MEMORANDUM DECISION FILED May 25 2016, 6:53 am
Pursuant to Ind. Appellate Rule 65(D), CLERK Indiana Supreme Court this Memorandum Decision shall not be Court of Appeals and Tax Court 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 Ronald K. Smith Gregory F. Zoeller Public Defender Attorney General of Indiana Muncie, Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jerome C. Lockhart, May 25, 2016 Appellant-Defendant, Court of Appeals Case No. 18A02-1507-CR-895 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Marianne Vorhees, Appellee-Plaintiff Judge Trial Court Cause No. 18C01-1212-FB-25
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016 Page 1 of 14 [1] Jerome Lockhart appeals his convictions for Rape, a Class B Felony,1 and
Sexual Misconduct, a Class B Felony.2 He argues that the State improperly
used a peremptory challenge on a Black jury candidate, and that the trial court
made several evidentiary errors. Finding that the State had a race-neutral
justification for its peremptory challenge and that the trial court made no
evidentiary errors, we affirm.
Facts 3
[2] In August 2012, fourteen-year-old M.S. and her friend J.H. went to Lockhart’s
residence in Muncie. Lockhart was twenty-one years old at the time. M.S.’s
parents had given her money to go bowling, but she gave it to Lockhart so that
he could purchase alcohol. They joined a party taking place in Lockhart’s
apartment. At some point in the night, M.S. became very intoxicated and
blacked out. She remembered that she went into the restroom and that
Lockhart followed her in there. She also testified that she never consented to
have sex with Lockhart.
1 Ind. Code § 35-42-4-1. 2 I.C. § 35-42-4-9. 3 We held oral argument in this case in the Posey County Courthouse in Mount Vernon. We had the pleasure of following a moot court competition between the local high schools, created and hosted by Judge Redwine and Judge Almon, a tradition going back a number of years. The moot court jury consists of members of the local bar. We thank Judge Redwine, Judge Almon, and the Posey County Bar for their hospitality and continued efforts at legal education. And we thank counsel for their able and engaging oral advocacy.
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016 Page 2 of 14 [3] A short while later, Lockhart told J.H. that M.S. was in the bathroom. When
J.H. went in there, she found M.S. unconscious with her pants down around
her knees. J.H. pulled M.S.’s pants up and took her out to the living room.
[4] After M.S., who was still unconscious, was propped up in a chair in the living
room, the party-goers decided that they would “ma[k]e a taco patty out of her,”
tr. p. 71—they threw soft taco shells, hot sauce, shaving gel, and dishwashing
liquid at her, covering her unconscious body. At some point, M.S. was taken to
Lockhart’s bedroom, where J.H. undressed her and changed her into some of
Lockhart’s clothes.
[5] When M.S. did not come home by her midnight curfew, her mother became
concerned. Her mother found out where M.S. had gone, and she drove over to
Lockhart’s house with her husband. She found her daughter unresponsive and
unable to wake up. Her husband carried M.S. out of the house. M.S.’s mother
believed that M.S. might have been raped, so the parents took her to the
hospital.
[6] At the hospital, doctors found bruising on M.S.’s inner thighs. She felt
abdominal pain. She underwent a rape kit examination, but was in so much
pain that she could not tolerate the speculum examination. The examination
revealed the presence of seminal material, and a later DNA analysis showed
that the semen came from Lockhart.
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016 Page 3 of 14 [7] After being read his Miranda4 rights and signing a waiver of rights form,
Lockhart spoke with Muncie Police investigators in a taped interview, which
was played with some redactions for the jury. During the interview, Lockhart
gave multiple versions of what had transpired. First, he said that he let M.S.
into his apartment so that she could use the restroom, that he found her laying
on the ground, and that he covered her with a blanket. He said that there
“wasn’t no sex . . . . Didn’t kiss or, didn’t hug her.” Tr. p. 76. But after a few
minutes, his story changed: “It was like, I didn’t know she was the age she was,
okay? She told [me] she was about to be seventeen.” Id. at 90. He then
conceded that he had sex with her, but said “I mean, it was like she was
begging me.” Id. He claimed that the intercourse was brief because he began
feeling guilty about her age. “I didn’t want to. It was like, she damn near
forced me.” Id. at 103.
