                                                                               FILED
                                                                          Feb 04 2019, 9:25 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Amy D. Griner                                              Curtis T. Hill, Jr.
      Griner & Company                                           Attorney General of Indiana
      Mishawaka, Indiana                                         Ian McLean
                                                                 Supervising Deputy Attorney
                                                                 General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jabreeh Cash Davis-Martin,                                 February 4, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 71A05-1712-CR-2963
              v.                                                 Appeal from the St. Joseph
                                                                 Superior Court
      State of Indiana,                                          The Honorable Elizabeth C.
      Appellee-Plaintiff                                         Hurley, Judge
                                                                 Trial Court Cause No.
                                                                 71D08-1603-MR-002



      Vaidik, Chief Judge.



                                           Case Summary
[1]   Jabreeh Cash Davis-Martin was convicted of murder for the brutal beating

      death of Jodie Henderson in South Bend in January 2016. He now appeals his


      Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019                  Page 1 of 32
      conviction on a variety of grounds as well as his maximum sentence of sixty-

      five years. Specifically, Davis-Martin contends that (1) the State withheld his

      cell-phone records in violation of Brady v. Maryland, 373 U.S. 83 (1963), (2) the

      State violated his due-process rights by not correcting a detective’s false

      testimony, (3) the trial court erred in not supplementing the pattern jury

      instruction on impeachment by prior inconsistent statements, (4) the trial court

      admitted evidence that he told his mother he did not want to talk to the police

      in violation of his Fifth Amendment privilege against self-incrimination, (5) the

      evidence is insufficient to support his conviction, and (6) the trial court erred in

      not identifying three mitigators. We affirm.



                             Facts and Procedural History
[2]   Around 6:30 p.m. on January 15, 2016, Jodie and his aunt, Donna Forrest,

      went to Felisha Sconiers’s house on Sorin Street in South Bend. Felisha’s

      mother and son, Davis-Martin, also lived in the house, with Davis-Martin

      staying in the basement. Shortly after arriving at the Sorin Street house, Jodie

      suggested buying alcohol. Jodie, Donna, and Felisha went to the liquor store

      and bought some vodka. Upon returning to the house, they sat around the

      kitchen table and drank. Throughout the evening, other people were coming

      and going, including Davis-Martin and his friend, Ricky Jackson. While Jodie,

      Donna, and Felisha were at the kitchen table, Jodie, an openly gay man, told

      Felisha that he “want[ed]” her son, Davis-Martin. Tr. Vol. II p. 32; Ex. 278

      (video). Felisha told Jodie not to talk about her son, adding “you can talk to


      Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 2 of 32
      me about my husband, though, you can have that motherfu**er.” Ex. 278.

      Jodie responded that he didn’t want her husband, he was “gonna git [her] son.”

      Id. Felisha told Jodie to stand up, because she was going to “kick [him] in [the]

      a** right now.” Id. Jodie then asked Felisha what made her think that Davis-

      Martin “ain’t in love with me too?” Id. Felisha responded, “I know he ain’t.”

      Id. When Jodie called Davis-Martin his “husband,” Felisha, upset, warned him

      not to talk about her son “like that.” Id.


[3]   As the evening wore on, Jodie passed out. It was later determined that his

      blood-alcohol content had been in the range of 0.25. Tr. Vol. III p. 31. Donna

      was unable to rouse Jodie, so around 11:45 p.m. Davis-Martin, who was getting

      ready to go out, moved Jodie to the living-room couch. Donna put Jodie’s two

      cell phones and car keys in his coat pocket and then put his coat on top of him

      as a blanket. After confirming with Felisha that Jodie could sleep on the couch,

      Donna went home. As she left, she saw Davis-Martin standing at a car talking

      to someone.


[4]   Meanwhile, Felisha went to sleep on the couch near Jodie. At some point,

      Felisha heard Jodie get up and say he was leaving.


[5]   Sometime around 2:00 to 3:00 a.m., Ricky returned to the Sorin Street house

      because he had left his coat there. According to Ricky, the outside of the house

      “didn’t look right” because there was “like blood and stuff.” Tr. Vol. II p. 207.

      Ricky also saw “a dude sitting up across the street” on the curb. Id. at 208.

      After he got his coat and was leaving, Ricky noticed that the man across the


      Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 3 of 32
      street (he did not know who it was, but he could tell it was not Davis-Martin)

      was mumbling that he wanted to go home. Id. at 212. Ricky did not help the

      man, however, because he had just been released from prison two weeks earlier

      and did not want to get in trouble.


[6]   Shortly before 7 a.m., police officers from the South Bend Police Department

      were dispatched to the 1200 block of East Sorin Street on a report of an

      unresponsive male in the street. Upon arrival, the officers found Jodie lying

      face down in the street across from the Sorin Street house. Jodie, who had

      significant head trauma, did not have a coat on, and he was missing his left

      shoe. Paramedics arrived and pronounced him dead.


[7]   There was a good deal of evidence for the officers to collect at the scene. At the

      Sorin Street house, the officers observed blood in the snow in the front yard, on

      the cement walkway leading to the house, and on the front porch. More blood

      was found near Jodie’s body across the street from the house. The officers

      observed that a paver had been removed from the top of a retaining wall and

      was on the ground near Jodie’s body. In addition, the porch railing by the front

      door of the house had been broken away from the house and was leaning out

      toward the yard. One of the spindles was broken, with half of it missing. In the

      front yard, the officers found the missing half of the spindle with blood on it as

      well as part of a broken chair, a piece of black material, and a piece of circular

      foam with blood on it.




      Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 4 of 32
[8]    The snow also contained clues about Jodie’s death. The officers found several

       footprints in the snow that had been made by two different shoes. The tread

       pattern of one was consistent with Nike Air Force 1 shoes. The officers also

       found an impression in the snow that resembled a folding chair with a circular

       seat. Finally, the officers found drag marks in the snow leading away from the

       Sorin Street house toward Jodie’s body across the street.


