Allen v. State

• Decision Date: 13 December 1999
• Docket Number: No. 49S00-9801-CR-25.,49S00-9801-CR-25.
• Citation: 720 N.E.2d 707
• Parties: Alonzo ALLEN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

720 N.E.2d 707

Alonzo ALLEN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 49S00-9801-CR-25.

Supreme Court of Indiana.

December 13, 1999.

Kevin C.C. Wild, Patricia Caress McMath, Indianapolis, Indiana, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

SHEPARD, Chief Justice.

Defendant Alonzo Allen was convicted of murder and two counts of criminal deviate conduct for the death of Nikita Jackson. The trial court sentenced him to 165 years.

Allen presents four claims of error in this direct appeal:

1. That the trial court erred in admitting evidence of another crime for which Allen was charged and tried but not convicted;

2. That the prosecutor engaged in misconduct during his closing argument;

3. That there was a material variance between the information charging Allen and the proof presented at trial; and

4. That Allen's sentence is unreasonable.

Factual Background and Procedural History

On October 19, 1995, an employee arriving for work found Nikita Jackson's body behind a business on the west side of Indianapolis. (R. at 1281-82, 1305.) She had been sexually assaulted and strangled to death. (R. at 1377, 1413, 1415.) The police found glue residue on her arms, legs, and from ear to ear, indicating that she had been bound with duct tape. (R. at 1317-18, 1381, 1387-88.) In her bedroom, the police found a note with Allen's pager number and the name "Play." (R. at 1312-13, 1349-51.)

During the investigation of Nikita Jackson's murder, the police arrested Allen for an attack on Melanie Franklin, charging criminal deviate conduct, rape, confinement, and robbery. (R. at 46, 557.) Franklin claimed that she met Allen at a restaurant, that he introduced himself to her as "Play," and that they exchanged pager numbers. (R. at 1680, 1682-83.) Franklin also claimed that when they met at Allen's house for a date, he threatened her with a box cutter, bound her hands with duct tape, threatened to bind her legs and mouth if she struggled, and raped her twice. (R. at 1691, 1698-1706, 1787-88.) Allen was charged for the Franklin incident and found not guilty of robbery and criminal deviate conduct; the jury hung on the rape and confinement charges. (R. at 557.)

The police concluded that the two crimes were similar; both Franklin and Jackson were bound with duct tape and sexually assaulted, both had Allen's pager number and knew him as "Play." Allen was charged with criminal deviate conduct upon and the murder of Jackson on July 5, 1996. (R. at 42-44.)

During the pretrial proceedings, the State filed a Notice of Intent to Offer Evidence Pursuant to Rule 404(b) (R. at 119-20), and an amended version, (R. at 193-94, 548). The purpose was to provide Allen with notice that, at the Jackson trial, the State intended to offer evidence of the Franklin rape and the attempted rape of Sylvia Mays that occurred on July 14, 1995 (before either the Jackson or the Franklin incidents).¹ After a hearing, the trial court ruled that evidence of both the Franklin and the Mays assaults could be admitted. (R. at 248-254.) The State later filed another notice under Rule 404(b), requesting that it be permitted to offer evidence of the rape of Cecelia Allen, Alonzo Allen's wife.² (R. at 384, 1147.) The trial court excluded evidence of the Cecelia Allen attack. (R. at 1189.) Sylvia Mays did not testify, but the evidence of the Franklin rape was admitted at trial.

I. Evidence of Previous Behavior

Indiana Rule of Evidence 404(b) provides that evidence of other misconduct may not be admitted to prove that the defendant acted in conformity with a certain character trait, such as sexual violence. The rule was "designed to prevent the jury from assessing a defendant's present guilt on the basis of his past propensities...." Hicks v. State, 690 N.E.2d 215, 218 (Ind.1997). On the other hand, evidence about other "bad acts" may be admissible for different purposes, such as proof of identity. Ind. Evidence Rule 404(b). The State asserts that the evidence of the Franklin rape (for which Allen was charged and tried but not convicted) is admissible to prove Allen's identity as the perpetrator in this case. (Appellee's Br. at 7.)

The identity exception in Rule 404(b) was crafted primarily for crimes so nearly identical that the modus operandi is virtually a "signature." Thompson v. State, 690 N.E.2d 224, 234 (Ind.1997). "The exception's rationale is that the crimes, or means used to commit them, were so similar and unique that it is highly probable that the same person committed all of them." Id. The analysis of admissibility under Rule 404(b) incorporates the relevancy test of Rule 401 and the balancing test of Rule 403. Hicks, 690 N.E.2d at 221. First, "the court must determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act; and [second,] the court must balance the probative value of the evidence against its prejudicial effect pursuant to Rule 403." Id.

