MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 15 2017, 8:48 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew D. Anglemeyer Curtis T. Hill, Jr. Marion County Public Defender’s Office Attorney General of Indiana Indianapolis, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tyree Brodley, February 15, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1603-CR-613 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila Carlisle, Appellee-Plaintiff. Judge Trial Court Cause No. 49G03-1405-MR-25053
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-613 | February 15, 2017 Page 1 of 7 Statement of the Case [1] Tyree Brodley (“Brodley”) appeals his conviction of murder1 following a bench
trial. His sole contention is that the trial court committed fundamental error in
admitting DNA evidence. Concluding that any error in the admission of this
evidence was harmless because the conviction was supported by substantial
independent evidence of Brodley’s guilt and that this evidence was cumulative
of other evidence properly admitted, we affirm Brodley’s conviction.
[2] We affirm.
Issue The sole issue for our review is whether the trial court committed fundamental error in admitting DNA evidence.
Facts [3] The evidence most favorable to the verdict reveals that on May 9, 2014, Brodley
and Pashae Beech (“Pashae”), who were the parents of an infant, became
involved in a verbal argument. At about 5:00 p.m., Pashae telephoned her
mother, Janette Beech (“Beech”), and asked her to come over and take care of
the baby. When Beech arrived, Pashae and Brodley were yelling and cursing at
each other. Beech joined the argument and began “really cussing” at Brodley.
(Tr. 51).
1 IND. CODE § 35-42-1-1.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-613 | February 15, 2017 Page 2 of 7 [4] Shortly thereafter, Beech’s son, Ahmed (“Ahmed”), and his friend Terrance
Holmes (“Holmes”), arrived. Holmes and Pashae were close friends. Brodley,
who feared that Holmes and Ahmed were going to “jump” him and who
believed that Ahmed had previously stolen from him, grabbed two guns and left
the house. (Tr. 66). At that time, Brodley was wearing a white tank top. At
some point thereafter, Holmes and Ahmed also left the house.
[5] At approximately 9:00 p.m. that night, Len Thompson glanced out the window
of his used auto sales office and noticed a group of men standing on the street
corner. One of the men in this group was Holmes. Suddenly, the group
separated into two smaller groups, and a man in a white tank top shot Holmes.
Michael Dilley also saw the man in the white tank top shoot Holmes. When
Holmes fell to the ground, “all hell broke loose.” (Tr. 199). Twenty to thirty
shots went off, and the man in the white tank top took off running. He quickly
“broke stride” and looked as if he had been shot and was going to fall. (Tr.
201).
[6] Indianapolis Metropolitan Police Department (“IMPD”) Officer Michael
Leeper found Brodley in an alley. Brodley had been shot in the leg. Holmes
was found dead nearby. He had been shot three times with a .40 caliber gun.
Officers found four different handguns at the scene, one of which was a Glock
Model 27 .40 caliber semi-automatic handgun (“the Glock handgun”). The
Glock handgun was found near Brodley.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-613 | February 15, 2017 Page 3 of 7 [7] When IMPD Officer Phillip Robinett (“Officer Robinett”) arrived at the scene,
he recognized Brodley. Medics were just starting to cut off Brodley’s white tank
top, which had blood on it. Officer Robinett also noticed beside Brodley a cell
phone, which contained pictures of Brodley, his infant, and a Glock handgun
with the serial number of the Glock handgun that was found at the scene.
[8] The State charged Brodley with Holmes’ murder. Dr. Muhammad Amjad
(“Dr. Amjad”) performed DNA testing on the white tank top, but he did not
testify at Brodley’s bench trial. Rather, laboratory supervisor Shelley Crispin
(“Crispin”), who reviewed Dr. Amjad’s data and wrote the report, testified
without objection that DNA testing revealed that the blood on the white tank
top matched Brodley’s DNA. Also at trial, Beech and Detective Robinett both
testified that Brodley had been wearing a white tank top. The trial court
convicted Brodley of murder and sentenced him to fifty-five (55) years. Brodley
appeals his conviction.
Decision [9] Brodley’s sole contention is that the trial court erred in admitting Crispin’s
testimony that DNA testing revealed that the blood on the white tank top
matched Brodley’s DNA. Specifically, he argues that the “results of the DNA
testing in this case violated Brodley’s Sixth Amendment rights to
confrontation” because the “State called the laboratory control supervisor,
Crispin, to testify about the unsworn hearsay testimony of the testing analyst,
Dr. Amjad, instead of having Dr. Amjad testify and be available for cross-
examination.” (Tr. 11, 17). According to Brodley, he “had the right to Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-613 | February 15, 2017 Page 4 of 7 confront [Dr. Amjad] about his methodology and the results that flowed from
it. Crispin had no personal knowledge about Dr. Amjad’s actions nor did she
observe his testing. She could only rely on the data Dr. Amjad created.” (Tr.
