Joshua Walker v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 18, 2020
• Docket: 19A-CR-1072
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 18 2020, 7:57 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.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Suzy St. John Attorney General of Indiana Marion County Public Defender Agency Megan M. Smith Appellate Division Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joshua Walker, February 18, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1072 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Clark Rogers, Judge Trial Court Cause No. 49G25-1803-F6-7796

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1072 | February 18, 2020 Page 1 of 9 [1] Joshua Walker (“Walker”) was convicted after a jury trial of possession of

cocaine1 as a Level 6 felony and was adjudicated as an habitual offender. 2 He

raises one issue on appeal, which we restate as whether the trial court abused its

discretion when it denied Walker’s request to elicit testimony regarding a

corrections officer who was accused of planting contraband on an inmate.

[2] We affirm.

Facts and Procedural History [3] In March 2018, Walker was residing at Duvall Residential Center (“Duvall”)

through Marion County Community Corrections. Tr. Vol. 2 at 15. Duvall was

understaffed at the time, as it still was at the time of trial, employing twenty-

seven security officers instead a full staff of forty security officers. Id. at 23.

Shortly before midnight on March 2, 2018, correctional officers Michael Nesbitt

(“Nesbitt”) and Brian Ahmed (“Ahmed”) were conducting a security check in

one of the bathrooms. Id. at 33. Nesbitt and Ahmed observed Walker sitting in

one of the open toilet stalls. Id. at 34. Walker appeared to be concealing

something in his hand, so Nesbitt confronted Walker and noticed plastic

baggies in Walker’s hand. Id. Nesbitt asked Walker to step away from the

toilet and place his hands behind his back. Id. Walker began cursing at Nesbitt

1 See Ind. Code § 35-48-4-6(a). 2 See Ind. Code § 35-50-2-8.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1072 | February 18, 2020 Page 2 of 9 and Ahmed. Id. As Ahmed tried to handcuff Walker, Walker punched Ahmed

and then fled to a sleeping dorm. Id. at 18, 34-36.

[4] When Walker reached the dorm, Nesbitt observed Walker toss something, so

Nesbitt stopped and retrieved the items that Walker had discarded. Id at 36;

State’s Ex. 1. Nesbitt ordered Walker to get on the ground and put his hands

behind his back. Tr. Vol. 2 at 36. When Walker refused to comply, Nesbitt

warned that he would use his pepper spray. Id. Walker refused to comply and

continued cursing at Nesbitt. Id. Nesbitt then squirted pepper spray at Walker

several times, and Walker eventually surrendered. Id. at 36-37; State’s Ex. 1.

The substance that Nesbitt retrieved tested positive for cocaine. Tr. Vol. 2 at 49-

50; State’s Exs. 2-4.

[5] On March 6, 2018, the State charged Walker with possession of cocaine as a

Level 6 felony, battery against a public safety official as a Level 6 felony,

resisting law enforcement as a Class A misdemeanor, and possession of a

synthetic drug or synthetic drug lookalike as a Class A misdemeanor.

Appellant’s App. Vol. II at 20-21. On October 3, 2018, the State filed an

information alleging that Walker was an habitual offender. Id. at 66. The State

later filed a motion to dismiss the charges for resisting law enforcement and

possession of a synthetic drug; on February 21, 2019, the trial court granted the

request. Id. at 87-88.

[6] The jury trial commenced on February 26, 2019. During opening argument,

Walker’s counsel stated that “Duvall Residential Facility is a Mickey Mouse

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1072 | February 18, 2020 Page 3 of 9 Operation.” Supp. Tr. Vol. 2 at 25. He also contended that the video of the

incident would contradict Nesbitt’s testimony: “Additionally, you’re not going

to see, I guess, what Officer Nesbitt is going to testify to reflected in the video.”

