Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res Jan 29 2014, 9:58 am
judicata, collateral estoppel, or the law
of the case.
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
P. JEFFREY SCHLESINGER GREGORY F. ZOELLER
Crown Point, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANDRE MARSHALL, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1305-CR-191
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Natalie Bokota, Judge Pro Tempore
Cause No. 45G02-1009-FB-95
January 29, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Andre Marshall appeals his convictions and sentence for Class B felony
confinement, Class B felony robbery, Class C felony intimidation, Class D felony
pointing a firearm, and Class A misdemeanor battery. We affirm.
Issues
Marshall raises four issues, which we restate as:
I. whether the admission of a police officer’s summary
of the offense was reversible error;
II. whether the trial court properly denied Marshall’s
motion for mistrial;
III. whether the trial court abused its discretion in
sentencing Marshall; and
IV. whether his convictions for battery and robbery violate
double jeopardy.
Facts
On July 24, 2010, Gregory Mason, Jr., was driving in Gary. While stopped at an
intersection, Mason waved Marshall, who was on foot, across the street. Instead of
crossing the street, Marshall approached the passenger side of Mason’s car and lifted his
shirt, revealing a gun. Marshall then got into Mason’s car and demanded money.
Marshall threatened to kill Mason and, unsatisfied with the $30 Mason gave him, pointed
the gun at Mason and demanded that Mason take him to Mason’s house to get more
money. In an effort to protect his children, Mason drove to his aunt’s house instead of
his own house. While at Mason’s aunt’s house, Marshall took Mason’s necklace, watch,
and wedding ring, hit him with the gun several times, and threatened to kill him. Mason
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then offered to withdraw money from an ATM, and drove to a nearby bank while
Marshall pointed the gun at him. Mason was able to withdraw $200 but an attempt to
withdraw another $200 was declined. While Mason drove to another bank, Marshall
again threatened to kill Mason and hit him with the gun. Mason went to a walk-up ATM
machine and twice tried to withdraw more money. Mason then fled on foot and flagged
down help. Marshall was later apprehended in Indianapolis driving Mason’s car.
Marshall was eventually charged with Class B felony carjacking, Class B felony
confinement, Class B felony robbery, two counts of Class C felony battery, Class C
felony intimidation, and Class D felony pointing a firearm. A jury trial was conducted in
August 2011. Marshall was acquitted of the carjacking charge and found guilty of
battery as a Class A misdemeanor, and the jury was deadlocked on the remaining counts.
In November 2011, the trial court entered a judgment of conviction on the battery charge,
and Marshall was sentenced to 320 days in jail on that charge.
On March 25, 2013, Marshall was retried on the confinement, robbery,
intimidation, and pointing a firearm charges. A jury found him guilty as charged. In
sentencing Marshall, the trial court considered as aggravators the emotional damage
inflicted on Mason during the commission of the offense, Marshall’s criminal history, the
nature and circumstances of the offense, and the fact that Marshall had previously
violated the terms of lenient sentences. The trial court did not find any mitigating factors.
The trial court sentenced Marshall to eighteen years on the confinement conviction,
eighteen years on the robbery conviction, six years on the intimidation conviction, and
three years on the pointing a firearm conviction. The trial court ordered the confinement,
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robbery, and intimidation sentences to be served consecutively for a total sentence of
forty-two years. Marshall now appeals.
Analysis
I. Admission of Evidence
Marshall argues that a police officer’s testimony relaying what Mason told him
about the offense immediately after it happened was inadmissible hearsay. The decision
to admit or exclude evidence at trial is squarely within a trial court’s discretion, and it is
afforded great deference on appeal. VanPatten v. State, 986 N.E.2d 255, 260 (Ind. 2013).
We will not reverse such a decision, unless it is clearly contrary to the logic and effect of
the facts and circumstances of the case or misinterprets the law. Id.
Officer George Dickerson of the Gary Police Department testified that when he
arrived at the scene he made an offense report, which included Mason’s detailed
description of the incident. Officer Dickerson then relayed this description to the jury
over Marshall’s objection. Marshall argues that this testimony was not admissible to
show the course of Officer Dickerson’s investigation and should have been excluded.
