MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as Jul 06 2017, 8:14 am precedent or cited before any court except for the purpose of establishing the defense of res judicata, CLERK Indiana Supreme Court collateral estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Charles W. Lahey Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Zachary Sanders, July 6, 2017
Appellant-Defendant, Court of Appeals Case No. 71A03-1611-CR-2556
v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Hurley, Judge Appellee-Plaintiff. Trial Court Cause No. 71D08-1602-F2-1
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017 Page 1 of 15 Case Summary [1] Taylor Roberts, Troy Mapes, Roberts’s girlfriend Kiera Kurzhal-Geyer, and
Tony Collado learned that Appellant-Defendant Zachary Sanders was
interested in buying some illegal drugs and formulated a plan to rob Sanders.
The quartet arranged to meet Sanders in a park, and did so. Collado and
Mapes, who was armed with a handgun, got into Sanders’s car and, instead of
selling him drugs, robbed him. During the robbery, Mapes either showed the
handgun to or pointed it at Sanders. Afterwards, as Collado and Mapes fled
through a grassy area in the park, Sanders accelerated, ran over a traffic stop,
pursued the duo, and eventually ran over Mapes before continuing out of the
park. After Mapes died from his injuries, the State charged Sanders with Level
2 felony voluntary manslaughter. A jury convicted Sanders as charged, and the
trial court sentenced him to twenty years of incarceration. Sanders argues that
the State committed prosecutorial misconduct warranting reversal of his
conviction, the trial court abused its discretion in admitting evidence that
Sanders was attempting to illegally purchase drugs, and the trial court abused
its discretion in instructing the jury on self-defense. We affirm.
Facts and Procedural History [2] Roberts, Mapes, Kurzhal-Geyer, and Collado were together on February 19,
2016, when Mapes received a communication from Jesse Manczunski that
Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017 Page 2 of 15 “somebody wanted some pills.” Sept. 20, 2016, Tr. p. 130.1 Manczunski had
been in communication with Sanders and indicated to him that Mapes had
some Klonopin for sale. The group, however, had no intention of selling
Sanders any drugs; “the plan was to … take the money and run.” Sept. 20,
2016, Tr. p. 130. After arrangements were made to meet Sanders at Merrifield
Park in Mishawaka, Roberts, Mapes, Kurzhal-Geyer, and Collado drove there
in Kurzhal-Geyer’s car.
[3] Once the quartet arrived, Collado and Mapes—who was armed with a .22
caliber handgun—exited and walked across a field to meet Sanders. Collado
sat in the front passenger seat of Sanders’s vehicle while Mapes sat in the rear,
driver’s-side seat. Mapes pulled out the handgun, showed it to Sanders, and
demanded money. Sanders refused and asked Mapes, “is it worth it[?]” Sept.
21, 2016, Tr. p. 15. Mapes and Sanders argued for a while, and, when Mapes
asked Collado to take the keys to Sanders’s vehicle, Sanders told him not to
touch his car. Eventually, Mapes and Collado left the vehicle, having secured
Sanders’s money, and began running through a field in the park. As Mapes and
Collado ran toward Kurzhal-Geyer’s car, Sanders accelerated, drove over a
concrete parking block, and pursued the duo. When Mapes slipped and went to
1 Three days of Sanders’s jury trial were transcribed, September 20, 21, and 22, 2016, each of which is covered by a separate transcript volume. Two tables of contents were submitted, one covering the transcripts from September 20 and 21 (designated “Volume 1 of 3”) and the second covering September 22 (designated “Volume 1 of 2”). The transcript volume from September 20 is designated “Volume 2 of 3”; from September 21, “Volume 3 of 3”; and from September 22, “Volume 2 of 2[.]” In the interest of reducing possible confusion, we choose to refer to the various volumes by their dates.
Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017 Page 3 of 15 one knee, Sanders ran over him with his vehicle and drove off. Mapes died of
multiple blunt-force injuries, including a fractured skull, multiple rib fractures
which caused lung lacerations, a heart contusion, a lacerated liver, and
hemorrhaging around his kidneys. The next morning, Sanders sent a text
message to Manczunski which stated, verbatim, that “I didn’t get [the pills] he
robbed me But it’s aight[2] I ran him over when he was running away.” State’s
Ex. 58.
