Justin M. Lower v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 30, 2018
• Docket: 46A03-1610-CR-2430
• 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 Jul 30 2018, 10:47 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer L. Koethe Curtis T. Hill, Jr. La Porte, Indiana Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Justin M. Lower, July 30, 2018 Appellant-Defendant, Court of Appeals Case No. 46A03-1610-CR-2430 v. Appeal from the La Porte Circuit Court State of Indiana, The Honorable Thomas J. Appellee-Plaintiff Alevizos, Judge Trial Court Cause No. 46C01-1409-MR-257

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018 Page 1 of 11 Statement of the Case [1] Justin Lower (“Lower”) appeals his conviction by jury of murder 1 as well as his

adjudication as an habitual offender.2 He argues that: (1) the trial court

committed reversible error by admitting a photo array into evidence; (2) the

trial court abused its discretion in admonishing the jury; and (3) the prosecutor

engaged in misconduct amounting to fundamental error during closing

argument. Finding no reversible error, no abuse of the trial court’s discretion,

and no fundamental error, we affirm Lower’s murder conviction.

[2] We affirm.

Issues 1. Whether the trial court committed reversible error in admitting the photo array into evidence.

2. Whether the trial court abused its discretion in admonishing the jury.

3. Whether the prosecutor committed misconduct amounting to fundamental error during closing argument.

1 IND. CODE § 35-42-1-1. 2 IND. CODE § 35-50-2-8.

Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018 Page 2 of 11 Facts

[3] In August 2014, Lower, armed with two knives, went to a LaPorte bar with

Stephanie McKenna (“McKenna”). At some point, McKenna left the bar but

told Lower she would return later. While McKenna was gone, Lower sent her

the following text message:

When u comein? How long? WTF? You left me here by myself I feel like fifhting someone, I don’t want go to prison but I have no one to vibe with. I need you here.

(Exhibits Vol. 6 at 162) (misspelled words and improper grammar in the

original). When McKenna texted Lower that she would return shortly, he

responded:

Im bout to fight so I hope not too long, I wanna beat someones face in!!!

(Exhibits Vol. 6 at 162) (misspelled words and improper grammar in the

original).

[4] Shortly after McKenna returned to the bar, she and Lower walked outside to

the parking lot where a group of men were fighting. Brian Hoops (“Hoops”)

had just knocked Rob Wisniewski (“Wisniewski”) through a storefront

window. Hoops then hit a friend, Tyrone Hicks (“Hicks”). As Damien Peak

(“Peak”) attempted to separate Hoops and Hicks, Lower approached the group

and yelled to Hoops, “Fuck those niggas, we got ‘em, let’s do this, fuck them.”

(Tr. Vol. 4 at 238). Peak told Lower that the altercation between the two

Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018 Page 3 of 11 friends “was none of his business.” (Tr. Vol. 3 at 144). Lower initially turned

away but then approached Peak from behind.

[5] Marcus Phelps (“Phelps”), who had just walked in the parking lot, warned Peak

about Lower’s approach, and Lower and Phelps began to fight. During the

altercation, Lower stabbed Phelps nine times, twisting the knife several times as

he pulled it out of Phelps’ body. Lower then went inside the bar to the

bathroom to wash Phelps’ blood off of his arms and hands before leaving with

McKenna. Phelps died as a result of the stab wounds.

[6] The State charged Lower with murder and with being an habitual offender. At

trial, LaPorte Police Department Officer Robert Allen (“Officer Allen”) testified

that he had interviewed Ryan Dodds (“Dodds”) at the police station several

hours after the murder and that Dodds had identified Lower in a photo array.

When the State moved to admit the photo array into evidence, Lower objected

that Lower’s photo “show[ed] him in jail garb.” (Tr. Vol. 4 at 11). Lower

further objected to the admission of this evidence because “his identi[t]y was

not an issue” at trial. (Tr. Vol 4 at 12). After Officer Allen explained that the

Lower’s photograph was taken the day he was arrested “for this case,” the trial

court overruled Lower’s objection and admitted the photo array into evidence.

(Tr. Vol. 4 at 13).

[7] Detective Brett Airy (“Detective Airy”) testified that he had watched a

surveillance video from a bank across the street from the bar’s parking lot in an

attempt to see whether Lower or Phelps had initiated their altercation.

Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018 Page 4 of 11 However, according to Detective Airy, the bank’s surveillance camera was too

far from the parking lot to clearly record what had happened. During cross-

examination, defense counsel asked Detective Airy if he had attempted “either

through ISP or anyone else to have that video enhanced.” (Tr. Vol. 4 at 155).

