Attorney for Appellant
Jan B. Berg
Indianapolis, IN
Attorneys for Appellee
Karen Freeman-Wilson
Attorney General of Indiana
Eileen Euzen
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
MAJUAN BOATRIGHT,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 49S00-0007-CR-423
)
)
)
)
)
)
APPEAL FROM THE MARION COUNTY SUPERIOR COURT
The Honorable Mark Renner, Judge Pro Tempore
Cause No. 49G04-9809-CF-156370
ON DIRECT APPEAL
December 20, 2001
SULLIVAN, Justice.
Defendant Majuan Boatright was convicted on multiple counts and
sentenced to 100 years for the sexual assault and robbery of a motel clerk.
We find the overwhelming evidence of his guilt renders any error in the
admission of evidence of his prior criminal history harmless. We also find
the facts supporting different counts sufficiently distinct to reject his
claim of double jeopardy. And given his criminal history, the sentence
imposed is not manifestly unreasonable.
Background
The facts most favorable to the judgment indicate that on September
5, 1998, at approximately 2:15 a.m., Defendant entered the Budgetel Inn. A
woman was working at the front desk at the time. Defendant pulled out a
gun and jumped over a counter. He forced the woman to the back office at
gunpoint and took the money out of the money drawer. He then demanded to
know where the videotape recording of the front desk was kept, but she
lied, insisting that there was no tape. Defendant then forced her to the
front desk and instructed her to pull down the video camera. After she
pulled down the camera, Defendant ordered her to tear down the monitor,
which she was unable to do.
Defendant then ordered the woman into the back office again. While
holding her at gunpoint, he unzipped his pants and required her to perform
oral sex. Defendant then forced her to lower her pants and underwear. He
then tried, unsuccessfully, to penetrate her anally. After telling the
woman to put her clothes on, he demanded her purse and took all of her
money. He then asked whether she could open the safe. When she told him
she couldn’t, he had her unplug the phone and lay down by the safe.
Defendant then fled from the Budgetel.
Defendant was convicted of two counts of Criminal Deviate Conduct,
Class A felonies,[1] Robbery, a class B felony,[2] and Confinement, a class
B felony.[3] He also pled guilty to being a habitual offender.[4] The
trial court sentenced defendant to an aggregate term of 100 years: 50
years for count I, criminal deviate conduct, enhanced by 30 years for being
a habitual offender; 50 years for the other criminal deviate conduct count
to be served concurrently with the first count; 20 years for count III,
robbery, to be served consecutively with count I; and 20 years for count
IV, confinement, to be served concurrently with the first three counts.
Discussion
I
Defendant contends that the trial court committed reversible error in
two respects, the first in response to a juror question, and the other by
admitting a photo array. Defendant argues that these errors unduly
emphasized Defendant’s criminal history to the jury. (Appellant’s Br. at
12.)
A
Toward the end of the trial and following the testimony of Detective
Cahill who identified fingerprints found at the scene as belonging to
Defendant, a juror asked the trial court if she could ask a question. The
trial court instructed the juror to put the question in writing. The
question, submitted by the juror, read:
Were the defendant’s fingerprints only compared to the latent prints
found at the scene just today, just before the witness testified. (He
said he’d pulled the prints 15 minutes earlier.) I guess I’m asking
if they had been previously compared at a lab and that is how the
defendant was charged.
(R. at 144.)
The trial court responded that the State still had additional
witnesses to testify and that they may be able to answer the question. The
court indicated that the parties had been made aware of her concern and
suggested that she wait and see if another witness addresses the issue.
Defendant then sought to prevent testimony that Detective Cahill
filed charges against the Defendant after finding that his fingerprints
matched those at the scene. Defendant wanted to exclude any evidence that
would suggest to the jury that he had been arrested prior to the arrest for
the present crime.
