket: 23A-CR-00606
• Status: Published

Opinion

FILED Mar 11 2024, 8:47 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana Jermaine Garnes, Appellant-Defendant

v.

State of Indiana, Appellee-Plaintiff

March 11, 2024 Court of Appeals Case No. 23A-CR-606 Appeal from the Tippecanoe Superior Court The Honorable Randy J. Williams, Judge Trial Court Cause No. 79D01-2108-MR-8

Opinion by Judge Weissmann Chief Judge Altice and Judge Kenworthy concur.

Court of Appeals of Indiana | Opinion 23A-CR-606 | March 11, 2024 Page 1 of 12 Weissmann, Judge.

[1] Criminal defendants have the constitutional right to present a complete defense.

But this right is not absolute. Jermaine Garnes contends that he was denied a

complete defense at his trial for the murder of 3-year-old Z.C. when a mistrial

was declared after he informed the jury that the child’s mother had already been

convicted of murder. Garnes was subsequently retried and convicted of murder

at his second trial.

[2] Garnes makes two arguments on appeal. The first is that his conviction for

murder should be vacated on double jeopardy grounds because the trial court

erred in granting the mistrial. His second argument claims that his maximum

sentence is inappropriate. Finding no merit to either, we affirm.

Facts [3] In the summer of 2021, Garnes lived with his girlfriend, Crystal Cox, and her

three-year-old son, Z.C. One evening, Garnes called 911 and reported that Z.C.

was not breathing. Although the operator instructed Garnes and Cox on

administering CPR, the paramedics arrived to find no one doing so, and that

Z.C. was dead. Z.C.’s body was “cold” and “mottling” with bruises covering

nearly all of his body. Tr. Vol. III, p. 86. An autopsy revealed extensive internal

injuries, consistent with a “very, very high force to the front or to the side of the

body.” Id. at 114-15.

[4] The State charged Garnes with murder, as well as two Level 1 felonies—neglect

of a dependent resulting in death and aggravated battery—and battery resulting Court of Appeals of Indiana | Opinion 23A-CR-606 | March 11, 2024 Page 2 of 12 in death to a person less than 14 years old, a Level 2 felony.1 A few days before

Garnes’s trial, a newspaper reported that a jury had found Cox guilty of

murder. In response, the trial court, with the parties’ agreement, questioned

potential jurors about their knowledge of the article and Cox’s conviction. Four

prospective jurors had read the article online and were excused for cause.

Although two more potential jurors revealed they were generally aware of

Cox’s case, they had not read the article. The trial court denied Garnes’s

motion to excuse the two jurors for cause.

[5] A full jury was seated, and Garnes’s trial began. During opening arguments,

Garnes’s counsel highlighted Z.C.’s alleged frailties and Cox’s involvement.

Then said:

there is no dispute that [Z.C.] has numerous bruises on his body and ultimately died from internal injuries, there is no dispute that he died while in the care of his mother, Crystal Cox, and the Defendant Jermaine Garnes. Most significantly it is not in dispute that Crystal Cox was convicted of murdering [Z.C.].

Tr. Vol. II, pp. 158-59.

[6] The State immediately objected and requested a sidebar outside the jury’s

presence, which the trial court granted. The State expressed disbelief that

Garnes’s counsel had mentioned Cox’s conviction in his opening argument,

given the efforts to screen anyone from the jury with this information. The State

1 Cox was charged with similar crimes.

Court of Appeals of Indiana | Opinion 23A-CR-606 | March 11, 2024 Page 3 of 12 also emphasized that the information was likely inadmissible. Garnes’s counsel

rebutted that no motion in limine prevented the information from coming in at

trial and that the evidence would be admissible. The trial court tabled the issue

until both sides had time to research it and the State could decide whether to

move for a mistrial.

[7] The trial continued the rest of the morning. But following an extended

afternoon break, the State moved for a mistrial. The trial court granted the

motion. It reasoned that Garnes’s opening statement was “intended as a trial

tactic” to inform the jury of the prior conviction even though the parties and the

trial court had tried to prevent the jury from learning about the prior conviction.

Id. at 219-20.