[4] On February 22, 2016, the State charged Sanders with Level 2 felony voluntary
manslaughter. On April 8, 2016, Deputy Prosecutor Joel Gabrielse sent a letter
(“the Letter”) to Roberts’s attorney, offering a plea deal by which he would
plead guilty to Level 3 felony armed robbery, with a sentence cap of six years in
exchange for his cooperation in the trials of his codefendants. The Letter
mentioned that the facts of the case could support charges of armed robbery,
armed robbery resulting in serious bodily injury, and/or felony murder and also
stated, “In the unfortunate event that [Roberts] decides to resolve this case by
trial, it is anticipated that I will file and pursue some/all of the higher charges
referred to in this letter.” Appellant’s App. Vol. II p. 101.
[5] The presentation of evidence in Sanders’s jury trial began on September 20,
2016, and ended on September 22. On September 21, 2016, the prosecutor
2 “Aight” is defined as a “nonstandard spelling of all right, representing a pronunciation[.]” OXFORD LIVING DICTIONARIES, NORTH AMERICAN ENGLISH, https://en.oxforddictionaries.com/definition/us/aight (last visited June 26, 2017) (bold in original).
Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017 Page 4 of 15 brought copies of the Letter (and similar letters sent to Kurzhal-Geyer and
Collado) to court, and the trial court indicated that it would allow Sanders to
recall Roberts to the stand to address the Letter. According to Deputy
Prosecutor Micah Cox, the Letter had not been previously disclosed because he
was unaware of its existence. When Sanders’s trial counsel asserted that the
Letter did, in fact, exist, Deputy Cox discovered it “in the files” and that
Deputy Gabrielse had sent it before leaving the Prosecutor’s office. Sept. 21,
2016, Tr. p. 2. Sanders recalled Roberts as a witness and began, essentially,
reading to him the portion of the Letter in which the deputy prosecutor
mentioned the possibility of more serious charges should he reject the State’s
plea offer. The State objected on the grounds of hearsay and that the line of
questioning was leading, but these objections were overruled.
[6] The jury found Sanders guilty as charged. On October 17, 2016, the trial court
sentenced Sanders to twenty years of incarceration. Sanders contends that the
State committed reversible prosecutorial misconduct, the trial court abused its
discretion in admitting evidence that Sanders was attempting to illegally
purchase drugs from Mapes, and the trial court abused its discretion in allowing
the State to make improper arguments regarding Sanders’s claim of self-defense.
Discussion and Decision I. Prosecutorial Misconduct [7] Sanders contends that the State committed prosecutorial misconduct such that
reversal of his conviction is required.
Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017 Page 5 of 15 To support a motion for mistrial based upon prosecutorial misconduct, the defense must show that the prosecutor’s actions constituted misconduct by reference to established norms of professional conduct, and that the ensuing prejudice placed him in a position of grave peril to which he should not have been subjected. Maldonado v. State (1976), 265 Ind. 492, 355 N.E.2d 843. Whether the misconduct results in grave peril is determined not by the degree of impropriety involved, but by its probable persuasive effect upon the jury. Id.; Andrews v. State (1989), Ind., 536 N.E.2d 507. This effect, in turn, is assessed not by whether its absence conclusively would lead to an acquittal; rather, reversal is required where the evidence is close and the trial court fails to alleviate the prejudicial effect. Johnson v. State (1983), Ind. App., 453 N.E.2d 365. Even where an isolated instance of misconduct does not establish grave peril, if repeated instances evidence a deliberate attempt to improperly prejudice the defendant, a reversal still may result. Robinson v. State (1973), 260 Ind. 517, 297 N.E.2d 409. Everroad v. State, 571 N.E.2d 1240, 1244 (Ind. 1991).
