MEMORANDUM DECISION FILED
Mar 17 2016, 6:11 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Yvette M. LaPlante Gregory F. Zoeller
Keating & LaPlante, LLP Attorney General of Indiana
Evansville, Indiana Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Myles K. Martin, Jr., March 17, 2016
Appellant-Defendant, Court of Appeals Case No.
82A01-1507-CR-966
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Robert J. Pigman,
Appellee-Plaintiff. Judge
Trial Court Cause No.
82D02-1404-FB-418
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016 Page 1 of 13
STATEMENT OF THE CASE
[1] Appellant-Defendant, Myles K. Martin (Martin), appeals his conviction for
carjacking, a Class B felony, Ind. Code § 35-42-5-2(1) (2014); resisting law
enforcement, a Class D felony, I.C. § 35-44-3-3(a)(1); resisting law enforcement,
a Class A misdemeanor, I.C. § 35-44-3-3(a)(2); and his adjudication as a
habitual offender, I.C. § 35-50-2-8.
[2] We affirm.
ISSUES
[3] Martin raises two issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion when it admitted certain out-
of-state documents; and
(2) Whether the State committed prosecutorial misconduct amounting to
fundamental error.
FACTS AND PROCEDURAL HISTORY
[4] On March 29, 2014, at approximately 8.00 a.m., Pennie Hart (Hart), a
hairdresser from Evansville, Indiana, drove her silver Lexus SUV to work.
When she parked the vehicle, a man, later identified as Martin, opened her
driver’s door, pointed an object that appeared to be a handgun at her, and
ordered Hart to exit the vehicle. Afraid that she would get shot, Hart complied
Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016 Page 2 of 13
with the order. Martin entered the vehicle and drove away. Hart immediately
called the police.
[5] Shortly thereafter, police officers spotted the SUV outside a nearby apartment
complex. One of the officers approached the SUV, identified himself as a
police officer, and commanded Martin to show his hands and exit the vehicle.
Martin refused, backed the SUV up into a parked car, and drove away. The
officers shot the tires of the vehicle. After a brief chase, Martin abandoned the
SUV in a muddy field, leaving his driver’s license in the process, and continued
to flee on foot. He was apprehended before he was able to cross the field.
During their investigation, law enforcement recovered a BB gun, which was
consistent with Hart’s description of the weapon used by Martin, from the
SUV.
[6] On April 1, 2014, the State filed an Information charging Martin with Count I,
armed robbery, a Class B felony; Count II, carjacking, a Class B felony; Count
III, felon carrying a handgun, a Class C felony; Count IV, resisting law
enforcement, a Class D felony; and Count V, resisting law enforcement, a Class
A misdemeanor. On April 2, 2014, the State alleged Martin to be a habitual
offender. A bifurcated jury trial was commenced on June 8, 2015. During the
guilt phase of the trial, the jury found Martin guilty of robbery, carjacking, and
two Counts of resisting law enforcement. During the habitual offender phase of
the trial, the State alleged that Martin had previously been convicted of two
unrelated felonies. Martin’s first felony was an unlawful taking of a 1994
Chrysler automobile on or about June 10 or 11, 1996, in Daviess County,
Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016 Page 3 of 13
Kentucky. Martin was convicted for theft on January 31, 1997, under Cause
No. 96-CR-214. His second felony was a car chase on July 2, 2012, in Daviess
County, Kentucky. Martin was convicted for fleeing or evading police in the
first degree on January 18, 2013, under Cause No. 12-CR-514.