[8] On December 13, 2013, the State charged Lockhart with class B felony rape,
class B felony sexual misconduct with a minor, and class A misdemeanor
contributing to the delinquency of a minor. During the voir dire portion of the
trial, the State used a peremptory challenge to strike a Black woman from the
jury. She had indicated that she had prior experience with Muncie law
enforcement and that she felt that the police had not been fair to her. Although
she would have been the only Black person on the twelve-member jury, two
alternate jury members were Black women. The trial court ruled in the State’s
4 Miranda v. Arizona, 384 U.S. 436 (1966).
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016 Page 4 of 14 favor, finding that the State had a race-neutral reason behind its peremptory
challenge.
[9] After the April 13-14, 2015, trial, the jury found Lockhart guilty of rape and
sexual misconduct with a minor, but not guilty of contributing to the
delinquency of a minor. The trial court merged the latter conviction into the
former, and sentenced Lockhart to ten years of incarceration. Lockhart now
appeals.
Discussion and Decision I. The Peremptory Challenge [10] Lockhart’s first argument is that his constitutional rights were violated when the
State used a peremptory challenge on a Black juror. “Purposeful racial
discrimination in selection of the venire violates a defendant’s right to equal
protection because it denies him the protection that a trial by jury is intended to
secure.” Batson v. Kentucky, 476 U.S. 79, 86 (1986). To determine whether a
Batson violation has occurred, courts use a three-part test: first, the defendant
must make a prima facie showing that the peremptory challenge was exercised
on the basis of race; second, if such a showing is made, the State must offer a
race-neutral basis for the challenge; third, the trial court must determine
whether the defendant has shown purposeful discrimination. Cartwright v. State,
962 N.E.2d 1217, 1220-21 (Ind. 2012). The removal of the only prospective
Black juror that could have served on a jury is sufficient to create an inference
that racial discrimination has occurred. McCants v. State, 686 N.E.2d 1281,
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016 Page 5 of 14 1284 (Ind. 1997). On appeal, the trial court’s decision is given great deference,
and will be set aside only if clearly erroneous. Cartwright, 962 N.E.2d at 1221.
[11] The State argues that the prima facie showing has not been established;
although this particular Black woman was struck from the jury, two other
alternate jurors were Black and were not struck. However, the State has not
cited to any case holding that the presence of Black alternate jurors is sufficient
to defeat a Batson challenge,5 and so we will assume that Lockhart has
established the prima facie showing of racial discrimination.
[12] Even if we do so, Lockhart’s argument is still unavailing; turning to the second
part of the Cartwright test, we find that the State had a race-neutral justification
for its peremptory challenge. This second step of a Batson challenge is satisfied
if the State’s explanation, on its face, is based on something other than race.
Forrest v. State, 757 N.E.2d 1003, 1004 (Ind. 2001).
[13] We initially note that the voir dire procedure was not transcribed in this case.
The parties subsequently went on the record before the trial judge and recreated
the circumstances of the peremptory challenge. The parties’ recollection was
that this potential juror filled out a questionnaire in which she indicated that
either she or one of her family members had been convicted of a criminal
offense. The prosecutor informed the trial court that the potential juror had
5 In McCants, our Supreme Court found that the defendant made the prima facie showing despite the presence of “two other prospective African-American jurors” because “they were among the last members of the jury venire and had little chance of serving on the jury.” 686 N.E.2d at 1284 n.1.
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016 Page 6 of 14 been arrested and prosecuted for battery. Moreover, she indicated that she felt
that the local police had treated her unfairly. The defense attorney, however,
asked her whether she could fairly and impartially hear the case, and she
indicated that she could. After hearing argument, the trial court ruled, “I do
find that the State has proper . . . reasons that are race-neutral for exercising a
peremptory challenge as to Juror #2, and I will allow the State to exercise a
peremptory challenge on Juror 2.” Tr. p. 10-11.