A. State’s Objections to Evidence [8] Sanders argues that the State engaged in a deliberate pattern of meritless
objections in an attempt to disrupt his examination and cross-examination of
witnesses. Sanders points to four instances of alleged disruptive objection: (1)
the State objected on hearsay grounds during Sanders’s cross-examination of
Collado when Sanders was impeaching him using previous, inconsistent
statements from a police report; (2) the State objected on hearsay grounds when
Sanders attempted to elicit statements made by Mapes from Collado; (3) the
State objected on speculation grounds to Sanders’s question of Collado as to
whether Mapes, Kurzhal-Geyer, or Roberts was unaware they were going to
Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017 Page 6 of 15 participate in an armed robbery; and (4) the State objected on hearsay grounds
to Sanders’s reading of portions of the Letter to Roberts during Roberts’s
testimony.
[9] Sanders has failed to establish any prosecutorial misconduct in this regard.
First and foremost, Sanders cannot show any prejudice, much less grave peril,
because each of the State’s objections mentioned above was, in fact, overruled;
Sanders was therefore able to present his evidence as he wished. Second,
suffice it to say that the State’s objections, although overruled, were not
frivolous. Finally, we have a difficult time imagining that four objections
during a three-day trial with a transcript of approximately 500 pages—even if
they were frivolous—could amount to reversible misconduct. Without
significantly more justification than Sanders offers us here, we will not adopt a
position that would create such an obvious disincentive to object during trial.
B. Brady Violation [10] Sanders contends that the State committed reversible prosecutorial misconduct
by suppressing the Letter.
In Brady v. Maryland, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). “To prevail on a Brady claim, a defendant must establish: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence was material to an issue at trial.” Minnick v.
Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017 Page 7 of 15 State, 698 N.E.2d 745, 755 (Ind. 1998) (citing Brady, 373 U.S. at 87, 83 S. Ct. 1194), cert. denied, 528 U.S. 1006, 120 S. Ct. 501, 145 L. Ed. 2d 387 (1999). Evidence is material under Brady “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed.2d 481 (1985). Bunch v. State, 964 N.E.2d 274, 297 (Ind. Ct. App. 2012). At the very least,
Sanders’s Brady claim fails because the Letter was disclosed before the end of
his trial and Sanders did, in fact, use it to examine witnesses. See U.S. v. Agurs,
427 U.S. 97, 103 (1976) (“The rule of Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194, 10 L. Ed. 2d 215, arguably applies in three quite different situations.
Each involves the discovery, after trial of information which had been known to
the prosecution but unknown to the defense.”) (emphasis added).
C. Questions Regarding Sanders’s Communications With Others [11] Sanders contends that it was misconduct for the prosecutor to cross-examine
him about statements he allegedly made to other persons regarding Mapes’s
death. Specifically, Sanders challenges the State’s questions about whether he
told (1) Manczunski in a text message that he ran Mapes over, (2) fellow inmate
Troy Berg that he knew he was going to kill Mapes before he did, (3) Berg and
fellow inmate Brian Collins that running over Mapes felt like a “human speed
bump[,]” and (4) fellow inmate David Frowerk that running over Mapes “felt
like running over someone in Grand Theft Auto, a video game[.]” Sept. 22,
Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017 Page 8 of 15 2016, Tr. p. 50. Sanders responded that his text message to Manczunski was
being taken out of context and denied making the other statements.
[12] When Sanders objected to the State’s questioning, he indicated that he thought
the jury should be instructed that the questions of counsel were not evidence.
The trial court indicated that it would specifically instruct the jury at the
conclusion of trial that “all of the counsel’s questions are not evidence.” Sept.
22, 2016, Tr. p. 50. Although the trial court’s final jury instructions were not
transcribed, Sanders does not claim that the instruction was not given, and
more importantly, points to no indication that the jury did not follow the
instruction. “‘When the jury is properly instructed, we will presume they
followed such instructions.’” Weisheit v. State, 26 N.E.3d 3, 20 (Ind. 2015)
(quoting Duncanson v. State, 509 N.E.2d 182, 186 (Ind.1987)). In the absence of
any indication that the jury ignored the trial court’s instruction, Sanders has
failed to establish prejudice in this regard.
