Taylor v. State, No. 32A01–1205–CR–230.

Docket NºNo. 32A01–1205–CR–230.
Citation985 N.E.2d 821
Case DateApril 10, 2013
CourtCourt of Appeals of Indiana

985 N.E.2d 821

Demetrius Damon TAYLOR, Appellant–Defendant,
v.
STATE of Indiana, Appellee–Plaintiff.

No. 32A01–1205–CR–230.

Court of Appeals of Indiana.

April 10, 2013.


Appeal from the Hendricks Superior Court; The Honorable Robert W. Freese, Judge; Cause No. 32D01–1109–FA–16.
Cynthia P. Helfrich, Helfrich Law Offices, Brownsburg, IN, Rebecca M. Eimerman, Eimerman Law Zionsville, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.


MEMORANDUM DECISION—NOT FOR PUBLICATION

KIRSCH, Judge.

Demetrius Damon Taylor (“Taylor”) appeals from his convictions of one count of rape 1 as a Class A felony, one count of criminal confinement enhanced because of the use of a firearm 2 as a Class B felony, one count of criminal recklessness 3 as a Class D felony, one count of robbery 4 as a Class B felony, two counts of theft,5 each as a Class D felony, one count of burglary 6 as a Class A felony, and an habitual offender determination. Taylor presents the following restated issues for our review:

I. Whether Taylor's retrial following a mistrial violated double jeopardy principles;

II. Whether the trial court abused its discretion by admitting DNA population statistical evidence over Taylor's hearsay and confrontation clause objections;

III. Whether the trial court abused its discretion by permitting the victim to give an in-court identification of Taylor; and

IV. Whether the trial court abused its discretion by denying Taylor's motion for mistrial based on prosecutorial misconduct during the habitual offender phase of his trial.

We affirm.

FACTS AND PROCEDURAL HISTORY

On the afternoon of July 19, 2011, M.W., who was home alone, decided to cool herself off in a kiddy pool, which she had in her back yard for her grandchildren. While she was lying on her stomach on a raft in the pool, someone suddenly pushed her head under the water. When M.W.'s head emerged from the water, she saw an African–American male with facial hair and who was wearing glasses. The man ordered her not to look at him again or he would shoot her, and M.W. felt a gun pressed against the side of her head. The man removed M.W.'s wedding band and ring from her finger. He then walked her toward and into her garage and asked her who else was at home. M.W. replied that her husband was home, even though no one was present, because she hoped that it would scare the man off.

The man forced M.W. inside her house and did so while keeping the gun pressed to M.W.'s head. When the man asked her where her husband was, M.W. admitted that she had lied. The man then demanded money, jewelry, guns, and coins, and told her that if she lied again he would kill her. As the man looked through the house for valuables, M.W. complied with the man's repeated orders not to look at him. The man directed M.W. to provide him with garbage bags, and he also removed her bathing suit top.

The man then forced M.W. upstairs where he made her drop her jewelry into a garbage bag. He then ordered M.W. to bend over her bed, and he removed her bathing suit bottom. The man made a comment about M.W.'s breasts and then inquired if she and her husband had sex, including oral sex. The man then inserted his penis into M.W.'s vagina and had sex with her until he ejaculated inside her. The man then forced M.W. to go into the bathroom and urinate, and then ordered her to shower and clean herself off. While M.W. was doing as she was instructed, the man cleaned himself off at the bathroom sink. The man then ordered M.W. to lie on her bed, face down, and he proceeded to tie her up. The man told her not to move when he retrieved the items he was taking from M.W.'s home. When M.W. no longer heard the man moving around inside her house, she managed to untie herself. She then wiped herself off because she had blood in her vagina and hurriedly dressed. She noticed that her boyfriend's guns were missing, ran down the stairs, locked the door in the garage, and called 911.

Several police officers arrived at M.W.'s house and obtained a brief description of what had happened from M.W. before she was transported by ambulance to the hospital. After arriving at the hospital, M.W. was examined by Carmen Drury (“Drury”), a sexual assault nurse examiner. Drury took specimens from M.W. to prepare a rape kit. The rape kit was turned over to Detective Amanda Keesling (“Det.Keesling”), who questioned M.W. about the attack. Eventually, DNA evidence obtained from the rape kit resulted in a match with Taylor.