[7] To establish Martin’s conviction in Cause No. 96-CR-214, the State offered
certified copies of the indictment, motion to enter guilty plea, the judgment and
sentencing order. Each document was stamped with a certification stating “I
certify that the foregoing is a full and correct copy as appears in my office, this
4[th] day of Feb[.], 2015, Susan W. Tierney, Clerk Daviess Circuit Court, by
J.B. D.C.” (Ex. 1-3); (Appellant’s App. pp. 149-156) (handwritten part
italicized). The judgment and sentencing order stated Martin’s date of birth and
his social security number. To prove Martin’s conviction in Cause No. 12-CR-
514, the State offered certified copies of the indictment, motion to enter guilty
plea, and the judgment and sentencing order. Each document was stamped
with a certification stating, “I certify that the foregoing is a full and correct copy
as appears in my office, this 4[th] day of Feb[.], 2015, Susan W. Tierney, Clerk
Daviess Circuit Court, by J.B. D.C.” (Ex. 4-6); (Appellant’s App. pp. 163-172)
(handwritten part italicized). The judgment and sentencing order stated
Martin’s date of birth, and the indictment stated his social security number.
Martin objected to the admission of Exhibits 1 through 6 claiming that they did
not comply with Ind. Evidence Rule 902, but the trial court overruled his
objections.
Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016 Page 4 of 13
[8] During closing arguments, defense counsel acknowledged that the evidence
admitted by the trial court established Martin’s convictions for two prior
unrelated felonies. Nonetheless, defense counsel urged the jury to decline
finding Martin a habitual offender. Defense counsel compared Martin to a
hypothetical person alleged to be a habitual smoker:
If you smoke, if you are a habitual smoker, you probably smoke
every day. It’s not where you smoke when you’re 19 years old,
maybe have a cigar when you’re 19 years old and then you don’t
have another one until you are 35. Well guess what? That is
kind of what we have here. [Martin] was 19 when that first
conviction was entered back in 1997. Nineteen (19) years old.
Sixteen (16) years pass and he is convicted in 2013. Does that
make one habitually in trouble? Habitually in trouble such as to
elevate his sentence before you.
(Transcript p. 156).
[9] In rebuttal, the prosecutor argued:
[Defense counsel] wants you to be swayed by your emotions, he
wants you to um I guess take pity on … Martin because he did
one (1) crime once when he was 19 years old and then didn’t do
anything else, he was a good boy until 2012. Not exactly the
case. He says there were no other convictions in between there.
He doesn’t have any documents to show that there weren’t. He
committed a crime in [1996], he committed one (1) in 2012 and
then again in 2014. He wants you to be swayed by your
emotions. The State Legislature has said you commit crimes in
our State or anywhere else you are deserving of more
punishment. We can’t let you run around committing crimes,
hurting people, some of those crimes where (sic) the same. His
first one was [t]heft, his next one was [t]heft, [f]leeing from the
Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016 Page 5 of 13
police and now he has done it again. And to have it is behavior
it is what he does. [The] State Legislature has determined that he
is a person that needs to be considered [a] Habitual Offender and
that is why they make the law the way it is. We only have to
prove two (2) convictions, we picked two (2), we’ve proven to
you those beyond a reasonable doubt. Find him guilty of being
[a] Habitual Offender.
(Tr. pp. 158-59). Martin did not object to the State’s rebuttal comments. At the
conclusion of the jury trial on June 9, 2015, the jury found Martin to be a
habitual offender. On July 15, 2015, the trial court held a sentencing hearing,
declined to enter judgment for robbery due to double jeopardy concerns, and
sentenced Martin to an aggregate term of 42 years, which included an
enhancement of 30 years due to Martin’s habitual offender status, to be
executed at the Department of Correction.
[10] Martin now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Authenticity of Documents
[11] Martin argues that the copies of documents showing his prior convictions in
Kentucky were not properly authenticated, and hence the trial court erred in
admitting them. The determination of whether evidence has been
authenticated is within the discretion of the trial court. In re B.J.R., 984 N.E.2d
687, 694 (Ind. Ct. App. 2013). We will reverse the trial court’s ruling only for
an abuse of discretion. Id. An abuse of discretion occurs when the decision is
Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016 Page 6 of 13
clearly erroneous and against the logic and effect of the facts and circumstances
before the court. Id.
