Brooks v. State, 40A04–1512–CR–2373.

• Decision Date: 04 November 2016
• Docket Number: No. 40A04–1512–CR–2373.,40A04–1512–CR–2373.
• Citation: 66 N.E.3d 1006 (Table)
• Parties: Jody Michael BROOKS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

66 N.E.3d 1006 (Table)

Jody Michael BROOKS, Appellant–Defendant,
v.
STATE of Indiana, Appellee–Plaintiff.

No. 40A04–1512–CR–2373.

Court of Appeals of Indiana.

Nov. 4, 2016.

Mary Beth Mock, Law Office of Mary Beth Mock, Madison, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

BRADFORD, Judge.

Case Summary

[1] In October of 2014, Appellant–Defendant Jody Brooks and Jovannie Mays murdered Richard Smith. Brooks and Mays subsequently fled the murder scene. During the course of their flight, Brooks and Mays stole two trucks. Brooks was subsequently charged with and convicted of murder, robbery resulting in serious bodily injury, and two counts of auto theft. He was subsequently sentenced to an aggregate term of sixty-two years. On appeal, Brooks challenges his convictions and sentence by asserting that (1) his murder and robbery convictions should be reversed because the trial court committed fundamental error, (2) the trial court abused its discretion by excluding certain evidence and by admitting certain other evidence, (3) his sentence is inappropriate in light of the nature of his offenses and his character, and (4) the trial court erred by failing to advise him of certain possible release dates from incarceration. We affirm.

Facts and Procedural History

[2] At some point during the late-evening hours on October 16, 2014 or early-morning hours on October 17, 2014, Brooks and Mays came upon Smith who had passed out in the common hallway of the Hatton Carpet apartment complex in North Vernon. Brooks and Mays initially walked by Smith before entering the apartment of a friend. When they entered the apartment, Brooks indicated that he had taken the knit cap he was wearing from the man passed out in the hallway. Eventually, Brooks and Mays were asked by Nicole Spurlock to leave the apartment because they were intoxicated and loud and there were children sleeping in the apartment. When Brooks and Mays left the apartment, they tripped over Smith, who was still passed out in the hallway. Spurlock observed Mays kick Smith's head after which she said, "don't hurt him, don't kick him just try to wake him up." Tr. p. 1125. While Spurlock, Mays, and another individual who had been in the apartment remained near the door to the apartment, Brooks took hold of Smith and dragged Smith down the hallway, through the hallway door. Brooks continued to drag Smith outside, over two concrete steps, to an area near the apartment building's trash collection spot.

[3] Smith's nude body was discovered later in the day on October 17, 2014, when a resident of the apartment complex took out his trash. Upon discovering Smith's body, the resident called 911 to report the discovery. As the North Vernon Police Department ("NVPD") investigated the discovery of Smith's body, it became apparent that Smith had been murdered. Brooks and Mays soon became suspects in Smith's murder and were quickly located in Harrison County, near Corydon. When a representative of the NVPD reached out to the Harrison County Sheriff's Department to ask for assistance, the representative learned that Officer Duane Avis of the Corydon Police Department had already made contact with Brooks and Mays.

[4] Officer Avis first encountered Brooks and Mays on the evening of October 17, 2014, after having been dispatched to investigate a report of an accident. In responding to the dispatch, Officer Avis observed Brooks and Mays walking along the same road as the reported accident. Officer Avis knew Brooks and questioned the men. Officer Avis then inspected the reported scene of the accident, discovering that a truck had been driven off the road and into a ravine where it struck a tree. The truck had been left in gear and its engine was still running. The license plate, however, was missing. Additional officers responding to the scene located the missing license plate in Brooks's clothing. Officer Avis subsequently determined that the truck had been reported stolen in Jennings County earlier that morning by Kenny Maschino.

[5] Also on October 17, 2014, Jennings County officers found a second abandoned truck a few miles from Maschino's residence. The second truck had also been left in a ditch. Its front end was covered with soybean plants, indicating it had been driven through a soybean field. Officers later determined that this truck had been stolen from Tevi Horton. Mays subsequently explained that after murdering Smith, he and Brooks had hitch-hiked to the apartment complex where Horton lived and had stolen the truck. Mays also explained that he and Brooks had taken a nap at Brooks's girlfriend's residence in Corydon in the time between stealing the second truck from Maschino and intentionally wrecking it in the ravine.