The trial judge considered at some length whether the Franklin evidence was relevant to identity or merely offered to demonstrate propensity.³ He examined with some care the similarities in the two crimes that might make one a signature for the other.

Both victims were African-American teenage girls. (R. at 252.) The crimes both occurred in the same neighborhood, within two months of each other. (R. at 252, 1281-82, 1305, 1691-1706.) Melanie Franklin said she knew Allen as "Play," (R. at 1682-83); the police found in Nikita Jackson's room in her home a scrap of paper upon which Allen's pager number and the name "Play" were written, (R. at 1312-13, 1349-50). Both incidents involve some sort of anal probing or penetration. (R. at 1413, 1414, 1705.)

Finally, both victims were bound with duct tape. (R. at 252.) Jackson was taped at her wrists, ankles, and mouth, (R. at 1317, 1381, 1387); Franklin was taped at her wrists, but she said Allen threatened to tape her ankles and mouth. In both cases the duct tape was removed after the attack. (R. at 1702, 1771, 1787-88.) Allen's Exhibit A to his Brief in Opposition [to] 404(b) Evidence is a list of the cases handled by the Indianapolis Police Department from late 1994 to March 1997 involving the use of duct tape. (R. at 241-42, 560-61.) Examining all of the crimes reported to the Indianapolis Police over the course of two and one-half years, the exhibit catalogs only forty-two incidents in which the perpetrators used duct tape to bind the victims. Moreover, only eight of the forty-two were rapes or sexual attacks. (R. at 241-42.) Allen's own exhibit suggests that sexual assault cases involving duct tape binding are relatively rare.

Whether this evidence was offered to prove identity or propensity was a close call. We are hard-pressed to say the trial judge erred on this point. As for the second part of the admissibility decision, relevant evidence is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice. Evid. R. 403. "We review this balancing act by the trial court under an abuse of discretion standard." Hicks, 690 N.E.2d at 223. The identity of Franklin's attacker was certainly a crucial issue at trial, and the Allen evidence was substantially probative of that issue.

Even where we might have reached a different conclusion had we tried the case, we reverse only when we are convinced the trial judge's call was an abuse of discretion. We are not.

In any event, were we persuaded it was an abuse, it would not have warranted reversal under the standard of Trial Rule 61. The sperm found on Nikita Jackson's shorts was submitted to the Marion County crime lab and a private lab for DNA testing. The private lab concluded, "if you went out and randomly tested individuals[,] you would expect to only find one person out of 37,900 that had that same characteristics as Alonzo Allen which were also the same characteristics that were found in the sperm fraction of the shorts." (R. at 1559.) Even taking into account the National Research Council's suggested margin of error on this type of analysis, the range of likelihood that Allen was the perpetrator is an impressive 1/3,800 to 1/380,000. (R. at 1568.) Moreover, while no statistical estimates were calculated on the likelihood that the sperm found in Jackson's mouth came from Allen's body, the private lab concluded that Allen could not be excluded as a contributor to that DNA. (R. at 1861.) This remarkable scientific evidence, taken with the other admissible evidence, leads us to conclude that the jury would have convicted Allen even without Melanie Franklin's testimony.

II. Prosecutorial Misconduct

During closing argument, the prosecutor made remarks about the case using Biblical imagery. Allen contends these remarks constituted misconduct and warrant the reversal of his convictions. "To preserve an issue regarding the propriety of a closing argument for appeal, a defendant must do more than simply make a prompt objection to the argument. Defendant must also request an admonishment, and if further relief is desired, defendant must move for a mistrial." Wright v. State, 690 N.E.2d 1098, 1111 (Ind.1997) (citing Zenthofer v. State, 613 N.E.2d 31, 34 (Ind.1993)). Failure to request an admonition or mistrial results in waiver of the issue. Zenthofer, 613 N.E.2d at 34; see also Stacker v. State, 264 Ind. 692, 348 N.E.2d 648, 651 (Ind.1976)

(because "Appellant's counsel ... did not seek ... an admonishment ... [,] the trial court's failure to [issue one] is not reviewable by this Court.").

While Allen objected to the prosecutor's remarks at trial, he failed to request an admonition. (See R. at 2098; see also Appellant's Reply Br. at 3 (stating that Allen objected to the closing argument, but making no reference to...