Murray v. State

• Decision Date: 11 February 2022
• Docket Number: Court of Appeals Case No. 21A-CR-1495
• Citation: 182 N.E.3d 270
• Parties: Denver Lee MURRAY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

182 N.E.3d 270

Denver Lee MURRAY, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 21A-CR-1495

Court of Appeals of Indiana.

FILED February 11, 2022

Attorney for Appellant: Justin R. Wall, Wall Legal Services, Huntington, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney General, Indianapolis, Indiana

May, Judge.

[1] Denver Lee Murray appeals following his conviction of Level 2 felony dealing in methamphetamine.¹ He raises two issues for our review, which we revise and restate as:

1. Whether the trial court's order directing Murray to show his teeth to the jury violated his Fifth Amendment right against compelled self-incrimination; and

2. Whether Murray's twenty-five-year sentence is inappropriate given the nature of his offense and his character.

We affirm.

Facts and Procedural History

[2] In exchange for a reduction in the length of his term of probation, Nathan Romine agreed to serve as a confidential informant and assist the Adams Co./Wells Co. Drug Task Force ("Drug Task Force") with controlled drug buys. Romine learned through a mutual friend that Murray was willing to sell drugs. Romine reached out to Murray over Facebook and gave Murray his phone number. The two then started communicating with each other via text message. Romine told the Drug Task Force about his contacts with Murray, and under the supervision of the Drug Task Force, Romine arranged to purchase methamphetamine from Murray on February 10, 2020.

[3] Before buying the drugs from Murray, Romine met with Wells County Sheriff's Department Detective Jeremy Heckel and other detectives from the Decatur Police Department and the Bluffton Police Department for a pre-deal briefing. During the pre-deal briefing, Romine showed Detective Heckel the text message exchange he had with Murray. Romine also explained that he intended to meet Murray and purchase 14 grams of methamphetamine for $300. Detective Heckel showed Romine a photograph of Murray. The detectives searched Romine's person and vehicle to make sure he did not have any drugs in his possession before meeting Murray. The detectives also outfitted Romine with audio recording equipment and documented the cash they gave him to use in the controlled buy. Undercover officers then followed Romine and surveilled him as he performed the controlled buy.

[4] Murray initially asked Romine to meet him at a house on Hi-Lo Drive in Bluffton, but while Romine was waiting for Murray near the house, Murray changed the location of the buy to the Linger Inn. Romine was not familiar with Bluffton, but he was able to follow one of the undercover police vehicles to the Linger Inn. At the motel, Murray got into Romine's car. Romine gave Murray $300, and Murray gave Romine a Ziploc bag. Subsequent testing revealed the bag contained 13.86 grams of crystalline methamphetamine. Romine drove Murray to a location a few blocks from the motel and dropped him off. Romine then returned to the location of the pre-deal briefing. Romine gave the Drug Task Force the drugs he purchased from Murray. The detectives again searched his body and vehicle, and they did not find any other drugs.

[5] Romine and Murray continued to communicate with each other by text, and they arranged a second transaction. Murray asked Romine to give him $300, which Murray would use to purchase methamphetamine for Romine from his supplier in Dayton, Ohio. Romine notified the Drug Task Force of this planned transaction. Before seeing Murray on February 17, 2020, Romine met with Bluffton Police Department Detective Marijean Tipton and other officers for a pre-deal briefing. Detective Tipton searched Romine's vehicle, and she installed audio and video equipment inside the vehicle to record the transaction. The detectives also searched Romine's body and documented the cash they gave Romine. Like with the first transaction, undercover officers surveilled Romine during the transaction.

[6] Romine met Murray in a gas station parking lot. Murray got into Romine's car, and Romine gave him $300. Murray left with the money, but he never delivered the promised methamphetamine to Romine. Murray also never returned the cash to Romine, and he eventually stopped responding to Romine's communications.