[14] Lockhart argues that “[t]he potential juror was asked several times whether or
not she could hear this case fairly despite prior contacts with the law. She
stated that she could. The State of Indiana adduced no evidence to show that
the potential juror could not do that.” Appellant’s Br. p. 6. But the State did
present such evidence; namely, that the potential juror felt that the local police
did not treat her fairly. This is no small matter; the case involved testimony of
several local police officers, and the potential juror’s negative feelings toward
the police could have affected how she saw the evidence. Lockhart is
essentially requesting that this Court replace the trial court’s judgment with our
own; given our deferential standard of review, this is something we will not do.
II. Admission of Evidence
A. Confession/Saliva [15] Lockhart argues that the trial court should have granted his motion to suppress
his interview with police investigators and his motion to suppress his DNA
sample. Although he concedes that he signed the waiver of rights form, he
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016 Page 7 of 14 argues that he did not make a knowing and intelligent waiver of his right to
remain silent, as required by Miranda v. Arizona, 384 U.S. 436, 444 (1966). It is
the State’s burden to prove beyond a reasonable doubt that the confession was
given voluntarily. Jackson v. State, 735 N.E.2d 1146, 1153-54 (Ind. 2000). At
the suppression hearing, Lockhart presented the reports of two mental health
professionals, who stated that he was below average intelligence, that he felt
intimidated by the police, and that his fear made him reluctant to assert his
rights.
[16] Because the admission or exclusion of evidence falls within the sound discretion
of the trial court, we review the admission of evidence only for an abuse of
discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). Such 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. Id. When deciding
whether a confession was given voluntarily, courts look to the totality of the
circumstances surrounding the waiver or confession. Jackson, 735 N.E.2d at
1153. On appeal, we will uphold the finding of the trial court if there is
substantial evidence of probative value to support it. Id. at 1153-54.
[17] We find such evidence here. Even the two mental health care professionals,
cited by Lockhart to establish his reluctance to assert his rights, concluded that
Lockhart is capable of understanding the waiver of his right to remain silent.
Lockhart was explained this right by the police and he expressly waived it. Tr.
p. 64-65. Thus, there is substantial evidence supporting the trial court’s
conclusion that Lockhart made a voluntary waiver of his right to remain silent,
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016 Page 8 of 14 and the trial court did not err by admitting the confession into evidence. For
the same reasons, the trial court did not err when it admitted the saliva sample
that Lockhart volunteered.
B. Modessit Argument [18] Lockhart’s third argument is that the State ran afoul of Modessit v. State, 578
N.E.2d 649 (Ind. 1991). In that case, the State called several witnesses to the
stand prior to calling the victim, many of whom testified as to statements they
heard the victim make. Id. at 651-52. Our Supreme Court was concerned that
by the time the victim testified as to her own statements, there was a prejudicial
“drumbeat” effect of repeating the same statements multiple times before the
jury. Id.
[19] Lockhart argues that something similar happened in this case: the taped
investigation included questions like, “did you ever hear her say stop, get off of
me, at any time,” or “would you be surprised if she said that [J.H.] is one of the
people who heard her saying, ‘Stop. Get off of me.” Tr. p. 76-79. Lockhart
argues that this created the same “drumbeat” effect mentioned by our Supreme
Court.
[20] We disagree; in Modessit, our Supreme Court stressed its concern that the victim
testified after the other witnesses who repeated her out-of-court statements:
“Prior to putting the victim on the stand, the victim’s veracity had been, in
essence, vouchsafed by permitting the three witnesses to repeat the accusations
of the victim.” 578 N.E.2d at 651. In this case, the State called M.S. as the first
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016 Page 9 of 14 witness. Further, although the officer’s question mentioned statements
allegedly made by J.H., she was the second witness called in this case. Our
Supreme Court explained “that truthfulness is safeguarded by having the
declarant available for cross examination as to the out-of-court statements.” Id.
Both M.S. and J.H. were available for cross-examination before the taped
investigation was played for the jury, and so the Modessit rationale does not
apply to this case.
C. Crawford Right to Cross-Examine [21] Lockhart next argues that some of the questions used during the course of the
taped investigation incorporated testimonial hearsay statements of people not
called to testify at trial, and that this violated Crawford v. Washington, 541 U.S.
36 (2004). For example, the officers asked Lockhart why “Lavon,” who was
not called as a witness, asked Lockhart, “Did you have sex with my little
sister?” Tr. p. 79. Lockhart argues that he had a constitutional right to
confront whoever made this statement, or that if he could not confront the
person, that the State should have redacted this question from its video.