[12] In Indiana, the determination of whether an order of conviction and sentencing
from another state is authenticated and may be admitted into evidence is
governed by the Rules of Evidence. Id. at 694-95; see Ind. Trial Rule 44. Under
the Rules of Evidence, the requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to support
a finding that the matter in question is what its proponent claims. In re B.J.R.,
984 N.E.2d at 695; see Evid. R. 901(a). Certain documents, however, are self-
authenticating and no extrinsic evidence is necessary for their admission. T.R.
902. These documents include certified copies of public records pursuant to
T.R. 902(4). A certification, which states that it is the official original record, or
a true and accurate copy thereof, by a public officer from the specific
jurisdiction where the record is kept is sufficient to authenticate the record, and
there is no mandate that the certification take a particular form. In re B.J.R.,
984 N.E.2d at 695. The certifying officer’s initials are sufficient attestation.
Dumes v. State, 718 N.E.2d 1171, 1177 (Ind. Ct. App. 1999), supplemented on
reh’g, 723 N.E.2d 460 (Ind. Ct. App. 2000). Moreover, certification under seal
is required only when proof of the record’s possession is at issue. Id. Finally,
there is no requirement of extrinsic proof or judicial certification that the
certifying public official is the record’s custodian. Id.
[13] Here, our review of the record indicates that the trial court was within its
discretion in admitting the evidence. Exhibits 1 through 6 were copies of court
Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016 Page 7 of 13
documents showing Martin’s prior out-of-state convictions and fell within the
self-authenticating category of the trial rules and do not require proof by
extrinsic evidence. A proper public officer charged to keep these records was
the circuit court clerk. See Mercer v. Com., 330 S.W.2d 734, 737 (Ky. Ct. App.
1959). A deputy clerk was authorized to authenticate court records. See Lucas
v. Comm., 134 S.W. 456, 457 (Ky. Ct. App. 1911). Further, each Exhibit was
stamped with a certification statement that left blank space for a date and a
signature. The signature line ended with “D.C.,” which we find to stand for
Deputy Clerk. (Ex. 1-6); see, e.g., Stewart v. State, 688 N.E.2d 1254, 1259 (Ind.
1997) (a record of prior conviction from Kenton County, Kentucky, was
certified by a deputy clerk of the circuit court with “Marry Ann Woltenberg,
Clerk. By Judy Stall, D.C.,” where “D.C.” was inferred to be Deputy Clerk).
Finally, the deputy clerk dated and initialed each certification statement
attesting each copy to be true and correct. Because there is no particular form
required for the attestations, we find that these certification statements made by
the custodian of the court records in Daviess County, Kentucky, satisfy our
rules of evidence. As such, we conclude that the trial court was within its
discretion to find Exhibits 1 through 6 properly authenticated.
II. Prosecutorial Remarks
[14] Martin alleges that the prosecutor committed misconduct during her rebuttal
argument.
In reviewing a claim of prosecutorial misconduct properly raised
in the trial court, we determine (1) whether misconduct occurred,
Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016 Page 8 of 13
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. A
prosecutor has the duty to present a persuasive final argument
and thus placing a defendant in grave peril, by itself, is not
misconduct. Whether a prosecutor’s argument constitutes
misconduct is measured by reference to case law and the Rules of
Professional Conduct. 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. 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.
Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (internal citations omitted), reh’g
denied.
[15] Martin neither raised any objection to, nor sought relief from, the prosecutor’s
remark during trial. Therefore, now, to avoid procedural default, the defendant
must establish not only the grounds for prosecutorial misconduct but must also
establish that the prosecutorial misconduct constituted fundamental error. Id.
at 667-68. 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. Id. at 668. In other words, to establish fundamental error, the
defendant must show that, under the circumstances, the trial court 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
Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016 Page 9 of 13
(b) present an undeniable and substantial potential for harm. Id. The element
of such harm is not established by the fact 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. Id.
In evaluating the issue of fundamental error, our task [then] 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.
Id. (emphasis in original).
