MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Feb 12 2015, 10:22 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John Jacob Warrum Gregory F. Zoeller
Mount Vernon, Indiana Attorney General of Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Derrick Demarco Armstead, February 12, 2015
Appellant-Defendant, Court of Appeals Cause No.
65A01-1408-CR-232
v. Appeal from the Posey Superior
Court
The Honorable S. Brent Almon,
State of Indiana, Judge
Appellee-Plaintiff. Cause No. 65D01-1307-FA-337
Bradford, Judge.
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Case Summary
[1] On July 29, 2013, Appellant-Defendant Derrick Demarco Armstead engaged in
an altercation outside a mobile-home community which resulted in two men
being stabbed and beaten. Although Armstead admitted to stabbing one of the
victims, he argues that he did so in self-defense after the victim poured gasoline
on him. At trial, Appellee-Plaintiff the State of Indiana (the “State”) introduced
evidence of a cell phone video which captured a portion of the events.
Armstead attempted to elicit testimony from a detective regarding what is
shown on the video. The State objected to the detective’s opinion testimony and
the trial court sustained the objection. Soon thereafter, the State began asking
the detective a question about whether Armstead requested that the detective
test his clothes for accelerant. Armstead objected and the trial court sustained
the objection. On appeal, Armstead argues (1) it was prosecutorial misconduct
for the State to have asked the question regarding accelerant testing and (2) the
trial court abused its discretion by not allowing him to question the detective
about the contents of the video. We affirm.
Facts and Procedural History
[2] On July 29, 2013, Armstead and Christopher Bradshaw began arguing outside
at the mobile-home community in which Christopher lived. Property manager
Tyfney Bennett intervened and attempted to settle the dispute between the two.
After Armstead’s girlfriend and Christopher’s wife began to argue, Bennett told
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Christopher’s wife to call the police. Armstead then backed off, began walking
away and said, “I will f***ing kill you all.” Tr. p. 256.
[3] Soon thereafter, Larry Bradshaw, Christopher’s father, arrived at the mobile
home. Larry worked as a handyman for the property and was delivering
materials to another trailer. When he arrived, Larry was unaware of the prior
altercation between Christopher and Armstead. Upon exiting his truck, Larry
noticed Armstead standing nearby and asked him if there was a problem.
Armstead replied, “F*** yes there is, I am going to cut your f***ing throat.”
Tr. p. 290. Armstead then removed a folded knife from his pocket and
approached Larry. Armstead’s girlfriend also approached Larry carrying a
baseball bat. The two attacked Larry, Armstead stabbing him multiple times in
the chest, arm, and back, and Armstead’s girlfriend striking Larry in the head
with the baseball bat. Christopher ran to aid his father but was in turn stabbed
by Armstead in the chest and neck. Armstead admitted to stabbing Larry but
contends that it was in retaliation after Larry poured gasoline on him. Larry
testified that he did not pour or attempt to pour gasoline on Armstead.
[4] At trial, the State introduced a short video recording taken by neighbor Lynn
Owens. Owens testified that she saw Armstead, his girlfriend, and two other
men approach and attack Larry. At no point did Owens see Larry pour
gasoline on Armstead. Owens began recording the altercation with her cell
phone after Christopher ran to help his father. Owens testified as to the events
recorded in the video which showed Christopher rolling on the ground after
being attacked followed by two men attempting to assist Christopher. Later in
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the trial, defense counsel questioned Detective Jeremy Fortune about Owens’s
video:
Q: Detective, you have had an opportunity to view that video multiple
times, I believe that I was saying after [Armstead] knocks Chris down
were you able to tell that somebody comes from right to left and gets
back into, or gets into the fight?
A. Yes.
[The State objects]
The State: He is asking him to give an opinion as to what is on the
video, he was not a party to that video, he didn’t make the video, he is
not one of the witnesses on the video, what he is asking him to do is
give an opinion which is in the purview of the Jury …
Tr. p. 441. Armstead responded that the detective’s testimony was permissible
under Rule 701 of the Indiana Rules of Evidence. The trial court sustained the
State’s objection but allowed Armstead to continue questioning Detective
Fortune about other events depicted on the video.
Q: Detective Fortune, the video that you reviewed, there is a
gentleman walking up the road, looks like he has a blood stained shirt
on, did you see that?
A: Yes, excuse me, yes.
Q: Gentleman with a gray shirt with blood on it, did you believe that
to be Larry Bradshaw?
The State: Again, Your Honor, these are the same questions that go to
the objection that I made.
The Court: Alright, maybe, but I am going to let him answer this one,
you may answer.
A: Yes.
Q: I will show you what I have marked as Defendant’s Exhibit “B”
and you have already looked at this once –
A: Yes.
Q: – and that was the shirt you collected from the hospital and that
was the shirt that Larry Bradshaw was wearing.
A: Yes.
