Jarrett v. State
| Decision Date | 30 November 2020 |
| Docket Number | Court of Appeals Case No. 20A-CR-59 |
| Citation | 160 N.E.3d 526 |
| Parties | Damonta Lamont JARRETT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Statement of the Case
[1] Damonta Lamont Jarrett ("Jarrett") appeals his convictions, following a jury trial, of murder1 and Level 5 felony attempted robbery2 and the sentence imposed thereon. He argues that: (1) his convictions for murder and Level 5 felony attempted robbery violate Indiana's prohibition against double jeopardy; (2) the trial court abused its discretion when it denied his two separate motions for mistrials; and (3) the trial court erred in sentencing him. Finding no double jeopardy violation, no abuse of the trial court's discretion, and no sentencing error, we affirm Jarrett's convictions and sentence.
[2] We affirm.
Issues
Facts
[3] In October 2016, forty-year-old Steven Marquand ("Marquand") lived in a rented room in Gary, Indiana, with his fiancée, Kelly Worley ("Worley"). On October 18, Worley spent the day cleaning a friend's house. The friend paid Worley with a can of change. That evening, Marquand and Worley cashed in the coins at a local currency exchange. After paying fees, Marquand and Worley received $283 in cash, which included two one-hundred-dollar bills. Marquand folded the cash and placed it in his pocket.
[4] Marquand and Worley then purchased a carry-out dinner and drove to a nearby gas station convenience store. Marquand went into the store to purchase drinks and ice and paid for the items with the cash. Twenty-three-year-old Jarrett, who was in the convenience store when Marquand paid for the drinks and ice, apparently saw Marquand pull the cash out of his pocket.
[5] Marquand left the convenience store, and Jarrett followed him. As Marquand was getting into his car, Jarrett approached him with a gun and told Marquand "to give [him] the money or [he would] shoot." (Tr. Vol. 3 at 157). When Marquand, who was sitting in the driver's seat of his car by this point, responded, "no[,]" Jarrett shot Marquand in the chest. (Tr. Vol. 3 at 158).
[6] Marquand drove the car out of the gas station, looked at Worley, and said, "[b]aby, I'm shot, I'm shot." (Tr. Vol. 3 at 161). Marquand's eyes rolled back, and Worley, who had been sitting in the passenger seat, jumped into Marquand's lap and attempted to gain control of the car. Worley side-swiped a fence, which slowed the car down, and she was subsequently able to stop it. Marquand died as a result of the gunshot wound.
[7] In November 2016, the State charged Jarrett with both murder and felony murder (murder while attempting to commit a robbery). Jarrett was taken into custody in May 2017. In September 2019, the State amended the charging information to include a charge for Level 5 felony attempted robbery and a firearm enhancement for each of the three counts.
[8] At the four-day trial in October and November 2019, forensic pathologist Dr. Zhuo Wang ("Dr. Wang") testified that a bullet had entered Marquand's chest and passed through his heart, lung, and esophagus before exiting through his back. According to Dr. Wang, the cause of Marquand's death was the gunshot wound to the chest, and the manner of Marquand's death was a homicide.
[9] Gary Police Department Homicide Investigator George Dickerson ("Investigator Dickerson") also testified at the trial. According to Investigator Dickerson, "the earliest date that [he] could have submitted anything for DNA testing" of Jarrett was in May 2017, which was "the first time that the Gary Police Department [had been] able to make contact with [Jarrett]." (Tr. Vol. 4 at 154). Jarrett's trial counsel asked to approach the bench and told the trial court that Investigator Dickerson's testimony "suggest[ed] that they couldn't find [Jarrett] because he wasn't around." (Tr. Vol. 4 at 154). Trial counsel further told the trial court that he did not "want any inference made that w[ould] inflame - -" (Tr. Vol. 4 at 154). The prosecutor responded that he "ha[d] no evidence of flight, just that they couldn't test anything until they found him." (Tr. Vol. 4 at 154). According to the prosecutor, trial counsel had made "a preemptive objection." (Tr. Vol. 4 at 155). That was the end of the discussion at the bench.
[10] Thereafter, Investigator Dickerson testified that by May 2017, the police "had already positively identified [Jarrett][.]" (Tr. Vol. 4 at 155). Investigator Dickerson further agreed with the prosecutor that "with a positive identification that had been corroborated ... a dozen times over, [Investigator Dickerson] did [not] ... feel the need to submit anything for DNA testing to identify the individual at the gas station." (Tr. Vol. 4 at 157). When asked if he had "ma[d]e the call not to do that[,]" Investigator Dickerson responded that "from protocol, we can't do that until he's actually taken into custody." (Tr. Vol. 4 at 157).
