Feb 08 2016, 8:19 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Hilary Bowe Ricks Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Antonio Miles, February 8, 2016
Appellant-Defendant, Court of Appeals Case No.
32A01-1412-CR-509
v. Appeal from the Hendricks
Superior Court;
State of Indiana, The Honorable Mark A. Smith,
Appellee-Plaintiff. Judge;
Trial Court Cause No.
32D04-1310-MR-1
May, Judge.
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[1] Antonio Miles appeals his conviction of murder, a felony. He raises four issues
for our consideration: (1) whether the court abused its discretion by admitting
text messages he sent to the victim; (2) whether the court abused its discretion
by instructing the jury that use of a deadly weapon in a way likely to cause
death could support an inference that a killing occurred knowingly; (3) whether
the prosecutor committed reversible misconduct in closing argument by
suggesting Miles’ was obliged to present evidence; and (4) whether the evidence
was insufficient to support Miles’ conviction.
[2] We affirm.
Facts and Procedural History
[3] On June 8, 2013, Miles argued with Trinity Johnson, the mother of his infant
daughter, in Johnson’s mother’s driveway. Miles was in Johnson’s car, and
Johnson was angrily yelling for Miles to “get the f*ck out” of the car. (Tr. at
330.) Keenan Smith, a contractor who was across the street, saw the argument.
Fifteen to twenty minutes later, one of Smith’s workers yelled for him to call
911. Smith ran to the house. When he entered the garage, he saw Miles next to
Johnson, who was sitting against a wall. She was “gargling blood,” (id. at 335),
and making uncontrolled movements. Miles told Smith that Johnson had been
“playing with the gun” and shot herself in the mouth. (Id. at 332.) Smith called
911. By the time police and paramedics arrived, Johnson was dead.
[4] On October 1, 2013, the State charged Miles with murder. At his jury trial, the
State offered a thirty-six page exhibit of the text messages between Miles and
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Johnson during the eight days before Johnson’s death. (See State’s Ex. 76.)
The texts included Miles telling Johnson what kind of gun to buy for him; Miles
calling Johnson a “Dumb a** b*tch,” (id. at 8), and other names; Johnson
accusing Miles of being with other women, threatening to keep their daughter
from him, calling him names, and asking when he will be home to take care of
their daughter; Miles apologizing for choking Johnson; Johnson telling Miles
that her mother accused them of taking money from her bank account, and
Miles responding that if her mother confronted him with an allegation “sh*t is
gon [sic] get ugly,” (id. at 33); and, when Miles was home with their daughter,
Miles told Johnson to “Get here b4 I throw her a**,” (id. at 36). The court
ruled the text messages were admissible, and it also overruled Miles’ objection
to a jury instruction about when a “knowing” killing could be inferred. During
the State’s closing argument, the court interrupted the State to prevent
discussion of a slide suggesting Miles had not presented any evidence and the
court sua sponte instructed the jury that a defendant never has a burden to
present evidence or prove anything. The jury found Miles guilty.
Discussion and Decision
Sufficiency of Evidence
[5] When reviewing sufficiency of evidence, we consider “only the probative
evidence and reasonable inferences supporting the verdict without weighing the
evidence or assessing witness credibility.” Lewis v. State, 34 N.E.3d 240, 245
(Ind. 2015). We affirm if “a reasonable trier of fact could conclude that the
defendant was guilty beyond a reasonable doubt.” Id.
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[6] To convict Miles of murder, the State had to prove he knowingly killed
Johnson. See Ind. Code § 35-42-1-1(1) (defining murder as the knowing or
intentional killing of a human). There is no doubt that Johnson died of a
gunshot wound to the face that was inflicted when she, Miles, and their infant
daughter were the only people in the house. The only question was whether
Johnson shot herself or Miles shot her.
[7] An autopsy revealed the bullet that killed Johnson entered her face just above
her upper lip and to the left of her mouth. The bullet was on a downward
trajectory and travelling from her left to right. After shattering her jaw it
severed her spinal cord. A pathologist testified the bullet would not have
changed direction after hitting her jaw. From the downward trajectory of the
bullet, the pathologist opined Johnson was upright and looking forward when
she was shot. Because the gun had to be above Johnson’s face when it fired, the
evidence does not support an inference that Johnson accidentally shot herself
when she dropped the gun. Also countering Miles’ explanation of the shooting
is the fact that the gun did not misfire when it was struck more than 200 times
with a rubber mallet in a laboratory testing.