[22] We find that these were not testimonial hearsay statements. “Hearsay” refers
to “a statement that is not made by the declarant while testifying at the trial or
hearing; and is offered in evidence to prove the truth of the matter asserted.”
Ind. Evidence Rule 801(c). In contrast, police questions and comments in an
interview may be designed to elicit responses from the defendant and if so, are
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016 Page 10 of 14 not offered as proof of the facts asserted therein. Strong v. State, 538 N.E.2d
924, 928 (Ind. 1989).
[23] In this case, the trial court was aware that some of the officer’s questions might
be problematic, and suggested that Lockhart submit a jury instruction that
would instruct the jury to only consider the police officer’s statements as a
method of questioning intended to elicit information from Lockhart and not as
evidence of guilt. Tr. 59. Lockhart never submitted any such instruction.
Insofar as the omission of this limiting instruction was error, it was invited
error, which is not reversible. Dumas v. State, 803 N.E.2d 1113, 1121 (Ind.
2004).
D. Evidence Rule 704(b) [24] Lockhart next argues that several police statements included in the video
violated Indiana Rule of Evidence 704(b), which states, “Witnesses may not
testify to opinions concerning intent, guilt, or innocence in a criminal case; the
truth or falsity of allegations; whether a witness has testified truthfully; or legal
conclusions.” During the interview, the officers questioning Lockhart pressed
him by saying, “Well, wait a minute, you kinda have been lying. You have
kind of been lying to us, okay?” Tr. p. 93.
[25] This argument fails for the same reason that Lockhart’s Crawford argument fails;
the police were clearly seeking to elicit a response from Lockhart, rather than
testifying as to his truthfulness. The officers were giving Lockhart an
opportunity to explain a potential inconsistency in his story. Once again, the
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016 Page 11 of 14 trial court recommended that Lockhart tender a jury instruction explaining that
the officer’s statements were being used to elicit a response, and once again
Lockhart did not submit such an instruction.
E. The Rape Shield Statute [26] Finally, Lockhart argues that he should have been able to present evidence
regarding the presence of unknown male DNA that was produced during the
investigation. The trial court issued an order in limine excluding this evidence,
ruling that it violated Indiana’s Rape Shield Statute. Ind. Code § 35-37-4-4.
Lockhart’s counsel violated this order at trial by asking the expert witness a
question regarding the unknown male DNA. Lockhart argues that he should
have been allowed to inquire further as a matter of his right to cross-examine
witnesses and provide a defense.
[27] Indiana Evidence Rule 412 provides as follows:
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim or witness engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s or witness’s sexual predisposition.
(b) Exceptions.
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016 Page 12 of 14 (1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s or witness’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
(B) evidence of specific instances of a victim's or witness’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant’s constitutional rights.
In this case, the evidence that Lockhart seeks to admit is clearly “evidence of
the victim’s past sexual conduct.” Evid. Rule 412(a)(1). The question becomes
whether any exception applies.
[28] The evidence that Lockhart seeks to admit is not “offered to prove that
someone other than the defendant was the source of semen, injury, or other
physical evidence.” Evid. Rule 412(b)(1)(A). Lockhart admitted to having
sexual intercourse with M.S. While the presence of other male DNA could be
relevant to police investigators looking for an additional assailant, it has
absolutely no bearing on whether Lockhart raped M.S., and therefore would
not be probative of any issue in this case.
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016 Page 13 of 14 [29] Lockhart’s argument would be stronger if the State had used M.S.’s physical
injuries to prove that Lockhart acted forcibly against her will. Then Lockhart
might be able to posit that those injuries came from another source. But that
was not the State’s theory of the case; the State argued that M.S. was
unconscious and incapable of providing consent. The jury found this fact to be
proved beyond a reasonable doubt, and so whether someone else physically
injured M.S. would, again, not be probative of any issue in Lockhart’s case.
[30] In sum, the State had a race-neutral justification for exercising its peremptory
challenge, and the trial court did not make any of the evidentiary errors that
Lockhart alleges.
[31] The judgment of the trial court is affirmed.
Bailey, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016 Page 14 of 14