[7] On July 29, 2020, the State charged Murray with Level 2 felony dealing in methamphetamine and Level 6 felony theft.² The trial court conducted a three-day jury trial from March 1, 2021, to March 3, 2021. As a precaution against the COVID-19 virus, the trial court required everyone in the courtroom to wear facemasks. During Romine's testimony, the trial court instructed Murray to remove his mask, and Romine identified Murray as the individual who sold him the methamphetamine. Romine also testified that, although Murray had a full beard at the time of trial, he did not have a beard when they met in February 2020. Detective Heckel and Detective Tipton similarly provided in-court identifications of Murray. Detective Heckel stated he had known Murray since they had played baseball together as teenagers, and Detective Tipton testified she knew Murray and was able to recognize him both with and without facial hair. The State entered the video of the second transaction into evidence. In that video, the person who entered Romine's car wore sunglasses, a hat, and a hood. He also had crooked teeth.

[8] Near the end of its case-in-chief, the State asked the trial court to direct Murray to show the jury his uncovered face and to show them his teeth to demonstrate for the jury Murray had the same distinctive set of teeth as the person in the video. Murray objected to having to show the jury his teeth on the basis that being compelled to do so would constitute a violation of his Fifth Amendment right against self-incrimination. He argued "[a] smile is testimonial in nature and, in the reverse of that, baring your teeth or looking angry or something is also testimonial in nature; both of them are a facial expression." (Tr. Vol. III at 168.) The trial court initially ruled Murray would have to take off his facemask and face the jury, but the court would not require Murray to show his teeth to the jury. Following a brief recess, the State approached the bench and stated Murray had "somethin’ in his mouth" that was "gonna change his facial appearance. He's got some kinda fake teeth or somethin’." (Id. at 182.) Murray explained he had a "homemade" retainer in his mouth that he wore because he was embarrassed by the look of his teeth. (Id. at 186.) The State renewed its motion for Murray to show the jury his teeth, and the court ruled Murray would be required to take the appliance out and smile for the jury. When the jury entered the courtroom, the trial court directed:

THE COURT: Mr. Murray, if you would—uh—take your mask off.

(Defendant takes off mask)

And smile to the jurors, please.

(Defendant smiles)

Now, Mr. Murray, if you would—uh—please take your dental implant out.

(Defendant removes dental implant )

Smile.

(Defendant smiles)

Thank you.

(Id. at 192.)

[9] Murray absconded during the jury deliberations, and he was not present when the jury's verdict was read. The jury returned a verdict of guilty on the dealing methamphetamine count and a verdict of not guilty on the theft count. The trial court issued a bench warrant after the verdict was read. In April 2021, Murray was arrested in Huntington County and charged with twelve crimes, including Level 2 felony dealing in methamphetamine, Level 5 felony dealing in cocaine,³ and Level 5 felony battery on an officer.⁴ He was then transferred to Wells County pursuant to the bench warrant in the instant case.

[10] The trial court held a sentencing hearing on June 23, 2021. Murray testified he is a drug addict, and he apologized "to the Court, to society, and to [his] family for not being a better member of our community." (Tr. Vol. IV at 18.) He also asked the trial court to recommend his placement in the Indiana Department of Correction's Purposeful Incarceration program. The State argued Murray was more than a mere addict. The State commented on the large quantity of drugs Murray sold Romine and characterized their relationship as that of "business associates" rather than friends. (Id. at 30.) The State also argued Murray "has been supporting himself through dealing income[.]" (Id. at 31.) The State noted Murray's father testified at sentencing that Murray did not require much assistance from his family, but Murray testified he had held only one job for a period of three weeks since 2015. The State put forth evidence of Murray's numerous prior encounters with law enforcement, including the charges filed against him after he absconded in the instant case. Further, the State asserted Murray "tried to perpetrate a fraud on the Court by putting false teeth in the last day of trial." (Id. )

[11] The trial court sentenced Murray to a fully executed term of twenty-five years in the Indiana Department of Correction. The trial court found aggravating factors in Murray's criminal history, his prior violations of probation, his failure to appear for reading of the verdict, the charges pending against him at the time of sentencing, the homemade retainer episode, and his failure to seek treatment for his drug addiction. The trial court did not find any mitigating factors. The trial court recommended Murray receive substance abuse counseling while incarcerated, but the court did not recommend Murray for the Purposeful Incarceration program.

Discussion and Decision

I. Fifth Amendment

[12] Murray challenges the trial court's order granting the State's motion to require him to show his face and teeth to the jury. Our standard of review regarding challenges to the admission of evidence at trial is well-settled:

The general admission of evidence at trial is a matter we leave to the discretion of the trial court. We review these determinations for abuse of that

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