                                                                            FILED
MEMORANDUM DECISION                                                    May 03 2018, 8:43 am

Pursuant to Ind. Appellate Rule 65(D), this                                 CLERK
                                                                        Indiana Supreme Court
Memorandum Decision shall not be regarded as                               Court of Appeals
                                                                             and Tax Court
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                                 ATTORNEYS FOR APPELLEE
Bryan M. Truitt                                        Curtis T. Hill, Jr.
Bertig and Associates, LLC                             Attorney General of Indiana
Valparaiso, Indiana                                    Jesse R. Drum
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Leon Hollingsworth III,                                    May 3, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           64A03-1708-CR-1804
        v.                                                 Appeal from the Porter Superior
                                                           Court
State of Indiana,                                          The Hon. Mary R. Harper, Judge
Appellee-Plaintiff.                                        Trial Court Cause No.
                                                           64D05-1702-F5-1429




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 64A03-1708-CR-1804 | May 3, 2018              Page 1 of 9
                                          Case Summary
[1]   In February of 2017, Leon Hollingsworth and Eric Gordon were involved in an

      altercation, during which Hollingsworth gouged Gordon’s eye with his thumb,

      resulting in bleeding, excruciating pain, and skewed vision. When police

      arrived, Hollingsworth did not give a statement. Hollingsworth was arrested,

      first taken to jail, then to a hospital for treatment of his ankle, and finally back

      to jail. At some point, Hollingsworth did mention to police officers that he did

      not know Gordon and that Gordon had attacked him and struck him first.

      Police officers did not advise Hollingsworth of his right to silence. The State

      charged Hollingsworth with Level 5 felony battery, and a jury trial was held.

      During trial, two police officers testified that Hollingsworth had refused to give

      a statement, and the prosecutor argued in closing that his silence was

      incriminating. The jury found Hollingsworth guilty as charged. Hollingsworth

      contends that the State’s use of his silence against him at his trial constituted

      fundamental error. Because we disagree, we affirm.



                            Facts and Procedural History
[2]   On February 11, 2017, Gordon, who was dating Hollingsworth’s ex-girlfriend,

      stopped at a Portage gas station for coffee. Hollingsworth followed Gordon

      into the store and took Gordon’s telephone from his hands. Gordon told the

      clerk to call the police, tried to take his telephone back from Hollingsworth, and

      restrained Hollingsworth from behind. Customer Gabriel Magana saw the

      struggle and helped Gordon to restrain Hollingsworth. When Hollingsworth


      Court of Appeals of Indiana | Memorandum Decision 64A03-1708-CR-1804 | May 3, 2018   Page 2 of 9
      said he would stop, Gordon and Magana let him go, whereupon Hollingsworth

      lunged at Gordon, using his thumb to gouge Gordon’s eye. Gordon

      “immediately saw stars [and felt] very excruciating pain.” Tr. Vol. II p. 42. It

      appeared to Magana that Hollingsworth tried to “go after [Gordon’s] eyes.” Tr.

      Vol. II p. 78. When Portage police officers arrived, Gordon was bleeding from

      his left eye, and his vision was skewed. As it happened, Gordon had to miss

      three days of work; felt pain in his left eye for two weeks; and, as of trial, still

      experiences redness in his eye that worsens with exercise.


[3]   Officer Rob Nichols asked Hollingsworth what happened, but Hollingsworth

      said he would not tell. At some point before Hollingsworth was transported to

      jail by Officer Noah Frizzel, he told Officer Nichols that Gordon “attacked him

      for claiming he stole his cell phone.” Tr. Vol. II p. 111. Hollingsworth told

      Officer Frizzel that he did not know Gordon, that Gordon struck him first, and

      that his ankle hurt. Hollingsworth was transported to the hospital for his ankle

      injury but did not make statements to Officer Nichols at the hospital or during

      the drive back to jail.


[4]   On February 13, 2017, the State charged Hollingsworth with Level 5 felony

      battery. On June 12 and 14, 2017, a jury trial was conducted. Officers Nichols

      and Benjamin Tobey, who had also responded to the gas station, testified that

      Hollingsworth refused to give a statement before he was arrested. Officer

      Tobey also testified that Hollingsworth never told him that he had acted in self-

      defense, a claim which, in the officer’s experience, is typically brought up

      immediately. Officer Nichols also testified that Hollingsworth did not make a


      Court of Appeals of Indiana | Memorandum Decision 64A03-1708-CR-1804 | May 3, 2018   Page 3 of 9
      statement at the hospital or in the vehicle on the way back to the jail.

