                                                                   Feb 05 2015, 9:56 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                     Gregory F. Zoeller
Appellate Public Defender                                  Attorney General of Indiana
Crown Point, Indiana
                                                           Katherine Modesitt Cooper
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Anthony J. Thornton,                                      February 5, 2015

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          45A03-1405-CR-156
        v.                                                Appeal from the Lake Superior
                                                          Court.
                                                          The Honorable Salvador Vasquez,
State of Indiana,                                         Judge.
Appellee-Plaintiff                                        Cause No. 45G01-1308-FA-22




Baker, Judge.




Court of Appeals of Indiana | Opinion 45A03-1405-CR-156 | February 5, 2015                Page 1 of 11
[1]   Anthony Thornton appeals his conviction for class B felony Criminal

      Confinement1 as well as the sentence imposed by the trial court for that

      conviction. Thornton raises a number of arguments, one of which is

      dispositive. He contends that the trial court erroneously admitted evidence

      regarding out-of-court statements by an alleged accomplice in violation of his

      rights under the United States and Indiana Constitutions. We agree, and

      reverse.


                                                      Facts
[2]   In the early morning hours of July 27, 2013, K.W. left her apartment in Illinois

      to go to a nearby gas station. After completing a purchase inside the gas

      station, she exited and encountered three men later identified as Thornton,

      Kevin Dillard, and Denzel Nelson. Dillard asked K.W. if she was alright.

      K.W. asked Dillard if the men could give her a ride down the street, and they

      agreed. She entered the vehicle and sat in the back seat; Thornton was driving.


[3]   Ignoring K.W.’s requests to take her home, the men instead drove her to an

      apartment complex in Hammond, Indiana. K.W. followed the men into an

      apartment and entered the bathroom. Dillard followed her into the bathroom

      and demanded that she perform oral sex. Feeling outnumbered and threatened,

      K.W. complied. Nelson then entered the bathroom and attempted to have sex

      with K.W. The men took turns slapping K.W. and tossed her back and forth by




      1
          Ind. Code § 35-42-3-3.


      Court of Appeals of Indiana | Opinion 45A03-1405-CR-156 | February 5, 2015   Page 2 of 11
      her hairpiece. K.W. dropped to the bathroom floor and began to pray out loud.

      Dillard retrieved a gun and placed it to K.W.’s head and in between her legs.

      Thornton entered the bathroom and told the other men to let K.W. clean

      herself up. He told K.W. that he would not let the men kill her but that “You

      got to do exactly what I tell you to do.” Tr. p. 65-66. Thornton then demanded

      that K.W. perform oral sex on him. Dillard reentered the bathroom and had

      sex with K.W. After that, Thornton told K.W. to clean herself up.


[4]   Thornton and Nelson led K.W. back to the vehicle and drove away. She fled

      the vehicle at a stoplight and entered a CVS store, where she told the cashier

      that she had been raped and asked the cashier to contact the police. Later,

      K.W. retraced the route with a detective and they located the apartment and

      Thornton’s vehicle. K.W. eventually identified Thornton, Dillard, and Nelson

      from photo arrays.


[5]   On July 30, 2013, Thornton gave a voluntary statement to Detective

      Christopher Matanovich. Thornton told the detective that on the night in

      question, he, Dillard, Nelson, and Thornton’s two children had stopped at a gas

      station. Dillard and Nelson exited Thornton’s vehicle and returned a few

      minutes later with a woman, who got into the back seat. They drove the female

      to Thornton’s apartment. According to Thornton, they all entered the

      apartment and Thornton stayed in the main room with his children while the

      two other men were in the bathroom for an extended period of time with the

      woman. Thornton reported that it sounded like they were having sex.

      Thornton reported that “when it was all over with,” Thornton and Nelson got

      Court of Appeals of Indiana | Opinion 45A03-1405-CR-156 | February 5, 2015   Page 3 of 11
      back into the vehicle with the woman to drive her home, but on the way, she

      got out of the vehicle at a stop light and walked into a CVS. Tr. p. 340-41.


[6]   On August 1, 2013, the State charged Thornton with class A felony rape, class

      A felony criminal deviate conduct, class B felony criminal confinement, and

      class C felony battery with a deadly weapon. Following a four-day jury trial

      that began on March 3, 2014, the jury found Thornton guilty of class B felony

      criminal confinement and was unable to reach a verdict on the remaining

      counts. On April 11, 2014, the trial court sentenced Thornton to twelve years

      imprisonment, to be served consecutively to an eighteen-month sentence

      imposed in a different case. Thornton now appeals.


