MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 14 2017, 10:37 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James D. Crum Curtis T. Hill, Jr.
Coots, Henke & Wheeler, P.C. Attorney General of Indiana
Carmel, Indiana
Angela N. Sanchez
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Colton Duria Lee, December 14, 2017
Appellant-Defendant, Court of Appeals Case No.
29A02-1708-CR-1689
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Honorable Gail Bardach,
Appellee-Plaintiff. Judge
Trial Court Cause No.
29D06-1703-F6-1938
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017 Page 1 of 11
Case Summary
[1] Colton Duria Lee (“Lee”) appeals his conviction, following a jury trial, for
battery resulting in moderate bodily injury as a Level 6 felony.1 We affirm.
Issues
[2] Lee raises the following issues on appeal:
I. Whether the trial court committed fundamental error
when it allowed a police officer’s testimony that Lee did
not wish to speak to police after receiving Miranda
warnings.
II. Whether Lee received ineffective assistance of trial
counsel.
Facts and Procedural History
[3] On March 2, 2017, Lee and Benjamin Sanders (“Sanders”) were housed in the
same cell block of the Hamilton County Jail. Sanders was injured on that day
and, on March 16, the State charged Lee with battery of Sanders, resulting in
moderate bodily injury. Sanders testified at Lee’s June 20 jury trial that, on
March 2, he and Lee argued over a sketch pad and Lee then “ran up on
[Sanders] and pushed” him. Tr. Vol. II at 88. Sanders said he “caught a little
1
Ind. Code § 35-42-2-1(e).
Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017 Page 2 of 11
bit of air and then landed” on a metal chair that was bolted to the ground in a
common area of the cell block. Id. at 89.
[4] Sanders testified that he was not able to move or breathe properly after he
landed on the chair. At first, he thought the pain and discomfort would pass
and he returned to his cell. However, the pain did not pass but became worse,
and he could not take deep breaths. Sanders testified that the pain was the
worst pain he ever felt in his life.
[5] Suzanne Deegan (“Deegan”), the jail nurse, also testified at the jury trial. She
stated that jail officials brought Sanders to her that same day, and, when she
examined him, he was unable to breathe deeply; he was sweaty and pale; and
“he acted like he was in a lot of discomfort.” Id. at 112. Deegan observed a
large red mark on Sanders’ right “flank,” and she determined that Sanders
needed to be treated at a hospital emergency room. Id. Before Sanders was
transported to the hospital, he told Deegan that Lee was the person who had
pushed him into a chair, causing his injuries.
[6] Sanders remained at the hospital for four days, after which the jail placed him
in its medical ward for two additional days for monitoring and treatment of his
pain. Sanders testified that, while he was conscious at the hospital, medical
personnel made an incision in his side and inserted a chest tube, which caused
him additional pain. Deegan also testified that, while Sanders was at the
hospital, she called the hospital to obtain an update on his condition, as she
typically does in order to obtain treatment information and provide updates for
Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017 Page 3 of 11
ongoing care to the jail’s doctor and other jail medical personnel. She testified,
without objection, that the charge nurse from the hospital informed her that
Sanders did not have a broken rib but did have a collapsing lung. Deegan
explained that when the lung is either torn or punctured, air seeps out causing
the lung to collapse. She stated that, when the air leaks slowly, as it appeared
to be doing in Sanders’ case, that often is the result of a tear rather than a
puncture in the lung tissue.
[7] Hamilton County Jail Lieutenant Dustin Castor (“Lt. Castor”) testified at Lee’s
trial that he was on duty as shift commander at the jail on March 2 when jail
personnel informed him that an altercation had occurred between two inmates
and one inmate needed to be sent to the hospital. Lt. Castor said he then went
to the injured inmate, Sanders, and asked him what had happened. Sanders
told Lt. Castor that Lee had pushed him. Lt. Castor testified that he later
reviewed a surveillance video that captured the altercation, but the “video
quality was horrible.” Tr. Vol. II at 141, 143. However, Lt. Castor testified
that, from “what [he] could tell from the video,” it “looked like” an inmate
other than Lee had pushed Sanders. Id. at 141-42.
[8] Hamilton County Sheriff’s Office Detective Todd Rees (“Det. Rees”) also
testified at Lee’s trial. He stated that he was the detective assigned to
investigate how Sanders had been injured on March 2. Det. Rees interviewed
Sanders at the hospital the day after the injury, and he testified that Sanders
identified and described Lee as the person who had pushed him onto the chair.
