Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before FILED
any court except for the purpose of Oct 11 2012, 8:30 am
establishing the defense of res judicata,
collateral estoppel, or the law of the CLERK
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN F. CRAWFORD GREGORY F. ZOELLER
Crawford & Devane Attorney General of Indiana
Indianapolis, Indiana
GARY R. ROM
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOHN TOMPKINS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1111-CR-690
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Sheila A. Carlisle, Judge
The Honorable Stanley E. Kroh, Master Commissioner
Cause No. 49G03-1101-FA-431
October 11, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
John Tompkins appeals his conviction for burglary as a class A felony and his
status as an habitual offender. Tompkins raises three issues, which we revise and restate
as follows:
I. Whether the retrial of Tompkins constituted a double jeopardy
violation;
II. Whether the trial court abused its discretion in admitting certain
testimony; and
III. Whether the prosecutor committed prosecutorial misconduct that
resulted in fundamental error.
We affirm.
The relevant facts follow. On December 27, 2010, Daphne Rutledge and Brittany
Henderson went to Mary Orr’s house to pick her up, and Tompkins, who was dating Orr,
was at the house at the time. After picking up Orr, the three women went to Rutledge’s
home. Rutledge lived with her mother Dorothy and her nine-year-old daughter. At some
point, Rutledge, Henderson, and Orr left to run errands and stopped at a gas station,
where they saw Tompkins, who was wearing an all gray jogging or sweat suit, white t-
shirt, and white tennis shoes and had braids in his hair. Instead of leaving the gas station
with Rutledge and Henderson as planned, Orr left with Tompkins.
Later that night, Rutledge and Henderson went to a bar in Greenwood, Indiana, to
play poker. While at the bar, Orr called Rutledge more than ten times. After playing
poker, Rutledge and Henderson returned to Rutledge’s home. At approximately 2:00
a.m., Tompkins called Rutledge using Orr’s phone and began to argue with her, became
“rude, loud, argumentative, and disrespectful,” and stated “Oh, you think you’re going to
get my girlfriend. B, you can come get some, too. You can Google me . . . .” Transcript
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at 213-214. The argument ended when Rutledge’s phone died. Rutledge, Henderson,
and Rutledge’s daughter all fell asleep on a bed in Rutledge’s bedroom.
At some point later during the night, Dorothy woke up to a loud beating coming
from the entrance door to Rutledge’s apartment, she then heard a “real loud kick of like a
real loud bang,” jumped up, went into the hallway, and observed Tompkins climbing the
stairs with a knife in his hand. Id. at 255. Dorothy yelled at Tompkins, but he ignored
her and went inside Rutledge’s room. Dorothy followed Tompkins into the room and
observed that Tompkins was over Rutledge and hitting her.
Rutledge woke up as Tompkins was on top of her and stabbing her. Rutledge
recognized Tompkins based on the gray jogging suit, shoes, and braids. Henderson was
awakened by Tompkins when he jumped, in “an aggressive move like a pounce,” onto
the bed, and Henderson pulled Rutledge’s daughter off of the bed with her. Id. at 285.
Henderson observed Tompkins run out of the room. Henderson and Dorothy called 911.
The police officer responding to the scene observed fresh signs of forced entry.
An ambulance transported Rutledge to the hospital where it was determined that she had
been stabbed five times, suffered nerve damage in her right hand, and one of her kidneys
had been stabbed. While in the hospital, Orr called Rutledge and then Tompkins spoke to
Rutledge on the phone. Tompkins stated that he did not stab Rutledge and offered her
“money to let the police know that he did not do it.” Id. at 225. Rutledge told Tompkins
no and that he “could burn in hell.” Id. Later, Rutledge and Henderson were both shown
a photo array and both identified Tompkins as the perpetrator.
