Brown v. State
| Decision Date | 06 May 2016 |
| Docket Number | No. 49A02–1505–CR–391.,49A02–1505–CR–391. |
| Parties | Demetre BROWN, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Lisa M. Johnson, Brownsburg, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
[1] Demetre Brown appeals his convictions for one count each of Class A felony attempted criminal deviate conduct, Class A felony burglary, Class A felony robbery, Class B felony robbery, Class C felony robbery, two counts of Class A felony rape, and three counts of Class B felony carjacking. He also appeals his 248–year sentence. We affirm in part and reverse in part.
[2] Brown raises four issues, which we restate as:
[3] During the evening of October 28, 2013, Brown, Trae Spells, Alexander Dupree, Michael Pugh, and Adrian Anthony were together at an apartment at 34th Street and Meridian Street in Indianapolis. At some point, the men left the apartment and went to a party, where they met with Isaiah Hill. The six men left the party together and drove around.
[4] At approximately 5:00 a.m., they saw a residence on East 79th Street with an open garage door, and they thought it would be an easy target to rob. C.P. and E.P. lived at the residence with their twenty-four-year-old daughter, A.P. Their other daughter was away at college. C.P. has a neurological condition that requires him to use leg braces and a cane to walk. The men entered the garage, put gloves on, and went inside the house. C.P. and E.P. were awakened in their upstairs bedroom by the men who were yelling and demanding cash, cell phones, and guns. Brown was carrying Pugh's .38 revolver, and Anthony was also carrying a revolver. When the men realized that C.P. was disabled, they instructed him to stay in bed. E.P., however, was ordered to get up. A.P. heard the commotion and walked toward her parents' bedroom. A.P. offered her purse to the men to end the situation, but she was ordered back to her bedroom. In A.P.'s bedroom, Spells and Brown searched for electronics and jewelry. At some point, one of the men touched the back of A.P.'s leg and her vagina.
[5] C.P., E.P., and A.P. were repeatedly ordered to keep their heads down and not to look at the men. E.P. was escorted into the hallway by Anthony. Once in the hallway, E.P. ran toward the office to call for help. Anthony, however, shot E.P. in the leg. E.P. was taken downstairs as the men ransacked the house. Anthony led E.P. outside to take her to an ATM, and E.P. attempted to run again. Anthony tackled E.P., led her back inside the house, and shot her in the foot. E.P.'s blood sprayed onto the revolver carried by Brown. One of the men also kicked E.P. on the head. Hill and Anthony then drove E.P. to a nearby bank to obtain cash from the ATM. When they realized that E.P. did not have the passcode for A.P.'s debit card, they turned around to return to the house. On the way there, Anthony sexually assaulted E.P. At the house, they retrieved C.P.'s debit card, and Anthony forced E.P. to drive him to the ATM. Hill remained at the house. At the ATM, E.P. was able to withdraw $800 at 6:28 a.m.
[6] As E.P. was being forced to withdraw money from the ATM, the men took A.P. downstairs. Dupree and Hill sexually assaulted A.P. in the bathroom, and Hill, Dupree, Brown, and Spells sexually assaulted A.P. in the den. C.P., who was being guarded and forced to stay in his bed, could hear “whooping” sounds coming from the den. Tr. p. 287. C.P. was also beat with a nightstand drawer when he did not answer questions quickly enough.
[7] Anthony returned to the house with E.P. and took A.P. to the bank. At 7:02 a.m., A.P. withdrew $800 from the ATM for Anthony. Anthony tried to touch A.P.'s vagina in the drive-thru lane at the bank. When they returned to the house, Anthony asked E.P. where the others were, and she said they were gone. Anthony took E.P. and A.P. to the master bedroom, and he left the house in E.P.'s Ford Escape. Spells had taken C.P.'s Infiniti sedan, and Brown and Dupree left in A.P.'s Mitsubishi Spyder.
[8] The men abandoned the vehicles and took the stolen items to a shed behind Dupree's mother's house. They left a trail of jewelry on the driveway of Dupree's mother's house. At approximately 11:00 a.m., the six men went to the apartment of Amanda Burke, who was Pugh's girlfriend, at 34th Street and Meridian Street, where they were recorded on surveillance video.
