Highler v. State, No. 02A03-0505-CR-203.

Docket NºNo. 02A03-0505-CR-203.
Citation834 N.E.2d 182
Case DateSeptember 15, 2005
CourtSupreme Court of Indiana
834 N.E.2d 182
Marshall HIGHLER, Appellant-Defendant,
STATE of Indiana, Appellee-Plaintiff.
No. 02A03-0505-CR-203.
Court of Appeals of Indiana.
September 15, 2005.

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P. Stephen Miller, Fort Wayne, for Appellant.

Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, for Appellee.


BAILEY, Judge.

Case Summary

Appellant-Defendant Marshall Highler ("Highler") appeals his conviction for Rape as a Class B felony.1 We affirm.


On appeal, Highler raises three issues, which we reorder and restate as:

I. Whether the jury selection system in Allen County deprived Highler of the right to a trial by a jury of his peers in violation of the Sixth and Fourteenth Amendments;

II. Whether the trial court improperly upheld the State's peremptory challenge to the only African-American venire person merely because the State offered a race-neutral, but religious discriminatory, reason for the strike; and

III. Whether the trial court abused its discretion by admitting certain evidence at trial.

Facts and Procedural History

On October 10, 2003, S.B. was invited to a party by her co-worker, and Highler's girlfriend, Maria. S.B. invited Shane Merrill ("Merrill") to accompany her to the party. Upon her arrival at the party, S.B. had half of "[a] beer and a shot of Hennessey." Tr. at 153. S.B. then left the party and walked to a nearby liquor store to buy some vodka. When S.B. returned to the party, she drank approximately five or six shots of vodka and took four or five puffs from a marijuana cigarette. At some point during the early morning hours of October 11, 2003, S.B. started feeling "[d]izzy, nauseous, and wobbly." Id. at 159. After vomiting in the bathroom, S.B. went to one of the bedrooms and lay down on the bed. S.B. does not remember going to bed but she does remember waking up, fully clothed, with Highler in the room with her. Highler talked to S.B., but she was too

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groggy to understand what he was saying. He also gave S.B. some water to drink, which she spilled on herself.

Apparently, S.B. fell back to sleep. She awoke a couple of times and discovered that she was alone in the bedroom. However, one time when she awoke, "she looked up and there was somebody standing over the bed. . . . Then [she] felt . . . it felt like [her] belt buckle was being undone and [her] pants sliding down." Id. at 162. S.B. thought that she was dreaming until Highler climbed into bed with her, put his knees between her legs, and spread her legs apart. In response, S.B. "kept saying stop, stop, and he wouldn't stop." Id. at 163. Highler put all of his weight on S.B. and said, "you feel so good, you feel so good." Id. S.B. tried to move and push him off, but Highler "just put more weight on [her.]" Id. at 164. Highler placed his penis inside S.B.'s vagina and kept "pushing back and forth." Id. at 166. Highler also forced his tongue into S.B.'s mouth. When Highler finished having sexual intercourse with S.B., he removed his penis from her vagina and ejaculated onto her stomach. Highler then left the bedroom and S.B. started to cry.

In a videotaped interview, Merrill testified that, before S.B. became ill, she was "pretty well gone," i.e., "extremely intoxicated." State's Ex. 12. Indeed, Merrill, Highler, and some other individuals had to physically help S.B. to the bathroom, where she vomited. Subsequently, Merrill had to carry S.B. to the bedroom and put her into bed. Merrill also testified that, while S.B. was sleeping, Highler asked Merrill, i.e., S.B.'s date, if Highler and "Nacho"—the host of the party—could have sex with S.B. Merrill responded that, because of S.B.'s intoxicated condition, having sex with her would be against the law. Nacho retorted that he and Highler could slit Merrill's throat. Highler gave Merrill three options: (1) join them in having sexual intercourse with S.B.; (2) leave; or (3) fight. Merrill left, called S.B.'s father for help, and waited approximately ten minutes for her father's friend, Jason Shanyfelt ("Shanyfelt"), to arrive. Once help arrived and Merrill reentered the apartment, he saw Highler smoking a cigarette and noticed that S.B. was very upset. Highler spontaneously exclaimed that he had not done anything to S.B.