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On January 4, 2011, the State charged Tompkins with Count I, burglary as a class
A felony; County II, aggravated battery as a class B felony; and Count III, battery as a
class D felony. On September 9, 2011, the State filed a notice of filing habitual offender,
and the court granted the motion. On October 5, 2011, Tompkins filed a motion to
exclude the testimony of Mary Orr because she failed to appear for depositions, and the
court granted the motion. On October 13, 2011, the State moved to amend Count II to
correct a scrivener’s error, which the court granted. A jury trial began on October 17,
2011, but ended in a mistrial upon Tompkins’s motion.
A second jury trial began on October 19, 2011. During trial, the court admitted,
over Tompkins’s objection, certain statements by Detective Andre Smith regarding his
experience interviewing victims or witnesses. During closing arguments, the prosecutor
made an argument related to the State’s inability to present motive evidence, Tompkins
objected, and the trial court admonished the jury. The jury found Tompkins guilty as
charged under Counts I and II and not guilty under Count III. Tompkins admitted to
being an habitual offender. The court vacated judgment of conviction under Count II due
to double jeopardy concerns and sentenced Tompkins to twenty years in the Department
of Correction for his conviction under Count I and enhanced the sentence by thirty years
due to the habitual offender finding for an aggregate sentence of fifty years.
I.
The first issue is whether the retrial of Tompkins constituted a double jeopardy
violation. Tompkins contends that his convictions should be reversed because the State
forced a mistrial and should have been barred from retrying the case based upon double
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jeopardy principles. The State argues that the prosecutor did not intentionally goad
Tompkins into moving for a mistrial and that his double jeopardy rights were not
violated.
Prior to the start of Tompkins’s first trial on October 17, 2011, Tompkins verbally
moved to exclude “Mary Orr, any testimony as to any statements she might [] have
made.” Transcript at 25. The State noted that at least one witness heard a voice that she
recognized was Orr’s voice and that would be admissible, and Tompkins agreed. The
court granted Tompkins’s motion to exclude the content of Orr’s statements but not as to
testimony from a witness that she heard Orr’s voice.
During the first trial, the State asked Henderson if Tompkins was in the parking lot
of the gas station, and Henderson responded: “I don’t know if he was standing in the
parking lot. I mean, he wasn’t—I don’t even think he expected us to be there. She was,
like, panicked when she seen him.” Id. at 105. The State asked “And that’s Mary?” Id.
Henderson responded: “Yes, Mary Orr. She had just went to the gas station and bought a
bunch of stuff, drinks, food and everything, and left it in the car because she didn’t want
him to know that she had it.” Id. Tompkins objected and stated that Henderson “started
to talk about what Mary had said.” Id. at 106. The court noted that Henderson was
answering a question that was not asked and was volunteering information, and the court
confirmed with the State that it had informed its witnesses of the court’s rulings.
The State next called Rutledge as its witness, and the following exchange between
the prosecutor and Rutledge occurred:
Q. Did anybody call you while you were at the bar?
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A. Yes.
Q. Who called you?
A. Mary had called me and told me she was getting beat.
Id. at 174-175. Tompkins objected and stated that he would be asking for a mistrial.
Outside the presence of the jury, the court listened to a recording of the foregoing
exchange. Tompkins’s counsel asked Rutledge if the State had instructed her not to
testify about anything Orr had said, and Rutledge responded “About what I heard or
hearsay?” Id. at 177. Defense counsel stated “Hearsay. Anything that Mary said to you,
you weren’t supposed to say.” Id. Rutledge stated “Okay. Well, no, I wasn’t aware of
that.” Id. Defense counsel then stated “He didn’t – the prosecutor didn’t tell you that?”
Id. Rutledge responded: “Yeah, he told me don’t say what another person has said
outside. But she said it directly to me. That’s where it came to, to me.” Id. at 177-178.
The prosecutor stated that Rutledge could have testified to a statement made by Orr to the
extent that the statement was not hearsay or fell into an exception to the hearsay rule.