[9]    Inside the Sorin Street house, the officers found Jodie’s missing left shoe

       underneath a recliner in the living room. The officers also found a pile of trash

       at the bottom of the basement stairs. Inside the pile of trash was a pair of Nike

       Air Force 1 shoes. Later forensic testing revealed that Davis-Martin’s DNA

       was on the shoes. A comparison of the impressions from the Nike Air Force 1

       shoes and the footprints in the snow showed that they were a match. Tr. Vol.

       III p. 62. The officers also found a folding chair in the basement that looked

       like the impression in the snow. The officers brought the intact chair outside,

       and it matched the impression. The broken chair part and piece of black

       material found in the yard also matched the chair found in the basement.


[10]   Later that day, South Bend Police Department Detective Brian Cook

       interviewed Felisha. During the interview, Detective Cook told Felisha that he

       wanted to interview her son. Felisha then called Davis-Martin from the

       interview room and told him that the police wanted him to come to the station

       “because they found Jodie dead across the street, and they want[ed] to talk to

       everybody who was [at the Sorin Street house] last night.” Tr. Vol. II p. 66.

       Davis-Martin replied, “I ain’t going down there to talk to nobody.” Id. In a

       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 5 of 32
       second call happening “immediately after,” Davis-Martin told his mother that

       he did not have time to talk to the police because he was at work. Id.; Tr. Vol.

       IV pp. 16-17. It was later learned that Davis-Martin did not go to work that

       day.


[11]   An autopsy performed on January 17 found multiple abrasions on Jodie’s

       hands, arms, legs, torso, back, and head. There were also lacerations to his

       head, which indicated that the skin had been split open by forceful impacts.

       There was a fracture to the outer layer of his skull and to a rib. According to

       the forensic pathologist, the manner of death was homicide, and the cause of

       death was multiple injuries, “including blunt and chop injuries.” Tr. Vol. III p.

       23. Jodie’s alcohol consumption and exposure to the cold contributed to his

       death. Id. at 22.


[12]   The investigation of Jodie’s death continued throughout February and March.

       On February 18, Davis-Martin was arrested on an unrelated charge and

       incarcerated in the St. Joseph County Jail. Around this same time, Detective

       Cook interviewed Davis-Martin. Tr. Vol. II pp. 218-20; Tr. Vol. IV p. 13. On

       February 21, Davis-Martin placed a phone call from jail, which was recorded.

       During the call, Davis-Martin stated that he had not yet finished cleaning his

       room in the basement and needed the recipient of the call to throw away the

       trash at the bottom of the stairs (which is where the Nike Air Force 1 shoes had

       been found).




       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 6 of 32
[13]   In March, a man named Brandon Trotter contacted police and said that he had

       been at his sister’s apartment in the early-morning hours of January 16 and had

       seen Davis-Martin there. According to Brandon, Davis-Martin was “geeked”

       and “[h]igh on cocaine, weed, [and] alcohol.” Tr. Vol. III pp. 158, 161. Davis-

       Martin told the people gathered there that he had hit somebody “over the head”

       and the blood “squirted out like a movie.” Id. at 158. Brandon noticed blood

       on Davis-Martin’s shirt and in the webs between his fingers.


[14]   Also in March, police spoke with Cameron Wilson and Laura Luna, who were

       also at that same apartment in the early-morning hours of January 16. During

       their interviews with Cameron and Laura, police learned that between 2:00 and

       3:00 a.m. on January 16, Laura drove Cameron to the apartment. Laura stayed

       in the car while Cameron went inside. When Cameron walked in, Davis-

       Martin, whom he knew from high school, was there. Davis-Martin asked

       Cameron for a ride to Sorin Street. Cameron agreed, and Davis-Martin

       accompanied him to the waiting car. Laura then drove to Sorin Street. On the

       way, Davis-Martin said “he got into it [earlier that night] with somebody

       because they made a pass on him” and “tried to suck his di**.” Id. at 171.

       Davis-Martin referred to the person as a “fa**ot.” Id. at 195. Davis-Martin

       said he stabbed the person “a couple times,” threw him out of the house, and

       thought he had killed him. Id. at 195. Neither Cameron nor Laura believed

       Davis-Martin at the time.


[15]   When they were almost to Sorin Street, however, Davis-Martin called his

       mother and told her to get rid of a coat, boil some water and bleach and melt

       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 7 of 32
       the snow with blood in it, and clean the blood on the porch. Cameron said

       Davis-Martin did not use Cameron’s phone to make the call and that he

       assumed Davis-Martin used Laura’s phone. Laura, however, said she did not

       know what phone Davis-Martin used. In any event, when they pulled up

       across from the Sorin Street house, the car’s headlights illuminated Jodie lying

       in the street in a curled-up position. He was barely moving. Upon seeing this,

       Davis-Martin exclaimed, “fu**ing fa**ot is still alive.” Id. at 200. Davis-

       Martin got out of the car and started kicking and punching Jodie. Jodie, who

       did not fight back, grunted. Davis-Martin then retrieved a paver from a nearby

       retaining wall and was about to hit Jodie with it when Cameron got out of the

       car and stopped him. As Cameron and Laura pulled away from the house,

       Jodie’s body was no longer curled up but rather face down—the same position

       he was in when police arrived shortly before 7 a.m. Numb and afraid, neither

       Cameron nor Laura called police.


[16]   The State charged Davis-Martin with murder on March 22; he was still in the

       St. Joseph County Jail on the unrelated charge when he was served with the

       arrest warrant. Appellant’s App. Vol. II p. 137.