Id. at 26. During his cross-examination of Andrew Steagall (“Steagall”), Chief

of Security at Duvall, Walker attempted to elicit testimony from Steagall that

nearly a year after Walker’s incident, Elijah Taylor (“Taylor”), a former

correctional officer at Duvall, was accused of planting drugs on a resident; the

State objected. Tr. Vol. 2 at 13, 20-22. During testimony on Walker’s offer to

prove, Steagall testified that Taylor was not yet employed by Duvall when the

incident with Walker occurred, stating that Taylor began working at Duvall in

August or September of 2018, five or six months after the incident with Walker.

Id. at 22. Steagall also stated that he was aware that Taylor had been fired from

Duvall, but Steagall explained that he did not know if the allegations about

planting drugs was related to Taylor’s termination. Id. Steagall also testified

that Taylor had not been charged with a crime related to the allegation. Id. at

21-22. The trial court sustained the State’s objection. Id. at 22. During closing

argument, Walker’s counsel reiterated his argument that Nesbitt lied on the

stand: “Nesbitt’s statement of what happened is just complete and total

fabrication.” Tr. Vol. 2 at 57. He also accused Nesbitt on planting cocaine on

Walker: “I don’t know why Mr. Nesbitt did decide who, this guy Walker, I’m

going to drop some cocaine on him.” Id. at 58.

[7] The jury found Walker guilty of possession of cocaine but not guilty of battery

against a public safety official. Id. at 62. Walker waived his right to a jury trial

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1072 | February 18, 2020 Page 4 of 9 on the habitual-offender enhancement and admitted to being an habitual

offender. Id. at 64-67. On April 11, 2019, the trial court sentenced Walker to

365 days in the Indiana Department of Correction for possession of cocaine,

enhanced by two years for being an habitual offender. Id. at 77-78. Walker

now appeals. Additional facts will be presented as necessary.

Discussion and Decision [8] Walker argues that the trial court abused its discretion when it ruled that

Walker could not elicit Steagall’s testimony that Taylor had been accused of

planting drugs on an inmate. Even though Taylor did not work at Duvall at the

time of Walker’s incident, Walker argues this evidence was probative and vital

to his defense, which was that Nesbitt planted the cocaine on Walker. Walker

claims the exclusion of this evidence violated his constitutional right to present

a defense.

[9] We review evidentiary rulings for an abuse of discretion. Guilmette v. State, 14

N.E.3d 38, 40 (Ind. 2014). An abuse of discretion occurs when the trial court’s

judgment “is clearly against the logic and effect of the facts and circumstances

and the error affects a party’s substantial rights.” Id. In determining whether

an evidentiary ruling affected a party’s substantial rights, we assess the probable

impact of the evidence on the trier of fact. Hyser v. State, 996 N.E.2d 443, 448

(Ind. Ct. App. 2013), trans. denied.

[10] Defendants are guaranteed a meaningful opportunity to present a complete

defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986). The right to present a

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1072 | February 18, 2020 Page 5 of 9 defense is a fundamental element of due process. Kubsch v. State, 784 N.E.2d

905, 924 (Ind. 2003). However, this right is not absolute. Marley v. State, 747

N.E.2d 1123, 1132 (Ind. 2001). The defendant must also “comply with

established rules of procedure and evidence designed to assure both fairness and

reliability in the ascertainment of guilt and innocence.” Id. (emphasis added).

“Evidence is relevant if: (a) it has any tendency to make a fact more or less

probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.” Ind. Evidence Rule 401. The two

components of relevant evidence are materiality and probative value. Kubsch,

784 N.E.2d at 924.

[11] In greater detail, Walker contends that the evidence about Taylor was relevant

because Duvall’s chronic understaffing suggested that Duvall was not hiring

suitable employees. Walker contends this alleged inability to hire qualified

employees made Duvall employees more susceptible to corruption.

