MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                FILED
regarded as precedent or cited before any                                  Dec 31 2019, 9:02 am

court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Bruce W. Graham                                         Curtis T. Hill, Jr.
Graham Law Firm P.C.                                    Attorney General of Indiana
Lafayette, Indiana                                      Megan M. Smith
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Franco Navarrete,                                       December 31, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1472
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
State of Indiana,                                       The Honorable Randy J. Williams,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        79D01-1710-MR-4



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1472 | December 31, 2019                   Page 1 of 10
[1]   Franco Navarrete appeals his convictions for two counts of murder and

      unlawful possession of a firearm by an alien. He claims prosecutorial

      misconduct and that his motion for mistrial should have been granted. We

      affirm.


                                      Facts and Procedural History

[2]   In August 2017, Navarrete and his spouse, Basalisa, were having marital

      problems. Gustavo Sanchez Campuzano is Basalisa’s brother, and Catalina

      Campuzano Lujano is Basalisa’s mother. On August 10, 2017, Navarrete

      drove up to Gustavo and Catalina as they were walking to a park, exited his

      vehicle, and argued with them. Navarrete shot Gustavo and Catalina several

      times each at close range, killing them. Navarrete drove to a rest stop on I-65,

      called 911, and stated that he needed to go to jail. Anthony Lantz, an

      investigator with the prosecutor’s office, went with law enforcement to the rest

      stop, located Navarrete, confirmed that Navarrete was the person who called

      911, and placed him in handcuffs.


[3]   On October 6, 2017, the State charged Navarrete with Count I, murder of

      Catalina; Count II, murder of Gustavo; Count III, unlawful possession of a

      firearm by an alien as a level 6 felony; Count IV, identity deception as a level 6

      felony; and Count V, synthetic identity deception as a level 6 felony. The State

      filed a use of firearm enhancement. Navarrete filed a motion in limine which

      requested in part, in paragraph 9, that the State “be prohibited from the

      following arguments . . . c. Any statements which may be interpreted by the

      jury as a comment on the accused’s exercise of his right to a jury trial, right to
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1472 | December 31, 2019   Page 2 of 10
      silence, right to counsel and right not to testify,” and the court granted the

      motion as to that paragraph. Appellant’s Appendix Volume II at 129-130.


[4]   During Navarrete’s jury trial, Lantz testified that he approached Navarrete at

      the rest stop and asked him if he was the person who had called the police and

      that Navarrete responded affirmatively, and Lantz made an in-court

      identification of Navarrete. The following exchange occurred between the

      prosecutor and Lantz:


              Q       Alright, tell me what else did you – what happened after
                      that point?

              A       Once I identified him as Frank and the person that had
                      called 911, I motioned for the deputy to come out of my
                      truck and I asked Frank to lay on the ground so we could
                      handcuff him. The deputy handcuffed him and we set him
                      back up and I asked him if he had, again, if he’d called the
                      police and he said that he had. He didn’t want to talk
                      about it and that he wanted a lawyer.

      Transcript Volume III at 28. Navarrete’s counsel asked for a sidebar and

      objected “with respect to the very last part of this witenesses [sic] testimony”

      and argued “[w]e believe that to be in violation of the motion in limine that was

      granted by the Court in response to State’s question, not saying it’s intentional,

      but it certainly is in violation of it, specifically 9C, any statements which may be

      interpreted by the jury as a comment on the accused[’s] exercise of his . . . right

      to silence, right to counsel, and right not to testify.” Id. at 29-30. The

      prosecutor stated, “I would note that it was not intentional, but I don’t disagree

      that it should not have been stated,” that the court should strike the statement

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1472 | December 31, 2019   Page 3 of 10
      from the record, and that Navarrete was not prejudiced. Id. at 30. Navarrete’s

      counsel asked for a mistrial. The trial court instructed the jury: “The Court

      orders that the last statement and answer made by this witness is – shell [sic] be

      stricken from the record and you, as a jury, are instructed to disregard it and

      you must not consider it in making your decision in this cause.” Id. at 31.


[5]   Later, following additional arguments, the trial court noted that a mistrial is an

      extreme remedy, that there would be an instruction about matters the court had

      struck, and that the manner in which it addressed the issue was appropriate.

      The court found that “it was highly unlikely that the reference to wanting to

      speak with an attorney will have any significant impact on the jury.” Id. at 46.

      It also stated “[t]he State is directed to refrain from any reference in any manner

      to any statements made by the defendant at the time of questioning” and “may

      make no inference or reference to the defendant’s statement about wanting to

      speak to an attorney.” Id. The court denied the motion.