Tompkins moved for a mistrial and to be discharged. The prosecutor argued that
his understanding was that the motion in limine applied only to inadmissible hearsay, that
he did not want Rutledge to make the statement which she made, and that his next
question was going to relate to what question Orr had asked, which to his understanding
would have been an admissible statement. The prosecutor also argued that the question
he had asked Rutledge was a “yes or no question.” Id. at 180. The court stated:
I will say this: I do not believe that it was the State’s intention to
have that witness say that. That question did not call for it. She went
beyond what the answer would’ve called for. You simply said, “Who
called you?”
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Her answer was, “Mary called me and told me she was getting beat.”
Okay. So “Mary called me” would’ve been all that that question
asked for.
Id. at 187. The court granted Tompkins’s motion for mistrial. Tompkins’s second jury
trial began on October 19, 2011.
The Fifth Amendment to the United States Constitution provides that no person
shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The
Indiana Constitution, Article 1, § 14 provides: “No person shall be put in jeopardy twice
for the same offense.” These constitutional directives against double jeopardy are
codified in Ind. Code § 35-41-4-3, which provides that:
(a) A prosecution is barred if there was a former prosecution of the
defendant based on the same facts and for commission of the same
offense and if:
(1) the former prosecution resulted in acquittal or
conviction of the defendant (A conviction of an
included offense constitutes an acquittal of the greater
offense, even if the conviction is subsequently set
aside.); or
(2) the former prosecution was terminated after the jury
was impaneled and sworn or, in a trial by the court
without a jury, after the first witness was sworn, unless
(i) the defendant consented to the termination or
waived, by motion to dismiss or otherwise, his right to
object to the termination, (ii) it was physically
impossible to proceed with the trial in conformity with
law, (iii) there was a legal defect in the proceedings
that would make any judgment entered upon a verdict
reversible as a matter of law, (iv) prejudicial conduct,
in or outside the courtroom, made it impossible to
proceed with the trial without injustice to either the
defendant or the state . . . .
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(b) If the prosecuting authority brought about any of the circumstances
in subdivisions (a)(2)(i) through (a)(2)(vi) of this section, with the
intent to cause termination of the trial, another prosecution is barred.
“The protection against double jeopardy will not prevent a retrial of the offense if: (1) a
defendant waives his right to raise double jeopardy claims; (2) a defendant consents to
the termination of proceedings after jeopardy has attached; or (3) the termination is
required by manifest necessity.” State v. Erlewein, 755 N.E.2d 700, 704 (Ind. Ct. App.
2001) (citation and internal quotation marks omitted). “[I]f a defendant moves for or
consents to a mistrial, the defendant forfeits the right to raise a double jeopardy claim in
subsequent proceedings unless the motion for mistrial was necessitated by governmental
conduct ‘intended to goad the defendant into moving for a mistrial.’” Id. (quoting
Willoughby v. State, 660 N.E.2d 570, 576 (Ind. 1996)). To determine whether a second
trial is barred after a defendant’s motion for a mistrial, we must examine whether the
prosecutor brought about the mistrial with the intent to cause termination of the trial.
Willoughby, 660 N.E.2d at 576. If the State acted with intent to force the defendant into
moving for a mistrial, the prohibition against double jeopardy bars a second prosecution.
Id.
In this case, it was the State’s witness, Rutledge, who introduced the comment
which caused the mistrial. Rutledge’s comment created the requisite prejudice necessary
to terminate the first trial. While Tompkins urges us to find that Rutledge’s entire
response to the State’s question constituted governmental conduct “intended to goad the
defendant into moving for a mistrial,” the trial court specifically found that it did not
believe it was the State’s intention for Rutledge to make the comment which resulted in a
8
mistrial and that the witness “went beyond what the answer would’ve called for.”
Transcript at 187. The prosecutor merely asked Rutledge who had called her, and
Rutledge answered the question and went further by stating what Orr had stated.
Tompkins does not point to the record to show that Rutledge colluded with the prosecutor
to intentionally cause the mistrial or that Rutledge knew that her response was likely to
cause a mistrial.