[17]   While incarcerated, Davis-Martin spoke to several inmates about his case. For

       example, Andrew Fry was housed with Davis-Martin for approximately six

       weeks beginning in June 2016. Davis-Martin and Andrew became friends,

       discussing the frequent jailhouse topics of “Women and sex, our cases and

       drugs, what we’re in [jail] for,” and “what is going on in the cell block.” Tr.

       Vol. II pp. 223-24. During one of these conversations, Davis-Martin looked

       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 8 of 32
       “down” and “depressed.” Id. at 224. To cheer him up, Andrew told him about

       one of his and his wife’s “swinger encounters.” Id. At the end of the story,

       Davis-Martin asked Andrew if he was attracted to any of the men that he and

       his wife had encounters with. Andrew responded yes, because he was bisexual.

       Davis-Martin responded that he was bisexual, too. Davis-Martin then asked

       Andrew if he had told anyone about being bisexual, and Andrew answered that

       his wife knows “and whoever I decide to let know.” Id. at 225. Davis-Martin,

       however, said he did not want anyone to know and “that’s why he was in jail.”

       Id. at 226. Davis-Martin then explained that he and Jodie had a relationship

       and that everything was going well until Jodie wanted to tell people about their

       relationship. Davis-Martin said one night, Jodie went to the Sorin Street house

       looking for him and ended up telling his mother about their relationship.

       Davis-Martin’s mother then called him inquiring about his relationship with

       Jodie. Davis-Martin was “furious” about this. Id. at 228. When Davis-Martin

       saw Jodie later, they argued, and Davis-Martin hit him with a gun. Davis-

       Martin planned to hit Jodie “only a few times,” but “he couldn’t stop himself”

       and beat him up “until he couldn’t move no more.” Id. at 229. Davis-Martin

       told Andrew that although the police did not have a lot of physical evidence

       implicating him, he was worried about “some shoes.” Id. at 231.


[18]   Davis-Martin also spoke with inmates Marcus Green and Anthony Lyons.

       Davis-Martin and Marcus were cellmates for a short time. According to

       Marcus, one day in September 2016 Davis-Martin told him that he was in jail

       for murder and that “all he did was beat the guy’s ass and he froze to death.”


       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 9 of 32
       Tr. Vol. III p. 149. Davis-Martin explained that the guy had told people they

       were having a relationship, which made him “look like a f**.” Id. at 150. In

       November 2016, Davis-Martin approached Anthony in the jail and said he

       heard that Anthony had beat a murder charge before and wanted to know his

       chances of doing the same. Anthony responded that he did not beat a murder

       charge; rather, he got convicted of a lesser charge. Davis-Martin then asked

       Anthony if he knew about his charge. When Anthony said no, Davis-Martin

       told him that he was in jail for “killing the f**.” Id. at 137. Anthony responded

       that their cases were not the same. Davis-Martin told Anthony that he still

       might be able to beat his murder charge because no one saw him kill Jodie.


[19]   A jury trial was held in June 2017. At trial, Detective Cook testified on direct

       examination that when he eventually interviewed Davis-Martin in February

       2016, Davis-Martin told him that he did not have a cell phone and had not had

       one for “quite some time.” Tr. Vol. IV p. 17. Detective Cook, however,

       testified that this statement was not true, as he “received [Davis-Martin’s]

       cellphone number during [his] investigation and actually did a search warrant,

       received his cellphone records . . . .” Id. Detective Cook explained that Davis-

       Martin’s cell-phone records were “hit and miss” because with “[t]oday’s

       technology you can actually make an internet call from your phone which is

       hard to track a number.” Id. Detective Cook explained that despite Davis-

       Martin’s claim that he did not have a cell phone, he could tell from Davis-

       Martin’s cell-phone records that he, in fact, had a cell phone around the time of

       Jodie’s murder. On cross-examination, defense counsel asked Detective Cook


       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 10 of 32
       if he had Davis-Martin’s cell-phone records with him, and Detective Cook

       responded that he only had his “notes” and “work product” with him. Id. at

       20. Defense counsel then asked Detective Martin if there were any calls

       between Davis-Martin’s cell phone and Felisha’s cell phone between 10 p.m. on

       January 15 and the following day when Felisha called Davis-Martin from the

       police station, and Detective Cook said no. Id. at 22. Defense counsel also

       asked Detective Cook if there were any calls between Laura’s cell phone and

       Felisha’s cell phone around that same time, and Detective Cook said no. Id. at

       23, 36, 37-38. Detective Cook reiterated that internet calls cannot be tracked,

       which is one of law enforcement’s “biggest enemies” right now. Id. at 36; see

       also id. at 38 (explaining that the internet “makes phone calls disappear”).


[20]   Defense counsel also cross-examined Detective Cook about whether Marcus

       and Anthony had given him information in the past:


               Q        Has Marcus Green provided you information on any other
                        cases; either a defendant who is already charged or a case
                        that you are investigating and he provides information that
                        would assist in that?


               A        Not that I recall.


                                                      *****


               Q        What about Anthony Lyons?


               A        Possibility. He has been around a while.



       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 11 of 32
               Q        Did you investigate a case against Brian Lac[e]y?


               A        Bryant Lac[e]y, yes, ma’am.


               Q        Bryant Lac[e]y?


               A        Yes.


               Q        And did [Anthony] Lyons give you information on that
                        case?


               A        Not that I recall.


       Tr. Vol. IV p. 31. Defense counsel then moved on to a different topic.


[21]   In addition, Cameron testified on direct examination that while they were

       driving to Sorin Street, Davis-Martin said he beat somebody up because they

       made a pass at him and “tried to suck his di**.” Tr. Vol. III p. 171. The

       following colloquy then occurred:


               Q        Now, previously you talked to the police about this, right?


               A        Yeah.


               Q        And you told them some additional details about a couple
                        of those things?


               A        I told you before I don’t remember. It’s been so long, and
                        I was drunk that night too.




