Marques Holmes v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 15, 2018
• Docket: 18A-CR-1137
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Nov 15 2018, 10:57 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.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Marielena Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General

George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Marques Holmes, November 15, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1137 v. Appeal from the Elkhart Circuit Court The Honorable Michael A. State of Indiana, Christofeno, Judge Appellee-Plaintiff Trial Court Cause No. 20C01-1605-F2-12

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1137 | November 15, 2018 Page 1 of 5 Case Summary [1] Marques Holmes appeals his convictions for level 2 felony dealing in

methamphetamine and level 6 felony resisting law enforcement. He contends

that the trial court committed fundamental error by excluding a witness who

invoked his Fifth Amendment right against self-incrimination. Because the

error, if any, was invited, we affirm.

Facts and Procedural History [2] On May 17, 2016, Elkhart Police Corporal Jim Ballard was dispatched to 502

West Marion Street in response to a report of a threat. Corporal Ballard spoke

to the person who reported the threat and then left the area. About an hour

later, Corporal Ballard was again dispatched to 502 West Marion Street. When

he arrived, he observed a white minivan parked in front of the residence and

suspected that the man sitting in the driver’s seat was the person reportedly

making the threats. Corporal Ballard parked his clearly marked police vehicle

behind the minivan and exited his vehicle. As he walked toward the minivan, it

drove away. Corporal Ballard returned to his patrol car, activated the overhead

red and blue lights, and followed the minivan. The minivan stopped, and

Corporal Ballard parked behind it. As he was getting out of his patrol car, the

minivan drove away again. Corporal Ballard activated his lights and siren and

followed the minivan several city blocks.

[3] Eventually, the minivan stopped. Corporal Ballard, assisted by other officers,

ordered the driver to exit the minivan. Once the driver was out of the vehicle,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1137 | November 15, 2018 Page 2 of 5 the officers handcuffed him and identified him as Holmes. When he

approached the minivan, Corporal Ballard smelled the odor of burnt marijuana

coming from inside it. Officers searched the minivan and discovered a

marijuana roach, a digital scale with a white powder on it, a clear bag

containing synthetic marijuana, a clear bag containing a crystal-like substance

that appeared to be methamphetamine, and a clear bag containing capsules,

some of which held a white powder. Testing revealed that the crystal-like

substance was 8.55 grams methamphetamine and that the white powder in the

capsules was methamphetamine weighing a total of 1.49 grams.

[4] The State charged Holmes with level 2 felony dealing in methamphetamine and

level 6 felony resisting law enforcement. A jury trial was held. After the State

completed its case-in-chief, Holmes attempted to call Antwan Wilson to testify

in Holmes’s defense. Outside the presence of the jury, the trial court permitted

Holmes’s defense counsel to offer Wilson’s testimony. Wilson testified that he

and Holmes were cousins and that the white minivan belonged to their

grandmother. Tr. Vol. 2 at 178-79. Wilson explained that on May 17, 2016, he

had possession of the minivan, he had visited his uncle at 502 West Marion

Street, and they had argued. Id. at 178-80. Wilson testified that Holmes met

him at his uncle’s residence to pick up the minivan and return it to their

grandmother. Id. at 183. When defense counsel asked Wilson if he placed the

drugs in the minivan, Wilson replied, “I plead the Fifth on that.” Id. at 190.

[5] At that point, the trial court asked, “Does anyone but me think that ends the

questioning?” Id. The prosecutor stated that he agreed with the trial court. The

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1137 | November 15, 2018 Page 3 of 5 trial court asked defense counsel if he agreed that because Wilson had exercised

his Fifth Amendment right not to incriminate himself, defense counsel was

precluded from questioning Wilson further and Wilson was not available for

cross-examination by the State. Id. at 190-91. Defense counsel asked for a

moment, which the trial court granted. After an off-the-record discussion

among defense counsel, Holmes, and Wilson, the trial court asked the parties to

clearly state their positions on whether Wilson could testify:

Ethically neither one of you can call Antwan Wilson now because he’s taken the Fifth Amendment. You can’t put him on in front of a jury and have him take the Fifth Amendment knowing that he’s going to take the Fifth Amendment; so that is off the table, I assume. Do you agree?

Id. at 192-93. Defense counsel responded, “I believe that is the law of the

land.” Id. at 193.

[6] The jury found Holmes guilty as charged. The trial court sentenced Holmes to

an aggregate term of thirty-two and a half years, with two and a half years

suspended to probation. This appeal ensued.

Discussion and Decision [7] Holmes concedes that he did not object to the trial court’s exclusion of his

witness and therefore argues that it constitutes fundamental error. See

Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014) (stating that fundamental

error doctrine is exception to rule that failure to object constitutes procedural

default precluding consideration of issue on appeal). However, Holmes’s

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1137 | November 15, 2018 Page 4 of 5 counsel agreed with the trial court that exclusion of the witness was required

under the law. Tr. Vol. 2 at 193. Therefore, to the extent any error occurred,

the error was invited. “Under the doctrine of invited error, a party may not

take advantage of an error that she commits, invites, or which is the natural

consequence of her own neglect or misconduct.” Hill v. State, 51 N.E.3d 446,

451 (Ind. Ct. App. 2016) (citing Wright v. State, 828 N.E.2d 904, 907 (Ind.

2005)). “A party may not invite error, then later argue that the error supports

reversal, because error invited by the complaining party is not reversible error.”

Cole v. State, 28 N.E.3d 1126, 1136 (Ind. Ct. App. 2015) (quoting Kingery v.

State, 659 N.E.2d 490, 494 (Ind. 1995)). Accordingly, we affirm Holmes’s

convictions.

[8] Affirmed.

Najam, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1137 | November 15, 2018 Page 5 of 5