Kidwell v. State
| Decision Date | 09 December 2016 |
| Docket Number | Court of Appeals Case No. 15A04-1511-CR-1972 |
| Parties | John Kidwell, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Lawrenceburg, Indiana
ATTORNEYS FOR APPELLEE
Gregory F. Zoeller
Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
Appeal from the Dearborn Superior Court
The Honorable Sally A. McLaughlin, Judge
[1] John Kidwell appeals his convictions for burglary and conspiracy to commit burglary as class B felonies. Kidwell raises two issues which we revise and restate as:
We affirm.
[2] On December 3, 2012, around noon, James Fishburn was taking a nap in the walk-out basement of his Lawrenceburg home. A loud banging sound from his back door woke him up, and he walked to his garage to investigate. When he opened the garage door, he saw a gold-colored pickup truck parked nearby. The truck immediately began honking and backing away from the house. As the truck started to drive off, Fishburn saw a man run out from behind his house and jump in the truck, and the truck left the scene. As Fishburn dialed 911, he saw another man run from his house into the woods. Fishburn relayed the description of the men and the truck to the police.
[3] The police saw the gold-colored pickup truck, but it initially evaded capture. When the police found it, it had left the road, crashed into a tree, and been abandoned.
[4] Meanwhile, the police maintained a lookout near the woods behind Fishburn's house. After an hour, a man emerged from the woods, covered in briars andsweat and matching the description given by Fishburn. When asked, the man identified himself as Eric Taulbee and said he was looking for a place to hunt. He told the police that he was trying to meet up with some friends in a gold-colored pickup truck near US 50, and the officer noted that Taulbee was walking in the opposite direction. The officer took Taulbee back to the Fishburn residence. While en route, the officer received a photograph of the registered owner of the pickup truck, Shawn Kidwell, which he showed to Taulbee. The officer told Taulbee that Shawn had been arrested. They arrived at the Fishburn house, where Fishburn confirmed that he had seen Taulbee. The officer also found boot prints outside the residence matching Taulbee's boots. Taulbee confirmed that he had been near the residence, but maintained that he was looking for a place to hunt, confirmed that Shawn had been with him, and named the third man as "Chris Stevens." Transcript at 508. Taulbee was then arrested.
[5] The police searched Taulbee's phone and social media accounts but could not find anyone named Chris Stevens. About a week after his arrest, Taulbee told the police that he had committed the burglary with Shawn and Shawn's brother, John Kidwell. He admitted that he had made up the name Chris Stevens.
[6] In December 2012, the State charged Kidwell, Shawn, and Taulbee with Count I, burglary as a class B felony; and Count II, conspiracy to commit burglary as a class B felony. In 2013, Shawn and Taulbee each pled guilty to the burglarycharge and agreed to provide testimony against Kidwell, who remained at large until November 2014.
[7] Kidwell was brought to trial on June 15 and 16, 2015, but the jury deadlocked and was unable to reach a verdict and the court declared a mistrial. The following month, before Kidwell's second trial, the State moved to amend the charging information to include an allegation that Kidwell was an habitual offender based on two prior felony burglary convictions in Ohio. Kidwell did not object. The trial court granted the motion, and his second trial took place on August 18 and 21, 2015.
[8] At trial, Shawn testified that he, Taulbee, and Chris Stevens, who was Taulbee's "buddy or whatever," came to Indiana from Ohio for the purpose of knocking on people's doors and then leaving. Id. at 325. When confronted with his testimony from his 2013 guilty plea—in which he admitted that he, Taulbee, and his brother committed the burglary—he claimed that Chris Stevens was his "patch brother." Id. at 337. Shawn testified that this referred to a gang affiliation and that he had since left the gang.
[9] Taulbee testified that he and the two Kidwell brothers came to Indiana to burglarize houses in order to fund their heroin addiction. He admitted that he initially hid the Kidwells' role in the crime until it became clear that the police had evidence of their involvement, at which point he decided to tell the truth. On cross-examination Taulbee, Kidwell's counsel focused on the inconsistencies in Taulbee's story and attempted to portray him as someonewho would say anything to shorten his incarceration. Specifically, defense counsel asked, "So now you change your story again, eight days later after being locked up and without your heroin, you change it because of no evidence presented to you, correct?" Id. at 425. Taulbee responded: "No, I changed it because my mom's house was broken into." Id. Defense counsel objected. During the parties' discussion outside the presence of the jury, the trial court noted that in prior depositions, Taulbee had testified that he decided to give information on the Kidwell brothers because he believed that they had burglarized his mother's house. The trial court ruled that, because defense counsel should have known, due to prior hearings and depositions on the matter, that his question would elicit Taulbee's response, it would overrule the objection. Kidwell's request for a mistrial was also denied.
[10] The parties then discussed that the State would ask Taulbee on redirect why the break-in of his mom's house changed his mind and that Taulbee would respond that he was concerned that Shawn and Kidwell were involved. Kidwell's counsel objected to this line of questioning on hearsay grounds, was granted a continuing objection, and requested a mistrial due to "the presentation of evidence that there's implications that he already previously had committed a burglary at . . . his aunt's house." Id. at 455. The parties and the court also discussed a limiting instruction. The court overruled his objection and denied his motion for mistrial. The jury was subsequently brought back into the courtroom, the State asked Taulbee its question and Taulbee responded as discussed, and the court gave its limiting instruction as follows:
The question asked and answered is not evidence of the truth of the matter as stated in the answer and is not to be considered as such and is not to be considered as any evidence that the defendant acted in conformity with the statement provided by the witness but is merely for purpose of the witness' motivation.
[11] After this testimony, and the introduction of evidence that Kidwell's fingerprint was found on a bottle inside his brother's car, the jury found Kidwell guilty as charged. It also found that he was an habitual offender. The trial court sentenced him to twenty years for each conviction, to be served concurrently, with an additional twenty years for his habitual offender status.
[12] The first issue is whether the court committed fundamental error in permitting the State to amend the charging information to include a habitual offender allegation because the amendment amounted to vindictiveness by the prosecutor. Kidwell argues that when the State amended its charging information to include a habitual offender allegation, the surrounding circumstances strongly indicate a vindictive motive. Generally, we review a trial court's decision to allow amendment of a charging information in the face of a claim of prosecutorial vindictiveness for an abuse of discretion. Johnson v. State, 959 N.E.2d 334, 342 (Ind. Ct. App. 2011), trans. denied. Kidwell concedes that he did not object to the State's motion to add a habitual offender allegationand that accordingly he must show fundamental error. Fundamental error is an extremely narrow exception that allows a defendant to avoid waiver of an issue. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). It is error that makes "a fair trial impossible or constitute[s] clearly blatant violations of basic and elementary principles of due process . . . present[ing] an undeniable and substantial potential for harm." Id. "This exception is available only in 'egregious circumstances.'" Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quoting Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)), reh'g denied. "Fundamental error is meant to permit appellate courts a means to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred, not to provide a second bite at the apple for defense counsel who ignorantly, carelessly, or strategically fail to preserve an error." Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh'g denied.
[13] The Due Process clauses of Article 1, section 12, of the Indiana Constitution and the Fourteenth Amendment to the United States Constitution prohibit prosecutorial vindictiveness.1 Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098 (1974); Warner v. State, 773 N.E.2d 239 (Ind. 2002). A defendant has a due process right "to be free of apprehension that he will be subjected to an increased punishment if he exercises his right to attack his conviction . . . ."
Cherry v. State, 275 Ind. 14, 20, 414 N.E.2d 301, 305 (1981). Prosecutorial vindictiveness can occur if "more...
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