16).
[10] Brodley, however, failed to object at trial to the admission of the DNA
evidence. In order to preserve an issue for appeal, a contemporaneous
objection must be made when the evidence is introduced at trial. Palilonis v.
State, 970 N.E.2d 713, 730 (Ind. Ct. App. 2012), trans. denied. If no such
objection is made, the issue is waived for appellate review. Id. Nevertheless,
Brodley claims the admission of this evidence amounted to fundamental error.
[11] The fundamental error doctrine is an exception to the general rule that the
failure to object at trial constitutes a procedural default precluding consideration
of the issue on appeal. Id. In order to be fundamental, the error must represent
a “blatant violation of basic principles rendering the trial unfair to the defendant
and thereby depriving the defendant of fundamental due process.” Hoglund v.
State, 962 N.E.2d 1230, 1239 (Ind. 2012). “Harm is not shown by the fact that
the defendant was ultimately convicted; rather harm is found when error is so
prejudicial as to make a fair trial impossible.” Id. Further, this exception is
available only in egregious circumstances. Palilonis, 970 N.E.2d at 730.
[12] Here, Brodley has failed to allege or show how the admission of the DNA
evidence made a fair trial impossible and why the circumstances in this case
were egregious. Further, even if the trial court had erred in admitting the
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 15 2017, 8:48 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew D. Anglemeyer Curtis T. Hill, Jr. Marion County Public Defender’s Office Attorney General of Indiana Indianapolis, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tyree Brodley, February 15, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1603-CR-613 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila Carlisle, Appellee-Plaintiff. Judge Trial Court Cause No. 49G03-1405-MR-25053
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-613 | February 15, 2017 Page 1 of 7 Statement of the Case [1] Tyree Brodley (“Brodley”) appeals his conviction of murder1 following a bench
trial. His sole contention is that the trial court committed fundamental error in
admitting DNA evidence. Concluding that any error in the admission of this
evidence was harmless because the conviction was supported by substantial
independent evidence of Brodley’s guilt and that this evidence was cumulative
of other evidence properly admitted, we affirm Brodley’s conviction.
[2] We affirm.
Issue The sole issue for our review is whether the trial court committed fundamental error in admitting DNA evidence.
Facts [3] The evidence most favorable to the verdict reveals that on May 9, 2014, Brodley
and Pashae Beech (“Pashae”), who were the parents of an infant, became
involved in a verbal argument. At about 5:00 p.m., Pashae telephoned her
mother, Janette Beech (“Beech”), and asked her to come over and take care of
the baby. When Beech arrived, Pashae and Brodley were yelling and cursing at
each other. Beech joined the argument and began “really cussing” at Brodley.
(Tr. 51).
1 IND. CODE § 35-42-1-1.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-613 | February 15, 2017 Page 2 of 7 [4] Shortly thereafter, Beech’s son, Ahmed (“Ahmed”), and his friend Terrance
Holmes (“Holmes”), arrived. Holmes and Pashae were close friends. Brodley,
who feared that Holmes and Ahmed were going to “jump” him and who
believed that Ahmed had previously stolen from him, grabbed two guns and left
the house. (Tr. 66). At that time, Brodley was wearing a white tank top. At
some point thereafter, Holmes and Ahmed also left the house.
[5] At approximately 9:00 p.m. that night, Len Thompson glanced out the window
of his used auto sales office and noticed a group of men standing on the street
corner. One of the men in this group was Holmes. Suddenly, the group
separated into two smaller groups, and a man in a white tank top shot Holmes.
Michael Dilley also saw the man in the white tank top shoot Holmes. When
Holmes fell to the ground, “all hell broke loose.” (Tr. 199). Twenty to thirty
shots went off, and the man in the white tank top took off running. He quickly
“broke stride” and looked as if he had been shot and was going to fall. (Tr.
201).
[6] Indianapolis Metropolitan Police Department (“IMPD”) Officer Michael
Leeper found Brodley in an alley. Brodley had been shot in the leg. Holmes
was found dead nearby. He had been shot three times with a .40 caliber gun.
Officers found four different handguns at the scene, one of which was a Glock
Model 27 .40 caliber semi-automatic handgun (“the Glock handgun”). The
Glock handgun was found near Brodley.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-613 | February 15, 2017 Page 3 of 7 [7] When IMPD Officer Phillip Robinett (“Officer Robinett”) arrived at the scene,
he recognized Brodley. Medics were just starting to cut off Brodley’s white tank
top, which had blood on it. Officer Robinett also noticed beside Brodley a cell
phone, which contained pictures of Brodley, his infant, and a Glock handgun
with the serial number of the Glock handgun that was found at the scene.