[16] Here, pointing to the prosecutor’s rebuttal statement that it was “not exactly the
case” that Martin had lived a law-abiding life between 1997 and 2012 and that
the State had “picked two” prior convictions, Martin maintains that the
prosecutor in essence suggested to the jury that Martin did not live a law-
abiding life until 2012, improperly used facts not in evidence, and improperly
shifted the burden of proof to Martin to show that that he had no convictions
between 1997 and 2012. (Appellant’s Br. p. 8).
[17] Our review of the record indicates that the prosecutor’s remark in response to
defense counsel’s closing argument, when placed within the context of both
arguments, was not an impermissible inference. Defense counsel compared
Martin to someone alleged to be a habitual smoker, who smokes every day. He
Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016 Page 10 of 13
continued his illustration and suggested that smoking three times in many years
does not make one a habitual smoker. Defense counsel then asserted that,
likewise, Martin was not “habitually in trouble such as to elevate his sentence
before [the jury]” and Martin’s “three incidences of criminal activity” in 18
years did not make him a habitual offender. (Tr. pp. 156-57). Martin was not
merely stating that the State had not proven additional unrelated felonies;
rather, he was suggesting that he had not been involved in any criminal conduct
during those years. The prosecutor’s response mainly amounted to pointing to
the speculative nature of Martin’s comparison and resulting conclusion. Under
these circumstances, where defense counsel introduced a hypothetical example,
compared it to the defendant’s situation, made an inference, and then was
rebutted with the evidence of his prior convictions, we fail to see the alleged
prosecutorial wrong, use of facts outside of the evidence, and shift of the burden
of proof.
[18] Furthermore, even if the prosecutor’s response had a negative effect on the jury,
such effect was de minimus because the jury had received proper preliminary and
final instructions. See, e.g., Neville v. State, 976 N.E.2d 1252, 1263-65 (Ind. Ct.
App. 2012) (the defendant was not placed in grave peril by prosecutor’s
statement because the trial court’s preliminary and final jury instructions
diminished any persuasive effect the prosecutor’s comments might have had on
the jury’s decision if left unanswered), trans. denied; Stephenson v. State, 742
N.E.2d 463, 485 (Ind. 2001) (“Having found that any prosecutorial impropriety
which may have occurred was de minimus or otherwise overcome by the trial
Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016 Page 11 of 13
court’s admonishments and instructions, we are unable to conclude that
Defendant was placed in grave peril.”). In its preliminary instructions, the trial
court informed the jury that it must base its decision only on the evidence
presented during the trial and trial court’s instructions on the law. In Court’s
Preliminary Instruction No. 13, the trial court clearly stated:
When the evidence is completed, the attorneys may make final
arguments. The final arguments are not evidence. The attorneys
are permitted to characterize the evidence, discuss the law[,] and
attempt to persuade you to a particular verdict. You may accept
or reject those arguments as you see fit.
(Appellant’s App. p. 55).
[19] During the habitual offender phase of the trial, the State introduced the
evidence of Martin’s prior felony convictions in Kentucky. In the final
instructions, the trial court incorporated all previous instructions and thereby
reiterated that the jury must consider only the evidence admitted by the trial
court in the jury’s presence and disregard all other information from all other
sources. Under these circumstances, we find that the jury instructions were
sufficient to overcome any potential harm to Martin from the prosecutor’s
remark. We conclude that the prosecutor’s statement made in response to
defense counsel’s inference of Martin’s good character did not undeniably and
substantially affect the jury’s decision and make a fair trial impossible.
Accordingly, no fundamental error occurred.
Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016 Page 12 of 13
CONCLUSION
[20] Based on the foregoing, we hold that the trial court did not abuse its discretion
when it admitted properly authenticated records of Martin’s prior convictions in
Kentucky, and the prosecutor did not commit misconduct amounting to
fundamental error.
[21] Affirmed.
[22] Najam, J. and May, J. concur
Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016 Page 13 of 13