       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 12 of 32
        Q        Did you tell the police that [Davis-Martin] told you that he
                 killed a fa**ot that night?


        A        No.


        Q        Did you tell the police that [Davis-Martin] had told you
                 that he stabbed the guy in the head multiple times?


        A        No.


        Q        Did you tell the police that he had thrown the guy out of
                 his house and beat his a**?


        A        No.


        Q        Are you saying he didn’t say those things?


        A        I don’t recall.


        Q        You don’t remember saying those things?


        A        I don’t remember. I told you I was drunk.


        Q        And if you told police about this conversation just a couple
                 months after it happened, would your memory have been
                 better when you talked to the police then or would your
                 memory be better now?


        A        Pretty sure it would be better than it is now.


        Q        So you could have said those things, you just aren’t sure
                 that you said them as we sit here today?

Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 13 of 32
               A        Right.


       Id. at 172-73. Cameron went on to testify that as they pulled up across from the

       Sorin Street house, they saw Jodie, who looked beat up, lying in the street.

       Davis-Martin then got out of the car and hit, kicked, and punched Jodie while

       calling him a “fa*.” Id. at 177. Cameron testified that Davis-Martin got a

       paver and was about to hit Jodie with it when he got out of the car and stopped

       Davis-Martin from doing so.


[22]   At the close of the evidence, the trial court gave the jury the following pattern

       jury instruction on impeachment by prior inconsistent statements:


               The credibility of a witness may be attacked by introducing
               evidence that on some former occasion the witness made a
               statement inconsistent with his testimony in this case. Evidence
               of this kind may be considered by you in deciding the value of
               the testimony of the witness.


       2 Ind. Pattern Jury Instruction—Criminal § 12.1300 (4th ed.); Appellant’s App.

       Vol. II p. 121. Davis-Martin asked the trial court to add the following sentence

       to the end of the pattern instruction, “However, prior inconsistent statements of

       a testifying witness that were offered for impeachment may not be considered as

       substantive evidence.” Appellant’s App. Vol. II p. 67. The trial court declined

       to add the sentence, finding that its instruction was “the pattern and it says

       most everything you said.” Tr. Vol. IV p. 95.


[23]   The jury found Davis-Martin guilty. At sentencing, the trial court found no

       mitigators and the following aggravators: (1) Davis-Martin’s criminal history

       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 14 of 32
(Class A misdemeanor intimidation and Class C felony carrying a handgun

without a license); (2) the fact that he was on probation for the handgun

conviction when he committed the offense; and (3) the nature and

circumstances of the offense. The trial court explained that the third aggravator

was the “biggest”:


         I think the most aggravating part of this case or biggest
         aggravating factor that I consider would be the fact – I guess we
         can call it the nature and circumstances of the offense. We can
         call it the fact that the harm inflicted was greater than what was
         necessary for the commission of the offense itself, but I guess
         when I look at it, Mr. Davis-Martin, it was the absolute depravity
         with which this crime was committed.[1] I struggle to think of
         another case that I have seen . . . that exhibited this level of
         depravity, and that’s really the only word I can think to use that
         in my mind encompasses what happened to [Jodie].


         I look at the fact that this was a person that you knew, that you
         were purportedly friends with, family were friends, someone that
         you hung out with . . . fairly regularly. Whether or not the two
         of you were in a relationship, whether you weren’t—there is
         evidence to suggest either or both.


         You knew [Jodie]. You knew who he was. You knew that he
         was a veteran. You knew that he was a gay man. You knew if



1
  Davis-Martin argues that the trial court erred in identifying the third aggravator. He claims that this
aggravator is labeled “the harm inflicted was greater than what was necessary to commit the offense,” which
is improper as a matter of law because death (the harm inflicted) is an element of murder. Appellant’s Br. p.
35. The trial court, however, gave two labels for this aggravator. Regardless of the label, the court made
clear that this aggravator was the depraved nature and circumstances of the offense. Tr. Vol. IV p. 174. As
the court put it, at any point Davis-Martin could have called for help, but he did not do so; instead, he went
back to the Sorin Street house, not to help Jodie, but “to insure that [he] was dead.” Id. at 176. The trial
court did not err in identifying the third aggravator.

Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019                      Page 15 of 32
               from nothing else from the evidence presented that night that . . .
               he had expressed interest in you and having more than a
               friendship with you. So you knew all of those things about him.
               But up to that point as far as I could tell those things didn’t
               impact your friendship in any way. They didn’t diminish the
               friendship. It didn’t make him a lesser person in your mind.


               But something that night, Mr. Davis-Martin. Again I keep going
               back to the fact that it’s this level of depravity that I just haven’t
               seen in many cases before now.


               And . . . what it reveals to me is your character. And I can
               consider your character in fashioning a sentence as well. And
               what you put [Jodie] through that night was so far greater than
               what would have been necessary to satisfy the elements of
               murder. . . . The length of time over which this killing occurred,
               the fact that at some point during the attack that you perpetrated
               you could have called for help, you could have realized what you
               were doing, realized the situation [Jodie] was in, gotten him help,
               kept him alive. And you didn’t. And what you did do was go
               back to insure that he was dead. And that to me just speaks to
               your character, Mr. Davis-Martin.


               And I can’t fathom – we talk about the worst of the worst
               offenders being deserving of the maximum sentence, I can’t
               fathom a wors[e] offense and I can’t fathom a wors[e] offender
               and a wors[e] character based upon the nature and circumstances
               of this situation.


       Id. at 174-76. Accordingly, the court sentenced Davis-Martin to the maximum

       term of sixty-five years.