Det. Rees also showed Sanders a photograph of Lee, and Sanders again
Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017 Page 4 of 11
identified Lee, the person in the photograph, as the person who had pushed
him.
[9] At the end of Det. Rees’ testimony, the following exchange occurred, without
objection:
[Prosecutor:] All right. What’s the next step you took in the
investigation, if any?
[Det. Rees:] Then I went back to the Hamilton County Jail[,] and
me and another detective interviewed approximately six inmates
in Mr. Lee’s cell. And I ended up interviewing Mr. Lee and read
him his Miranda Rights and he didn’t want to talk.
[Prosecutor:] Okay. Any further steps in the investigation?
[Det. Rees:] I mean, just filled out charging information and sent
it over.
Tr. Vol. II at 150.
[10] On June 20, 2017, the jury found Lee guilty as charged, and, on June 28, the
trial court sentenced him accordingly. This appeal ensued.
Discussion and Decision
Doyle Violation
[11] Citing Doyle v. Ohio, 426 U.S. 610 (1976), Lee contends that the trial court erred
in allowing Det. Rees to testify that Lee did not wish to speak to police after
Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017 Page 5 of 11
receiving Miranda warnings. In Doyle, the United States Supreme Court held
that using a defendant’s post-arrest, post-Miranda silence to impeach an
exculpatory explanation offered for the first time at trial violated the
defendant’s due process rights. Id. at 618; see also Wainwright v. Greenfield, 474
U.S. 284, 292 (1986) (applying Doyle to also prohibit use of a defendant’s
silence to establish guilt). The Doyle principle “rests on the fundamental
unfairness of implicitly assuring a suspect that his silence will not be used
against him and then using his silence to impeach an explanation subsequently
offered at trial,” Barton v. State, 936 N.E.2d 842, 850 (Ind. Ct. App. 2010), trans.
denied, or “as affirmative proof in the State’s case in chief.” Kubsch v. State, 784
N.E.2d 905, 914 (Ind. 2003).
[12] However, as an initial matter, we observe that Lee admittedly failed to object at
trial to Det. Rees’ testimony regarding Lee’s silence. It is well-established that
we generally will not address an argument that was not raised in the trial court
and is raised for the first time on appeal.
[A] trial court cannot be found to have erred as to an issue or
argument that it never had an opportunity to consider.
Accordingly, as a general rule, a party may not present an
argument or issue on appeal unless the party raised that
argument or issue before the trial court. Marshall v. State, 621
N.E.2d 308, 314 (Ind. 1993). In such circumstances the
argument is waived. Id.
Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017 Page 6 of 11
Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004). By failing to raise his
objection to Det. Rees’ testimony at trial, Lee has waived our review of that
issue.
[13] Waiver notwithstanding, we find no Doyle violation.2 The rule articulated in
Doyle is not “‘a prima facie bar against any mention whatsoever of a
defendant’s right to request counsel, but instead guards against the exploitation
of that constitutional right by the prosecutor.’” Willsey v. State, 698 N.E.2d 784,
793 (Ind. 1998) (quoting Lindgren v. Lane, 925 F.2d 198, 202 (7th Cir. 1991)).
The crucial constitutional question “is ‘the particular use to which the post-
arrest silence is being put.’” Id. (citing Lindgren, 925 F.2d at 202). “A jury’s
knowledge that a defendant initially remained silent is not a problem when that
knowledge is not used to subvert the defense in Doyle fashion.” Mendenhall v.
State, 963 N.E.2d 553, 565 (Ind. Ct. App. 2012), trans. denied.
[14] Here, the testimony of Det. Rees that Lee now challenges is, in full: “And I
ended up interviewing Mr. Lee and read him his Miranda Rights and he didn’t
want to talk.” Tr. Vol. II at 150. The prosecutor did not specifically elicit that
information from Det. Rees, nor did the prosecutor—or anyone else—make
prior or further mention of that information. Certainly no one urged the jury to
draw any conclusion from Lee’s decision not to speak to the police. Thus,
unlike in Doyle, the State did not put Lee’s post-arrest silence to any improper
2
Because we find no Doyle error, we need not address Lee’s contention that the fundamental error exception
to waiver applies.
Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017 Page 7 of 11
use, either as evidence of guilt or to impeach him. And, the mere mention of
Lee’s post-arrest silence, alone, does not constitute a Doyle violation.
Mendenhall, 963 N.E.2d at 565.
Ineffective Assistance of Trial Counsel
[15] Lee asserts that his trial counsel was ineffective for failing to object to Det.