Even assuming Marshall is correct, we are to disregard errors in the admission of
evidence as harmless error unless they affect the substantial rights of a party. Id. at 267;
see also Ind. Trial Rule 61. In determining whether an error in the introduction of
evidence affected the defendant’s substantial rights, we must assess the probable impact
of the evidence upon the jury. VanPatten, 986 N.E.2d at 267. “‘Admission of hearsay
evidence is not grounds for reversal where it is merely cumulative of other evidence
admitted.’” Id. (citation omitted).
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Before Officer Dickerson testified, Mason testified in great detail regarding the
offense. Officer Dickerson’s testimony about what Mason had told him after the offense
was merely cumulative of Mason’s trial testimony. To the extent Marshall argues that he
was prejudiced by the admission of this evidence because it bolstered Mason’s testimony,
we disagree. In admitting this testimony, the trial court explained to the jury that what
Mason told Officer Dickerson was “not being offered for the truth of the matter asserted,
that is to prove that what was said is true, but just to show what this officer heard and
what that caused him to do next.” Tr. p. 520. In light of this admonishment and Mason’s
own unequivocal testimony, we are not convinced that any error in the admission of
Officer Dickerson’s testimony prejudiced Marshall’s substantial rights or is grounds for
reversal.
II. Mistrial
Marshall argues that the trial court improperly denied his motion for a mistrial. A
mistrial is an extreme action and is warranted only when no other action can be expected
to remedy the situation. Vaughn v. State, 971 N.E.2d 63, 68 (Ind. 2012). “The decision
to grant or deny a mistrial motion is left to the sound discretion of the trial court.” Id. at
67. We will reverse the trial court’s determination on the issue only for an abuse of
discretion, which occurs when the trial court’s decision is clearly against the logic and
effect of the facts and circumstances before the court. Id. at 67-68. “We afford great
deference to the trial court because it is in the best position to gauge the circumstances
and impact on the jury.” Id.
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At trial, Officer Dustin Danai of the Indianapolis Metropolitan Police Department
testified that Marshall was apprehended in Indianapolis. Officer Danai explained that he
was dispatched to an apartment complex and, when he arrived, the person who had called
911 pointed at a car and said “that’s the guy who shot my brother.” Tr. p. 545. Marshall
objected on relevancy grounds and moved for a mistrial. The trial court sustained the
objection, but denied the request for a mistrial.
Instead, the trial court admonished the jury not to consider that statement in its
deliberations. The trial court decided to poll the jurors regarding their ability to ignore
that statement during their deliberations. The trial court stated, “If any of the jurors
indicate that they cannot ignore the statement in their deliberations and feel that it would
affect their verdict, then the mistrial motion would be granted.” Id. at 553. When polled,
one juror indicated that the statement might influence the verdict, and that juror was
replaced with an alternate juror, who had stated that he or she could ignore the statement.1
Marshall took issue with the decision to replace the juror with an alternate instead of
declaring a mistrial. The trial court acknowledged its earlier statement and explained that
it had forgotten that alternate jurors were available. The trial court stated:
I did say I would be granting the mistrial, but I forgot that we
had two alternate jurors who we could utilize to replace
anyone who might be influenced by that statement. And so
1
On appeal, Marshall points out that in response to the trial court’s questioning another juror stated, “I
believe I can ignore it.” Tr. p. 559. Although Marshall contends that no action was taken regarding this
juror, he does not further develop this argument on appeal. Moreover, Marshall did not object to this
juror remaining on the jury. In fact, after removing one juror, the trial court asked, “Were there any other
jurors polled whom either the State of the defense believes were equivocal or whom we should replace
with the second alternate . . . ?” Id. at 569. Marshall answered no. In the absence of a well-developed
argument regarding this juror, we decline to address this issue further.
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being human, I erred in that regard. As long as we can give
you a fair trial, we’re going forward.
Id. at 568.