[24]   After sentencing, the State turned over Davis-Martin’s cell-phone records to the

       defense. Appellant’s App. Vol. II p. 170. Davis-Martin then filed a motion to

       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 16 of 32
       correct error, arguing that the State (1) withheld his cell-phone records in

       violation of Brady and (2) knowingly used false evidence from Detective Cook

       regarding whether Marcus and Anthony had given him information in the past

       without correcting it. To support his motion, Davis-Martin submitted several

       exhibits, including the following: (1) his cell-phone records and (2) police

       reports that the State had provided him in discovery showing that Marcus and

       Anthony had given Detective Cook information in the Bryant Lacey murder

       case. The State filed a response along with affidavits. According to Detective

       Cook’s affidavit, after trial he found Davis-Martin’s cell-phone records


               in a folder on my computer’s hard drive labeled, “Felisha
               Sconiers Records.” In checking the CMHU hard drive, the
               master evidence log, and the master casebook, it does not appear
               that I turned in the Defendant’s records to our evidence
               technician. The evidence technician is the party that sends out
               copies of our materials to the prosecutor.


       Appellant’s App. Vol III. p. 126. Detective Cook’s affidavit also provided:


               [A]t that moment on the witness stand, I did not recall that
               [Marcus] and [Anthony] gave information on the Lacey case.
               My testimony was honest. I would not, and did not[,]
               misrepresent information or lie.


       Id. The trial court denied Davis-Martin’s motion to correct error.


[25]   Davis-Martin now appeals.




       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 17 of 32
                                   Discussion and Decision
                                    I. Motion to Correct Error
[26]   Davis-Martin first contends that the trial court should have granted his motion

       to correct error. Generally, rulings on motions to correct error are reviewed for

       an abuse of discretion. Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013).


            A. Late disclosure of Davis-Martin’s cell-phone records
[27]   Davis-Martin argues that the State violated Brady “by failing to disclose Davis-

       Martin’s cellular phone records which were material.” Appellant’s Br. p. 18.

       Brady and its progeny apply to the State’s failure to disclose favorable evidence

       that is material to the accused’s guilt or punishment. Cone v. Bell, 556 U.S. 449,

       469 (2009); Brady, 373 U.S. at 87. There are three components to a Brady

       violation: (1) the evidence at issue must be favorable to the accused, either

       because it is exculpatory or impeaching; (2) the evidence must have been

       suppressed by the State, either willfully or inadvertently; and (3) prejudice

       (materiality inquiry). Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Evidence

       is material when there is a reasonable probability that, had the evidence been

       disclosed, the result of the proceeding would have been different. Cone, 556

       U.S. at 470. Notably, Brady only applies to the discovery, after trial, of

       information that was known to the prosecution but unknown to the

       defense. Hubbell v. State, 754 N.E.2d 884, 893 (Ind. 2001); Lowrimore v. State,

       728 N.E.2d 860, 867 (Ind. 2000), reh’g denied; Bates v. State, 77 N.E.3d 1223,



       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 18 of 32
       1226 (Ind. Ct. App. 2017); see also 6 Wayne R. LaFave et al., Criminal

       Procedure § 24.3(b) (4th ed. 2015).


[28]   We recently addressed the State’s late disclosure of evidence in Bates. In that

       case, the defendant was charged with burglary for breaking into a house and

       taking a diaper bag. While combing the victim’s neighborhood for the diaper

       bag, the police found a wallet. The police contacted the wallet’s owner, who

       said that he had lost his wallet over two years earlier. The police determined

       that the wallet was unrelated to the burglary case and did not tell the defendant

       about its discovery. At trial, one of the searching officers briefly testified that

       another officer had found a wallet during the search. Defense counsel cross-

       examined the officer about the wallet but did not ask for a continuance to

       pursue the matter. After the State’s case-in-chief, the defendant argued that the

       State’s failure to disclose the existence of the wallet before trial violated Brady.

       The trial court found no Brady violation, and the jury eventually found him

       guilty of burglary.


[29]   The defendant renewed his Brady challenge on appeal. We explained that for

       most exculpatory evidence, the prosecution is able to satisfy its constitutional

       obligation by disclosing the evidence at trial. Bates, 77 N.E.3d at 1226 (citing 6

       LaFave, § 24.3(b)). In such cases, the burden rests with the defendant to

       establish that “the lateness of the disclosure so prejudiced defendant’s

       preparation or presentation of his defense that he was prevented from receiving

       his constitutionally guaranteed fair trial.” Id. (quoting 6 LaFave, § 24.3(b)).

       We noted that if the defendant does not request a continuance when the

       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 19 of 32
       disclosure is first made at trial, that failure may be viewed as negating any claim

       of actual prejudice. Id. (citing 6 LaFave, § 24.3(b)); see also Braswell v. State, 550

       N.E.2d 1280, 1283 (Ind. 1990) (explaining that a continuance could have been

       a proper remedy when the evidence was disclosed during—and not before—

       trial; however, the defendant did not request a continuance). We ultimately

       concluded that the defendant’s Brady challenge failed for two reasons: (1) he

       gave us “no reason to believe that the owner could have offered evidence that

       was favorable to him, either because it was exculpatory or impeaching” and (2)

       he “did not ask the trial court for a continuance to pursue the matter.” Bates, 77

       N.E.3d at 1226.


[30]   This case is similar to Bates. At trial, Detective Cook testified that he had

       obtained Davis-Martin’s cell-phone records.2 On cross-examination, defense

       counsel asked Detective Cook if he had Davis-Martin’s cell-phone records with

       him, and Detective Cook said no. Defense counsel then asked Detective Cook

       about those records, including whether they showed a phone call from Davis-

       Martin to his mother around 2:00 to 3:00 a.m. on January 16 (which is when

       Cameron and Laura testified that Davis-Martin called his mother from the car).

       Detective Cook said the records did not disclose such a call but that did not




       2
        It appears that defense counsel knew the State was attempting to get Davis-Martin’s cell-phone records
       before trial. In February 2017, about four months before trial, defense counsel sent the following email to the
       prosecutor:
             I have a subpoena for [Davis-Martin’s] phone records but no disc that indicates that’s what is on
             it nor have I found it on another disc.
       Appellant’s App. Vol. III p. 59.