[8] After the trial court declared a mistrial, Garnes moved to dismiss his case. He

claimed that double jeopardy protections attached when the jury was sworn in

and that further prosecution was prohibited. The trial court rejected this motion

because it found the mistrial proper. It reiterated its findings that Garnes’s

“impermissible statements were a deliberate trial tactic, a mischaracterization,

and improper,” and were “not inadvertent, but a calculated statement made

presumably as a trial tactic to shift the blame to the mother of the child.” App.

Vol. II, p. 139. The trial court also concluded that no admonishment or

alternative option would have fixed the “prejudicial effect the statements likely

had on the jury.” Id. at 138-39.

Court of Appeals of Indiana | Opinion 23A-CR-606 | March 11, 2024 Page 4 of 12 [9] After a second trial on the same four charges, the jury found Garnes guilty on

all counts. The trial court sentenced Garnes to 65 years imprisonment, with one

year suspended.

Discussion and Decision [10] We address Garnes’s arguments in multiple steps. The first and central issue

here is whether the trial court properly granted the mistrial. Deciding this

question raises two derivative issues: (1) whether evidence of Cox’s conviction

was admissible; and (2) whether a “manifest necessity” justified the mistrial.

Because we affirm the trial court’s judgment in declaring a mistrial during the

first trial, Garnes’s conviction from the second trial stands. We then conclude

that his sentence is not inappropriate.

I. The Trial Court Properly Granted a Mistrial [11] Garnes argues that the trial court improperly declared a mistrial and that his

second trial therefore violated his Fifth Amendment right “not to be placed

twice in jeopardy.”2 Brock v. State, 955 N.E.2d 195, 199 (Ind. 2011). A mistrial is

a serious remedy, particularly so after the jury has been seated and double

jeopardy protections have attached. Id. “Once jeopardy has attached, the trial

court may not grant a mistrial over a defendant’s objection unless ‘manifest

necessity’ for the mistrial is found.” Brown v. State, 703 N.E.2d 1010, 1015 (Ind.

2 The Double Jeopardy Clause of the Fifth Amendment, applicable here through the Fourteenth Amendment, provides that “[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V.

Court of Appeals of Indiana | Opinion 23A-CR-606 | March 11, 2024 Page 5 of 12 1998). A trial court’s decision to grant a mistrial is reviewed for an abuse of

discretion. Brock, 955 N.E.2d 195, 207 (Ind. 2011).

[12] Garnes asserts that because evidence of Cox’s murder conviction was

admissible, his trial counsel’s reference to it during opening arguments in

Garnes’s first trial was not grounds for a mistrial. Thus, we begin with the

evidentiary issue and then proceed to whether the trial court abused its

discretion in declaring a mistrial.

A. Evidence of Cox’s Conviction Was Inadmissible

[13] Garnes contends the evidence of Cox’s conviction was admissible because he

intended to offer the evidence “to show that someone else” murdered Z.C.

Appellant’s Br., p. 16. In that vein, Garnes asserts that a criminal defendant

“has the absolute right to present evidence” that someone else committed the

charged crime.” Id. While the right to present a defense is an important right, it

is not without limitation.

[14] Criminal defendants cannot present any evidence or make any arguments they

please while presenting their defense. See generally Holmes v. South Carolina, 547

U.S. 319, 326-27 (2006) (noting that “well-established rules of evidence permit

trial judges to exclude evidence”); see also Kubsch v. State, 784 N.E.2d 905, 926

(Ind. Ct. App. 2003) (“Regardless of [the defense’s theory], evidence to support

the theory must comply with applicable evidentiary rules.”). And the argument

Garnes sought to make—that another person committed the crime—is, at

bottom, no different than any other argument a defendant might make. Holmes,

Court of Appeals of Indiana | Opinion 23A-CR-606 | March 11, 2024 Page 6 of 12 547 U.S. at 327 (finding that application of evidentiary rules “regulating the

admission of evidence proffered by criminal defendants to show that someone

else committed the crime with which they are charged” has been “widely

accepted”).

[15] Evidence of Cox’s conviction was inadmissible here. As both parties agree, the

reverse of this situation—where the prosecution attempts to introduce evidence

of an accomplice or co-defendant’s conviction—is typically found improper if

the evidence speaks only to “the fact that others indicted for the same offense

had been found guilty.” Moore v. State, 515 N.E.2d 1099, 1102 (Ind. 1987)

(quoting Lincoln v. State, 133 N.E. 351 (Ind. 1921)).