Detective Airy responded that, in the past, he had “tried [to] have videos

enhanced that were much better quality than that, and [he] had never had any

luck being able to enhance video footage.” (Tr. Vol. 4 at 155).

[8] Also at trial, when defense counsel asked Peak if he had told Hicks that

“[Phelps] went to grab [Lower], and then they started fighting,” Peak

responded that he had not. (Tr. Vol. 3 at 175). When defense counsel asked

Peak if he had seen “who was the aggressor, who was the defender,” Peak

again responded that he had not. (Tr. Vol 3 at 125). Peak specifically testified

as follows:

I didn’t hear any words, just the scuffling. You know what I mean? There was nothing being said. So, hearing that of course, knowing he was behind me at one point, I look over my shoulder, and at this point, there’s an altercation going on, and I can’t make out what’s going on or who it is. In my mind, it didn’t really have nothing to do with me, so just as I spoke with him, it’s none of my business. I didn’t pay it no attention, I really didn’t.

(Tr. Vol. 3 at 152).

[9] During the presentation of his evidence, Lower admitted that he had stabbed

Phelps nine times. However, he further explained that Phelps had knocked him

Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018 Page 5 of 11 to the ground and hit and kicked him several times before Lower stabbed

Phelps in self-defense.

[10] Also during his presentation of evidence, Lower advised the trial court that he

wanted to call Hicks as a witness to impeach Peak’s testimony that he had not

seen who had started the fight between Lower and Phelps. Outside the

presence of the jury, Lower proffered Hicks’ testimony that the day after the

fight, Peak told him that Phelps “went to grab [Lower] . . . and then they started

fighting.” (Tr. Vol. 4 at 246). During the proffer, the State objected that Hicks’

testimony was hearsay. Defense counsel responded that the “offer [was] for

impeachment purposes only” and had “zero probative value in substantive

evidence.” (Tr. Vol 4 at 241, 244-45). He further suggested that the trial court

could admonish the jury that the testimony was “only for the purpose of

impeachment, and [could] not be used for substantive evidence.” (Tr. Vol. 4 at

243).

[11] Hicks subsequently testified that Peak told him that “[Phelps] went to grab

[Lower], and they started fighting.” (Tr. Vol. 5 at 5). During cross-

examination, Hicks testified that Peak “didn’t really say that he witnessed it,

but he told me.” (Tr. Vol. 5 at 6). The trial court then admonished the jury as

follows:

Alright. This is important. This is a limiting instruction. What you’ve heard in Mr. Peak’s question and answer . . . cannot be used as evidence of what was stated in the statement. You cannot use it as such. In fact, Mr. Peak did not have any first- hand knowledge of that fact, however, you may use that question

Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018 Page 6 of 11 and answer for the reason it was given, and that was to impeach Mr. Peak’s credibility. . . . You can’t use it for the truth of what was said in the statement, but simply to impeach his credibility.

(Tr. Vol. 5 at 6). Lower objected to the trial court telling the jury that “Mr.

Peak did not have any firsthand knowledge of that fact.”

[12] Also at trial during closing argument, defense counsel argued as follows:

[I]t would have been wonderful to see bank security surveillance. And I can understand if that camera just isn’t good enough. It happens. But when the State has the burden to disprove self- defense, don’t you think they owe it to you as the trier of fact to at least try and get the video enhanced? What you heard was, ‘I checked with another detective some time in the past. That video wasn’t – wasn’t able to be enhanced, so I didn’t bother doing it this time.” It’s unacceptable in this matter of higher importance. You deserve more. Justin deserves more. Don’t think for a second, if a detective, if an agency, if the prosecutor’s office – wanted to show this was self-defense? Don’t think for a second they would not have pursued that and pursued that end. Just as they pursued the end of a murder conviction.

(Tr. Vol. 5 at 41-42).

[13] On rebuttal, the prosecutor responded as follows without objection:

They have the same discovery the State did. They have the same video. They have the same interviews. Everything. They have the same stuff we do. . . . So, if there are certain videos, the capability exist[s] to both of us. No, Detective Airy told you. The incapability of that bank video. He described for you how bad it was. So was it unreasonable to believe that it was not going to be enhanceable?

Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018 Page 7 of 11 (Tr. Vol. 5 at 47).

[14] The jury convicted Lower of murder and adjudicated him to be an habitual

offender. The trial court sentenced Lower to 72 years, 60 years for murder,

enhanced by 12 years for being an habitual offender. Lower now appeals his

murder conviction.

Decision 1. Admission of Evidence

[15] Lower first argues that the trial court abused its discretion when it admitted the

photo array into evidence. He appears to contend that the photo array was not

relevant because Lowers’ identity was not at issue and that it was prejudicial

because “all individuals pictured in the line-up were in jail garb and [the

photograph] could lead a reasonable jury to believe that he had a prior criminal

record.” (Lower’s Br. 20).