[8] The State charged Brodley with Holmes’ murder. Dr. Muhammad Amjad
(“Dr. Amjad”) performed DNA testing on the white tank top, but he did not
testify at Brodley’s bench trial. Rather, laboratory supervisor Shelley Crispin
(“Crispin”), who reviewed Dr. Amjad’s data and wrote the report, testified
without objection that DNA testing revealed that the blood on the white tank
top matched Brodley’s DNA. Also at trial, Beech and Detective Robinett both
testified that Brodley had been wearing a white tank top. The trial court
convicted Brodley of murder and sentenced him to fifty-five (55) years. Brodley
appeals his conviction.
Decision [9] Brodley’s sole contention is that the trial court erred in admitting Crispin’s
testimony that DNA testing revealed that the blood on the white tank top
matched Brodley’s DNA. Specifically, he argues that the “results of the DNA
testing in this case violated Brodley’s Sixth Amendment rights to
confrontation” because the “State called the laboratory control supervisor,
Crispin, to testify about the unsworn hearsay testimony of the testing analyst,
Dr. Amjad, instead of having Dr. Amjad testify and be available for cross-
examination.” (Tr. 11, 17). According to Brodley, he “had the right to Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-613 | February 15, 2017 Page 4 of 7 confront [Dr. Amjad] about his methodology and the results that flowed from
it. Crispin had no personal knowledge about Dr. Amjad’s actions nor did she
observe his testing. She could only rely on the data Dr. Amjad created.” (Tr.
16).
[10] Brodley, however, failed to object at trial to the admission of the DNA
evidence. In order to preserve an issue for appeal, a contemporaneous
objection must be made when the evidence is introduced at trial. Palilonis v.
State, 970 N.E.2d 713, 730 (Ind. Ct. App. 2012), trans. denied. If no such
objection is made, the issue is waived for appellate review. Id. Nevertheless,
Brodley claims the admission of this evidence amounted to fundamental error.
[11] The fundamental error doctrine is an exception to the general rule that the
failure to object at trial constitutes a procedural default precluding consideration
of the issue on appeal. Id. In order to be fundamental, the error must represent
a “blatant violation of basic principles rendering the trial unfair to the defendant
and thereby depriving the defendant of fundamental due process.” Hoglund v.
State, 962 N.E.2d 1230, 1239 (Ind. 2012). “Harm is not shown by the fact that
the defendant was ultimately convicted; rather harm is found when error is so
prejudicial as to make a fair trial impossible.” Id. Further, this exception is
available only in egregious circumstances. Palilonis, 970 N.E.2d at 730.
[12] Here, Brodley has failed to allege or show how the admission of the DNA
evidence made a fair trial impossible and why the circumstances in this case
were egregious. Further, even if the trial court had erred in admitting the
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-613 | February 15, 2017 Page 5 of 7 evidence, any error in the admission of evidence is to be disregarded unless it
affects the substantial rights of a party. See Hoglund, 962 N.E.2d at 1238. In
viewing the effect of the evidentiary ruling on a defendant’s substantial rights,
we look to the probable impact on the fact finder. Id. The improper admission
is harmless error if the conviction is supported by substantial independent
evidence of guilt satisfying the reviewing court that there is no substantial
likelihood that the challenged evidence contributed to the conviction. Id. In
addition, any error in the admission of evidence is not prejudicial, and it is
therefore harmless, if the same or similar evidence has been admitted without
objection or contradiction. Id.
[13] Here, we first observe that there was substantial evidence of Brodley’s guilt
apart from the DNA evidence. Specifically, Brodley left his home with guns
after thinking that Holmes and Ahmed had come over to “jump” him. (Tr. 66).
Brodley was wearing a white tank top. Later that evening, two witnesses saw a
man in a white tank top shoot and kill Holmes. The gun used to kill Holmes
was found near Brodley. Further, a picture of a gun with the same serial
number as the gun used to kill Holmes was found on a phone that also
contained photographs of Brodley and his infant. In addition, the DNA
evidence was cumulative of Beech’s and Officer Robinett’s testimony that
Brodley was wearing a white tank top. Because Brodley’s conviction is
supported by substantial independent evidence of his guilt and because the
DNA evidence was cumulative of other evidence properly before the trier of
fact, we conclude that any error in the admission of this evidence was harmless.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-613 | February 15, 2017 Page 6 of 7 [14] Affirmed.
Baker, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-613 | February 15, 2017 Page 7 of 7