[8] Additional laboratory testing revealed the gun produced stippling 1 up to twenty-
four inches from the muzzle. By subtracting the length of the gun barrel from
1
Stippling is a “puck marking” that occurs around a gunshot wound. Wallace v. State, 725 N.E.2d 837, 839
(Ind. 2000). The effect is produced by “unburned gun powder flakes” that exit the muzzle and land on the
skin of the victim. (Tr. at 1268.)
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the length of Johnson’s arms, the pathologist determined that if Johnson shot
herself, the gun muzzle could not have been more than fourteen inches from her
face. Yet, the pathologist found no stippling on Johnson’s face. Johnson did
not have soot near or on the wound, nor did she have charring, burning, or
searing around the wound. These facts preclude a reasonable inference that
Johnson shot herself while holding the gun. (See, e.g., Tr. at 1273) (Forensic
pathologist answered, “No,” when asked, “Doctor, to a reasonable degree of
scientific certainty, did Trinity Johnson shoot herself?”).
[9] Miles provided multiple explanations of the shooting, but in none of them was
he holding the gun. He told the first person to the scene, construction-worker
Smith, that Johnson “was playing with the gun, the safety was off and she shot
herself in the mouth.” (Tr. at 332.) The 9-1-1 operator recorded Miles giving
the following explanation:
DISPATCH: Did you find her like this or did you see this happen?
[MILES]: Well, I came home and she was putting the gun up,
cause she was sitting here with the gun – she was putting
the gun up –
DISPATCH: (Interposing) And you saw her do it?
[MILES]: She was looking down the barrel like a dumba** – I – I
don’t even want to call her that right now (inaudible) –
(Id. at 338.) When the responding officer, Sergeant Brett Clark, arrived and
asked what was happening, Miles again said Johnson had been “looking down
the barrel of the f*cking gun.” (Id. at 342.) A few minutes later, Sergeant
Clark’s body camera recorded Miles saying: “I don’t know what the f*ck she
was doing – she looked down the barrel of the gun and f*ck and she – I said
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what the f*ck. She had to pull the trigger. No gun goes off without the f*cking
trigger being pulled.” (Id. at 375.) A few minutes later Miles said he heard the
gunshot because “I was right here” and “saw her do the sh*t.” (Id. at 380.) He
explained she had not put the gun in her mouth, “it was from the outside of her
mouth like – like she looked down the barrel . . . .” (Id.)
[10] When the lead detective, Scott Larsen, arrived, Miles’ story began to change.
At the scene, Miles told Detective Larsen that he did not actually see the gun go
off, because he had walked into the kitchen. Then, in a recorded statement
given to Detective Larsen that evening at the Sheriff’s Department, Miles first
said he was walking the baby outside when he “heard a pop.” (Id. at 600.)
Next, he said he heard the “pop [and] turned around.” (Id. at 601.) When
asked whether he was “actually looking at her when the shot went off,” (id. at
618), Miles said “No, I didn’t – I didn’t look at her when the shot went off.
Well, as soon as it went off, I turned around . . . .” (Id.) A bit later he said he
did not know how she had the gun because he was “outside.” (Id. at 650.)
[11] Five months later when Miles was arrested, Detective Larsen told Miles that
the forensic testing indicated Johnson had not been holding the gun when it
was fired. Then this exchange occurred:
[Miles]: I wasn’t in the f*cking house when the gun went off.
[Detective]: You weren’t even in the house?
[Miles]: No, I wasn’t –
[Detective]: Okay.
[Miles]: --even in the house when the gun went off.
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[Detective]: Okay, that’s not what you told me. You actually told
two different stories, at least two different stories on the
day that it happened and both times you were actually in
the house.
[Miles]: I was not inside the house when it went off. I was
putting stuff in the car for my daughter. We were going
to the hospital.
[12] (Id. at 674.) After Miles was booked, Detective Larsen again interviewed him:
[Detective]: . . . You’ve not given a plausible explanation of what
happened.
[Miles]: Because I can’t. I wasn’t – I – I didn’t see it.
[Detective]: When-
[Miles]: How will I give – I didn’t see the sh*t happen.
(Id. at 682.)
[13] Not only did Miles’ explanation of the shooting change, he made claims that
the pathologist said were impossible. On at least two occasions, Miles said
Johnson talked to him after the shooting: “I said, can you breathe baby? Can
you breathe? And she nodded her head, no. . . . She was talking to me for a
little bit. And then she just quit talking.” (id. at 621); “I said, are you all right?
I said, can you breathe? She said, no. . . . I was just talking, trying to keep her
talking.” (Id. at 651.) The pathologist explained that after her spine was
severed Johnson may have made noises as air left her lungs, but she would not
have been “talking.” (Id. at 1263.)
