Barton v. State

• Citation: 936 N.E.2d 842
• Decision Date: 06 January 2011
• Docket Number: No. 18A04-0910-CR-609.,18A04-0910-CR-609.
• Parties: Kevin BARTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

936 N.E.2d 842 Kevin BARTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. No. 18A04-0910-CR-609. Court of Appeals of Indiana. Nov. 10, 2010. Transfer Denied Jan. 6, 2011.

Donald K. McClellan, McClellan & McClellan, Muncie, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Judge.

Kevin Barton appeals his conviction for failure to return to the scene of an accident resulting in death ¹ as a Class C felony. Barton raises the following three restated issues:

I. Whether the trial court erred when it denied Barton's motion to dismiss, which asserted that the State was barred under collateral estoppel principles from prosecuting him for failure to return to the scene of an accident resulting in death;

II. Whether certain statements made by the State during rebuttal closing argument constituted Doyle² violations; and

III. Whether the trial court erred when it refused Barton's mistake-of-fact instruction.

We affirm.

FACTS AND PROCEDURAL HISTORY

Around 1:30 a.m. on October 8, 2006, Jamie Beaty ("Beaty"), a twenty-three-year-old female, and her boyfriend, David Pyles ("Pyles"), were at a party near Yorktown, Indiana, which is located between Anderson and Muncie. Pyles got mad at Beaty and left the party on foot, to walk back to Muncie to retrieve his car. Beaty followed him as he walked along State Road 32. Pyles was walking ahead of Beaty and told her to quit following him; the two continued to argue as they walked. At some point, Pyles looked back and saw Beaty in the road, with headlights fast approaching, and he attempted to reach her to get her out of the way. Pyles explained that the next thing he knew, he was knocked down and a car had hit Beaty. That car, later determined to be a Nissan driven by Steven Brinkley, did not stop. Moments later, Beaty's body was run over and dragged by another vehicle, later determined to be Barton's black F-150 pick-up truck. Beaty died at thescene. In July 2007, Brinkley was convicted of, among other things, Class C felony failure to return to the scene of an accident resulting in death, and we affirmed his conviction by unpublished decision. Brinkley v. State, No. 18A02-0709-CR-826, 2008 WL 2580764 (Ind.Ct.App. June 30, 2008), trans. denied.

The State also charged Barton with Class C felony failure to return to the scene of an accident resulting in death. In addition, the State charged Barton with Class A misdemeanor operating while intoxicated endangering a person and Class D felony resisting law enforcement, but later dismissed the resisting law enforcement charge. In May 2009, prior to his jury trial, Barton filed a motion to dismiss the charge of failure to return to the scene of an accident resulting in death, arguing that collateral estoppel barred the State from pursuing the charge because Brinkley had already been convicted of the same offense. After a hearing, the trial court denied his motion.

At Barton's trial, Brinkley's passenger, Benjamin Gibson testified that he and Brinkley had been drinking throughout the night at various parties and establishments. As they were heading home to Anderson, Brinkley was driving down the road, when suddenly they saw what appeared to be a person, later determined to be Beaty, lying in the road. Before Brinkley had time to react, the Nissan he was driving hit her. Gibson felt two quick thumps and said, "I think you hit someone." Tr. at 242. Brinkley kept driving until Gibson persuaded him to return to the scene, where they stayed briefly but did not report their involvement to authorities at the scene before leaving.

Barton, who was then, and had been for fifteen years, the Director of Transportation for Muncie Indiana Transit System ("MITS"), also testified. He stated that he had met his friend Julie Johnson that night in Yorktown for "a couple drinks," and as he was driving back toward Muncie from Yorktown, he was on the phone with a former girlfriend, Janice Litz, when he suddenly saw a person lying on the ground and another person next to him or her, and although he initially drove past them, he then turned around and went back to assist. Id. at 820. He stated that he pulled to the side of the road, exited his vehicle, and ran back to find Beaty in the road, not moving, and Pyles over her. Barton testified that he then saw an oncoming car, which he tried to flag down and stop, but which instead accelerated and ran over Beaty and did not stop. Barton testified that it was a white, older vehicle with shiny wheels and a "bad muffler job." Id. at 851. Barton explained that then another vehicle, a Green Ford Explorer, stopped to assist, and he ran back to his truck and, using his MITS cell phone, called 911. Barton stated that when he tried to call 911, he somehow reached Johnson, so he hung up and redialed 911, telling the operator that "A guy just hit a girl." Id. at 836.

