Booher v. State, 49S00-0007-CR-441.

• Citation: 773 N.E.2d 814
• Decision Date: 20 August 2002
• Docket Number: No. 49S00-0007-CR-441.,49S00-0007-CR-441.
• Parties: Mark BOOHER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Supreme Court of Indiana

773 N.E.2d 814

Mark BOOHER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 49S00-0007-CR-441.

Supreme Court of Indiana.

August 20, 2002.

J. Richard Kiefer, James J. Bell, Andrew J. Borland, Kiefer & McGoff, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Joseph A. Samreta, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. DICKSON, Justice.

The defendant, Mark Booher, was convicted of robbery as a class B felony and for the January 1999 murder of Timothy Laflen in Indianapolis. The defendant's appeal asserts that the State failed to disclose favorable exculpatory evidence, that the State engaged in misconduct by presenting and arguing a baseless and prejudicial theory, and that the trial court erred in sentencing him for robbery as a class B felony. We affirm.

Failure to Disclose Exculpatory Evidence

The defendant contends that the trial court erred in denying his motion to correct error which sought a new trial on grounds that the State suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The defendant claims the State suppressed police notes of an interview with Brian Marrs, the victim's neighbor, specifically notes reflecting that Marrs told police that he had seen Laflen alive at a time later than the defendant's last opportunity to commit the murder.

At a hearing held on the defendant's motion to correct error, Marrs testified that, to the best of his knowledge, he had told police that he had seen Laflen alive and alone some time between 1:30 and 3:00 p.m. on the day of the murder. Record at 1653-54, 1656. Marrs qualified his time estimates, noting that "I really didn't pay much attention because I don't wear a watch generally," Record at 1654, and "I usually don't keep track of the time." Record at 1656. Marrs further testified that all three police officers interviewing him were writing down short notes during the interview. The officers testified that Marrs did not tell them that he had seen Laflen between 1:30 and 3:00 p.m. The only known police notes of the interview recorded only Marrs's name, gender, race, age, date of birth, social security number, address, and telephone. The State disclosed to the defense the name, address, and telephone number of Marrs, but provided no statements or interview notes. Marrs also testified during the hearing that the defendant's trial counsel contacted him before trial, and that Marrs had also informed defense counsel regarding the last time Marrs saw Laflen, although defense counsel denied being so informed.

In denying the motion to correct errors, the trial court found that "Brian Marrs's recollection of what he told police officers and defense counsel, contradicts the recollection of the police detectives and that of defense counsel, and the Court therefore questions the accuracy of Mr. Marrs[`s] memory of events" and that "the evidence presented by Brian Marrs ... does not rise to the level of evidence that would have changed the outcome of the trial." Record at 299. When ruling on a Motion to Correct Errors, the trial court sits as the initial fact finder on the issues raised, and we review the trial court's determination for an abuse of discretion. Sanchez v. State, 675 N.E.2d 306, 310 (Ind. 1996). The defendant has failed to demonstrate an abuse of discretion. We decline to find error in the trial court's denial of the defendant's motion to correct error.

Prosecutorial Misconduct

The defendant contends that the prosecutor committed misconduct by presenting a prejudicial motive for the killing that was not supported by the evidence or by any good faith basis. The State's theory of the defendant's motive (that Laflen was gay, and that Booher killed Laflen when Laflen terminated their homosexual relationship) was initially disclosed to the trial court and the defense before trial. The defendant now asserts that the State's implications that he was a homosexual, which occurred both during his cross-examination by the State and during the State's closing argument, lacked evidentiary support and were unethical, unfairly prejudicial, and placed him in grave peril.

The State correctly points out that the defense did not object to its cross-examination of Booher regarding his sexual preferences, nor did the defendant object during the prosecutor's closing argument.¹ A party's failure to present a contemporaneous trial objection asserting prosecutorial misconduct precludes appellate review of the claim. Johnson v. State, 725 N.E.2d 864, 867 (Ind.2000). Such default may be avoided if the prosecutorial misconduct amounts to fundamental error. For prosecutorial misconduct to constitute fundamental error, it must "make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process [and] present an undeniable and substantial potential for harm." Benson v. State, 762 N.E.2d 748, 756 (Ind.2002); see also Mitchell v. State, 726 N.E.2d 1228, 1236 (Ind.2000)

. The defendant argues that the standard of review for prosecutorial misconduct is the same regardless of whether fundamental error is alleged.