[6]   During the State’s rebuttal in closing argument, the prosecutor stated in part:

              Since the State bears the burden in this case, the State gets the last
              word. . . . I will try to keep this quickly and briefly as possible. One
              (1) of the first slides I put up on the board was, if there is only one (1)
              reasonable interpretation then you must accept that interpretation.
              And after everything I just heard, I didn’t hear one (1) reasonable,
              alternative theory about how Catalina and Gustavo were shot dead.
              Didn’t hear one (1). Didn’t hear a theory. Just heard that we don’t
              have enough evidence. We have a mountain of evidence. Also during
              voir dire, during opening and also during closing, Defense has asked
              you not to speculate. Yet their argument is full of speculation.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1472 | December 31, 2019   Page 4 of 10
      Transcript Volume IV at 69. Navarrete’s counsel objected and stated, “at least

      initially there was, I believe, a burden shift stating that we did not provide a

      theory,” and the court stated “I would disagree to the extent that this an [sic]

      attempt at a burden shift. . . . I don’t see it as that. But I am going to admonish

      counsel not to make any burden shifting in this cause.” Id. at 70. In its jury

      instructions, the court instructed: “The Court struck evidence from the record

      after you had already seen or heard it. You must not consider such evidence in

      making your decision” and “Your verdict should be based only on file evidence

      admitted and the instructions on the law.” Appellant’s Appendix Volume II at

      169. The court also gave instructions regarding the State’s burden, that

      Navarrete could not be convicted on suspicion or speculation, that statements

      made by the attorneys were not evidence, and that Navarrete had no obligation

      to testify. The jury found Navarrete guilty of two counts of murder as charged

      and unlawful possession of a firearm by an alien, and the court dismissed the

      other counts and found the evidence supported the use of firearm enhancement.

      It sentenced Navarrete to consecutive terms of fifty-five years for each murder,

      enhanced one of the sentences by ten years for the use of a firearm, and to one

      year for unlawful possession of a firearm by an alien to be served concurrently

      for a total sentence of 120 years.


                                                  Discussion

[7]   Navarette claims that the State presented evidence of his post-arrest, pre-

      Miranda assertion of his constitutional right to remain silent and his right to

      counsel, that the prosecutor commented on his assertion of his right to remain

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1472 | December 31, 2019   Page 5 of 10
      silent, that the trial court erred in failing to grant a mistrial, and that he should

      be awarded a new trial. He further argues the prosecutor made a direct

      comment on his failure to present evidence. He asserts “[t]he cumulative effect

      of these errors constituted prosecutorial misconduct.” Appellant’s Brief at 22.


[8]   The State argues that it did not intend to elicit any comment from Lantz

      regarding Navarrete’s refusal to speak with him, that it made no attempt to

      utilize Lantz’s statement as impeachment or affirmative proof of guilt, and that

      the court ordered the comment stricken from the record and told the jury to

      disregard the comment. It argues that the jury was instructed that the attorneys’

      statements were not evidence, that the State bore the burden of proof, and that

      Navarrete had no obligation to testify.


[9]   The decision to grant or deny a motion for mistrial lies within the discretion of

      the trial court. Barnett v. State, 916 N.E.2d 280, 284 (Ind. Ct. App. 2009) (citing

      Francis v. State, 758 N.E.2d 528, 532 (Ind. 2001)), trans. denied. The grant of a

      motion for mistrial is an extreme remedy that is warranted only when less

      severe remedies will not satisfactorily correct the error. Id. On appeal, the trial

      judge’s discretion in determining whether to grant a mistrial is afforded great

      deference because the judge is in the best position to gauge the surrounding

      circumstances of an event and its impact on the jury. Id. (citation omitted). To

      succeed on appeal from the denial of a mistrial, a defendant must demonstrate

      that the conduct complained of was both error and had a probable persuasive

      effect on the jury’s decision. Id. (citation omitted).



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1472 | December 31, 2019   Page 6 of 10
[10]   In reviewing a claim of prosecutorial misconduct, we determine: whether the

       prosecutor engaged in misconduct, and if so, whether the misconduct, under all

       of the circumstances, placed the defendant in a position of grave peril to which

       he or she should not have been subjected. Sobolewski v. State, 889 N.E.2d 849,

       856 (Ind. Ct. App. 2008) (citing Cooper v. State, 854 N.E.2d 831, 835 (Ind.

       2006)), trans. denied. Whether a prosecutor’s argument constitutes misconduct

       is measured by reference to case law and the Rules of Professional Conduct. Id.