[14] In light of the improbability that Johnson knowingly or intentionally shot
herself and the contradictions between Miles explanations at various times, the
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record contained abundant evidence to support the jury’s inference that Miles
knowingly killed Johnson. See, e.g., Fry v. State, 25 N.E.3d 237, 249 (Ind. Ct.
App. 2015) (circumstantial evidence sufficient to permit jury to conclude Fry
shot victim in the head), trans. denied.
Admission of Text Messages
[15] We review rulings on the admission of evidence for an abuse of discretion.
Pavlovich v. State, 6 N.E.3d 969, 975 (Ind. Ct. App. 2014), trans. denied. An
abuse of discretion occurred if the trial court misinterpreted the law or if its
decision was clearly against the logic and effect of the facts and circumstances
before it. Id.
[16] Miles challenges the admission of text messages between him and Johnson
because they “paint[ed] Miles as a disrespectful, abusive, manipulative thug,
and the jury would almost certainly assume that he had acted in conformity
with his reprehensible character and shot Johnson in a flash of anger . . . .” (Br.
of Appellant at 16.) This argument is based on Evidence Rule 404(b), which
prohibits admission of evidence to “prove a person’s character in order to show
that on a particular occasion the person acted in accordance with the
character.”
[17] However, Miles did not object at trial to the text messages on that basis.
Rather, defense counsel explicitly stated he “didn’t make the – the – the highly
prejudicial 404(B) argument which I think is a much stronger argument than the
argument that I made . . . .” (Tr. at 821.) Accordingly, to demonstrate he is
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entitled to a reversal on the basis of Rule 404(b), Miles must demonstrate
fundamental error. See Stephenson v. State, 29 N.E.3d 111, 121 (Ind. 2015)
(“defendant may not here claim error based on grounds not asserted at trial”
unless he demonstrates “fundamental error such as to override the procedural
default”).
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 evaluating the issue of fundamental error, our
task 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.”
Fundamental error is meant to permit appellate courts “a means to
correct the most egregious and blatant trial errors that otherwise would
have been procedurally barred, not to provide a second bite at the
apple for defense counsel . . . .”
Jerden v. State, 37 N.E.3d 494, 498 (Ind. Ct. App. 2015) (internal citations
omitted) (emphasis in original). Miles has not met that heavy burden.
[18] Under Rule 404(b), evidence of bad acts may not be admitted to show “the
person acted in accordance with the character,” Evid. R. 404(b)(1), but it may
be admitted to prove “motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Evid. R.
404(b)(2). The text messages demonstrate Miles and Johnson had a strained
relationship and called one another names. She threatened to stop dating him
and to keep their daughter from him. He threatened violence. One text
included Miles’ apology for choking Johnson. (State’s Ex. 76 at 9.) Because
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those facts about the nature of their relationship are relevant to motive and
absence of mistake, they were admissible under 404(b)(2). See Witham v. State, -
-- N.E.3d ---, 2015 WL 9586984 (Ind. Ct. App. 2015) (holding court did not
abuse its discretion in admitting evidence of prior hostility between victim and
defendant, as hostility is a motive for violence).
[19] Even if the admission had been erroneous, the error could not be fundamental
in light of the overwhelming evidence that Johnson did not shoot herself. See
Halliburton v. State, 1 N.E.3d 670, 683 n.7 (Ind. 2013) (“Where evidence of guilt
is overwhelming any error in the admission of evidence is not fundamental.”).
Jury Instruction
[20] “Instructing a jury is left to the sound discretion of the trial court and we review
its decision only for an abuse of discretion.” Washington v. State, 997 N.E.2d
342, 345 (Ind. 2013). We consider jury instructions in reference to each other,
and we will “not reverse unless the instructions as a whole mislead the jury as
to the law in the case.” Simmons v. State, 999 N.E.2d 1005, 1011 (Ind. Ct. App.
2013), reh’g denied, trans. denied.
[21] Miles challenges a final instruction that stated: “A knowing killing may be
inferred from the use of a deadly weapon in a way likely to cause death.” (App.
at 35.) Miles claims the language of that instruction, while correct as a matter
of law, was inappropriate for a jury instruction.
[22] Miles is right that the instruction is a correct statement of the law. See Barker v.
State, 695 N.E.2d 925, 931 (Ind. 1998) (“To support a conviction of murder,
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knowing killing may be inferred from a defendant’s use of a deadly weapon in a
manner likely to cause death.”), reh’g denied. Miles is also correct that not all
language from judicial opinions is appropriate for jury instructions.
