Litale Zavier Kendall v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 30, 2018
• Docket: 49A02-1708-CR-1717
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 30 2018, 10:39 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kevin Wild Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Litale Zavier Kendall, July 30, 2018 Appellant-Defendant, Court of Appeals Case No. 49A02-1708-CR-1717 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Jeffrey L. Marchal, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49G06-1609-F5-37922

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018 Page 1 of 11 Statement of the Case [1] Litale Zavier Kendall (“Kendall”) appeals his convictions for Level 5 felony

battery by means of a deadly weapon,1 Level 6 felony criminal recklessness,2

and Class A misdemeanor domestic battery.3 He argues that the trial court

abused its discretion and violated Indiana Evidence Rule 404(b) when it

admitted evidence regarding a prior bad act, i.e., a witness’s testimony alluding

to Kendall’s prior physical acts against the victim. Even assuming that the

admission of the evidence was erroneous, we affirm Kendall’s convictions

because we conclude that any error was harmless in light of the independent

evidence of his guilt.

[2] We affirm.

Issue Whether the trial court’s admission of evidence was harmless error.

Facts [3] In mid-August 2016, Kendall and his girlfriend, Tracy Washington

(“Washington”), ended their more than one-year relationship. Thereafter,

Washington began dating Dewayne Fletcher (“Fletcher”). After Kendall and

1 IND. CODE § 35-42-2-1. 2 I.C. § 35-42-2-2. 3 I.C. § 35-42-2-1.3.

Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018 Page 2 of 11 Washington broke up, Kendall did not know where Washington was staying

and tried to find her. At that time, Washington was staying with Fletcher and

his family, including his mother (“Fletcher’s mother”) and sister (“Fletcher’s

sister”).

[4] In the early morning hours of August 28, 2016, Kendall showed up

unexpectedly at Fletcher’s house. Washington, who was upstairs when Kendall

arrived, heard Kendall saying negative things about her to Fletcher. Kendall

told Fletcher that Washington was “a whore, that [she] was nasty, [and] that

[she] would sleep with anybody.” (Tr. Vol. 2 at 18). Washington went

downstairs and told Kendall to leave. Kendall told her to “shut up[,]” raised

his fist, and “flinched” at or moved towards her. (Tr. Vol. 2 at 18, 19).

Washington “went into defense mode[,]” pulled a knife out of her bra, and told

Kendall to “get back.” (Tr. Vol. 2 at 20). When Kendall “flinched” at

Washington again, Fletcher separated them. (Tr. Vol. 2 at 20). Washington

then went back upstairs, and she heard Kendall saying, “That’s my girl. I have

her name tattooed on my arm. She has my name tattooed on her leg. I love

her.” (Tr. Vol. 2 at 21).

[5] When Fletcher’s mother and sister came home, they went into the room with

Kendall. He told them not to trust Washington, said that she was a whore and

would get Fletcher killed, and tried to convince them to throw Washington out

of the house. Fletcher’s mother went upstairs to get Washington and saw that

Washington was crying and “was scared out of her mind.” (Tr. Vol. 2 at 105).

Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018 Page 3 of 11 Washington eventually went downstairs, where Kendall continued to say

negative things about her. Fletcher’s sister told Washington to leave the house.

[6] Washington walked onto the front porch, where Fletcher sat next to her.

Kendall stayed inside and talked to Fletcher’s mother and sister for a little

while. Kendall then went outside on the porch, and Fletcher’s mother stood in

the doorway looking out on the porch. Washington stood up and said she was

going to leave. Kendall then told Washington to “shut up” and “hauled off and

smacked” her face. (Tr. Vol. 2 at 30). Washington, who fell to the ground,

pulled a knife out of her bra and said, “I’m done. I’m tired. . . [Y]ou, are not

about to keep doing this to me.” (Tr. Vol. 2 at 31). Kendall then pulled out his

gun, pointed it at Washington’s head, and demanded that she give him the

knife. He also said, “Bitch, I’ll kill you.” (Tr. Vol. 2 at 118). Washington then

told Kendall, “If you’re going to shoot me, then shoot me.” (Tr. Vol. 2 at 31).

Kendall took the knife from Washington, and Fletcher stepped in and grabbed

Kendall. Kendall then reached around Fletcher and stabbed Washington in her

right shoulder. Washington screamed that Kendall had stabbed her, and

Kendall ran away. Fletcher’s mother and sister put a towel and peroxide on

Washington’s shoulder to stop the bleeding, and Washington fell asleep. After

Washington woke up, she went to the hospital and reported the incident to the

police.