       The gravity of peril is measured by the probable persuasive effect of the

       misconduct on the jury’s decision rather than the degree of impropriety of the

       conduct. Id. The probability that misconduct had a persuasive effect is

       “generally a function of three factors: the persuasiveness of the comment, the

       relative strength of the State’s case, and the effectiveness of the trial judge’s

       response to the comment.” Id. at 858 (citation omitted). We also note that a

       trial court’s jury instructions are presumed to cure any improper statements

       made during trial. Guy v. State, 755 N.E.2d 248, 258 (Ind. Ct. App. 2001), reh’g

       denied, trans. denied; see also Francis v. State, 758 N.E.2d 528, 532 (Ind. 2001)

       (“We presume the jury followed the trial court’s admonishment and that the

       excluded testimony played no part in the jury’s deliberation.”).


[11]   In Doyle v. Ohio, 426 U.S. 610 (1976), the United States Supreme Court held

       that under the Fourteenth Amendment a prosecutor may not use the silence of

       a defendant who has been arrested and Mirandized to impeach the defendant.

       Sobolewski, 889 N.E.2d at 857 (citing Trice v. State, 766 N.E.2d 1180, 1182 (Ind.

       2002) (citing Doyle, 426 U.S. at 619)). “Miranda warnings inform a person of

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1472 | December 31, 2019   Page 7 of 10
       his right to remain silent and assure him, at least implicitly, that his silence will

       not be used against him.” Id. (citing Trice, 766 N.E.2d at 1183 (citation

       omitted)). Further, the use of a defendant’s post-arrest silence to impeach a

       defendant’s exculpatory explanation is subject to harmless error analysis. Id.

       (citing Robinette v. State, 741 N.E.2d 1162, 1164 (Ind. 2001) (citation omitted)).

       A constitutional error may be harmless if it is clear beyond a reasonable doubt

       that the error did not contribute to the defendant’s conviction. Id. (citation

       omitted). In analyzing whether such a violation is harmless, we examine: (1)

       the use to which the prosecution puts the post-arrest silence; (2) who elected to

       pursue the line of questioning; (3) the quantum of other evidence indicative of

       guilt; (4) the intensity and frequency of the reference; and (5) the availability to

       the trial court of an opportunity to grant a motion for mistrial or give a curative

       instruction. Id. (citing Robinette, 741 N.E.2d at 1165 (citation omitted)).


[12]   The record reveals that the prosecutor asked Lantz “[a]lright, tell me what else

       did you – what happened after that point?” Transcript Volume III at 28. There

       is no indication that the prosecutor’s question was intended to elicit testimony

       from Lantz regarding any statement made by Navarrete that he did not want to

       talk and wanted a lawyer. The prosecution did not attempt to use the

       challenged statement by Lantz to prove Navarrete’s guilt. The challenged

       statement was very brief relative to the length of the jury trial and minimally

       persuasive in light of the evidence indicative of guilt and the relative strength of

       the State’s case. The trial court ordered that the challenged sentence be stricken

       from the record and admonished the jury to disregard the statement and that it


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1472 | December 31, 2019   Page 8 of 10
       must not consider the statement in making its decision. It found “it was highly

       unlikely that the reference to wanting to speak with an attorney will have any

       significant impact on the jury.” Id. at 46. The court later instructed the jury

       “[t]he Court struck from the record after you had already seen or heard it,”

       “[y]ou must not consider such evidence in making your decision,” and “[y]our

       verdict should be based only on file evidence admitted and the instructions on

       the law.” Appellant’s Appendix Volume II at 169. The court further instructed

       the jury that “[t]he burden is upon the State to prove beyond a reasonable doubt

       that the Defendant is guilty of the crime charged,” the “Defendant must not be

       convicted on suspicion or speculation,” and the State “must prove each element

       of the crime by evidence that firmly convinces each of you and leaves no

       reasonable doubt.” Id. at 158. It instructed the jury that statements made by

       the attorneys were not evidence. It also instructed the jury: “No Defendant

       may be compelled to testify. A Defendant has no obligation to testify. The

       Defendant did not testify. You must not consider this in any way.” Id. at 165.


[13]   Based upon the record, in light of the factors discussed above, we conclude that

       Navarrete has not established that the challenged statement by Lantz and the

       challenged argument in closing by the prosecutor, considered separately or

       together, were so prejudicial and inflammatory that Navarrete was placed in a

       position of grave peril to which he should not have been subjected or that the

       jury’s decision was affected. We cannot say the trial court abused its discretion

       in denying the motion for mistrial or that Navarrete has established

       prosecutorial misconduct or reversible error. See Rowe v. State, 717 N.E.2d


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1472 | December 31, 2019   Page 9 of 10
       1262, 1267 (Ind. Ct. App. 1999) (finding the references to the defendant’s

       silence during examination of a law enforcement officer were few and brief in

       the context of the entire trial and, in light of the factors, the prosecutor’s

       comments on the defendant’s failure to disclaim he was the driver of a truck did

       not render the trial unfair).


[14]   For the foregoing reasons, we affirm Navarrete’s convictions.


[15]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1472 | December 31, 2019   Page 10 of 10