[6] Brooks was interviewed by investigating authorities and, after being read his Miranda¹ rights, admitted that he and Mays had been drinking and that they had dragged Smith down the hallway and out to the apartment complex's trash collection area. Brooks further admitted to rifling Smith's pockets before helping Mays "flip" Smith into the trash area. Tr. p. 1411. Brooks indicated that he had "blacked out" and could not recall what happened after he and Mays dragged Smith to the trash area. Tr. p. 1410.

[7] An autopsy later determined that Smith had suffered over fifty wounds. These wounds included numerous cuts and bruises; long excoriations to his back that were consistent with dragging; bruising and hemorrhaging of Smith's brain; multiple fractures to his nose, face, and eye socket; a fractured left hyoid bone;² two fractures in his neck; fractures of the ribs in five areas together with a punctured lung ; hemorrhaging to Smith's left testes; and a tear in Smith's aorta which was "absolutely lethal" and had been the immediate cause of his death. Tr. p. 1325. A sample from the steel-toed boots which Brooks was wearing at the time of his encounter with Smith were subjected to forensic DNA analysis and were found to bear Smith's DNA profile, which would be present only once in eight trillion unrelated individuals.

[8] On October 22, 2014, Appellee–Plaintiff the State of Indiana ("the State") charged Brooks with murder, robbery resulting in serious bodily injury, and two counts of auto theft. The trial court conducted a jury trial between August 24, and August 31, 2015 ("the first trial"). At the conclusion of the first trial, the jury found Brooks guilty of the two counts of auto theft but was unable to reach a unanimous verdict on the murder or robbery charges. The trial court thereafter declared a mistrial as to the murder and robbery charges and entered judgment of conviction on the auto theft counts. The trial court conducted Brooks's second trial ("the murder trial") on November 12, through November 19, 2015. At the conclusion of the murder trial, the jury found Brooks guilty of both the murder and robbery charges. On December 7, 2015, the trial court sentenced Brooks for all of the related charges to an aggregate sixty-two-year term of imprisonment. This appeal follows.

Discussion and Decision

[9] On appeal, Brooks raises the following contentions: (1) whether the trial court committed fundamental error, (2) whether the trial court abused its discretion in admitting and excluding certain evidence, (3) whether his sentence is inappropriate, and (4) whether the trial court erred by failing to advise him of his earliest possible release date.

I. Fundamental Error

[10] In challenging his murder and robbery convictions, Brooks contends that the trial court committed fundamental error.

Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant's rights as to "make a fair trial impossible." Benson v. State, 762 N.E.2d 748, 756 (Ind.2002), quoted in [Castillo v. State, 974 N.E.2d 458, 468 (Ind.2012) ] and [Cooper v. State, 854 N.E.2d 831, 835 (Ind.2006) ]. In other words, to establish fundamental error, the defendant must show that, under the circumstances, the trial judge erred in not sua sponte raising the issue because alleged errors (a) "constitute clearly blatant violations of basic and elementary principles of due process" and (b) "present an undeniable and substantial potential for harm." Id. The element of such harm is not established by the fact of ultimate conviction but rather "depends upon whether [the defendant's] right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he otherwise would have been entitled." Townsend v. State, 632 N.E.2d 727, 730 (Ind.1994) (quoting Hart v. State, 578 N.E.2d 336, 338 (Ind.1991) ). In evaluating the issue of fundamental error, our task in this case is to look at the alleged misconduct in the context of all that happened and all relevant information given to the jury—including evidence admitted at trial, closing argument, and jury instructions—to determine whether the misconduct had such an undeniable and substantial effect on the jury's decision that a fair trial was impossible. See Boesch v. State, 778 N.E.2d 1276, 1279 (Ind.2002) ; Townsend, 632 N.E.2d at 730 ; see, e.g., Castillo, 974 N.E.2d at 469 n. 11 (noting closing arguments are perceived as partisan advocacy).

We stress that "[a] finding of fundamental error essentially means that the

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