[16] Indeed, this Court has already found that “the same rationale applies to make

improper any attempt by a defendant to disclose the previous conviction or

guilty plea of a co-defendant in hopes of establishing his innocence of the crime

charged.” Jefferson v. State, 399 N.E.2d 816, 825 (Ind. Ct. App. 1980). Of course,

the propriety of any such action still “depends on the facts and circumstances

surrounding the case.” Moore, 515 N.E.2d at 1103 (citing Zarnick v. State, 361

N.E.2d 202, 216 (Ind. Ct. App. 1977)). The facts and circumstances of this case

support the trial court’s decision to find evidence of Cox’s conviction

inadmissible.

[17] First, Cox’s conviction was not relevant evidence at Garnes’s trial. Evidence is

relevant if it has “any tendency to make a fact more or less probable” and is “of

Court of Appeals of Indiana | Opinion 23A-CR-606 | March 11, 2024 Page 7 of 12 consequence” in resolving the issue.3 Ind. Evidence Rule 401. If evidence is not

relevant, it is inadmissible. Evid. R. 402.

[18] Our Supreme Court has already spoken on the related issue of introducing

evidence of a co-defendant’s guilty plea and indicated that “in many cases”

such evidence “has been considered irrelevant and inadmissible.” Moore, 515

N.E.2d at 1102 (collecting cases). That is the case here. Cox’s conviction, like

the guilty plea in Moore, had no bearing on Garnes’s guilt or innocence at his

trial. In other words, it was “not substantive evidence of the defendant’s guilt or

innocence.” Phelps v. State, 453 N.E.2d 350, 354 (Ind. Ct. App. 1983); Jefferson,

399 N.E.2d at 825.

[19] This is so because Cox’s conviction does not show that she alone murdered

Z.C. Cf. Allen v. State, 813 N.E.2d 349, 361-66 (Ind. Ct. App. 2004) (holding

that a defendant could present evidence that others committed the crime with

him). In fact, Cox was convicted of murder on the theory that she was Garnes’s

accomplice; in effect, that she and Garnes murdered Z.C. together. See Cox v.

State, 210 N.E.3d 305, *2 (Ind. Ct. App. 2023) (mem.) (noting that in

prosecuting Cox, the State proceeded “under a theory that Garnes inflicted the

3 We note that many of the cases cited within this opinion predate the adoption of Indiana’s Rules of Evidence in 1994. In general, caution is warranted when citing to such cases. See Joyner v. State, 678 N.E.2d 386, 389 n.2 (Ind. 1997) (observing that “long-standing rules of evidence have been subsumed or eliminated by the adoption of our new rules of evidence”). But here, the governing standard is, for our purposes, relatively unchanged. Compare Ind. Evidence Rule 401 with Moore, 515 N.E.2d at 1103 (“Evidence is relevant if it tends to prove or disprove an issue material to the case.”).

Court of Appeals of Indiana | Opinion 23A-CR-606 | March 11, 2024 Page 8 of 12 fatal blows and that Cox acted as an accessory to Garnes in committing the

murder”). Cox’s conviction therefore is unrelated to Garnes’s guilt.

[20] Having established that it was improper for Garnes’s counsel to inform the jury

of Cox’s conviction, we turn to the next step: whether a mistrial was required.

B. A Manifest Necessity Requiring a Mistrial Existed

[21] When a defendant objects to a motion for mistrial, as Garnes did here, there

must exist a “manifest necessity” to support the mistrial. A “manifest necessity”

exists when, “the ends of public justice would otherwise be defeated” by

continuing the trial, through either jury bias or prejudice. Jackson v. State, 925

N.E.2d 369, 373 (Ind. 2010) (quoting United States v. Perez, 22 U.S. 579, 580

(1824)). This standard does not require that the mistrial be “necessary” in a

“strict literal sense,” given “the difficulty in measuring jury bias.” Id. (quoting

Arizona v. Washington, 434 U.S. 505, 511 (1978)).