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Q: Do you believe that is the same shirt you saw him in walking up the
hill in the video?
A: Yes, yes.
Tr. pp. 442-443.
[5] Soon thereafter, defense counsel asked Detective Fortune whether the police
had tested Armstead’s clothes for the presence of accelerants. Detective
Fortune stated that the police lab would not accept Armstead’s clothing for
accelerant testing because it was not an arson case. On redirect, Detective
Fortune stated that he did not smell gasoline on Armstead’s clothing, after
which the following exchange occurred:
[6] The State: [addressing Detective Fortune] Did [defense counsel] ever provide
you with a court order that would require you…
Defense Counsel: Judge, I am going to object. I have absolutely no
obligation to prove or disprove anything, that’s the status of the law
and that is the implication.
The State: First of all, I haven’t finished the question, second of all, the
fact that he doesn’t – he doesn’t have a burden to do anything, but that
doesn’t mean he doesn’t have the opportunity to ask this Court to
order the State…
The Court: This is when I am going to ask you to come to the bench to
finish your question.
Tr. pp. 451-52. Following a bench conference outside the jury’s presence, the
State withdrew the question. At the conclusion of Detective Fortune’s
testimony, Armstead moved for a mistrial, arguing that the State’s withdrawn
question to detective Fortune hindered Armstead’s ability to receive a fair trial
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by suggesting to the jury that Armstead had a burden of proof. The trial court
denied Armstead’s motion.
[7] On April 11, 2014, the jury convicted Armstead of Class A felony
attempted murder, Class B felony aggravated battery, and two Class C felonies
for battery by means of a deadly weapon. After a bench trial, the trial court
found Armstead to be a habitual offender. At sentencing, the trial court vacated
two of the battery convictions finding them to be lesser-included offenses of
attempted murder. The trial court sentenced Armstead to thirty-eight years for
attempted murder, enhanced thirty years for being a habitual offender, and six
years for battery by means of a deadly weapon, to be served consecutively.
Discussion and Decision
[8] Armstead raises two issues on appeal: (1) whether it was prosecutorial
misconduct for the State to ask Detective Fortune if defense counsel ever
obtained a court order to have Armstead’s clothes tested for accelerant, and (2)
whether the trial court abused its discretion by declining to allow defense
counsel to elicit testimony from Detective Fortune about the contents of
Owens’s video.
I. Prosecutorial Misconduct
[9] “In reviewing a claim of prosecutorial misconduct properly raised in the trial
court, we determine (1) whether misconduct occurred, and if so, (2) ‘whether
the misconduct, under all of the circumstances, placed the defendant in a
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position of grave peril to which he or she would not have been subjected’
otherwise.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014), reh’g denied (quoting
Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)). To preserve a claim of
prosecutorial misconduct on appeal, a defendant must (1) raise a
contemporaneous objection, (2) request an admonishment, and (3) if the
admonishment is not given or is insufficient to cure the error, then he must
request a mistrial. Washington v. State, 902 N.E.2d 280, 289-90 (Ind. Ct. App.
2009) (citing Flowers v. State, 738 N.E.2d 1051, 1058 (Ind. 2000)). “Failure to
request an admonishment or to move for mistrial results in waiver.” Dumas v.
State, 803 N.E.2d 1113, 1117 (Ind. 2004) (citing Brewer v. State, 605 N.E.2d 181,
182 (Ind. 1993)).
[10] Armstead properly objected to the alleged misconduct at trial but failed to
request an admonishment. As such, he has waived this issue for review.
Our standard of review is different where a claim of prosecutorial
misconduct has been procedurally defaulted for failure to properly
raise the claim in the trial court, that is, waived for failure to preserve
the claim of error. The defendant must establish not only the grounds
for prosecutorial misconduct but must also establish that the
prosecutorial misconduct constituted fundamental error. Fundamental
error is an extremely narrow exception to the waiver rule where the
defendant faces the heavy burden of showing that the alleged errors are
so prejudicial to the defendant’s rights as to make a fair trial
impossible. In other words, to establish fundamental error, the
defendant must show that, under the circumstances, the trial judge
erred in not sua sponte raising the issue because alleged errors (a)
constitute clearly blatant violations of basic and elementary principles
of due process and (b) present an undeniable and substantial potential
for harm. The element of such harm is not established by the fact of
ultimate conviction but rather depends upon whether the defendant’s
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right to a fair trial was detrimentally affected by the denial of
procedural opportunities for the ascertainment of truth to which he
otherwise would have been entitled. In evaluating the issue of
fundamental error, our task in this case is to look at the alleged
misconduct in the context of all that happened and all relevant
information given to the jury—including evidence admitted at trial,
closing argument, and jury instructions—to determine whether the
misconduct had such an undeniable and substantial effect on the jury’s
decision that a fair trial was impossible.