Police officers obtained a search warrant for both Taylor and his residence. The search warrant was executed on September 1, 2011, at which time Taylor was arrested, his cell phone was confiscated, and the officers collected Taylor's DNA. Officers also seized jewelry from Taylor's residence. Some of the jewelry seized was later identified by M.W. as some of the jewelry taken from her home by Taylor.

Det. Keesling conducted a photo array identification procedure with M.W., but M.W. was unable to make a positive identification, and in fact, made a tentative identification of another man. Det. Keesling informed M.W. that the man who had attacked her had been captured and that there was DNA evidence matching the person in custody. Further DNA testing demonstrated that Taylor was the source of the DNA acquired from evidence obtained from M.W. and her home following the rape. Taylor's cell phone records also placed Taylor in the area of M.W.'s home near the time of the crime.

The State filed charges against Taylor on September 1, 2011, and his jury trial began on February 7, 2012. On February 13, 2012, during Det. Keesling's testimony, the prosecutor asked her about her knowledge of Taylor's social security number. Taylor objected on hearsay grounds, to which the State then asked questions in an attempt to lay a foundation for the testimony. During this testimony, Det. Keesling stated that the source of her knowledge of Taylor's social security number came from Taylor's BMV record and his criminal history. Taylor objected and requested a mistrial, which the trial court granted.

Prior to Taylor's retrial on the same charges, his counsel filed a motion to dismiss the case, citing double jeopardy issues. The State responded to the motion, and the trial court subsequently denied it. The State dismissed a count alleging Class C felony intimidation against Taylor during the retrial. Also during the retrial, M.W. testified about her unsuccessful attempt to identify the perpetrator from the photo array, but made an in-court identification of Taylor as the perpetrator, which was done without objection. During the testimony of Nicole Keeling (“Keeling”), the forensic biologist, Taylor objected to testimony concerning population probability statistics for DNA matches. The trial court overruled Taylor's objection.

The jury found Taylor guilty of the charges, and the matter proceeded to the handgun enhancement phase of the trial. The jury found Taylor guilty on that count. The jury was next asked to consider the count alleging that Taylor was guilty of being a serious violent felon in possession of a firearm. The jury found Taylor guilty of that count as well.

During the habitual offender enhancement stage of the trial, Taylor objected on hearsay grounds to the prosecutor reading from the charging documents used for the habitual offender enhancement charge. After Taylor's counsel completed the argument on the objection, the trial court sustained the objection. The deputy prosecutor resumed her argument, and Taylor's counsel objected and argued that the deputy prosecutor was inappropriately arguing sentencing to the jury. Taylor requested a mistrial. The deputy prosecutor responded that her argument was merely rebuttal to Taylor's prior argument, which essentially called for jury nullification. The trial court admonished the jury that it had been instructed not to consider sentencing because that was the trial court's duty. The trial court then allowed the State to continue with its argument, denying Taylor's mistrial motion. The jury found that Taylor was an habitual offender.

On April 20, 2012, the trial court issued its order, which, including consecutive and concurrent sentences, and with an habitual offender enhancement, resulted in an aggregate sentence of one hundred years executed. Taylor now appeals.

DISCUSSION AND DECISION
I. Retrial and Double Jeopardy Concerns

Taylor argues that his retrial violated double jeopardy principles. In particular, Taylor argues that during the first trial on these charges, the State solicited improper testimony from one of its witnesses such that Taylor was goaded into moving for a mistrial. During Det. Keesling's testimony in the first trial, the State asked her for Taylor's social security number. Taylor lodged a hearsay objection which was granted. The State then attempted to establish a non-hearsay foundation for the same evidence. Det. Keesling testified that she gained the information from Taylor's BMV records. The State asked if there was any other source of information for that number. Det. Keesling testified that she obtained it from Taylor's criminal history.

Taylor objected to that testimony and requested a sidebar conference. After the jury was excused, Taylor argued in support of a motion for mistrial that the State had solicited inadmissible evidence of Taylor's criminal history. At the conclusion of that hearing, and out of the presence of the jury, the trial court granted the motion for mistrial and scheduled a retrial on the charges. Taylor requested the opportunity to object to a retrial and submit legal authority in support of that objection.

On March 9, 2012, Taylor submitted a motion to dismiss and a brief in support of the motion. The State filed an answer to the motion to dismiss, after which the trial court denied the motion without a hearing. Taylor argues that the trial...

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