Based upon our review, we conclude that the record supports the trial court’s
conclusion that the prosecutor did not intend to force Tompkins to move for a mistrial,
and accordingly Tompkins’s second trial did not violate the constitutional or statutory
proscriptions against double jeopardy. See Willoughby, 660 N.E.2d at 576 (noting that it
was the State’s witness who introduced the comment which caused the mistrial and
created the requisite prejudice necessary to terminate the first trial, that the trial court
specifically found that the State did not intentionally cause a mistrial, that the prosecutor
merely asked its witness where a conversation took place, that the witness’s answer was
not a response the prosecutor likely anticipated, and that there was nothing in the record
to suggest that the witness had colluded with the prosecutor to intentionally cause the
mistrial, and holding that because the record supported the trial court’s conclusion that
the prosecutor did not intend to force the defendant to move for a mistrial, the
defendant’s second trial did not violate the constitutional or statutory proscriptions
against double jeopardy). Accordingly, Tompkins is not entitled to reversal on this basis.
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II.
The next issue is whether the trial court abused its discretion in admitting certain
testimony. The admission and exclusion of evidence falls within the sound discretion of
the trial court, and we review the admission of evidence only for abuse of discretion.
Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs
“where the decision is clearly against the logic and effect of the facts and circumstances.”
Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001).
At trial, the State asked Detective Smith: “The first time you talk to an individual
with a serious crime or serious incident, do they give you every single fact that
happened?” Transcript at 357. Tompkins objected on the basis of relevance and that
“[t]here hasn’t been a foundation laid for this.” Id. at 357-358. The court asked whether
the question is in the detective’s experience, the State responded affirmatively, and the
court overruled Tompkins’s objection. Detective Smith indicated that in his experience
victims or witnesses of a crime do not always give the full account the first time that he
spoke with them.
Tompkins argues that Detective Smith should not have been permitted, under Ind.
Evidence Rules 701 and 702, to give an opinion that witnesses or victims of a crime often
do not give a full account of the details the first time they are questioned. The State
argues that Tompkins failed to preserve the issue for appeal because he challenges the
admissibility of Detective Smith’s testimony on appeal on different grounds from those
raised at trial. The State further argues that Detective Smith’s testimony was proper
under Ind. Evidence Rule 701 or 702.
10
We observe, as argued by the State, that Tompkins failed to object to the
admission of Detective Smith’s testimony on the basis of Ind. Evidence Rules 701 and
702 at trial. “In order to preserve a claim of trial court error in the admission or exclusion
of evidence, it is necessary at trial to state the objection together with the specific ground
or grounds therefor at the time the evidence is first offered.” Haycraft v. State, 760
N.E.2d 203, 212 (Ind. Ct. App. 2001) (citing Mullins v. State, 646 N.E.2d 40, 44 (Ind.
1995)), reh’g denied, trans. denied. Failure to do so results in waiver of our review of the
issue on appeal. See id.
To the extent that Tompkins did preserve this issue for appeal, we note that Ind.
Evidence Rule 701 provides, “[i]f the witness is not testifying as an expert, the witness’s
testimony in the form of opinions or inferences is limited to those opinions or inferences
which are (a) rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness’s testimony or the determination of a fact in issue.” A
skilled witness is a person with “a degree of knowledge short of that sufficient to be
declared an expert under Rule 702, but somewhat beyond that possessed by the ordinary
jurors.” Mariscal v. State, 687 N.E.2d 378, 380 (Ind. Ct. App. 1997) (quotation omitted),
reh’g denied, trans. denied. Smith testified that he had been a detective for ten years, that
he had taken hundreds of statements of victims and witnesses, and that many times Smith
had listened to those individuals talk about their statements again. Based upon the
record, we cannot say that Detective Smith’s testimony was not rationally based on his
perceptions pursuant to Ind. Evidence Rule 701 or that the trial court abused its discretion
in admitting his testimony. Further, we note that even if Detective Smith’s testimony was
11
not rationally based on his perceptions, Tompkins fails to establish how this admission of
evidence denied him a fair trial, and we will not reverse a trial court’s admission of
evidence absent a showing that such admission was a manifest abuse of discretion
resulting in the denial of a fair trial.1 State v. Hunter, 898 N.E.2d 455, 457-458 (Ind. Ct.