Outside the presence of the jury, the trial judge expressed the view
that the juror was entitled to an answer. The trial court said it was
concerned that “the juror [would be] left with a false impression. That
until [the morning of the trial], [Defendant] was never identified as
having left those prints.”
The Defendant and the State eventually agreed that Detective Cahill
could testify that he had received identification information from another
officer and arrested Defendant in response.
During Detective Cahill’s testimony, and prior to any mention of the
fingerprints, Detective Cahill had identified a photo array he had put
together following the robbery that contained a mug shot of Defendant.
Detective Cahill testified that the victim could not make an identification
from the photo array. Defendant objected to the introduction of the photo
array, arguing that it was not relevant given that the victim was not able
to identify Defendant. Overruling the objection, the trial court allowed
the introduction of the photo array. The trial court reasoned, “The
detective testified that in September of [1998] the photograph that has
been identified as the defendant resembled his appearance on that date. ...
I have not seen it so I don’t know if there’s a difference in that
photograph ... but that’s for the jurors to review and conclude.” (Id.)
Directly after the photo array evidence, the State inquired about the
fingerprint evidence. Detective Cahill testified that he had received
information identifying the fingerprints found at the scene and he arrested
Defendant based on the fingerprint information. Just prior to excusing
Detective Cahill from the stand, the trial court inquired as to whether the
juror’s question had been sufficiently answered. The juror responded that
it had.
Defendant objected to the trial court’s question, arguing that the
trial court’s question highlighted the testimony of Detective Cahill.
Defendant now argues on appeal that the combination of the photo array and
the testimony regarding fingerprints prejudiced Defendant because it
indicated to the jury that Defendant had a criminal history. (Appellant’s
Br. at 15.) Defendant concedes that he did not object to the introduction
of the fingerprint evidence.[5] He also concedes that the admission of a
photo array containing mug shots is not per se inadmissible. Nevertheless,
Defendant argues that the combination of the fingerprint evidence and the
photo array were so prejudicial as to require reversal of his convictions.
B
Generally, evidence of a defendant’s prior criminal history is highly
prejudicial and is not admissible. See James v. State, 613 N.E.2d 15, 22
(Ind. 1993) (citing Roche v. State, 596 N.E.2d 896, 901 (Ind. 1992)). The
admission of a photo array or fingerprint evidence can lead jurors to
conclude that a defendant has previously been arrested. However, we have
previously held that “[m]ug shots are not per se inadmissible [and] are
admissible if (1) they are not unduly prejudicial and (2) they have
substantial independent probative value.” Wisehart v. State, 693 N.E.2d
23, 47 (Ind. 1998); Graves v. State, 496 N.E.2d 383, 386 (Ind. 1986).
Fingerprint evidence has also been found to be prejudicial in some
circumstances. The New York Court of Appeals found it was error to admit a
fingerprint card on which, although defendant’s arrest record had been
blocked out, the uncovered caption “arrest record” appeared. People v.
Balone, 52 A.D.2d 216, 217 (N.Y. 1976).
Here, the cumulative effect of the photographs and fingerprints may
have suggested to the jury that Defendant had a prior criminal history.
Defendant, however, failed to object to the admission of the fingerprint
evidence and we will therefore only reverse if we find fundamental error.
The standard for fundamental error is whether the error was so prejudicial
to the rights of the defendant that a fair trial was impossible. See
Carter v. State, 738 N.E.2d 665, 677 (Ind. 2000) (citing Charlton v. State,
702 N.E.2d 1045, 1051 (Ind. 1998)).
Given the evidence of Defendant’s guilt here, however, we find no
reversible error. “Where the jury’s verdict is supported by independent
evidence of guilt such that upon review we are satisfied that there was no
substantial likelihood that the evidence in question played a part in
appellant’s conviction, any error in its admission is harmless.” Roche,
596 N.E.2d at 901. Here, Defendant was videotaped as he held up the
victim. His fingerprints were also found on the front desk and the
registration card that the victim handed to him. We find no fundamental
error and, in light of the overwhelming evidence of Defendant’s guilt, we
find that any error was harmless.
