CRONE, Judge.
Alton Neville appeals his convictions and sentences for murder and carrying a handgun without a license. On appeal, Neville argues that fundamental error requiring reversal of his convictions occurred due to prosecutorial misconduct (1) during voir dire when the prosecutor commented on the possibility of a false conviction, and during closing argument when the prosecutor (2) vouched for the witnesses; (3) mischaracterized the evidence; (4) argued inconsistent facts; (5) presented facts not in evidence; and (6) inflamed the passions and prejudices of the jury. He also asserts that fundamental error occurred due to the improper admission of certain evidence. Finally, he contends that his fifty-five year aggregate sentence is inappropriate.
We conclude that the prosecutor improperly presented facts not in evidence and improperly inflamed the passions and prejudices of the jury, but that the improper comments did not rise to the level of fundamental error. We further conclude that certain evidence was improperly admitted but did not result in fundamental error. Finally, we conclude that Neville has failed to carry his burden of persuading us that his sentence is inappropriate. Accordingly, we affirm.
On March 23, 2011, Dawn Lane and Linda Wilburn lived together in a house on West 31st Street in Indianapolis. An alley lies north of West 31st Street at the back of the house. Many people used the alley. Lane and Wilburn were both familiar with Neville, as they saw him in the neighborhood nearly every day. That afternoon, Wilburn was sitting on the front porch of the house, and she saw Neville walking westbound in front of the house. She saw the handle of a gun in his waistband. Tr. at 193, 220. She spoke to him, but he did not hear her. Shortly thereafter, she saw him across the street walking eastbound. She spoke to him, and he nodded his head at her.
In the late afternoon, Lane was "getting high and drinking" and walking around her neighborhood. Id. at 139. She was near the New Dew barbershop when she saw Neville in his red truck. The New Dew barbershop is on Clifton Street, which runs perpendicular to West 31st Street. Specifically, the New Dew is located at the east end of the alley, just north of and around the corner from Lane and Wilburn's house. Neville asked Lane if she was going to the New Dew and if Jamal Hood was in there to "tell him to come out and meet him in the alley." Id. at 141. Lane went into the New Dew, saw Hood, and told him that Neville wanted to meet him in the alley. She saw Hood go to Neville's red truck and get in the passenger side.
Lane walked home and sat on the front porch with Wilburn. About five to ten minutes after Lane saw Hood get into Neville's truck, Lane and Wilburn heard
Other people in the neighborhood heard the gunshots, too. Tamara Williams, Lane's niece, who also lived on West 31st Street, "heard what sounded like firecrackers." Id. at 167. Hood's aunt and uncle, Deborah and Kenneth Hood, lived on West Congress Avenue, the next road north of and parallel to West 31st Street. The back of their house was on the alley opposite the back of Lane and Wilburn's house. Deborah and Kenneth heard approximately five gunshots. Deborah ran to the door on the east side of her home and looked back toward the alley. She testified that she saw Neville speed eastbound and turn north onto Clifton Street. From Clifton, he turned west onto Congress and stopped two houses west of Deborah and Kenneth's house. Deborah saw Neville get out of the truck and enter that house.
Deborah, Kenneth, Lane, Wilburn, and Williams all ran to the alley and saw Hood lying on the ground behind the house immediately west of Lane and Wilburn's house. Indianapolis Metropolitan Police Officer Jason Norman was patrolling in the area when he was dispatched to a disturbance at 3500 Clifton Avenue. As he neared the location, he was flagged down by Lane, who told him that someone was shot in the alley. Officer Norman pulled into the alley and discovered Hood's body. He contacted the paramedics and the homicide unit. The paramedics arrived and pronounced Hood dead. The homicide detective, Tom Tudor, arrived a little after 5:00 p.m. and began his investigation.
At trial, Wilburn testified that later that evening, Neville called her cell phone and hung up. Wilburn called him back, but there was no answer. Wilburn had another cell phone number for Neville, so she tried that one, and Neville answered.
Id. at 208.
Detective Tudor interviewed Lane on April 7, 2011. At trial, she testified that
A forensic pathologist found six gunshot wounds in Hood's body from .38 caliber bullets that had been fired from the same firearm. No spent shell casings were found at the scene and no gun was ever recovered. The investigation revealed that Neville's cell phone records show that he was in the area of the murder at the time it was committed. State's Ex. 51-A.