      Hollingsworth did not object to Officer Nichols’s or Officer Tobey’s testimony.

      There was no evidence presented at trial that Hollingsworth was advised of his

      Miranda1 rights at any point.


[5]   During closing argument, the prosecutor argued,


                 Where was the diarrhea of the mouth explaining to the police
                 officers that wait, you’ve got it all wrong. This is what
                 happened. I came in. I was just, you know, looking for my ex-
                 girl. You don’t have that. Why? Because he knows that he has
                 to keep his mouth shut so that all of the stuff that came out today
                 isn’t used against him.
      Tr. Vol. II p. 174. Hollingsworth did not object to the prosecutor’s closing

      argument. The jury found Hollingsworth guilty as charged, and following a

      sentencing hearing on July 11, 2017, the trial court sentenced him to five years

      of incarceration.


                                    Discussion and Decision
[6]   Hollingworth contends that the State violated his due process rights by

      commenting on his post-arrest silence at his trial. Hollingsworth acknowledges

      that he did not object to any of the allegedly improper statements or testimony,

      but attempts to avoid the effects of his waiver by arguing that fundamental error

      occurred. “The fundamental error exception is ‘extremely narrow, and applies




      1
          Miranda v. Arizona, 384 U.S. 436, 444, 479 (1966).



      Court of Appeals of Indiana | Memorandum Decision 64A03-1708-CR-1804 | May 3, 2018   Page 4 of 9
      only when the error constitutes a blatant violation of basic principles, the harm

      or potential for harm is substantial, and the resulting error denies the defendant

      fundamental due process.’” Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010)

      (quoting Matthews v. State, 849 N.E.2d 578, 587 (Ind. 2006)). To be

      fundamental, the error “must either ‘make a fair trial impossible’ or constitute

      ‘clearly blatant violations of basic and elementary principles of due process.’”

      Id. (quoting Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009)). The exception

      applies “only in ‘egregious circumstances.’” Id. at 694–95 (quoting Brown v.

      State, 799 N.E.2d 1064, 1068 (Ind. 2003)).


[7]   Hollingsworth has failed to establish error, much less fundamental error. It is

      true that the State may not use statements from a custodial interrogation unless

      the defendant was warned of his Fifth Amendment “right to remain silent.”

      Miranda, 384 U.S. at 444, 479. Because Miranda warnings implicitly assure a

      defendant “that silence will carry no penalty,” the United States Supreme Court

      has held that “it would be fundamentally unfair and a deprivation of due

      process to allow the arrested person’s silence to be used to impeach an

      explanation subsequently offered at trial.” Doyle v. Ohio, 426 U.S. 610, 619–20

      (1976).


[8]   If no Miranda warnings are given and there is no custodial interrogation, the

      situation is very different:


              [T]he Constitution does not prohibit the use for impeachment
              purposes of a defendant’s silence prior to arrest, Jenkins v.
              Anderson, 447 U.S. 231, 239, 100 S. Ct. 2124, 2129, 65 L. Ed. 2d


      Court of Appeals of Indiana | Memorandum Decision 64A03-1708-CR-1804 | May 3, 2018   Page 5 of 9
               86 (1980), or after arrest if no Miranda warnings are given,
               Fletcher v. Weir, 455 U.S. 603, 606–607, 102 S. Ct. 1309, 1312, 71
               L. Ed. 2d 490 (1982) (per curiam). Such silence is probative and
               does not rest on any implied assurance by law enforcement
               authorities that it will carry no penalty. See 447 U.S., at 239, 100
               S. Ct., at 2129.
       Brecht v. Abrahamson, 507 U.S. 619, 628 (1993).


[9]    In Brecht, the appellant was appealing from the Seventh Circuit’s reversal of the

       District Court’s grant of habeas corpus relief following his conviction for murder.

       Id. at 622–24. After shooting his victim in Wisconsin, Brecht fled the scene but

       soon drove his vehicle into a ditch. Id. at 624. A police officer stopped to offer

       assistance but Brecht told him that help was already on the way, so the officer

       left. Brecht then hitched a ride to Winona, Minnesota, where he was

       apprehended by police. Id. Although Brecht would later testify that the

       shooting was accidental, he said nothing along those lines to the officer who

       stopped to help him, the person who drove him to Winona, or the officers who

       apprehended him. Id. at 624–25. Brecht was given his Miranda rights at

       arraignment back in Wisconsin. Id. at 624. During trial, the prosecutor was

       allowed to ask Brecht during cross-examination if he had told anybody before

       trial that the shooting was an accident and made several references to Brecht’s

       silence during closing argument. Id. at 625.