II
Defendant next contends that his convictions should be set aside
because the prosecutor improperly referred to Defendant’s exercise of his
constitutional right to remain silent.
During the closing argument, the prosecutor made the following
statement to the jury:
Thank you, Judge. [The defense attorney] spent most of his closing
argument telling you that you should not believe [the victim].
Telling you that you could disregard her testimony—that she wasn’t to
be believed. Just said it—just, flat out made a statement but he
didn’t give you any reason to disbelieve her because there is none.
She has absolutely no motive to lie about any of the events that
happened to her—absolutely none. You’ll recall the [trial court’s]
preliminary instructions. He told you, you should not disregard the
testimony of any witness without a reason and without careful
consideration. If you find conflicting testimony, you must determine
which of the witnesses you will believe and which you will disbelieve.
There has been absolutely no conflicting testimony in this trial. The
only testimony and the only evidence that you have heard in this trial
is that [the victim] was robbed, confined and sexually assaulted in
two different manners.
(R. at 16).
“The Fifth Amendment privilege against compulsory self-incrimination
is violated when a prosecutor makes a statement that is subject to
reasonable interpretation by a jury as an invitation to draw an adverse
inference from a defendant's silence.” Moore v. State, 669 N.E.2d 733, 739
(Ind. 1996). Article I, section 14, of the Indiana Constitution also
protects a defendant’s right to remain silent at trial. See id. at 739 n.
14. If in its totality, however, the prosecutor's comment is addressed to
other evidence rather than the defendant's failure to testify, it is not
grounds for reversal. See Hopkins v. State, 582 N.E.2d 345, 348 (Ind.
1991) (citing Hill v. State, 517 N.E.2d 784, 788 (Ind. 1988)).
Defendant never objected to the prosecutor’s comments. Generally,
failure to object at trial results in waiver of an issue for appeal. See
Issacs v. State, 673 N.E.2d 757, 763 (Ind. 1996). When a prosecutor’s
conduct subjects a defendant to grave peril and has a probable persuasive
effect on the jury’s decision, it may amount to fundamental error. See id.
That is what Defendant claims here.
We do not find any error. The prosecutor’s comment did not focus on,
or even mention, Defendant’s decision not to testify. The comment was in
response to Defendant’s closing argument suggesting that the jury should
not believe the victim. The State invoked the language given in the
instruction regarding conflicting testimony and pointed out that the
testimony in this case was not contradictory. See Hopkins, 582 N.E.2d at
348 (“Arguments which focus on the uncontradicted nature of the State's
case do not violate the defendant's right not to testify.”); see also
Callahan v. State, 527 N.E.2d 1133, 1136-37 (Ind. 1988) (holding that the
remark, "Let's see, has there been any witnesses presented who have told us
where [Defendant] was that morning?" did not focus on Defendant’s failure
to testify and thus was not improper.)
III
Defendant contends that his conviction for confinement violates the
Indiana Constitutional prohibition against double jeopardy. (Appellant’s
Br. at 10.)
The victim testified that Defendant jumped over the front desk of the
hotel and asked her where the money was. She told him it was in the back
office. He forced her into the back office and instructed her to give him
the money. The information indicates that Defendant was charged with
confinement for “removing [the victim]” from “the registration desk of the
Budgetel Motel, to the back office of the Budgetel Motel.” He was charged
with robbery for taking from her, “U.S. Currency, by putting [the victim]
in fear or by using or threatening the use of force...”
“Indiana’s Double Jeopardy Clause was intended to prevent the State
from being able to proceed against a person twice for the same criminal
transgression.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).
Defendant contends that the robbery and confinement constitute the
same act and therefore one of the convictions must be overturned. We find
that Defendant committed separate criminal transgressions for which he
could be convicted of confinement and robbery. Defendant forced the victim
to the back office; forced her to hand over money; sexually assaulted her;
then robbed her again (taking money out of her purse).