On appeal, Marshall asserts that the admonition and polling of the jurors
highlighted the evidence. Marshall also suggests that Officer Danai might have
deliberately attempted to introduce inadmissible evidence and that, at the very least,
Officer Danai created the inference that Marshall was a violent individual. None of these
arguments, however, establish that the trial court abused its discretion in denying the
motion for mistrial. “When the jury is admonished by the trial judge to disregard what
has occurred at trial, it usually is considered a sufficient curative measure so that his
refusal to grant a mistrial does not amount to reversible error.” Peters v. State, 542
N.E.2d 1340, 1344 (Ind. 1989). Here, the jurors were not only admonished but polled
regarding their ability to disregard the statement, and one juror was removed from the
jury and replaced with an alternate. Although the trial court was concerned about the
potential harm caused by Officer’s Danai’s statement, it took steps to ensure that a fair
and impartial jury had been impanelled. Under these facts, the denial of the motion for
mistrial does not warrant reversal.
III. Sentence
Marshall argues that the trial court abused its discretion in sentencing him by
ignoring two mitigators.2 We evaluate a sentence under the current “advisory” sentencing
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Marshall also argues that the consecutive sentences should be modified because they are “unduly
harsh.” Appellant’s Br. p. 13. Marshall, however, does not provide a specific argument that his sentence
is inappropriate and should be revised pursuant to Indiana Appellate Rule 7(B). As we have explained,
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scheme pursuant to Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on
reh’g by Anglemyer v. State, 875 N.E.2d 218 (Ind. 2007). The trial court must issue a
sentencing statement that includes “reasonably detailed reasons or circumstances for
imposing a particular sentence.” Anglemyer, 868 N.E.2d at 491. The reasons or
omission of reasons given for choosing a sentence are reviewable on appeal for an abuse
of discretion. Id. “The relative weight or value assignable to reasons properly found or
those which should have been found is not subject to review for abuse.” Id.
In sentencing Marshall the trial court expressly did not find any mitigating
circumstances. Marshall argues the trial court ignored that prior to sentencing he had
been working two jobs and providing emotional and financial support for his fiancée’s
children. As the State asserts, however, Marshall’s short-term employment and support
of his fiancée’s children are not significant mitigating factors because “[m]aintaining
employment and supporting one’s family are common and expected activities.”
Appellee’s Br. pp. 20-21. Marshall has not established that the trial court overlooked a
significant mitigator that was clearly supported by the record. See Anglemyer, 875
N.E.2d at 220-21 (“But an allegation that the trial court failed to identify or find a
mitigating factor requires the defendant to establish that the mitigating evidence is not
only supported by the record but also that the mitigating evidence is significant.”).
IV. Double Jeopardy
inappropriate sentence and abuse of discretion claims are to be analyzed separately. King v. State, 894
N.E.2d 265, 267 (Ind. Ct. App. 2008). Thus, any inappropriateness argument is waived for failing to
develop cogent argument supported by citation to relevant authority. See Ind. Appellate Rule
46(A)(8)(a).
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Marshall argues that the battery for which he was convicted at the first trial was an
element of the subsequent robbery conviction and that the trial court should have merged
the two offenses and vacated the battery conviction. In support of his argument, Marshall
relies on Hudson v. State, 265 Ind. 302, 310, 354 N.E.2d 164, 170 (1976), in which our
supreme court sua sponte merged the lesser included offense of rape with the charge of
armed rape and merged the offenses of premeditated murder and felony murder.
Marshall, however, provides no specific analysis of the robbery and battery charges or
the facts used to establish the offenses. Without more, he has not established that the
Class A misdemeanor battery conviction was a lesser included offense of the Class B
felony robbery conviction.
Conclusion
Marshall has not established that the admission of Officer Dickerson’s testimony
or the denial of his motion for mistrial constitute reversible error. Nor has he established
that the trial court abused its discretion in sentencing him or that his convictions for
robbery and battery violate double jeopardy principles. We affirm.
Affirmed.
ROBB, J., and BROWN, J., concur.
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Andre Marshall, Jr. v. State of Indiana
Combined Opinion