MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Aug 26 2015, 8:48 am
this 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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott King Gregory F. Zoeller
Russell W. Brown, Jr. Attorney General of Indiana
Scott King Group
Larry D. Allen
Merrillville, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Titus D. Fields, August 26, 2015
Appellant-Defendant, Court of Appeals Case No.
20A05-1501-CR-15
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Terry C.
Appellee-Plaintiff, Shewmaker, Judge
Trial Court Cause No.
20C01-1211-FA-74
Bradford, Judge.
Case Summary
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[1] In April 2012, Elkhart Police Department, with the help of a confidential
informant, conducted two controlled buys of cocaine from Appellant-
Defendant Titus Fields. Fields was convicted of two counts of dealing in
cocaine and sentenced to an aggregate forty-eight year sentence. On appeal,
Fields argues that the trial court erred in not granting his motion to sever the
two counts of dealing in cocaine into separate trials. Fields also argues that
Appellee-Plaintiff the State of Indiana (“the State”) committed prosecutorial
misconduct during its closing argument. We affirm.
Facts and Procedural History
[2] On April 2, 2012, Melissa Sanders, who was working as a confidential
informant with the Elkhart Police Department, contacted Fields about
purchasing cocaine. Prior to the transaction, Elkhart police searched Sanders
and her vehicle, equipped her with an audio recording device, and gave her
$120 in marked currency for use in the transaction. Sanders drove to Fields’s
house where she purchased 3.35 grams of cocaine from Fields for $120. After
the purchase was complete, Sanders met with Elkhart police and turned over
the cocaine and audio recording device.
[3] On April 12, 2012, Elkhart police set up a second controlled buy between Fields
and Sanders. As before, police searched Sanders prior to the transaction and
provided her with money for the buy. Per Fields’s instructions, Sanders picked
up Fields and drove him to his mother’s house where Fields was to pick up the
drugs. After retrieving something from a car parked at the house, Fields
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returned to Sanders’s vehicle and gave Sanders 3.06 grams of cocaine in
exchange for $120. After dropping Fields off at a different house, Sanders met
with Elkhart police and turned over the drugs and recording device. Elkhart
police recorded the phone calls setting up both transactions, as well as the
transactions themselves.
[4] The State charged Fields with two counts of Class A felony dealing in cocaine.
While in custody awaiting trial, Fields made several phone calls to his family
from jail, which were recorded. During these calls, Fields admitted that he had
prepared the drugs for sale to Sanders, stating that he “had them all bagged up
into balls and everything.” Tr. p. 475. Also during these calls, Fields
encouraged his family to influence Sanders to change her story.
[5] On March 31, 2014, Fields filed a motion to sever the two charges. Following a
hearing on the motion, the trial court denied Fields’s motion, reasoning that
“the two offenses are inextricably intertwined” and involve the same witnesses,
the same drug, and were “close in proximity.” App. p. 13.
[6] During the State’s closing argument, the prosecutor discussed Sanders’s
credibility as a witness. “We do ask you on behalf of the State to give due
consideration to [Sanders] because we think on behalf of the State that she
deserve[s] that. She is a tortured person.” Tr. p. 502. At this point, defense
counsel requested a sidebar and the trial court held an off-the-record discussion
with counsels, after which the trial court stated, “There’s been an objection
registered. [] Neither counsel are supposed to give their own personal opinions.
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So to the extent there was an allegation of a personal opinion, you will
disregard that, other than that you are the judges of what the evidence has or
has not shown.” Tr. p. 502. The State went on to make the following
argument:
[T]he State is asking you to believe what [Sanders] has to say.
She is a tortured individual who is caught in a horrible situation,
and she doesn’t know what’s going to come out of that situation.
There is no evidence to say what’s going to happen with her.
There’s no evidence that she knows what’s going to happen to
her or that anybody does. She is a tortured person who came in
under great duress and testified.
Tr. p. 502.
[7] The jury found Fields guilty on both counts of dealing in cocaine. The trial
court sentenced Fields to forty-eight years executed for each count, to be served
concurrently.
Discussion and Decision
[8] On appeal, Fields argues that (1) the trial court erred in denying his motion to
sever and (2) the State committed prosecutorial misconduct when the
prosecutor provided personal opinion regarding Sanders’s credibility as a
witness.
I. Severance
[9] Indiana Code section 35-34-1-9 provides that
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Two (2) or more offenses may be joined in the same indictment
or information, with each offense stated in a separate count,
when the offenses:
(1) are of the same or similar character, even if not part of
a single scheme or plan; or
(2) are based on the same conduct or on a series of acts
connected together or constituting parts of a single scheme
or plan.