                                    Discussion and Decision
[7]   Thornton’s first argument, which we find dispositive, is that the trial court

      erroneously permitted certain testimony into evidence. We review a trial

      court’s decision to admit evidence for an abuse of discretion, and will reverse

      only if the court’s decision was clearly against the logic and effect of the facts

      and circumstances before it. Lindsey v. State, 916 N.E.2d 230, 238 (Ind. Ct.

      App. 2009).


[8]   The Confrontation Clause of the Sixth Amendment to the United States

      Constitution prohibits the admission of an out-of-court statement if it is

      testimonial, the declarant is unavailable, and the defendant had no prior

      opportunity to cross-examine the declarant. King v. State, 985 N.E.2d 755, 758

      (Ind. Ct. App. 2013), trans. denied. Similarly, Article 1, Section 13 of the

      Court of Appeals of Indiana | Opinion 45A03-1405-CR-156 | February 5, 2015   Page 4 of 11
      Indiana Constitution provides that “[i]n all criminal prosecutions, the accused

      shall have the right to . . . meet the witnesses face to face[.]” To determine

      whether a statement was testimonial, we look to the primary purpose of the

      conversation. King, 985 N.E.2d at 758. If circumstances indicate that the

      primary purpose of the conversation was to gather evidence of past events

      potentially relevant to later prosecution, then the statements are testimonial and

      protected by the Confrontation Clause. Id.


[9]   In this case, Detective Matonovich took statements from both Dillard and

      Thornton during the investigation of the incident. Dillard did not testify at

      Thornton’s trial. At trial, Detective Matonovich testified without objection that

      he had spoken with Dillard and initially testified that Dillard’s version of events

      was “somewhat” consistent with Thornton’s version. Tr. p. 348. Later, the

      following colloquy took place during direct examination:

              State:            Have you spoken with Kevin Dillard since?


              Matonovich: Yes.


              State:            Okay. Without getting into what Mr. Dillard said,
                                because of hearsay rules, did Thornton’s version of
                                Thornton’s actions match that of Mr. Dillard’s version?


              Matonovich: No.


      Id. at 369. Thornton then objected on the grounds that the testimony violated

      his Sixth Amendment confrontation rights, and the trial court overruled the

      objection. Detective Matonovich then again stated, “No, they didn’t match
      Court of Appeals of Indiana | Opinion 45A03-1405-CR-156 | February 5, 2015          Page 5 of 11
       up.” Id. at 370. The prosecutor clarified, “As far as Thornton’s actions with

       the victim?” The detective replied, “Yes.” Id. Detective Matonovich then

       testified that when he previously stated that Thornton’s and Dillard’s versions

       were somewhat consistent, he was referring to a “few similarities” “as far as

       [K.W.] was involved, she was in the car, she was in his apartment, those few

       similarities,” but “[o]ther than that, there were some major differences in what

       occurred that night.” Id.


[10]   The parties’ primary arguments on appeal surround whether this testimony

       constituted an out-of-court statement that was testimonial in nature.2 The State

       contends that this testimony was not hearsay because it did not assert a fact

       susceptible of being true or false. According to the State, because Detective

       Matonovich did not describe the substance of Dillard’s statements, his

       testimony was not prohibited under the Confrontation Clause. We cannot

       agree.


[11]   If anything, the testimony in question here is worse than specific facts. The

       testimony was pure innuendo, necessitating that the detective make his own

       determination and interpretation of the content of Dillard’s statement as well as

       Dillard’s and Thornton’s reliability and credibility. The purpose of this

       testimony was to imply to the jury that Thornton was being dishonest, based

       solely on pure speculation regarding the nature and extent of the alleged



       2
        The State does not contend that Dillard was available or that Thornton had a prior opportunity for cross-
       examination.

       Court of Appeals of Indiana | Opinion 45A03-1405-CR-156 | February 5, 2015                       Page 6 of 11
       inconsistencies. Thornton was unable to cross-examine Dillard about his

       statement, the inconsistencies, or his credibility as a declarant.