Rees’ testimony regarding Lee’s post-Miranda silence and to the testimony of
the jail nurse, Deegan, regarding the hospital’s diagnosis of Lee’s condition. 3
As the Indiana Supreme Court has observed, we
review claims of ineffective assistance of counsel under the two
components set forth in Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must
show that counsel’s performance was deficient. Id. at 687, 104
S.Ct. 2052. This requires a showing that counsel’s representation
fell below an objective standard of reasonableness, id. at 688, 104
S.Ct. 2052, and that the errors were so serious that they resulted
in a denial of the right to counsel guaranteed the defendant by the
Sixth Amendment, id. at 687, 104 S.Ct. 2052. Second, the
defendant must show that the deficient performance prejudiced
the defendant. Id. To establish prejudice, a defendant must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. Id. at 694, 104 S.Ct. 2052. A reasonable
probability is a probability sufficient to undermine confidence in
the outcome. Id.
3
Because he raises a record-based claim of ineffective assistance of trial counsel, Lee properly raises the
claim on direct appeal. See Woods v. State, 701 N.E.2d 1208, 1211-12 (Ind. 1998).
Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017 Page 8 of 11
Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002).
[16] We will not second-guess trial counsel’s strategy and tactics unless they are so
unreasonable that they fall outside objective standards. See, e.g., Benefield v.
State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011). Isolated mistakes, poor
strategy, inexperience, and instances of bad judgment do not necessarily render
representation ineffective. Wentz, 766 N.E.2d at 361. And if a claim of
ineffective assistance of counsel can be disposed of by analyzing the prejudice
prong alone, we will do so. Benefield, 935 N.E.2d at 797 (citing Wentz, 766
N.E.2d at 360).
[17] Here, we need not address whether trial counsel’s performance was deficient
because, even if it was, Lee has failed to show a reasonable probability that, but
for counsel’s alleged errors, the result of his trial would have been different. As
noted above, Lee was not harmed by his counsel’s failure to object to testimony
about his post-Miranda silence because there was no Doyle violation. Moreover,
even if there had been a Doyle violation, Lee failed to establish that the outcome
of his trial would have been different had Det. Rees’ not been permitted to
testify that Lee remained silent after Miranda warnings. The victim, Sanders,
testified that he was acquainted with Lee, and Lee was the person who pushed
him and caused his injuries. There was evidence that Sanders identified Lee as
the perpetrator immediately after the incident—to Lt. Castor and to the jail
nurse, Deegan—and also the next day—to Det. Rees. Given the evidence that
Lee was the person who pushed Sanders, we cannot say the outcome of Lee’s
Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017 Page 9 of 11
trial would have been different without Det. Rees’ testimony mentioning that
Lee remained silent after being given Miranda warnings.
[18] Similarly, even if we assume for the sake of argument that Lee’s counsel should
have objected to the jail nurse’s hearsay testimony regarding Sanders’
punctured lung, there was sufficient non-hearsay evidence that Sanders suffered
“moderate bodily injury” to sustain Lee’s conviction. Sanders testified that
Lee pushed him, causing him to fall onto a metal chair and experience the
worst pain of his life. Both Sanders and Deegan testified that Sanders had
trouble breathing and was in pain. Deegan testified that Sanders also had a
large red mark on his right side, and that his condition was serious enough that
he needed to be treated at a hospital. And both Sanders and Deegan testified
that Sanders was, in fact, hospitalized for four days due to the injury caused by
Lee and placed on the medical ward of the jail for another two days after his
release from the hospital. That evidence, alone, is sufficient to show that
Sanders suffered “moderate bodily injury” as a result of Lee’s battery of him.
Cf., e.g., Whitlow v. State, 901 N.E.2d 659, 661-62 (Ind. Ct. App. 2009) (holding
that evidence that defendant struck victim, caused her severe pain, and left
marks on her body was sufficient evidence to show serious bodily injury, even
though victim did not seek medical attention or take pain medications for her
injuries). Lee has failed to establish that the outcome of his trial would have
been different if Deegan had not been permitted to testify that the hospital said
Sanders had a punctured lung.
Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017 Page 10 of 11
Conclusion
[19] Lee waived his Doyle claim by failing to raise it in the trial court. Waiver
notwithstanding, Lee has failed to show that Det. Rees’ testimony about Lee’s
silence amounted to a Doyle violation. And Lee has failed to show that he was
prejudiced by his trial counsel’s alleged ineffective performance.
[20] Affirmed.
Kirsch, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017 Page 11 of 11
Colton Duria Lee v. State of Indiana (mem. dec.)
Combined Opinion