Indiana Code section 35-34-1-11 provides that
Whenever two (2) or more offenses have been joined for trial in
the same indictment or information solely on the ground that they
are of the same or similar character, the defendant shall have a right
to a severance of the offenses. In all other cases the court, upon
motion of the defendant or the prosecutor, shall grant a severance
of offenses whenever the court determines that severance is
appropriate to promote a fair determination of the defendant’s
guilt or innocence of each offense considering:
(1) the number of offenses charged;
(2) the complexity of the evidence to be offered; and
(3) whether the trier of fact will be able to distinguish the
evidence and apply the law intelligently as to each offense.
(Emphasis added). Fields argues that the two offenses were improperly joined
solely on the basis that they were of the same or similar character.
[10] The Indiana Supreme Court faced a nearly identical fact pattern in Richter v.
State, 598 N.E.2d 1060, 1063 (Ind. 1992). In Richter, a confidential informant
conducted two separate controlled buys in which he purchased cocaine from
Richter. Id. at 1062. The two buys, which took place one week apart, were
both conducted at Richter’s home. The Court concluded as follows:
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[Richter] argues that the two counts of dealing in cocaine were
joined solely because they were of the same or similar character.
However, an examination of the facts in this case discloses that
the confidential informant, Walker, was working with the police
department on a continuing basis with regard to the surveillance
of appellant and presenting him the opportunity to deal in
cocaine. This was clearly an on-going investigation over a
relatively short period of time concerning [Richter]’s activity as a
dealer in narcotics. It thus falls within this Court’s interpretation
of the statute in Chambers v. State (1989), Ind., 540 N.E.2d 600;
Sweet v. State (1982), Ind., 439 N.E.2d 1144. Under the
circumstances, the trial court had the discretion under the statute
to grant or refuse severance. There was no error here.
Id. at 1063.
[11] Here, as in Richter, police used a confidential informant to conduct two
controlled buys approximately one week apart. Both buys were part of the
same on-going investigation over a relatively short period of time concerning
Fields’s activity as a dealer in narcotics. We see no reasons to distinguish this
case from Richter and decline to do so. The trial court was within its discretion
to deny Fields’s motion to sever.
II. Prosecutorial Misconduct
[12] “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
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
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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)).
[13] Fields properly objected to the alleged misconduct at trial. However, Fields
declined to argue that the trial court’s admonishment was insufficient and did
not request a mistrial. 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
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of ultimate conviction but rather depends upon whether the
defendant’s 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).
[14] Fields argues that it was improper for the prosecutor to ask the jury “to give due
consideration to [Sanders] because we think on behalf of the State that she
deserve[s] that. She is a tortured person.” Tr. p. 502. Fields argues that this
was misconduct because “‘the prosecutor is required to confine [his] closing
argument to comments based upon evidence presented in the record.’ [Lambert
v. State, 743 N.E.2d 719, 734 (Ind. 2001)], [and] [t]here was no evidence
presented during trial that Sanders was ‘tortured.’” Appellant’s Br. p. 9.
However, contrary to this claim, defense counsel made the following remarks
during closing statements:
The prosecutor referred to Melissa Sanders as a tortured
individual under great duress in her testimony. I agree
completely with the evidence has shown that absolutely. Why is
she a tortured individual? Because she delivered on two
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occasions cocaine for which she has yet to be prosecuted [1], and
she’s – she’s facing that possibility. She’s tortured.
Tr. p. 513. Fields own argument at trial contradicts his argument here.
[15] Even assuming the prosecutor committed misconduct, Fields has failed to
show––or even argue––that the alleged errors are so prejudicial to his rights as
to have made a fair trial impossible, i.e. constituting fundamental error. Ryan, 9
N.E.3d at 667. We are unconvinced that the allegedly improper statements had
any persuasive effect on the jury, much less an effect which put Fields in a
position of “grave peril.” Furthermore, any effects that the statements may
have had on the jury were wholly inconsequential when compared to the
overwhelming evidence against Fields. Aside from Sanders’s testimony, that
evidence includes audio recordings in which Fields told Sanders that the drugs
were ready for her to purchase, testimony from Elkhart officers who arranged
and witnessed the transactions from afar, and Fields’s own admissions during
phone calls made from jail in which he incriminated himself. We find that the
trial court did not commit fundamental error in declining to find that the State
committed prosecutorial misconduct.
[16] The judgment of the trial court is affirmed.
May, J., and Crone, J., concur.
1
Sanders agreed to become a confidential informant after Elkhart police learned that she had been involved
in dealing in cocaine on two prior occasions. (Tr. 270)
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