[13] Moreover, even if we assume that the State improperly cross-examined Sanders
and that the trial court improperly allowed it to, any such error can only be
considered harmless. “Errors in the admission of evidence are to be
disregarded as harmless unless they affect the substantial rights of the
defendant.” Goudy v. State, 689 N.E.2d 686, 694 (Ind. 1997). “[A]n error in the
admission of evidence is harmless if the erroneously admitted evidence is
cumulative of other evidence appropriately admitted.” Collins v. State, 826
N.E.2d 671, 679 (Ind. Ct. App. 2005), trans. denied. As mentioned, Sanders sent
the following text message to Manczunski: “I didn’t get [the pills] he robbed
Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017 Page 9 of 15 me But it’s aight I ran him over when he was running away.” State’s Ex. 58.
This text message raises inferences that Sanders intentionally ran over Mapes
and did not regret doing so. At best, any of the statements mentioned above3
are merely cumulative of the text message, which was properly admitted. As
such, any error that might have occurred can only be considered harmless.
II. Evidence of Uncharged Attempts to Purchase Drugs [14] Sanders contends that the trial court abused its discretion in admitting
Facebook communications between himself and Manczunski in the hours
before and after Mapes’s death. The admissibility of evidence is within the
sound discretion of the trial court. Curley v. State, 777 N.E.2d 58, 60 (Ind. Ct.
App. 2002), trans denied. We will reverse a trial court’s decision on the
admissibility of evidence only upon a showing of an abuse of that discretion.
Id. An abuse of discretion may occur if the trial court’s decision is clearly
against the logic and effect of the facts and circumstances before the court, or if
the court has misinterpreted the law. Id. The Court of Appeals may affirm the
trial court’s ruling if it is sustainable on any legal basis in the record, even
though it was not the reason enunciated by the trial court. Moore v. State, 839
N.E.2d 178, 182 (Ind. Ct. App. 2005), trans. denied. We do not reweigh the
3 The State’s questioning of Sanders, quite frankly, strongly implied that it had reason to believe that he made incriminating statements to Berg, Collins, and Frowerk, when there was no evidence to that effect, essentially, impeachment by innuendo. The record does not indicate why the State did not call Berg, Collins, or Frowerk to testify, but we remind the State that proper impeachment with a prior inconsistent statement requires that statement to be placed in evidence at some point.
Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017 Page 10 of 15 evidence, and consider the evidence most favorable to the trial court’s ruling.
Hirsey v. State, 852 N.E.2d 1008, 1012 (Ind. Ct. App. 2006), trans. denied.
[15] As we have explained,
Indiana Evidence Rule 404(b) provides, in pertinent part, that: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident… This rule is “designed to prevent the jury from assessing a defendant’s present guilt on the basis of his past propensities, the so-called ‘forbidden inference.’” Hicks. v. State, 690 N.E.2d 215, 218-19 (Ind. 1997). Thus, in assessing the admissibility of evidence under Ind. Evidence Rule 404(b), the trial court must: (1) determine whether the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant’s propensity to commit the charged act; and (2) balance the probative value of the evidence against its prejudicial effect pursuant to Evid. R. 403. Id. at 221. To determine whether the trial court abused its discretion, we employ the same test. See, e.g., id. at 221-23. Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004), trans. denied. The
Indiana Supreme Court has stated that “[t]he paradigm of such inadmissible
evidence is a crime committed on another day in another place, evidence whose
only apparent purpose is to prove the defendant is a person who commits
crimes.” Swanson v. State, 666 N.E.2d 397, 398 (Ind. 1996).
Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017 Page 11 of 15 [16] The evidence of Sanders attempting to arrange the illegal purchase of drugs
with Manczunski is not the sort of evidence the Swanson court had in mind.
The messages at issue began a few hours before Mapes’s death, continued for a
few hours afterwards, and shed light on how Sanders came to interact with
Mapes, as well as Sanders’s mindset before and after Mapes’s death. In a
message sent at 4:05 p.m. on February 19, 2016, Sanders wrote, “Yeah I have
no one for [Klonopins] either What could you get us for 60$ And do you have
anything left I took my last dose haha[.]” State’s Ex. 47. At 5:30 p.m. Sanders
wrote, “Can you find anything I have no doses left[.]” State’s Ex. 49. At 5:39
p.m., Sanders wrote, If it doesn’t get here tomorrow we could be really
f*****[.]” State’s Ex. 50. The next morning at 5:25 a.m., Sanders wrote, “I
didn’t get [the pills] he robbed me But it’s aight I ran him over when he was
running away.” State’s Ex. 58. The messages sent before Mapes’s death
indicate a certain level of desperation on Sanders’s part to secure drugs, a
desperation that could certainly provide a motive for his reaction when, instead
of getting his drugs, he was robbed at gunpoint. The message sent the next
morning, while mentioning what could be inferred as an illegal drug deal, is
also extremely relevant evidence of Sanders’s state of mind and motive for
running Mapes down.