The State charged Neville with murder and class A misdemeanor carrying a handgun without a license. On June 17, 2011, Neville was arrested. Detective Tudor conducted an interview of Neville, which was recorded. A jury trial was held on December 5 through 7, 2011. The jury found Neville guilty as charged. The trial court sentenced him to fifty-five years for his murder conviction and one year for his carrying a handgun conviction, to be served concurrently. Neville appeals. Additional facts will be provided as necessary.
Neville argues that the prosecutor made multiple statements that constitute misconduct. Generally, in order to properly preserve a claim of prosecutorial misconduct for appeal, a defendant must not only raise a contemporaneous objection but must also request an admonishment; if the admonishment is not given or is insufficient to cure the error, then the defendant must request a mistrial. Cooper v. State, 854 N.E.2d 831, 835 (Ind.2006). Neville concedes that he did not object to the prosecutor's comments and therefore did not properly preserve his claims.
To prevail on a claim of prosecutorial misconduct that has been procedurally defaulted, the defendant must establish not only the grounds for the prosecutorial misconduct, but also the additional grounds for fundamental error. Id. In reviewing a claim of prosecutorial misconduct, we "determine (1) whether the prosecutor engaged in misconduct, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected." Booher v. State, 773 N.E.2d 814, 817 (Ind.2002) (citation and quotation marks omitted). "Whether a prosecutor's argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct." Cooper, 854 N.E.2d at 835. "The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury's decision rather than the degree of impropriety of the conduct." Id.
Fundamental error is an "extremely narrow exception" to the contemporaneous objection rule that allows a defendant to avoid waiver of an issue. Id. For a claim of prosecutorial misconduct to
Specifically, Neville argues that the prosecutor engaged in misconduct (1) during voir dire by commenting on the possibility of a false conviction, and during closing argument by (2) vouching for the witnesses; (3) mischaracterizing the evidence; (4) arguing inconsistent facts; (5) presenting facts not in evidence; and (6) inflaming the passions and prejudices of the jury. We first address the prosecutor's comment during voir dire. We then address the prosecutor's comments during closing argument, separately addressing the impropriety of each comment and then considering as a whole whether any impropriety resulted in the denial of a fair trial.
During voir dire, defense counsel asked a prospective juror whether a person could be wrongfully accused of crimes and why it is important for the State to prove guilt beyond a reasonable doubt. Tr. at 79. Afterward, the prosecutor discussed the possibility of false conviction with the jury:
Id. at 101-02.
Neville argues that the prosecutor's statement was an attempt to induce the jury to discount the possibility of a wrongful conviction. Indiana courts have condemned prosecutorial remarks that minimize the seriousness of the jury's responsibility. See Kelley v. State, 210 Ind. 380, 401-02, 3 N.E.2d 65, 74-75 (1936) (finding misconduct where prosecutor told jury that even if defendant were convicted he could appeal his case and would be out on bond during appeal and defendant could ask judge to suspend his sentence); Hadley v. State, 165 Ind.App. 416, 332 N.E.2d 269, 272 (1975) (finding misconduct where prosecutor informed jury that even if they returned a guilty verdict, the trial judge might suspend the sentence or parole board might release defendant). We are troubled by the prosecutor's comments to the extent that they could be interpreted to suggest that, because the defendant has
The State argues that the prosecutor was responding to defense counsel's questioning about wrongful accusations. Prior to the prosecutor's comments, defense counsel asked one of the prospective jurors whether she thought that people could be wrongfully accused of crimes and why the State was required to prove guilt beyond a reasonable doubt. Tr. at 79. The juror answered that a person could be wrongfully accused and that if the State does not prove guilt beyond a reasonable doubt then the accused might not have committed the crime. Defense counsel then asked, "And that would be a pretty serious mistake, wouldn't it?" Id. at 80. Thus, it appears that the prosecutor was responding to defense counsel's line of questioning. See Cooper, 854 N.E.2d at 836 ("Prosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutor's response would otherwise be objectionable."). Further, the prosecutor prefaced the comment by saying that he wanted the jury to be fair, careful, and evaluate the evidence. It was not the only time that the prosecutor told the jury that he wanted a fair trial for Neville. See Tr. at 60 ("[W]e want a fair trial for this man too. He deserves a fair trial, we all do. We're all in that position and we all deserve a fair trial."). We do not mean to imply that a prosecuting attorney can avoid misconduct simply be telling the jury to be fair. Here, however, where the prosecutor was responding to the defense's line of questioning, we conclude that the prosecutor's comments did not rise to the level of fundamental error.