Had the jury been made aware of the corruption involving Taylor, it could have assessed that there are no mechanisms in place to prevent a dishonest person, who would go as far as framing a resident by planting drugs, from being hired into a position with daily contact with residents. The jury was entitled to determine whether a culture of corruption existed among Duvall correctional officers and whether Walker was a victim of that.

Appellant’s Br. at 13.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1072 | February 18, 2020 Page 6 of 9 [12] Here, the testimony Walker sought to elicit regarding Taylor was not relevant.

Taylor did not work at Duvall at the time of Walker’s incident. Tr. Vol. 2 at 21-

22. The accusation that Taylor planted contraband on an inmate several

months after Walker’s incident does not make it more or less probable that

Nesbitt planted drugs on Walker. Thus, testimony about Taylor was neither

material nor probative, and the probable impact on the jury would have been

low. See Evid. R. 401; Hyser, 996 N.E.2d at 448. Thus, the proffered evidence

was irrelevant, and the trial court did not abuse its discretion in sustaining the

State’s objection and excluding the evidence. See Guilmette, 14 N.E.3d at 40.

This also disposes of Walker’s claim that the trial court’s ruling violated his

right to present a defense because by proffering irrelevant evidence, Walker

failed to “comply with established rules of procedure and evidence designed to assure

both fairness and reliability in the ascertainment of guilt and innocence.” See

Marley, 747 N.E.2d at 1132. Thus, by sustaining the State’s objection, the trial

court did not violate Walker’s right to present a defense. See id.

[13] Nonetheless, Walker likens the impact on his defense by the exclusion of

testimony about Taylor to the situation in Hyser, 996 N.E.2d at 443. In Hyser,

the defendant was deprived of a meaningful opportunity to present a complete

defense when the trial court excluded his proffered testimony that a third person

fabricated a child’s accusation that the defendant molested the child in

retaliation against the defendant for reporting the third person’s physical abuse

of the child. We determined that the evidence of alleged fabrication was

relevant, exculpatory, unique, and critical to Hyser’s defense. Id. at 449-50.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1072 | February 18, 2020 Page 7 of 9 We also observed that the defense Hyser wished to present “was not

implausible and that the jury may have believed that his version of the facts was

true.” Id. at 449.

[14] Walker’s reliance on Hyser is misplaced. In Hyser, the defendant claimed the

victim’s stepfather coached him into fabricating the allegations of child

molesting in retaliation for the defendant reporting the stepfather to DCS for

physical abuse. Hyser, 996 N.E.2d at 445-47. The defendant in Hyser provided

a foundation for his theory, included evidence that other people had seen the

stepfather physically abuse the child. Id. Here, Walker presented no evidence

to support his theory that Nesbitt planted the cocaine or any evidence that

connected Nesbitt to Taylor. Rather, Walker’s theory relies on speculation,

which standing alone, does not make Walker’s theory relevant. See Hinkle v.

State, 97 N.E.3d 654, 663-64 (Ind. Ct. App. 2018) (trial court did not abuse its

discretion in refusing to allow defendant to present evidence of retaliation when

there had been no question of retaliation and defendant relied solely on

speculation to support claim that victim had invented the allegations), trans.

denied.

[15] We also reject Walker’s argument that Duvall’s staffing shortages were relevant

to his claim that Nesbitt planted the cocaine. Without evidentiary foundation,

Walker contends these staffing shortages helped create a culture of corruption at

Duvall. This claim is groundless and wildly speculative. We concur with the

State’s assessment: “one correctional officer being accused of planting drugs on

a resident on one occasion does not establish a culture of corruption, impugn

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1072 | February 18, 2020 Page 8 of 9 the hiring practices of Duvall, or determine the propensity of other officers to

plant drugs; therefore, the accusations against Taylor were not relevant.”

Appellee’s Br. at 11. The trial court did not abuse its discretion in ruling that

Walker’s proffered evidence about Taylor planting evidence on an inmate was

inadmissible.

[16] Affirmed.

Bailey, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1072 | February 18, 2020 Page 9 of 9