Forcing the victim to the back office while instructing her to hand
over money arguably constitutes one criminal transgression for the purposes
of Indiana’s double jeopardy rule. Defendant argues that it does. Given
Defendant’s other acts, however, we do not need to reach that issue. To
succeed in his claim of double jeopardy under the Richardson actual
evidence test, Defendant must demonstrate a reasonable possibility that the
jury used the same evidentiary facts to establish the essential elements of
both Robbery and Confinement. See Richardson, 717 N.E.2d at 53. But
Richardson requires that the possibility be reasonable, not speculative or
remote. Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999). Given the clear
evidence of a second, separate robbery, we find that Defendant has failed
to demonstrate a reasonable possibility that the jury found him guilty of
two offenses based on the same evidentiary facts. After assaulting the
victim, Defendant committed a second act of robbery when he took money from
her purse. This act occurred after the two acts of assault, after the
initial robbery, and after Defendant confined the victim by forcing her to
the back room. Therefore, the robbery conviction and the confinement
conviction are supported by two clearly separate acts. The confinement
arises from the act of forcing the victim to the back office, while the
robbery conviction arises from the distinct transgression of taking money
from her purse.
IV
Defendant makes a brief argument that his sentence of 100 years
imprisonment is manifestly unreasonable and an abuse of the trial court’s
discretion in light of the nature of the offense and Defendant’s character.
(Appellant’s Br. at 18-19.)
The trial court has discretion to determine the appropriate sentence,
and it may be reversed only for a manifest abuse of that discretion. Ind.
Appellate Rule 17(B); Ford v. State, 704 N.E.2d 457, 461 (Ind. 1998).
The presumptive sentence for a class A felony is 30 years. See Ind.
Code § 35-50-2-4 (1998). Up to 20 years may be added for aggravating
circumstances and up to ten years may be subtracted for mitigating
circumstances. See id. The presumptive sentence for a class B felony is
10 years, with not more than 10 years added for aggravating circumstances
and not more than four years may be subtracted for mitigating
circumstances. See Id. § 35-50-2-5. If a defendant is found to be a
habitual offender, the trial court “shall sentence [him or her]... to an
additional fixed term that is not less than the presumptive sentence for
the underlying offense nor more than three (3) times the presumptive
sentence for the underlying offense. However, the additional sentence may
not exceed thirty (30) years.” Id. § 35-50-2-8(e).
Defendant’s total executed sentence is 100 years. The first component
of that sentence is a fully enhanced sentence of 50 years for criminal
deviate conduct. This enhancement was supported by the aggravating
circumstance of Defendant’s significant history of violent crime.
Defendant’s pre-sentence report indicates that Defendant had a juvenile
history that included true findings of fleeing, battery, two counts of
violating probation, violation of home detention, conversion, escape, and
carrying a handgun. As an adult, Defendant had previously been convicted
of conversion, four unrelated counts of resisting law enforcement, two
unrelated charges of auto theft, possession of cocaine, two unrelated
counts of driving while license suspended, robbery, and carrying a handgun
without a license.
The second component of the sentence is a 30-year habitual offender
enhancement. Defendant makes no claim that it was improperly imposed.
The third component of the sentence is a fully enhanced sentence of
20 years for robbery, to be served consecutive to the 80 years just
described. While the trial court could have been more explicit in
explaining its reasoning for fully enhancing the sentence on this count and
ordering it to be served consecutively, we find its reasons—Defendant’s
prior criminal history and the fact that the robbery was a separate offense
from the sexual assault—sufficient to conclude that the sentence is not
manifestly unreasonable.
Conclusion
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code § 35-42-4-2 (1998).
[2] Id. § 35-42-5-1.
[3] Id. § 35-42-3-3.
[4] Id. § 35-50-2-8.
[5] Defendant did object to the trial court’s statement that the
juror was entitled to an answer.