[16] We review the trial court’s ruling on the admission of evidence for an abuse of

discretion. Dycus v. State, 90 N.E.3d 1215, 1219-20 (Ind. Ct. App. 2017). A

trial court abuses its discretion if its decision is clearly against the logic and

effect of the facts and circumstances before the court. Id. at 1220. However,

even if the trial court abuses its discretion in admitting evidence, a reversal may

be obtained “only if the record as a whole discloses that the erroneously

admitted evidence was likely to have had a prejudicial impact upon the mind of

the average juror, thereby contributing to the verdict.” Wales v. State, 768

N.E.2d 513, 521 (Ind. Ct. App. 2002), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018 Page 8 of 11 [17] Mug shots are ordinarily not admissible in evidence because they tend to reveal

to the jury that the accused has a criminal record. Coleman v. State, 546 N.E.2d

827, 831 (Ind. 1989). However, “there is no jeopardy in showing a photograph

of appellant” taken at the time of his arrest on the current charges before the

trial court. Id. See also Wheeler v. State, 749 N.E.2d 1111, 1114 (Ind. 2001)

(concluding that mug shots of the defendant were not unfairly prejudicial

because a detective told the jury that the photographs were taken the day of his

arrest for the current charges). Here, where Officer Allen testified that Lower’s

photograph was taken at the time of Lower’s arrest on the current charges, the

photograph was not likely to have had a prejudicial impact upon the mind of

the average jury or contributed to the verdict. The trial court did not commit

reversible error in admitting the photo array into evidence.

2. Jury Admonishment

[18] Lower also argues that the trial court abused its discretion when it admonished

the jury that “Peak did not have any first-hand knowledge of that fact.” Lower

specifically argues as follows:

The Court stated that Mr. Peak did not have any first-hand knowledge of that fact, but that the jury could use the statement to impeach Mr. Peak’s credibility. Trans. 503. It should have been up to the jury to determine whether Mr. Peak had knowledge of that fact through his testimony or other witness testimony. As a result, the admonishment from the Court was misleading to the jury, clearly against the logic and effect of the facts and circumstances and this case should be reversed and remanded back to the trial court for an abuse of discretion.

Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018 Page 9 of 11 (Lower’s Br. at 22).

[19] However, Lower has waived appellate review of this argument because his

brief, conclusory argument is supported neither by citation to authority nor

cogent argument. See Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App.

2005) (“Generally, a party waives any issue raised on appeal where the party

fails to develop a cogent argument or provide adequate citation to authority and

portions of the record.”), trans. denied.

[20] Waiver notwithstanding, we find no error. Our review of the evidence reveals

that Peak specifically testified that he did not see or know who the initial

aggressor was in the fight between Phelps and Lower. This evidence supports

the trial court’s admonishment that Peak did not have first-hand knowledge of

that fact. The trial court did not improperly admonish the jury, and we find no

abuse of the trial court’s discretion.

3. Prosecutorial Misconduct

[21] Lastly, Lower argues that the prosecutor “committed misconduct by arguing in

her [rebuttal] closing argument that Mr. Lower could have had a video tape

enhanced.” (Lower’s Br. at 22). Assuming that Lower properly objected to this

closing argument, he has waived appellate review of this issue because he failed

to request an admonishment or mistrial. See Dumas v. State, 803 N.E.2d 1113,

1117 (Ind. 2004) (explaining that a prosecutorial misconduct argument is

waived when the defendant objected but did not request an admonishment or

move for a mistrial).

Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018 Page 10 of 11 [22] Because Lower has waived this argument, he must establish not only the

grounds for prosecutorial misconduct but also that the prosecutorial misconduct

constituted fundamental error. See Ryan v. State, 9 N.E.3d 663, 667-68 (Ind.

2014). Fundamental error is an extremely narrow exception to the waiver rule

where the defendant faces the heavy burden of showing that the alleged error is

so prejudicial to the defendant’s rights as to “make a fair trial impossible.” Id.

at 668.

[23] Here, our review of the evidence reveals that the State’s comment, made during

its rebuttal closing argument, that Lower could have had the video tape

enhanced was merely a response to Lower’s closing argument comment that the

State should have pursued enhancement of a parking lot surveillance video.

“Prosecutors are entitled to respond to allegations and inferences raised by the

defense even if the prosecutor’s response would otherwise be objectionable.”

Id. at 669. As such, the prosecutor’s comment in this case, which was a

response to Lower’s allegations and inferences, was neither improper nor did it

amount to fundamental error.

[24] Affirmed.

Kirsch, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018 Page 11 of 11