S.B. was angry with Merrill because, during the sexual encounter, she had yelled for him but no one came to her rescue. Merrill came into the room and helped S.B. out of bed. Shanyfelt noticed that S.B. appeared "very not with it." Id. at 199. In Shanyfelt's opinion, S.B.'s shirt was pulled up, "just straggly," and she was very emotional—crying, sobbing, and clinging onto Merrill for help. At that point, Merrill, S.B., and Shanyfelt left the party. Merrill dialed 9-1-1 and handed S.B. the telephone.

As a result of the incident, S.B.'s vaginal area, shoulders, and stomach hurt. S.B. sought help at the Sexual Assault Treatment Center, once for an examination and twice for a check to see if her wounds had healed.

On or about October 16, 2003, the State charged Highler with rape as a Class B felony. On August 17, 2004, during voir dire, Highler objected to the State's peremptory challenge to Juror 92—i.e., the only African-American venire person—pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In response to Highler's objection, the State proffered the following reason for challenging Juror 92:

First of all Your Honor, in his profession he's a Pastor and I never take any Pastors, Ministers, Reverends, [or] Priests on my jury panels just because they're more apt for forgiveness. But in

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addition to that Your Honor, I was highly disturbed by his questionnaire, in fact in reviewing my question is, I already marked off that I was going to strike him as a juror before he even came to this courtroom, before I knew anything about his race, I had already marked that I was going to take him. He indicated through his questions, first he marked, is there any reason you cannot served on a jury, he marked yes. To see the back. Based on the answer to this question indicating his feelings about cases and the way they're handled in Allen County, and based on his last statement that he prefers, he does not want any part of this process, Your Honor, I understand what he said here today, however, the State is highly concerned about his ability to be fair and impartial to the State and I would ask that he be struck. I don't think it's sufficient to strike for cause but I think I can use my peremptory challenge and I do have that concern, not being any type of race issue.

Tr. at 88-89. Finding that the State's reason was race-neutral, the trial court excused Juror 92 from service. The trial court also overruled Highler's objection that the composition of the venire did not reflect a fair cross-section of the community.

During trial, Highler admitted having sexual intercourse with S.B., but urged that it was consensual. Midway through the trial, Highler objected to the admission of the 9-1-1 telephone conversation on grounds that the tape's prejudicial nature substantially outweighed its probative value. The trial court admitted the tape into evidence over Highler's objection, with the following admonishment:

Ladies and gentlemen, I'm going to admit State's 13 and it's going to be published, that is played for you, the 911 tape. I would direct you or admonish you that nothing in this tape should be accepted for the truth of the statements made but rather simply that the statements were made. For instance and specifically, the majority of the conversation is from [Merrill,] the video that you just saw of his call to 911, and he makes numerous references, particularly early in the call that the alleged victim was raped. You should not accept that for the truth of it but rather simply that he said that. And I hope you understand that distinction because it can be a significant one for your ultimate deliberations.

Tr. at 400.

At the conclusion of the trial, the jury found Highler guilty of rape as a Class B felony. The trial court entered a judgment of conviction on the jury's verdict and sentenced Highler to ten years in the Indiana Department of Correction for his rape conviction. Highler now appeals.

Discussion and Decision
I. Denial of the Right to a Jury of Peers: Fair Cross-Section of the Community

On appeal, Highler first argues that he was denied a trial by a jury of his peers in violation of the Sixth and Fourteenth Amendments to the United States Constitution. The United States Supreme Court has long held that the selection of a petit jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to a jury trial. See Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); see also Wilder v. State, 813 N.E.2d 788, 791 (Ind.Ct.App.2004), trans. denied, overruled on other grounds by Laux v. State, 821 N.E.2d 816, 820 n.4 (Ind.2005). The jury selection process should operate to reflect a reasonable cross-section of the community from which

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it is drawn. Wilder, 813 N.E.2d at 791 (citing Moore v. State, 427 N.E.2d 1135, 1137 (Ind.Ct.App.1981)). Jury panels are not required, however, to be a microcosm of a county or a court district. Peoples v. State, 649 N.E.2d 638, 639 (Ind.Ct.App.1995). Indeed, jurors need not be mathematically proportioned to the character of the community and, further, there is no requirement that any particular class be represented on every jury. Wilder, 813 N.E.2d at 791 (citing Daniels v. State, 274 Ind. 29, 34-35, 408 N.E.2d 1244, 1247 (1980)). Instead, the main requirement is that the jury selection not be arbitrary. Wilder, 813 N.E.2d at 791.

The burden of demonstrating purposeful discrimination is on the defendant. Id. To establish a prima facie violation of the fair cross-section...

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