[10]   The United States Supreme Court ruled that almost all of the prosecution’s use

       of Brecht’s pre-trial silence to impeach him was entirely proper:


               The first time petitioner claimed that the shooting was an
               accident was when he took the stand at trial. It was entirely

       Court of Appeals of Indiana | Memorandum Decision 64A03-1708-CR-1804 | May 3, 2018   Page 6 of 9
               proper—and probative—for the State to impeach his testimony
               by pointing out that petitioner had failed to tell anyone before the
               time he received his Miranda warnings at his arraignment about
               the shooting being an accident. Indeed, if the shooting was an
               accident, petitioner had every reason—including to clear his
               name and preserve evidence supporting his version of the
               events—to offer his account immediately following the shooting.
       Id. at 628–29. To further highlight the difference between pre- and post-Miranda

       silence, the Court did take exception to comments on Brecht’s silence after he

       was Mirandized, concluding that “it is conceivable that, once petitioner had been

       given his Miranda warnings, he decided to stand on his right to remain silent

       because he believed his silence would not be used against him at trial.” Id. at

       629.


[11]   Here, Hollingsworth cannot establish that the use of his pre- or post-arrest

       silence against him constitutes a violation of his due process rights because

       there is no evidence that he ever received Miranda warnings, a “prerequisite[]

       for finding a constitutional violation.” Myers v. State, 27 N.E.3d 1069, 1080

       (Ind. 2015). Without the implicit assurance that his silence would carry no

       penalty, see Doyle, 426 U.S. at 618, Hollingworth has failed to establish the State

       violated his due process rights by using his silence against him. See Brecht, 507

       U.S. at 628 (citing Jenkins, 447 U.S. at 239). For those accustomed to the

       prohibition against such use of a defendant’s silence being in effect, the

       prosecutor’s comments, especially, might be a bit jarring. Brecht, however,

       could not be more clear that Miranda warnings trigger the prohibition, and there

       is no evidence that they were given in this case.



       Court of Appeals of Indiana | Memorandum Decision 64A03-1708-CR-1804 | May 3, 2018   Page 7 of 9
[12]   Hollingsworth seemingly wants this court to infer that Miranda warnings were

       given, despite the complete lack of evidence that they were. As the Indiana

       Supreme Court explained in Myers, however, “‘[t]he party who alleges error has

       the duty to provide a proper record on appeal so that an intelligent review of the

       issues may be made,’ and where there is no evidence in the record, ‘appellate

       review is foreclosed.’” Id. (quoting Fleenor v. State, 514 N.E.2d 80, 87 (Ind.

       1987)). Given the lack of evidence that Miranda warnings were administered in

       this case, to the extent that Hollingsworth invites us to infer that they were, we

       decline to do so. Hollingsworth has failed to establish any error in this regard,

       much less fundamental error.


[13]   In any event, in light of the overwhelming evidence of Hollingsworth’s guilt, we

       conclude that the comments on his silence, even if erroneous, did not prejudice

       him. “An error is deemed harmless if it has not prejudiced the substantial rights

       of the [party].” Boyd v. State, 650 N.E.2d 745, 748 (Ind. Ct. App. 1995), trans.

       denied. Gordon testified that Hollingsworth gouged his eye, causing him to see

       stars and feel very excruciating pain. Magana testified that Hollingsworth

       appeared to go after Gordon’s eyes specifically.


[14]   Moreover, State’s Exhibit 5, which is a still image from surveillance footage of

       the incident, is entirely consistent with this testimony, clearly showing

       Hollingworth’s thumb gouging Gordon’s eye. While the image does not

       definitively establish that Hollingsworth intentionally gouged Gordon’s eye, it

       certainly does not support Hollingsworth’s testimony that he acted in self-

       defense, the gouging was accidental, or he grabbed Gordon’s head only as a


       Court of Appeals of Indiana | Memorandum Decision 64A03-1708-CR-1804 | May 3, 2018   Page 8 of 9
       means to break his fall. Exhibit 5 clearly shows that Hollingsworth is not being

       held by Gordon and is not falling, and Hollingsworth appears to be in a

       superior position. In light of the evidence admitted of Hollingsworth’s guilt, we

       conclude that any error that might have occurred was harmless.


[15]   We affirm the judgment of the trial court.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1708-CR-1804 | May 3, 2018   Page 9 of 9