[11] Jarrett's trial counsel again asked to approach the bench and moved for a mistrial "based on the fact that [Investigator Dickerson had] stated that [Jarrett] would have been brought into custody and we have a [seven-month] delay from the time of the incident to when he [was] taken into custody, which again, asserts the flight."3 (Tr. Vol. 4 at 157-58). The trial court denied the motion, and trial counsel did not ask for a limiting instruction.
[12] After the State had finished questioning Investigator Dickerson, the trial court judge advised the parties that there would be a fifteen-minute recess. Following the recess, the trial court judge asked the prosecutor and trial counsel to approach the bench. The trial court judge told the attorneys that while she was in the courtroom during the recess, Jarrett had told her, "[y]our birthday's coming up, and I just wanted to wish you a happy birthday." (Tr. Vol. 4 at 161). The trial court judge further told the attorneys that she had asked Jarrett how he knew when her birthday was, and Jarrett had responded that "everybody's birthday is coming up, whether it's past or in the future, somebody is going to have a birthday." (Tr. Vol. 4 at 162). The trial court judge explained that the comment had made her uncomfortable, and she was "not sure what to do about it." (Tr. Vol. 4 at 162). The trial court judge further explained that she had asked Jarrett when her birthday was, and the bailiff had heard Jarrett say that the trial court judge's birthday was "in a couple of months." (Tr. Vol. 4 at 163). The trial court judge told the attorneys that her birthday was in January, which, at the time of the trial, was two months away.
[13] Based upon Jarrett's comments and the trial court judge's discomfort, trial counsel asked the trial court judge to declare a mistrial. The prosecutor asked the trial court judge "in what way d[id] that impact [Jarrett's] ability to have a fair trial" and if she could "still listen to this case fairly, adjudge the law fairly[,] and sentence fairly." (Tr. Vol. 4 at 165). The trial court judge responded that she certainly could but that she wanted to "take a few more minutes while we give 15 and think about it." (Tr. Vol. 4 at 165). The trial court judge further explained that she was not concerned about "over-sentencing him or doing anything like that because he [had] made that comment." (Tr. Vol. 4 at 166). Rather, her concern was her safety and why Jarrett "f[elt] it necessary to say that to [her]." (Tr. Vol. 4 at 166).
[14] Twenty minutes later, Jarrett returned to the courtroom, and the trial court judge stated that she had discussed his comments about her birthday with the prosecutor and his trial counsel. The trial court judge further told Jarrett that "[t]he question was posed to [her] whether or not [she] thought [she] could still be fair and impartial based on [her] concern about the comment." (Tr. Vol. 4 at 169). The trial court judge stated that she could still be fair and impartial and that Jarrett's comments would not affect any ruling that she had to make in the case or any sentence should he be convicted. The trial court judge further told Jarrett that "when [he had] information like that, [he] need[ed] to keep it to [him]self[,]" and denied his motion for a mistrial. (Tr. Vol. 4 at 169). The jury was not present for any of the discussion regarding Jarrett's birthday remarks to the trial court judge.
[15] At the end of the four-day trial, Jarrett's trial counsel renewed his motion for a mistrial "based on the testimony of [Investigator] Dickerson and the fact that at some point, [his] client [had been] taken into custody." (Tr. Vol. 5 at 4). Trial counsel specifically argued as follows:
I do believe that's extremely prejudicial, and the jury heard the fact that at some point, he was brought into custody in this case and essentially arrested or taken to the jail. The fact that that testimony was heard by the members of the jury, I think, it is too prejudicial to overcome, and based on some of the questions they asked following [Investigator] Dickerson's testimony, I do think it's something that has infiltrated the jury panel, so at this point, I would just renew our motion for a mistrial based on that testimony.4
[16] The trial court denied the motion and asked trial counsel if he "ha[d] some kind of curative statement for the ... motion." (Tr. Vol. 5 at 6). During a bench conference, the parties discussed the language that should be included in a limiting instruction and agreed that the trial court would instruct the jury that "[t]he fact that the defendant may have been taken into custody is not proof of guilt and should not be taken into consideration during your deliberations." (Tr. Vol. 5 at 6-8; App....
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