       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019                      Page 20 of 32
       mean such a call did not occur. He explained that if someone makes a call

       from their cell phone using the internet, such as by using Facebook Messenger,

       that call will not show up on cell-phone records. Defense counsel also asked

       Detective Cook about Laura’s cell-phone records. Again, Detective Cook said

       they did not disclose a call to Felisha around 2:00 to 3:00 a.m. on January 16.

       He added the same caveat about calls not showing up if they are made using the

       internet. Davis-Martin did not object or ask for a continuance to further

       explore issues relating to his cell-phone records.


[31]   We find that Davis-Martin’s Brady challenge fails for two reasons. First, Davis-

       Martin’s failure to request a continuance negates any claim of actual prejudice.

       A request for a continuance would have allowed the trial court and the parties

       to discuss this issue in real time—and not in a motion to correct error after trial.

       Second, Davis-Martin has failed to prove that the State’s late disclosure so

       prejudiced his preparation or presentation of his defense that he was prevented

       from receiving his constitutionally guaranteed fair trial. Davis-Martin claims

       that his cell-phone records—which do not show a call from his cell phone to his

       mother’s cell phone around 2 to 3 a.m. on January 16—would have

       “dispel[led]” Cameron’s and Laura’s testimony that he called his mother from

       the car and asked her to destroy evidence. Appellant’s Br. p. 18. But defense

       counsel was able to make this point during her cross-examination of Detective

       Cook. And defense counsel argued the point during closing argument. See Tr.

       Vol. IV p. 126 (arguing that after 10 p.m. on January 15, there were no calls

       between Davis-Martin and his mother until she called him on January 16 from


       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 21 of 32
       the police station). Notably, Davis-Martin does not cite any additional

       information from his cell-phone records that he would have used. In any event,

       Detective Cook testified that even if the cell-phone records did not contain such

       a call, a call still could have been made using the internet. Accordingly, the

       trial court did not abuse its discretion in denying Davis-Martin’s motion to

       correct error on this ground.3


                               B. Failure to correct false evidence
[32]   Davis-Martin next argues that his “due process rights under the Fourteenth

       Amendment of the U.S. Constitution were violated when the State’s witness,

       Detective Cook, testified falsely and the State failed to correct it.” Appellant’s

       Br. p. 19. Davis-Martin points out that contrary to Detective Cook’s responses

       of “Not that I recall,” Marcus and Anthony had, in fact, provided him with

       information in the Bryant Lacey murder case.


[33]   It is well established that “a conviction obtained through use of false evidence,

       known to be such by representatives of the State, [falls] under the Fourteenth

       Amendment. The same result obtains when the State, although not soliciting

       false evidence, allows it to go uncorrected when it appears.” Napue v. Illinois,




       3
        Davis-Martin also argues that he could have used his cell-phone records “to impeach [Detective] Cook’s
       assertion that Davis-Martin got rid of his phone to conceal evidence of his involvement in [Jodie’s] death.”
       Appellant’s Br. p. 18. Davis-Martin, however, does not cite the record to support that Detective Cook made
       such an assertion.

       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019                     Page 22 of 32
       360 U.S. 264, 269 (1959) (citations omitted); see also Smith v. State, 34 N.E.3d

       1211, 1219 (Ind. 2015). As our Supreme Court has said,


                 In determining whether to vacate a conviction because of the
                 State’s solicitation of false evidence or knowing use of it without
                 correction, . . . the proper question is: did the State impermissibly
                 use false testimony to obtain a conviction in violation of a
                 defendant’s due process rights? The main thrust of the case law
                 in this area focuses on whether the jury’s ability to assess all of
                 the facts and the credibility of the witnesses supplying those facts
                 has been impeded to the unfair disadvantage of the defendant.
                 Active or passive behavior by the State that hinders the jury’s
                 ability to effectively act as the fact-finder is impermissible and
                 may violate a defendant’s due process rights.


       Smith, 34 N.E.3d at 1220.


[34]   Davis-Martin claims that he “should have been given the opportunity” to argue

       to the jury that Marcus and Anthony were serial snitches. Appellant’s Br. p. 22.

       But Davis-Martin had an opportunity to do just that. As the State points out,

       during discovery it provided Davis-Martin with Detective Cook’s police reports

       in Bryant Lacey’s murder case showing that Marcus and Anthony had, in fact,

       given Detective Cook information. Appellant’s App. Vol. III pp. 34-40, 117;

       Appellee’s Br. p. 35. If Davis-Martin was not satisfied with Detective Cook’s

       “Not that I recall” responses, then he should have asked him about the police

       reports. Davis-Martin did not do so. Accordingly, the trial court did not abuse

       its discretion in denying Davis-Martin’s motion to correct error on this ground

       either.



       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 23 of 32
                                   II. Pattern Jury Instruction
[35]   Davis-Martin next contends that the trial court erred in not supplementing

       Pattern Jury Instruction—Criminal 12.1300 with the following sentence,

       “However, prior inconsistent statements of a testifying witness that were offered

       for impeachment may not be considered as substantive evidence.” Davis-

       Martin claims that this sentence was needed because of the State’s direct

       examination of Cameron regarding whether he gave additional details to the

       police.


[36]   The purpose of jury instructions is to inform the jury of the law applicable to the

       facts without misleading the jury and to enable it to comprehend the case

       clearly and arrive at a just, fair, and correct verdict. O’Connell v. State, 970

       N.E.2d 168, 172 (Ind. Ct. App. 2012). Instructing the jury lies within the sole

       discretion of the trial court. McBride v. State, 785 N.E.2d 312, 316 (Ind. Ct.