Barton did not provide the 911 operator with his name, address, or registration number. He did not mention the description of the car that he saw run over Beaty. According to 911 records, the call was somehow disconnected, but not by the 911 center. Barton's cell phone records indicated that, during the relevant time frame, Barton dialed Litz at 1:18 a.m., Johnson at 1:24 a.m., and 911 at 1:27 a.m. After the 911 call, Barton said he went back to the scene, but another man, later identified as John Farris, was at that point rendering assistance to Beaty. Barton testified that he left the scene because he thought Farris was an emergency medical technician ("EMT") and that Farris told him to "get back and get out of here." Id. at 851.Barton's truck was stopped by police not far from the accident location.

Farris, a former United States Marine, testified that, as he was traveling from Yorktown to Muncie that night, he came upon the scene, where he saw a person lying in the road (later identified as Beaty) and someone (later determined to be Pyles) leaning over her. Farris further testified that, as he slowed and stopped to assist, he saw an F-150 truck parked on the side of the road. Farris exited his vehicle and began to directly assess Beaty's condition and control the scene. He spoke to the 911 operator, and per her instructions, he told all bystanders that had assembled at the scene to remain. However, he noted that a man, later determined to be Barton, "started booking it" to his truck. Id. at 274. Farris said that Barton did a u-turn in his truck, and drove away toward Muncie. A woman who had stopped at the scene got in her own car and followed Barton's truck, and she recorded its license plate number, which was reported to authorities. Muncie police officers encountered Barton a short distance from the scene of the accident and stopped him. Officer Richard Howell, one of the Muncie officers who stopped Barton, testified that he observed "fluid and flesh matter" under the front bumper, in the passenger wheel well, and on the front tow hook. Id. at 446-47. Larry Harless of the Yorktown Police Department, who also responded and was involved in locating Barton's truck, similarly observed that the F-150 had a "flesh-type substance" on it. Id. at 407. Evidence technician Bruce Qualls examined the truck at about 2:30 a.m. and saw small bits of moist tissue from front to back along and under the passenger side of Barton's truck. Barton's truck did not exhibit damage consistent with striking an upright pedestrian. Dr. Janet Roepke, a physician pathologist, testified that Beaty's death was caused by blunt force injuries, but she could not determine how many times she was hit.

During trial, when the trial court received argument regarding final instructions, Barton submitted a proposed jury instruction regarding mistake of fact. It read:

It is a defense that the person who engaged in the prohibited conduct was reasonably mistaken about a matter of fact, if the mistake negates the culpability required for commission of the offense. I.C. § 35-41-3-7.

Appellant's App. at 35. The trial court refused to give the instruction over Barton's objection. Tr. at 865.

Both parties presented closing arguments. During the rebuttal portion of the State's closing argument, the prosecutor referred on four occasions to Barton's trial testimony where he claimed to have seen a white car run over Beaty. The prosecutor noted that Barton's exculpatory statements about the white car were the first time anyone had heard about a white car running over Beaty. Barton did not object, but later, outside of the jury's presence, Barton asserted that the prosecutor's remarks constituted prosecutorial misconduct and a violation of his constitutional rights because the remarks effectively suggested that if there really was a white car that ran over Beaty, Barton would have mentioned it sooner. Barton argued that the prosecutor's statements were effectively an improper reference to Barton's post-Miranda silence, which violated his Fifth Amendment rights. The parties and the trial court discussed the issue at some length. In an attempt to cure any error that may have occurred by the prosecutor's comments, the court fashioned an instruction and proposed that it be read to the jury. It stated:

You are instructed that in order to find the Defendant guilty in Count 1, the Defendant's vehicle must have struck Jamie Beaty.

Id. at 939. As the trial court worked to determine if the parties were satisfied with this measure, counsel for Barton expressed that "We're fine, Judge. Let's just read them the instruction and get [the jurors] back there." Id. at 943. He continued, "We don't want a mistrial." Id. at 944.

The jury found Barton guilty of Class C felony failure to return to the scene of an accident resulting in death. Barton now appeals.

DISCUSSION AND DECISION

I. Indiana Code § 9-26-1-1

Barton argues that the trial court should have granted his motion to dismiss, which sought...