[9] The home invasion lasted over two hours. A.P. ran to a neighbor's house to obtain help, and E.P. and A.P. were taken to the hospital for treatment. Crime scene investigators began processing the residence. By the next day, Dupree had been identified because his fingerprints were found in the bathroom where A.P. was sexually assaulted. Dupree's phone records showed numerous calls to and from Pugh, and Dupree's phone was located in Burke's apartment building. Pugh was arrested in a vehicle near the apartment building, and he had his revolver, which was splattered with E.P.'s blood, on the floorboard of the vehicle. A woman with Pugh had E.P.'s watch in her purse. Dupree was arrested in Burke's apartment.
[10] Spells was arrested the next day, and he eventually gave a statement implicating himself, Dupree, Pugh, Brown, Anthony, and Hill. DNA evidence also connected Spells to the home invasion and sexual assault of A.P. When Brown was arrested in early November at his mother's house, the assistance of a SWAT team was necessary to arrest him. Anthony was arrested in late November, and he admitted to participating in the home invasion and sexually assaulting E.P. DNA evidence and fingerprints also connected Anthony to the home invasion and sexual assault of E.P. Hill was eventually located in Texas in January 2014. Hill also admitted to participating in the home invasion and the sexual assault of A.P. DNA evidence connected Hill to the home invasion.
[11] The State charged Brown, Anthony, Dupree, Pugh, and Spells with thirty-five counts each, including twelve counts of Class A felony criminal deviate conduct, four counts of Class A felony rape, two counts of Class A felony attempted criminal deviate conduct, three counts of Class B felony robbery, three counts of Class B felony carjacking, three counts of Class B felony criminal confinement, two counts of Class C felony intimidation, one count of Class B felony aggravated battery, one count of Class A misdemeanor battery by bodily waste, two counts of Class C felony battery, one count of Class A misdemeanor battery, and one count of Class A felony burglary.1
[12] Attorney Heather Barton was retained by Brown's family to represent him in a different criminal matter, and she spoke with Brown in a holding cell after a hearing in that case. Barton then contacted Brown's mother and made arrangements to meet with her at her house. While Barton was at Brown's mother's house, Barton indicated that she was looking for a white box and a gun, and they searched for the items. Brown's brother gave her a white laptop, which Barton took to her office. Barton examined the laptop and discovered that it was “likely the proceeds of a crime.” App. p. 196. Barton then called the prosecutor's office and turned the laptop over to the police. The laptop belonged to A.P., and Brown's fingerprint was found on the laptop.
[13] Brown filed a motion to exclude evidence obtained directly or indirectly “in violation of the attorney-client privilege.” App. p. 171. The State argued that a confidential communication was not involved because “it occurred in the presence and hearing of at least fifteen disinterested individuals.” App. p. 388. Alternatively, the State argued that Barton's testimony would relate only to her actions, “not to the words or advice shared between she and her client....” Id. at 389. After a hearing, the trial court denied Brown's motion to exclude Barton's testimony but ordered that her testimony be limited regarding “where the information was gleaned.” Tr. p. 1473.
[14] Brown, Pugh, Anthony, and Dupree were tried together, and the jury trial was held in March 2015. Barton testified over Brown's objection.2 Barton testified that she met with Brown and, after the meeting, she went to Brown's mother's home to “retrieve some items.” Tr. p. 704. She was assisted by Brown's mother, his brother, and the mother's boyfriend. Brown's brother gave her the laptop, which she took to her office. Barton's stepson assisted her with the laptop, and she discovered that the owner of the laptop was associated with this action. She then contacted the prosecutor's office and the police, and officers retrieved the laptop from her office. The fact that Barton was an attorney representing Brown was not mentioned during the testimony. Spells also testified against the defendants.
[15] During the trial, the State dismissed seven of the charges. The jury ultimately found Brown guilty of twenty counts: four counts of Class A felony rape, two counts of Class A felony attempted criminal deviate conduct, two counts of Class B felony robbery, three counts of Class B felony carjacking, three counts of Class B felony criminal confinement, two counts of Class C felony intimidation, Class B felony aggravated battery, Class A felony robbery, Class C felony...
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