[7] The State ultimately charged Kendall with: Count 1, Level 5 felony battery by

means of a deadly weapon (knife); Count 2, Level 6 felony criminal

recklessness (pointing a gun at Washington); Count 3, Class A misdemeanor

Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018 Page 4 of 11 domestic battery; and Count 4, Class A misdemeanor battery resulting in bodily

injury.4

[8] The trial court held a jury trial on June 21, 2017. On the morning of trial, the

State filed a notice of intent to offer Rule 404(b) evidence at trial to show,

among other things, motive and the nature of the relationship between Kendall

and Washington. Specifically, the State sought to introduce evidence that “for

the weeks leading up to this incident, Defendant Kendall was trying to

determine the whereabouts of Trac[]y Washington because he did not want her

to leave him and/or the relationship.” (App. Vol. 2 at 61). Before the trial

commenced, the parties discussed the notice with the judge. Kendall’s counsel

objected, based on prejudice and lack of relevancy, to the admission of any

testimony regarding that act. The State responded that it went to Kendall’s

“motive” and that the victim would testify that Kendall “had been trying to find

her . . . on several occasions.” (Tr. Vol. 2 at 7). The trial court ruled that the

evidence would be admissible but left the issue open depending on what would

transpire during the trial.

[9] During the trial, the State called Washington, Fletcher’s sister, and Fletcher’s

mother among other witnesses. Washington testified to the facts above. When

Fletcher’s sister and mother testified, they both made a reference to Kendall

beating Washington. Fletcher’s sister testified that when she and Fletcher’s

4 Initially, the State also charged with Level 6 felony intimidation and Class A misdemeanor pointing a firearm at another person but later dismissed these charges.

Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018 Page 5 of 11 mother were in the house with Kendall, they talked to him about why he

wanted Washington back. The State asked Fletcher’s sister about the

conversation, and she responded, “That he wanted her back[,] and we was

asking why. He was like cause I got her name tattooed on him and -- And we

was like, well, she doesn’t want to go back to you because you always beat her

and all that type of stuff.” (Tr. Vol. 2 at 92-93) (improper grammar unchanged).

Kendall objected, and the following conversation occurred between the parties

and the trial court at the bench:

[KENDALL’S COUNSEL]: Judge, the State is getting into, it seems to be (indiscernible) accusations that are not related to this case. I don’t know if this witness is going to continue down that path, but it seems like they are going into history.

THE COURT: Well, I haven’t heard anything necessarily that is. But obviously the State needs to tread carefully and you need to be ready with objections. But right now I haven’t heard anything objectionable.

[KENDALL’S COUNSEL]: I think she just testified that he is always beating her.

[THE STATE]: That’s not what she testified to. She testified to what the Defendant was saying and she was (indiscernible). She’s asking him (indiscernible).

[KENDALL’S COUNSEL]: But she said it in her response (indiscernible). I’m objecting to that it is highly prejudicial and is not (indiscernible) to this cause.

[THE STATE]: (indiscernible)

THE COURT: I’m going to overrule the objection. But we will tread carefully.

Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018 Page 6 of 11 [THE STATE]: Yes, Judge.

THE COURT: And be ready for additional objections. Okay.

[KENDALL’S COUNSEL]: Thank you, Judge.

THE COURT: Thank you.

(Tr. Vol. 2 at 93-94).

[10] When Fletcher’s mother testified, she also talked about how Kendall had stated

that he wanted Washington back because he had her name tattooed on him,

and she made a reference to Kendall beating Washington. (Tr. Vol. 2 at 108).

Specifically, she stated, “When he kept telling me the same old story, how he

loved her and all this[,] I said, he just wants her money. And I said, ‘You just

want to keep doing, beating on her like you been doing.” (Tr. Vol. 2 at 108).

Kendall objected, and the trial court sustained the objection, struck the

testimony, and instructed the jury not to consider it.

[11] Fletcher’s mother also provided testimony that corroborated Washington’s

testimony regarding Kendall’s acts of hitting, pointing a gun at, and stabbing

Washington. More specifically, Fletcher’s mother testified that she was

standing in the doorway when she heard Kendall slap Washington on the face.5

Additionally, she testified that she saw Kendall pull out a gun and point it

Washington’s head and that she heard him say, “Bitch, I’ll kill you.” (Tr. Vol.

5 Fletcher’s mother testified that she did not see the slap because she had turned her head to talk to neighbors who were on their own porch.

Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018 Page 7 of 11 2 at 118). Fletcher’s mother also testified that she saw Fletcher intervene and

push Kendall away from Washington and that she saw Kendall pull out a

“silver object.” (Tr. Vol. 2 at 115). Lastly, Fletcher’s mother testified that she

saw Kendall behind Washington and that she then saw “blood all over”

Washington and a “real bloody hole” on Washington’s shoulder. (Tr. Vol. 2 at

122, 124).

[12] The jury found Kendall guilty as charged. The trial court imposed a three (3)

year sentence for Kendall’s Level 5 felony battery conviction, a one (1) year

sentence for his Level 6 felony criminal recklessness conviction, and one (1)

year sentence for his Class A misdemeanor domestic battery conviction, and it

ordered these sentences to be served concurrently. The trial court did not enter

judgment of conviction on Kendall’s Class A misdemeanor battery conviction.

Kendall now appeals.

Decision [13] Kendall argues that the trial court abused its discretion by admitting Fletcher’s

sister’s testimony suggesting that Kendall had previously beaten Washington.

Specifically, he contends that this evidence was inadmissible under Indiana

Evidence Rule 404(b) because it was a prior bad act and under Evidence Rule

403 because it was unfairly prejudicial.

[14] The admission and exclusion of evidence falls within the sound discretion of

the trial court, and we review the admission of evidence only for an abuse of

discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of

Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018 Page 8 of 11 discretion occurs when the trial court’s decision is clearly against the logic and

effect of the facts and circumstances before it. Conley v. State, 972 N.E.2d 864,

871 (Ind. 2012), reh’g denied.

[15] Indiana Evidence Rule 404(b) provides as follows:

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial--or during trial if the court, for good cause, excuses lack of pretrial notice.

Ind. R. Evid. 404. Evidence Rule 403 provides that a “court may exclude

relevant evidence if its probative value is substantially outweighed by a danger

of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, or needlessly presenting cumulative

evidence.”

[16] While the parties have presented specific arguments regarding whether or not

there was any error in the admission of Fletcher’s sister’s testimony, we need

Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018 Page 9 of 11 not address these arguments. Assuming without deciding that the trial court

abused its discretion by admitting the evidence, the error was harmless. 6 “Even

when a trial court abuses its discretion in admitting evidence under Rule 404(b),

we will only reverse for that error if the error is inconsistent with substantial

justice or if a substantial right of the party is affected. Stettler v. State, 70 N.E.3d

874, 881 (Ind. Ct. App. 2017) (internal quotation marks and citations

omitted), trans. denied. “The improper admission of evidence is harmless error

when the conviction is supported by substantial independent evidence of guilt

as to satisfy the reviewing court that there is no substantial likelihood that the

questioned evidence contributed to the conviction.” Cook v. State, 734 N.E.2d

563, 569 (Ind. 2000), reh’g denied. See also Blount v. State, 22 N.E.3d 559, 564

(Ind. 2014) (“If we are satisfied the conviction is supported by independent

evidence of guilt such that there is little likelihood the challenged evidence

contributed to the verdict, the error is harmless.”).

[17] Here, there was substantial independent evidence that Kendall smacked

Washington in the face, pointed a gun at her, and stabbed her with a knife.

Washington testified about Kendall’s acts against her, and her testimony was

corroborated by Fletcher’s mother’s testimony, who heard and/or saw Kendall

commit some of these acts as well as his actions leading up to them and

6 We note, however, that “where a relationship between parties is characterized by frequent conflict, evidence of the defendant's prior assaults and confrontations with the victim may be admitted to show the relationship between the parties and motive for committing the crime.” Iqbal v. State, 805 N.E.2d 401, 408 (Ind. Ct. App. 2004).

Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018 Page 10 of 11 Washington’s resulting injury. Furthermore, Washington’s testimony regarding

the stabbing was corroborated by evidence showing her physical injury. Based

on our review of the record and the evidence supporting Kendall’s convictions,

we are satisfied that there is no substantial likelihood that the challenged

evidence contributed to the jury’s verdicts and, therefore, conclude that the

admission of the evidence was harmless error. See, e.g., Cook, 734 N.E.2d at 569

(holding that the erroneous admission of Rule 404(b) evidence was harmless

error); Stettler, 70 N.E.3d at 881 (holding that the trial court’s erroneous

admission of evidence concerning prior bad acts was harmless error).

[18] Affirmed.

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

Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018 Page 11 of 11