       App. 2003), trans. denied. Before a defendant is entitled to reversal, he must

       affirmatively show that the instruction error prejudiced his substantial rights.

       Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015).


[37]   We emphasize that the instruction the trial court gave is a pattern jury

       instruction. The instruction advised the jury that a witness’s credibility may be

       attacked with a prior inconsistent statement and that the prior inconsistent

       statement may be considered by the jury in deciding the value of the witness’s

       trial testimony. The pattern jury instruction fully informed the jury of the law.

       But even if we agreed with Davis-Martin that the trial court should have


       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 24 of 32
supplemented the pattern jury instruction, he has not shown that the instruction

error prejudiced his substantial rights. Although the State may impeach its own

witness, it may not put a witness on the stand for the sole purpose of

introducing otherwise inadmissible evidence cloaked as impeachment. Herron

v. State, 10 N.E.3d 552, 556 (Ind. Ct. App. 2014). On direct examination, the

State asked Cameron three questions regarding whether he gave additional

details to the police: (1) whether he told police that Davis-Martin told him that

he “killed a fa**ot that night”; (2) whether he told police that Davis-Martin told

him that he stabbed Jodie in the head multiple times; and (3) whether he told

police that Davis-Martin had thrown Jodie “out of his house and beat his a**.”

Tr. Vol. III p. 172. Cameron said he did not remember making those

statements, but he could have. This, however, was not the State’s sole—or even

primary—purpose for calling Cameron as a witness. Cameron also testified

that Davis-Martin attacked Jodie because he made a move on him, that he saw

Davis-Martin hit, kick, and punch Jodie while calling him a “fa*,” and that he

stopped Davis-Martin from hitting Jodie with a paver. Cf. Herron, 10 N.E.3d at

556 (concluding that the State’s only purpose in calling a witness to the stand

was for impeachment, as the impeachment spanned thirty of thirty-five pages of

the witness’s testimony, with the remaining pages containing no substantive

testimony). Accordingly, Davis-Martin has failed to establish reversible error

on this issue.




Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 25 of 32
                       III. Privilege Against Self-Incrimination
[38]   At trial, the State presented evidence that Felisha, at the request of Detective

       Cook, called Davis-Martin from the police station on January 16 and told him

       that the police wanted him (as well as everyone else at the Sorin Street house

       that night) to come to the station to discuss Jodie’s death, but Davis-Martin told

       his mother that he was not going to the police station because he was at work.

       Davis-Martin did not object to this testimony. Davis-Martin now argues that

       the trial court should not have allowed the State to present this evidence

       because it violated his Fifth Amendment privilege against self-incrimination.

       Davis-Martin acknowledges that because he did not object below, he must

       establish fundamental error. The doctrine of fundamental error is an extremely

       narrow exception to the waiver rule that requires the defendant to show that the

       alleged error was so prejudicial to the defendant’s rights as to make a fair trial

       impossible. Gavin v. State, 41 N.E.3d 1038, 1042 (Ind. Ct. App. 2015). The

       defendant must show that, under the circumstances, the trial judge erred in not

       raising the issue sua sponte because the alleged error (a) constituted a clearly

       blatant violation of basic and elementary principles of due process and (b)

       presented an undeniable and substantial potential for harm. Id.


[39]   The Fifth Amendment to the U.S. Constitution, made applicable to the states

       through the Fourteenth Amendment, provides that no person shall be

       compelled in any criminal case to be a witness against himself. U.S. Const.

       amend. V; Cameron v. State, 22 N.E.3d 588, 592 (Ind. Ct. App. 2014). “[A]

       witness who desires the protection of the privilege must claim it at the time he

       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 26 of 32
       relies on it.” Salinas v. Texas, 570 U.S. 178, 183 (2013) (plurality opinion)

       (quotation and ellipsis omitted); Nichols v. State, 55 N.E.3d 854, 860 (Ind. Ct.

       App. 2016), trans. denied. “[N]o ritualistic formula is necessary in order to

       invoke the privilege” against self-incrimination. Quinn v. United States, 349 U.S.

       155, 164 (1955). Rather, the witness must only put the interrogating official

       “on notice [that he] intends to rely on the privilege.” Salinas, 570 U.S. at 183;

       see also Quinn, 349 U.S. at 164 (holding that the witness’s invocation must be

       “sufficiently definite to apprise [the interrogating official] of his intention” to

       invoke the privilege). The express invocation requirement gives courts tasked

       with evaluating a Fifth Amendment claim a contemporaneous record

       establishing the witness’s reasons for refusing to answer. Salinas, 570 U.S. at

       183-84.


[40]   Here, we find that Davis-Martin did not invoke the privilege against self-

       incrimination when he told his mother on the phone that he was not going to

       the police station to talk to the police. See id. at 185-91 (a plurality opinion

       holding that a witness does not invoke the privilege against self-incrimination

       by simply standing mute and that the prosecution’s use of the defendant’s

       noncustodial silence did not violate the Fifth Amendment because the

       defendant failed to state that he was not answering the officer’s question on

       Fifth Amendment grounds); Nichols, 55 N.E.3d at 860 (holding that evidence

       that the defendant did not accept a police officer’s invitation to attend an

       interview did not violate the defendant’s Fifth Amendment privilege against

       self-incrimination because the defendant did not invoke the privilege); Owens v.

       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 27 of 32
       State, 937 N.E.2d 880, 891-92 (Ind. Ct. App. 2010) (concluding that even under

       cases holding that a defendant’s pre-arrest, pre-Miranda silence is protected by

       the Fifth Amendment, evidence that the defendant did not respond to a police

       officer’s efforts to make contact with him did not support a finding that he

       invoked his right to remain silent), reh’g denied, trans. denied; see also Mira v.