(Appellant’s Br. at 19) (citing Gravens v. State, 836 N.E.2d 490, 494 (Ind. Ct.
App. 2005), trans. denied); see also Keller v. State, No. 88S04-1506-CR-354, slip
op. at 4 (Ind. Jan. 25, 2016) (holding language from appellate opinion that
emphasized certain facts was improper for jury instruction and invaded the
province of the jury, requiring reversal of conviction).
[23] However, Miles is incorrect when he asserts the language at issue was
inappropriate for a jury instruction. In Bethel v. State, 730 N.E.2d 1242, 1246
(Ind. 2000), the trial court instructed the jury that it could “infer intent to
commit murder from the use of a deadly weapon in a manner likely to cause
death or great bodily injury.” There was no error, “fundamental or otherwise,”
in the giving of that instruction. Id. We accordingly decline to hold any error
occurred when a similar instruction was given herein.
Prosecutorial Misconduct
[24] During closing arguments, the deputy prosecutor discussed the evidence
supporting the conviction and had an accompanying slide presentation. During
his argument, the court interrupted and the following side bar occurred:
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[Court]: . . . Have a problem with that last slide. 2
[Defense]: I was about to object to it, Judge.
[Court]: The last slide (inaudible) defendant hasn’t given you
any-defendant’s not required to give them anything.
[State]: Well, (inaudible) he said . . . the gun was dropped.
[Court]: (Inaudible) That’s what she said in her closing; but your
slide suggests that he has some burden to give them,
some other alternative and obviously they don’t.
*****
[Court]: (Inaudible) admonish the jury.
[State]: (Inaudible) in the instructions.
[Defense]: That’s not enough (Inaudible)[.]
[Court]: I’ll remind them that the defense is not required to
present evidence to prove his innocence or explain
anything.
(Tr. at 1389-90) (footnote added). The court then admonished the jury: “Folks,
just as a reminder, the defendant is not required to present evidence; uh, present
any evidence to prove his innocence or to prove or explain anything.” (Id. at
1390.) The defense did not thereafter request a mistrial or additional
admonition.
[25] On appeal, Miles argues the deputy prosecutor’s inclusion of words on a slide
suggesting Miles had a burden to explain what happened was prosecutorial
2
We note that our review of this issue has been hampered by the defendant’s failure to make the content of
the slide part of the record at trial so that on appeal we might know what the jury may have read from the
allegedly prejudicial slide.
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misconduct that “denied full due process protection for Miles, entitling him to a
new trial.” (Br. of Appellant at 25.)
To preserve a claim of prosecutorial misconduct, the defendant must --
at the time the alleged misconduct occurs -- request an admonishment
to the jury, and if further relief is desired, move for a mistrial. Failure
to do so results in waiver. Our standard of review is different where a
claim of prosecutorial misconduct has been waived for a failure to
preserve the claim of error. In such a case, the defendant must
establish not only the grounds for prosecutorial misconduct but also
that the prosecutorial misconduct constituted fundamental error.
Jerden, 37 N.E.3d at 498 (internal citations omitted). Miles did not move for
mistrial after the trial court admonished the jury, and he therefore has a burden
on appeal to demonstrate fundamental error.
[26] The trial court stopped the deputy prosecutor’s presentation when it noticed the
content of the slide. The deputy prosecutor did not read the slide to the jury or
vocalize a suggestion that Miles had a burden to prove any fact or to prove his
innocence. Nevertheless, some of the jurors may have read the content of the
slide. The trial court discussed its concerns with counsel at a sidebar and then
admonished the jury that Miles had no burden to prove or explain anything.
The final jury instructions included this instruction regarding the presumption
of innocence:
Under the law of this State, a person charged with a crime is presumed
to be innocent. To overcome the presumption of innocence, the State
must prove the Defendant guilty of each element of the crime charged,
beyond a reasonable doubt.
The Defendant is not required to present any evidence to prove his
innocence or to prove or explain anything.
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(App. at 70.) In light of the jury instructions, the admonition, and the abundant
evidence of guilt, Miles has not demonstrated “such an undeniable and
substantial effect on the jury’s decision that a fair trial was impossible.” Jerden,
37 N.E.3d at 498; and see id. at 500 (in light of facts and jury instructions, no
fundamental error occurred).
Conclusion
[27] We find no reversible error in the challenged jury instruction, the admission of
text messages, or the prosecutor’s slide that allegedly referenced Miles’ decision
to not present any evidence. In light of the abundant evidence of Miles’ guilt,
we affirm.
[28] Affirmed.
Crone, J., and Bradford, J., concur.
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