Neville contends that the prosecutor improperly vouched for the credibility of the State's witnesses during closing argument. He directs us to several comments. The prosecutor described Lane as "courageous," said that she "told you the truth," and said that she had been "especially corroborated." Id. at 470-71, 483. The prosecutor described Wilburn as one of the "good people every place in the city," and stated that "these [phone] records prove she told you the exact truth." Id. at 473. The prosecutor said that Margaret LeBlanc, the Marion County Forensic Services crime scene technician, was "very good at what she does" and "if there were [shell] casings there she would have found them." Id. at 482.
It is well settled that vouching for witnesses is generally impermissible. Lainhart v. State, 916 N.E.2d 924, 938 (Ind.Ct.App.2009). However, "`a prosecutor may comment on the credibility of the witnesses as long as the assertions are based on reasons which arise from the evidence.'" Cooper, 854 N.E.2d at 836 (quoting Lopez v. State, 527 N.E.2d 1119, 1127 (Ind.1988)). See also Hobson v. State, 675 N.E.2d 1090, 1095 (Ind.1996) (prosecutor's statement "I warned you that [defendants] are liars" was not misconduct because incongruities in testimony supported inference that someone had not been testifying truthfully). In addition, an attorney may properly argue any logical or reasonable conclusions based on his or her own analysis of the evidence. Bennett v. State, 423 N.E.2d 588, 592 (Ind.1981); see also Turnbow v. State, 637 N.E.2d 1329, 1334 (Ind.Ct.App. 1994) ("A prosecutor may also properly comment on the evidence presented to the jury and argue logical conclusions from that evidence.") trans. denied.
Our review of the record shows that the prosecutor's comments were supported by the evidence. He described Lane as "courageous" because although she was initially unwilling to get involved, she decided that the right thing to do was to come forward and reveal to Detective
Neville asserts that the prosecutor misrepresented the evidence on three occasions. We observe that "[i]t is proper for a prosecutor to argue both law and fact during final argument and propound conclusions based upon his analysis of the evidence. That said, a prosecutor's comments can be prejudicial if they have an impact on the jury's ability to judge the evidence fairly." Steinberg v. State, 941 N.E.2d 515, 531 (Ind.Ct.App.2011), trans. denied (citations, quotation marks, and brackets omitted). Prosecutors may not argue facts not in evidence. Spangler v. State, 498 N.E.2d 1206, 1209 (Ind.1986).
First, Neville claims that the prosecutor misrepresented Lane's testimony. The prosecutor told the jury that Lane saw Neville's truck facing west because she saw Neville coming from the driver's side of the truck and "drop[] over on top of Jamal." See Tr. at 469 ("Because you think you're driving this way folks, the driver's side would be facing the south side of the alley"). Later, the prosecutor stated that Lane saw Neville's truck going eastbound to explain why no shell casings were found. See id. at 482 ("Ms. Lane said the truck that she saw is eastbound, he drives alongside and points out the window and fires," and "the defendant drove away with them [the casings].").
The State argues that the "witnesses themselves offered somewhat contradictory testimony," as Lane testified that the truck drove west, and Hood and Wilburn testified that the truck drove east. Appellee's Br. at 12. Given that there were witnesses who testified that the truck drove eastbound, we conclude that the prosecutor's failure to accurately identify the witness who saw the truck going eastbound is insignificant.
Second, Neville claims that the phone records did not corroborate Wilburn's description of the sequence of phone calls but that the prosecutor argued that they did anyway to bolster the truth of Wilburn's testimony. The prosecutor stated, "These records prove she told you the exact truth. His [Neville's] own phone records corroborate what she told you. And what she told you is, you know, you know you killed that boy. I know. Direct evidence folks." Tr. at 473-74. Neville argues that the phone records show that Wilburn tried to call him first, not the other way around. The State asserts that the phone records support Wilburn's testimony that it took several calls for her and Neville to be connected. Given that the phone records show that several phone calls between Wilburn and Neville were made before they finally had a conversation, we conclude that the prosecutor's statement was a reasonable commentary on the evidence.