       State, 3 N.E.3d 985, 986-89 (Ind. Ct. App. 2013) (in a case where a detective

       wrote a letter to the defendant that he was a suspect in a larceny and needed to

       contact him, the defendant called the detective and told him that he would

       check his schedule and call back, but the defendant never called back, we held

       that the failure on the defendant's part to follow up with the detective

       comported with Owens and “d[id] not support a finding that he invoked his right

       to remain silent” under Article 1, Section 14 of the Indiana Constitution).


[41]   There could have been many reasons why Davis-Martin did not want to talk to

       the police that day. See, e.g., Salinas, 570 U.S. at 189 (“To be sure, someone

       might decline to answer a police officer’s question in reliance on his

       constitutional privilege. But he also might do so because he is trying to think of

       a good lie, because he is embarrassed, or because he is protecting someone

       else.”); Owens, 937 N.E.2d at 891 (“Owens’s mere lack of response does not

       support a finding that he invoked the right to remain silent. Perhaps Owens did

       not respond because the wind blew [the police officer’s business] cards away, or

       perhaps Owens was very ill or too busy, or perhaps he just did not like the

       police.”). In fact, Davis-Martin told his mother on the phone that he could not

       go to the police station because he was working. Notably, Davis-Martin later


       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 28 of 32
       spoke to Detective Cook. Accordingly, we conclude that the State did not

       violate Davis-Martin’s Fifth Amendment privilege against self-incrimination. It

       follows that no error, let alone fundamental error, occurred in the admission of

       this evidence.


                               IV. Sufficiency of the Evidence
[42]   Davis-Martin contends that the evidence is insufficient to support his conviction

       for murder. When reviewing the sufficiency of the evidence to support a

       conviction, appellate courts must consider only the probative evidence and

       reasonable inferences supporting the verdict. Sallee v. State, 51 N.E.3d 130, 133

       (Ind. 2016). It is the fact-finder’s role, not that of appellate courts, to assess

       witness credibility and weigh the evidence to determine whether it

       is sufficient to support a conviction. Id. It is not necessary that the evidence

       “overcome every reasonable hypothesis of innocence.” Id. (quotation omitted).

       The evidence is sufficient if an inference may reasonably be drawn from it to

       support the verdict. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).


[43]   Davis-Martin’s sufficiency challenge is a narrow one. That is, he argues that

       “there was insufficient evidence of a credible nature from which a reasonable

       jury could have found him guilty beyond a reasonable doubt.” Appellant’s Br.

       p. 29. Davis-Martin points out that the State’s witnesses included felons,

       jailhouse snitches, and reluctant witnesses. He also points to contradictions in

       some of the witnesses’ testimony. However, all of these things were pointed out

       to the jury during trial, and the jury found him guilty of murder. The jury, and


       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 29 of 32
       jury alone, assesses the credibility of witnesses and resolves conflicts in the

       evidence. Moreover, in making his sufficiency challenge, Davis-Martin does

       not acknowledge the other evidence admitted in this case—including physical

       evidence. Accordingly, Davis-Martin’s sufficiency challenge fails.


                                              IV. Sentencing
[44]   Last, Davis-Martin contends that the trial court erred in sentencing him to the

       maximum term of sixty-five years. Our trial courts enjoy broad discretion in

       sentencing, and we will reverse only for an abuse of that discretion. McCoy v.

       State, 96 N.E.3d 95, 99 (Ind. Ct. App. 2018). One way a trial court abuses its

       discretion is entering a sentencing statement that “omits reasons that are clearly

       supported by the record and advanced for consideration.” Anglemyer v. State,

       868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


[45]   Davis-Martin first argues that the trial court should have considered his age—

       he was twenty-three at the time of Jodie’s murder—as a mitigator. See Tr. Vol.

       IV p. 169 (defense counsel asking the trial court to impose the advisory sentence

       of fifty-five years “given Mr. Davis-Martin’s age, balanced against what stated I

       about his [criminal] record.”). Youth, however, is not automatically a

       significant mitigating circumstance. Smith v. State, 872 N.E.2d 169, 178 (Ind.

       Ct. App. 2007), trans. denied. If a trial court does not find youth to be a

       mitigator, it is under no obligation to explain its reasoning. Id. At the time of

       the Jodie’s murder, Davis-Martin had two convictions and was on probation for

       a handgun conviction. He also had a juvenile record, including a period of


       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 30 of 32
       probation. In light of this evidence, the trial court did not abuse its discretion in

       not identifying Davis-Martin’s age as a mitigator.


[46]   Davis-Martin next argues that the trial court should have considered as a

       mitigator that he “had a young baby that he cared for prior to his incarceration”

       and that long-term incarceration would create an undue hardship to his child.

       Appellant’s Br. p. 34. Davis-Martin, however, did not advance this mitigator

       below, and on appeal he does not cite any evidence in the record that he cared

       for his child before Jodie’s murder. In fact, the PSI suggests that Davis-Martin

       had little involvement with his child. See Appellant’s App. Vol. II p. 142 (“The

       defendant reported the child lives with [her mother] and the defendant reported

       he is unsure of his relationship with the child. . . . The defendant reported he

       has not been ordered to pay child support . . . .”). Accordingly, the trial court

       did not abuse its discretion in not finding undue hardship to his child as a

       mitigator.


[47]   Last, Davis-Martin argues that the trial court should have considered as a

       mitigator that this act “was out of character for [him],” as there was evidence

       that he and Jodie had “a good and playful relationship” before this night.

       Appellant’s Br. p. 34. However, any positive character evidence is

       overshadowed by Davis-Martin’s actions in beating Jodie and leaving him in

       the cold, only to return to beat him some more. The trial court did not abuse its

       discretion in not finding Davis-Martin’s character as a mitigator. We therefore

       affirm Davis-Martin’s sixty-five-year sentence.



       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 31 of 32
[48]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 71A05-1712-CR-2963 | February 4, 2019   Page 32 of 32