Ryan, 9 N.E.3d at 667-68. (quotations and citations omitted).
[11] We are unpersuaded by the logical leap Armstead makes in suggesting that the
prosecutor’s question – or half question – “operated to shift the burden of proof
from the State to the defendant,” and thus placed Armstead in “grave peril.”
Appellant’s Br. p. 7. Asking whether Armstead ever requested that the State
test his clothes for accelerant does not imply that he had an obligation to do so.
Furthermore, even if the question had been asked in its entirety, it was an
invited response to defense counsel’s questions concerning the testing of the
shirt for accelerants. “Prosecutors are entitled to respond to allegations and
inferences raised by the defense even if the prosecutor’s response would
otherwise be objectionable.” Dumas v. State, 803 N.E.2d 1113, 1118 (Ind. 2004)
(citing Brown v. State, 746 N.E.2d 63, 68 (Ind. 2001)).
[12] In any case, the State was not allowed to finish asking the allegedly
inappropriate question, and ultimately withdrew the question. We are
unconvinced that the jury anticipated the unasked portion of the question, and
then proceeded to infer that the burden of proof had shifted to Armstead. This
seems particularly unlikely considering that the jury was repeatedly informed
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that the State carried the burden of proof, including a specific oral and written
instruction that “[t]he State has the burden of proving beyond a reasonable
doubt that the Defendant did not act in self-defense …. It is a strict and heavy
burden.” Tr. pp. 479-480. We find no merit in the argument that the
prosecutor’s alleged misconduct put Armstead in a position of grave peril,
depriving him of a fair trial, much less that the trial court committed
fundamental error in declining to find as much.
II. Exclusion of Opinion Testimony
[13] Rule 701 of the Indiana Rules of Evidence provides: “If a witness is not
testifying as an expert, testimony in the form of an opinion is limited to one that
is: (a) rationally based on the witness’s perception; and (b) helpful to a clear
understanding of the witness’s testimony or to a determination of a fact in
issue.” While the person giving opinion testimony under Rule 701 need not be
qualified as an expert, he should possess knowledge beyond that of the ordinary
juror. Prewitt v. State, 819 N.E.2d 393, 413 (Ind. Ct. App. 2004) trans. denied.
Trial courts have broad discretion in determining whether lay opinion
testimony satisfies the requirements of admissibility under Rule 701. State v.
Snyder, 732 N.E.2d 1240, 1245 (Ind. Ct. App. 2000). “Accordingly, we will
reverse a trial court’s ruling on the admissibility of evidence only when the trial
court abused its discretion. An abuse of discretion involves a decision that is
clearly against the logic and effect of the facts and circumstances before the
court.” Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003) (citations
omitted). Finding that the trial court erred in the admission or exclusion of
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evidence is not alone enough to warrant reversal. Corbett v. State, 764 N.E.2d
622, 628 (Ind. 2002). Such errors are to be disregarded as harmless unless they
affect the substantial rights of the party. Id.
[14] Armstead attempts to draw comparisons to Smith v. State, 829 N.E.2d 64 (Ind.
Ct. App. 2005). In Smith, another panel of this court affirmed the admission of
a detective’s lay opinion testimony about what Smith appeared to be doing in a
videotape made at the police station while Smith waited alone in an interview
room. Id. at 72. Specifically, the detective testified that Smith appeared to be
pulling money from a body cavity. Id. In reaching this conclusion, we noted
that the detective had been a member of the drug task force for three-and-a-half
years, had received specific training at the United Drug Task Force beyond that
provided to police officers, and had conducted numerous controlled buys. As
such, the detective’s training and experience gave her knowledge beyond that of
the average juror with regard to the drug culture and helped the jury determine
whether Smith had been in possession of money from a controlled drug sale
with an informant.
[15] Armstead’s reliance on Smith is misplaced. In this instance case, Detective
Fortune had no specific knowledge or insight as to the events in the video
beyond that of the average juror. Detective Fortune did not record the video
nor was he present during the altercation. The jury heard testimony as to what
was on the video from Owens, who recorded the video, in addition to several
witness descriptions of the altercation. Detective Fortune had no additional
information which could provide the jury with insight as to what was shown on
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the video. Furthermore, simply because the trial court in Smith was within its
discretion to allow a detective’s description of a video does not mean that the
trial court in the instant case was not within its broad discretion to disallow a
video description.
[16] Even assuming the trial court erred, any such error was harmless and would not
warrant reversal. In addition to the testimony of numerous witnesses which
discounted Armstead’s version of the events, Owens testified that Armstead
attacked Larry without provocation and that she at no point saw Larry with a
gas can. It is hard to imagine any potential evidence Detective Fortune could
have provided about the video which would bolster Armstead’s version of the
events, much less lead the jury to a different conclusion.
[17] The judgment of the trial court is affirmed.
Najam, J., and Mathias, J, concur.
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