In closing argument, the prosecutor commented on the interview as follows:
Tr. at 476-77. Neville argues that the prosecutor mischaracterized his statement by ignoring that he was answering a question from the detective about whether he had heard any "street talk" about what happened, and therefore his statement cannot be fairly interpreted "as a `Freudian slip' offering any `insight' into a motive for killing Mr. Hood." Appellant's Br. at 22.
Neville places too much emphasis on the fact that he was answering a question. Neville told the detective that he heard that Hood was shot because he robbed someone or broke into someone's house. Neville could have mistakenly revealed his motive by answering the question the way he did. In other words, the fact that he offered any reason for the murder could reflect his own reason for murdering Hood. We conclude that the evidence reasonably supports the prosecutor's suggestion that Neville's statement to the detective could have revealed his motive for murdering Hood.
Neville contends that, in addition to misrepresenting Lane's testimony regarding the direction of the truck, the prosecutor argued that the truck faced both east and west in order to satisfy different evidentiary aspects of the case. According to Neville, the prosecutor argued that the truck was facing east in order to support Lane's testimony that she saw Neville standing over Hood's body. The prosecutor stated, "[Lane] sees the defendant come from that red truck out to the driver's side. Because you think you're driving this way folks [west], the driver's side would be facing the south side of the alley. He's coming from the driver's side." Tr. at 469. However, Neville claims that the prosecutor also argued that Neville was driving east and shot Hood from inside his car to explain why no spent shell casings were found at the murder scene:
Id. at 482.
In response, the State argues that Neville could have turned his truck around. In fact, the prosecutor made that argument:
Id. at 494-95. We conclude that this was a reasonable inference or logical conclusion drawn from the admitted evidence, and therefore it was not improper.
In closing argument, the prosecutor described Neville's conduct immediately following the shooting as follows:
Id. at 469. Neville contends that this description was improper because it was not supported by the evidence. Prosecutors may not argue facts not in evidence. Spangler, 498 N.E.2d at 1209. The State concedes that there was no evidence that Neville stood over Hood gloating. We conclude that this comment was improper.
During closing argument, the prosecutor stated,
Tr. at 477, 484, 485, 499.
Neville asserts that "[a]rguments based on principles of `comparative justice,'
In support of his argument, Neville cites Emerson v. State, 952 N.E.2d 832, 838 (Ind.Ct.App.2011), trans. denied, in which we concluded that the prosecutor's call for the jurors to "stand up to this bully" was improper. See also Warner v. State, 265 Ind. 262, 265-66, 354 N.E.2d 178, 181 (1976) (concluding that prosecutor's comment that "where law ends tyranny begins and for that reason I'm asking you to find this defendant guilty" was unnecessary, unprofessional, and improper). Neville also relies on State v. Cockerham, 294 S.C. 380, 365 S.E.2d 22 (1988), in which the South Carolina Supreme Court reversed the defendant's conviction for murder and kidnapping due, in part, to the prosecutor's following comments:
Id. at 23.
Here, the prosecutor's comments emphasizing that Neville received justice but deprived Hood of comparable justice and urging the jury to provide justice and find Neville guilty for the sake of Jamal and his family "have no bearing on the defendant's guilt or innocence." Limp, 431 N.E.2d at 788. Such comments stir up the sympathies of the jurors for the victim and have the potential to eclipse the jury's responsibility to base their decision of guilt or innocence solely on the evidence presented. We conclude that the prosecutor's comments were improper.
We have concluded that two of the prosecutor's comments were improper: the comment describing Neville as gloating over Hood's body after the shooting and the comment appealing to the jury's passions and sympathies. However, these statements were not made in a vacuum. We must consider whether the misconduct, under all the circumstances, placed Neville in a position of grave peril to which he would not have been subjected. Additionally, Neville must show that the improprieties resulted in fundamental error. Based
Tr. at 485-87. Neville's defense counsel forcefully countered the prosecutor's arguments. Thus, defense counsel's closing argument diminished any persuasive effect the prosecutor's comments might have had on the jury's decision if left unanswered. Moreover, the undisputed evidence is that Neville was in the alley when Hood was shot. The evidence shows that he was seen with a gun that day. Further, ten minutes before the shooting, Neville asked Lane to tell Hood to meet him in the alley, and Lane saw Hood get into his red truck. Although Neville told the detective that his red truck was not running the day of the murder, Neville's wife testified that of their three cars, it was the only one that was running that day and that he took her to work and picked her up in it. Id. at 387. We conclude that the prosecutor's comments during closing argument, under all the circumstances, did not have a probable persuasive effect on the jury that placed Neville in a position of grave peril. It follows that the prosecutor's improper comments, either singularly or collectively, were not so detrimental to the opportunities for the ascertainment of truth so as to make a fair trial impossible. Accordingly, no fundamental error resulted.