[17] On the whole, we conclude that the evidence of Sanders’s communications
with Manczunski is relevant to issues beyond Sanders’s propensity to commit
crimes, specifically, why Sanders would have wanted to kill Mapes. We agree
with the trial court’s assessment that the evidence is relevant to show the
Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017 Page 12 of 15 absence of mistake, at the very least. We further conclude that the probative
value of the evidence outweighed the risk of any unfair prejudice that might
have resulted. After all, Sanders admitted in his own testimony that he was
attempting to illegally purchase antianxiety medication the evening of February
19, 2016. Moreover, we consider it unlikely that a jury would convict a person
of voluntary manslaughter solely on the basis that he also attempted to illegally
purchase drugs. Sanders has failed to establish that the trial court abused its
discretion in admitting evidence of his communications with Manczunski.
III. Self-Defense [18] Finally, Sanders argues that the trial court abused its discretion in instructing
the jury on self-defense and that the jury’s determination that he did not act in
self-defense is unreasonable. The record indicates that the trial court gave the
following final instruction on self-defense:
It is an issue whether the Defendant acted in self-defense. A person may use reasonable force against another person to protect himself from what he from what the Defendant [sic] reasonably believes to be the imminent use of unlawful force. A person is justified in using deadly force, and does not have a duty to retreat, only if he reasonably believes that deadly force is necessary to prevent serious bodily injury to himself. However, a person may not use force if: he is committing a crime that is directly and immediately connected to the confrontation or
Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017 Page 13 of 15 he is escaping after the commission of a crime that is directly and immediately connected to the confrontation or he provokes a fight with another person with intent to cause bodily injury to that person or he has willingly entered into a fight with another person or started the fight, unless he withdraws from the fight and communicates to the other person his intent to withdraw and the other person nevertheless continues or threatens to continue the fight The State has the burden of proving beyond a reasonable doubt that the Defendant did not act in self-defense. Appellant’s App. Vol. II p. 90.
A. Propriety of Instruction [19] The manner of instructing a jury lies largely within the discretion of the trial
court, and we will reverse only for an abuse of discretion. Henson v. State, 786
N.E.2d 274, 277 (Ind. 2003). “‘In determining whether a trial court abused its
discretion by declining to give a tendered instruction, we consider the following:
(1) whether the tendered instruction correctly states the law; (2) whether there
was evidence presented at trial to support giving the instruction; and (3)
whether the substance of the instruction was covered by other instructions that
were given.’” Id. (quoting Lampkins v. State, 778 N.E.2d 1248, 1253 (Ind.
2002)). As the State notes, while Sanders seems to argue that the trial court
abused its discretion in giving the above instruction, he appears to concede that
it is a correct statement of the law, and it does, in fact, closely track the
Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017 Page 14 of 15 language of the applicable statute. See Ind. Code § 35-41-3-2; see also, e.g., Mayes
v. State, 744 N.E.2d 390, 392 (Ind. 2001). Sanders has failed to establish that
the trial court abused its discretion in this regard.
B. Failure to Find Sanders Acted in Self-Defense [20] Sanders argues, however, that given the facts of this case, there is no nexus
between the attempt to illegally purchase drugs and the charged conduct. As
the State correctly notes, this was a question of fact for the jury, i.e., “it is within
the province of the jury to determine whether the defendant’s evidence was
believable, unbelievable, or sufficient to warrant the use of force.” Ault v. State,
950 N.E.2d 326, 328 (Ind. Ct. App. 2011), trans. denied. The State introduced
evidence sufficient to support a finding that whatever need Sanders might have
had to defend himself was a result of his attempt to illegally purchase drugs.
[21] The judgment of the trial court is affirmed.
Mathias, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017 Page 15 of 15