In reviewing a properly preserved claim of prosecutorial misconduct, we would "determine (1) whether the prosecutor engaged in misconduct, 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." Coleman v. State, 750 N.E.2d 370, 374 (Ind.2001). 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. Id. It is true that this Court has previously expressed a similar standard for the review of prosecutorial misconduct claims presented as fundamental error. See, e.g., Roach v. State, 695 N.E.2d 934, 942 (Ind. 1998)

(a defendant must show that the conduct placed the defendant in grave peril and " `had a probable persuasive effect on the jury's decision.'" (quoting Carter v. State, 686 N.E.2d 1254, 1262 (Ind.1997))); see also Miller v. State, 623 N.E.2d 403, 408 (Ind.1993); Scherer v. State, 563 N.E.2d 584, 586 (Ind.1990). For authority, these cases directly or indirectly and ultimately rest on Maldonado v. State, 265 Ind. 492, 498-99, 355 N.E.2d 843, 848 (1976).

In Maldonado, this Court noted that the defendant did not present a timely objection to several of the instances of alleged prosecutorial misconduct claimed on appeal. Writing for the Court, Justice De-Bruler expresses our preference "to decide issues on their merits, and not to erect procedural obstacles to their presentation," but notes that "a prompt objection affords the trial court an opportunity to prevent or remedy prejudice to a defendant without the considerable waste of time and resources involved in a reversal of a conviction." Id. at 498, 355 N.E.2d at 848. The Maldonado opinion then proceeds to analyze the merits of the prosecutorial misconduct claims, but without any further reference to fundamental error. We therefore understand Maldonado to articulate the standard for reviewing claims of prosecutorial misconduct in the absence of procedural default and a claim of fundamental error. To the extent subsequent cases have interpreted the Maldonado standard to express the standard for prosecutorial misconduct as fundamental error, we believe that they misconstrue Maldonado.

We hold that an appellate claim of prosecutorial misconduct presented on appeal in the absence of contemporaneous trial objection will not succeed unless the defendant establishes not only the grounds for prosecutorial misconduct but also the additional grounds for fundamental error.

While no direct evidence was presented of a homosexual relationship between the victim and the defendant, the State did present evidence showing a pattern in Laflen's gay relationships with a succession of male friends that included sexual intimacy. One of the several men with whom Laflen was sexually intimate during the period immediately preceding his death testified that Laflen had talked with him regarding having problems with two other men. One of these men later testified that he had been in a sexually intimate relationship with Laflen. The other man was named "Mark," the defendant's first name (and whose last name the witness thought that Laflen pronounced as "Brewer"), who had often telephoned Laflen.

On January 8, 1999, Booher told his girlfriend, Julia Allison-Hamilton, and her parents that he was going to get $4000 the next day from his friend to pay bills and purchase furniture and appliances for his home. Booher left early the next morning, January 9, driving Julia's vehicle. Later that morning, he called Julia from a cellular telephone and told her that he had gotten most of the money. When he did not arrive home when expected, Julia and her parents left the house to go to a restaurant and do shopping. Julia was eventually able to again contact Booher by telephone, and he told her, "I might have to ditch your car," but did not discuss any details. Record at 415. Julia told him not to ditch the car, and Booher stated that he would be home soon. When Julia returned home, Booher was in the shower and Julia noticed that he had returned with a different sweatshirt than the one he was wearing when he left that morning. Booher explained to her that he and Laflen had been attacked outside Laflen's home by robbers and that Laflen might be dead. The robbers made them lay face down in the snow, taking their money and valuables. The robbers then ordered them into Laflen's house where the robbers allowed him to change out of his dirty sweatshirt into a sweatshirt from Laflen's bedroom. Booher saw Laflen bleeding from the head, and the robbers then shoved Laflen into a car and left Booher alone at the house. Booher told her that he couldn't...