App. 2008). Tompkins is not entitled to reversal on this basis.
III.
The next issue is whether the prosecutor committed prosecutorial misconduct that
resulted in fundamental error. During closing arguments, the prosecutor stated: “Defense
tried to argue motive to you saying we hadn’t produced a motive. I wish we could.
There’s some things we probably would like to put out there, but we couldn’t.”
Transcript at 426.
Tompkins argues that the State committed prosecutorial misconduct when it told
the jury that evidence excluded by the court would have established a motive for the
crime. The State argues that the prosecutor’s statements were made in direct response to
Tompkins’s remarks during his closing argument related to motive and that, even if the
comment did constitute misconduct, it did not have any persuasive effect on the jury that
would have placed Tompkins in grave peril.
In reviewing a properly preserved 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 should not have been subjected. Cooper v. State, 854 N.E.2d
1
Because we conclude Detective Smith’s testimony is admissible under Ind. Evidence Rule 701,
we need not determine whether his testimony would also be admissible under Ind. Evidence Rule 702.
12
831, 835 (Ind. 2006). Whether a prosecutor’s argument constitutes misconduct is
measured by reference to case law and the Rules of Professional Conduct. Id. 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.
When an improper argument is alleged to have been made, the correct procedure is
to request the trial court to admonish the jury. Id. If the party is not satisfied with the
admonishment, then he or she should move for mistrial. Id. Failure to request an
admonishment or to move for mistrial results in waiver. Id. Here, the record does not
show that Tompkins requested a mistrial or was not satisfied with the court’s
admonishment, and thus Tompkins has waived the issue.
Where a claim of prosecutorial misconduct has not been properly preserved, the
defendant must establish not only the grounds for the misconduct but also the additional
grounds for fundamental error. Id. Fundamental error is an extremely narrow exception
that allows a defendant to avoid waiver of an issue. Id. It is error that makes “a fair trial
impossible or constitute[s] clearly blatant violations of basic and elementary principles of
due process . . . present[ing] an undeniable and substantial potential for harm.” Id.
During Tompkins’s closing arguments, defense counsel stated:
A motive, they don’t have to prove a motive, they’re asking you a reason
for it. Not one of them gave you a reason why someone who friends [sic]
with her would run up there and stab her over that little argument they had.
It makes no sense at all. Nothing happened that was a big enough fight that
he would run up there and stab her five times.
Transcript at 407. Later during the State’s rebuttal arguments, the prosecutor stated:
“Defense tried to argue motive to you saying we hadn’t produced a motive. I wish we
13
could. There’s some things we probably would like to put out there, but we couldn’t.”
Id. at 426. Tompkins objected, and the court issued an admonishment to the jury stating
that “[w]hat the lawyers are saying now is not evidence,” that “[t]he lawyers can discuss
the evidence, they can discuss the law and attempt to persuade you to a particular
verdict,” that “[y]ou can accept those arguments or you can reject them,” and that “[i]n
your deliberations in this case you must confine your deliberations solely to the evidence
that was admitted in the trial and not consider any evidence or any reference to anything
that was not admitted into evidence.” Id. at 426-427. The jury received instructions that
statements made by the attorneys are not evidence; that final arguments are not evidence;
that the attorneys are permitted to characterize the evidence, discuss the law and attempt
to persuade the jury to a particular verdict, and that the jury may accept or reject those
arguments as it sees fit; and that the jury’s verdict should be based only on the evidence
admitted and the instructions on the law. Under the circumstances and in light of the
evidence, we cannot say that Tompkins has demonstrated that the prosecutor committed
misconduct or that any prosecutorial misconduct resulted in fundamental error.
For the foregoing reasons, we affirm Tompkins’s conviction for burglary as a class
A felony and his status as an habitual offender.
Affirmed.
BAKER, J., and KIRSCH, J., concur.
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