[22] Garnes argues that a manifest necessity did not exist because the trial court

could have cured any prejudice with a simple admonishment instructing the

jury to ignore the reference to Cox’s conviction. Garnes relies on the fact that

admonishments are generally the preferred way to cure an error that may bias

the jury. See Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006) (“When an

improper argument is alleged to have been made, the correct procedure is to

request the trial court to admonish the jury.”). But in all events, “the reviewing

court must ‘accord the highest degree of respect to the trial judge’s evaluation of

the likelihood that the impartiality of one or more jurors may have been

Court of Appeals of Indiana | Opinion 23A-CR-606 | March 11, 2024 Page 9 of 12 affected by the improper comment.’” Jackson, 925 N.E.2d at 373 (quoting

Washington, 434 U.S. at 511).

[23] Speaking to a similar situation, the United States Supreme Court reasoned that

“[a]n improper opening statement unquestionably tends to frustrate the public

interest in having a just judgment reached by an impartial tribunal.”

Washington, 434 U.S. at 512. Although the trial court “may instruct the jury to

disregard the improper comment,” the court “must have the power to declare a

mistrial in appropriate cases.” Id. at 513. Otherwise, “unscrupulous defense

counsel [will] be allowed an unfair advantage.” Id.

[24] The trial court acted within its discretion in declaring a mistrial. With the

agreement of both parties, extensive efforts were undertaken during voir dire to

ensure the jury was not tainted by the public news of Cox’s conviction. But

these efforts were undone in an instant when Garnes’s counsel referenced that

conviction during opening arguments. We see nothing in the record to disprove

the trial court’s finding that this was a deliberate strategy by Garnes’s counsel

“to shift the blame to [Cox]” and that only a mistrial could remedy the fear of a

tainted jury. App. Vol. II, p. 139.

[25] Accordingly, we affirm the trial court’s judgment in declaring a mistrial and

find no double jeopardy issue with Garnes’s second trial and consequent

conviction.

Court of Appeals of Indiana | Opinion 23A-CR-606 | March 11, 2024 Page 10 of 12 II. Garnes’s Sentence Is Not Inappropriate [26] Lastly, Garnes challenges his sentence under Indiana Appellate Rule 7(B).

Under this rule, we may revise a sentence 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). Our aim in reviewing sentence appropriateness is to “attempt to leaven

the outliers” and “not to achieve a perceived ‘correct’ sentence.” Knapp v. State,

9 N.E.3d 1274, 1292 (Ind. 2014). We therefore defer substantially to the trial

court’s sentencing decision, which prevails unless “overcome by 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).

[27] The nature of Garnes’s offense supports his 65-year sentence. This was a

heinous crime. Garnes’ sole claim is that because Cox was also convicted of

Z.C.’s murder, some of the blame must be cast her way. But the underlying

facts show Garnes was the person primarily responsible for 3-year-old Z.C.’s

injuries. Garnes’s acts included “punching” and “grabbing” the child with the

“extreme amount of force” necessary to cause his fatal injuries. Tr. Vol. III, pp.

101-04, 145. Thus, we find nothing about the nature of Garnes’s sentence

inappropriate.

[28] Similarly, Garnes’s character does not compel sentencing relief. This analysis

requires consideration of a wide range of facts, such as Garnes’s “criminal

history, background, past rehabilitative efforts, and remorse.” Pritcher v. State,

208 N.E.3d 656, 668 (Ind. Ct. App. 2023). Garnes has a history of similar Court of Appeals of Indiana | Opinion 23A-CR-606 | March 11, 2024 Page 11 of 12 violent conduct including convictions for domestic violence and assault and

battery. As the State notes, it is particularly troubling that, as remediation for

his 2008 conviction for domestic violence, Garnes was ordered to complete a

program aimed at limiting violent behavior. In sum, Garnes’s character does

not warrant finding his sentence inappropriate.

Conclusion [29] The trial court did not abuse its discretion in declaring a mistrial in Garnes’s

first trial. Thus, his second trial did not violate double jeopardy protections and

Garnes’s murder conviction is affirmed. We also affirm his 65-year sentence,

finding it is not inappropriate in light of Garnes’s character and the nature of his

offense.

Altice, C.J., and Kenworthy, J., concur.

ATTORNEY FOR APPELLANT Bruce W. Graham Graham Law Firm P.C. Lafayette, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 23A-CR-606 | March 11, 2024 Page 12 of 12