During Neville's recorded interrogation, Detective Tudor asked Neville, "Why would I have folk telling me that on the day of the homicide they see you in that red truck shoot Hood." State's Ex. 55-A. Neville said, "They said that they seen me shoot Hood?" Id. Detective answered, "Uh-huh." Id. Later, the detective told Neville, "Your name was the only thing; it wasn't it coulda been this, it coulda been that. It was you." Id. At trial, Neville did not object to the admission of the detective's
Neville cites Smith v. State, 721 N.E.2d 213 (Ind.1999), to bolster his argument. There, the recorded police interview with the defendant included the police stating that "half of the people at the jail's [sic] called me wanting to tell me that you did it," and "Lamprey [the State's principal witness] said you did it because it was over Riggs [the victim] ripping you off your dope, your stash." Id. at 216 (brackets omitted). The defendant objected to the admission of the statements on hearsay grounds. However, the defendant did not request an admonishment that the statements were not to be used for the truth of the matter asserted, and none was given. Our supreme court concluded that because the police statements appeared to be assertions of fact, and not mere questions, and no admonishment was given, the admission of the statements was reversible error. Id.
Here, the statements appear to be statements of fact and would constitute inadmissible hearsay pursuant to Smith. Of course, this case differs from Smith in that Neville did not object to the statements and must establish fundamental error. As previously mentioned, Neville's counsel informed the jury in closing argument that Lane could not say that she saw Neville shoot Hood, that "[n]obody testified that they saw this shooting," and "there is no witness to the shooting." Tr. at 486-87. He also emphasized the unreliability of Lane's and Wilburn's testimony. Accordingly, we conclude that fundamental error did not occur.
Neville contends that his fifty-five year aggregate sentence is inappropriate and asks us to reduce it to forty-five years. Article 7, Section 6 of the Indiana Constitution authorizes this Court to independently review and revise a sentence imposed by the trial court. Smith v. State, 839 N.E.2d 780, 787 (Ind.Ct.App.2005). Indiana Appellate Rule 7(B) states, "The Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." "Although appellate review of sentences must give due consideration to the trial court's sentence because of the special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied." Purvis v. State, 829 N.E.2d 572, 588 (Ind.Ct.App.2005) (internal citation and quotation marks omitted), trans. denied, cert. denied (2006). The defendant bears the burden of persuading the appellate court that the sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006).
Here, Neville received the advisory sentence for murder. See Ind.Code § 35-50-2-3 ("A person who commits murder shall be imprisoned for a fixed term of between forty-five (45) and sixty-five (65) years, with the advisory sentence being fifty-five (55) years."). "The advisory sentence is meant to be the starting point for the court's consideration of what sentence is appropriate for the crime committed." Smith, 839 N.E.2d at 787. Neville does not argue that the nature of his crime warrants a sentence below the advisory. Rather, he argues solely that the advisory sentence is inappropriate based on his character. In support, he directs our attention to the trial court's statement that it received twenty-eight letters showing that Neville has a "concerned and caring network available to him and that he's had a
Neville's argument ignores his criminal history. As a juvenile, Neville was found to be delinquent for forgery and battery resulting in bodily injury. As an adult, Neville was convicted of class B felony dealing in cocaine, and while on probation for that offense, he was arrested for class A misdemeanor domestic battery and battery resulting in bodily injury and his probation was revoked. The battery charges were ultimately dismissed pursuant to a plea agreement. Later, he was convicted for class A misdemeanor driving while suspended and class D felony possession of cocaine. At the time of his sentencing, there were two separate charges for driving while suspended pending against him. Balancing the letters on behalf of Neville against his criminal history, we cannot say that Neville's character warrants a sentence below the advisory. In light of the nature of the offense and Neville's character, we are unpersuaded that Neville's fifty-five year advisory sentence is inappropriate.
Affirmed.
RILEY, J., and BAILEY, J., concur.