[12]   We find that this testimony is akin to a witness summarizing the content of an

       out-of-court statement. Such a summary would constitute hearsay. See, e.g.,

       Tessely v. State, 432 N.E.2d 1374, 1375-76 (Ind. 1982) (holding that summaries

       of an out-of-court conversation constituted “hearsay evidence in its classic

       form”); Amoco Oil Co. v. Comm’r of Labor, 726 N.E.2d 869, 874 (Ind. Ct. App.

       2000) (holding that summaries of interviews constituted hearsay); Cornell v. Rev.

       Bd., 179 Ind. App. 17, 21, 383 N.E.2d 1102, 1105 (Ind. Ct. App. 1979) (holding

       that summary of a student’s attendance record constituted hearsay). While

       Detective Matonovich’s testimony is a very general summary, it is still a

       summary of Dillard’s statements that allegedly conflicted with Thornton’s. We

       agree with Thornton that to permit the State to hint at the substance of a

       conversation so long as specific details are not mentioned would violate both

       the United States and Indiana Constitutions, inasmuch as it would permit the

       State to bootstrap in evidence that is otherwise inadmissible and permit a

       witness to make his own determination of a declarant’s reliability.


[13]   Furthermore, there can be no real dispute that the nature of Dillard’s statement

       to Detective Matonovich was testimonial in nature. The primary purpose of

       the conversation between Dillard and the detective was clearly to prove past

       events potentially relevant to later criminal prosecution.




       Court of Appeals of Indiana | Opinion 45A03-1405-CR-156 | February 5, 2015   Page 7 of 11
[14]   The State argues that this issue has been waived because Thornton failed to

       object when Detective Matonovich originally testified that Dillard’s statement

       was “somewhat” consistent with Thornton’s, did not object until after the

       detective said “no” to the prosecutor’s question regarding whether Dillard’s

       statement was consistent with Thornton’s, and did not object to the continuing

       colloquy after the trial court had overruled his objection. First of all, we do not

       find that the detective’s testimony that Dillard’s statement was inconsistent is

       cumulative of his earlier testimony that it was somewhat consistent. To the

       contrary, these two statements are contradictory rather than cumulative.

       Furthermore, we are not persuaded that Thornton’s failure to object before the

       detective said “no” or to continue to object after the trial court overruled him

       serves to waive this argument. Thornton objected on the basis of hearsay and

       his rights under the Confrontation Clause. The trial court overruled the

       objection. We find that this was sufficient to preserve the issue for appeal.


[15]   Finally, the State directs our attention to authority holding that “an otherwise

       valid conviction should not be set aside if the reviewing court may confidently

       say, on the whole record, that the constitutional error was harmless beyond a

       reasonable doubt.” Koenig v. State, 933 N.E.2d 1271, 1273 (Ind. 2010). We

       cannot conclude that this error was harmless beyond a reasonable doubt.

       Initially, we note that the jury was unable to reach a verdict on all but one of

       the charges against Thornton, so it cannot be said that the evidence of his guilt

       was without doubt. Furthermore, Detective Matanovich’s testimony was pure

       innuendo that left the jury free to speculate regarding Thornton’s honesty as


       Court of Appeals of Indiana | Opinion 45A03-1405-CR-156 | February 5, 2015   Page 8 of 11
       well as the nature, extent, and even existence of possible inconsistencies

       between Thornton’s version and Dillard’s. Thornton was unable to cross-

       examine Dillard about any of these subjects. We simply cannot conclude

       beyond a reasonable doubt that this testimony was harmless. Consequently, we

       reverse Thornton’s conviction and remand for further proceedings.


[16]   Although we need not address the remaining issues, we choose to address

       Thornton’s arguments regarding prosecutorial misconduct as these issues may

       arise again should the State choose to retry Thornton. In reviewing a claim of

       prosecutorial misconduct, we determine first, whether misconduct occurred,

       and second, whether the misconduct placed the defendant in a position of grave

       peril to which he would not have been otherwise subjected. Ryan v. State, 9

       N.E.3d 663, 667 (Ind. 2014). When the allegations of misconduct arise from a

       prosecutor’s argument, it has been established that “[w]hether a prosecutor’s

       argument constitutes misconduct is measured by reference to case law and the

       Rules of Professional Conduct. 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.” Cooper v. State, 854 N.E.2d 831, 835 (Ind.

       2006).


[17]   Both of Thornton’s claims of misconduct stem from closing argument. During

       defense counsel’s closing argument, counsel pointed out that while K.W.

       testified that she had been bleeding profusely after being struck in the

       apartment, the samples taken from the apartment that were tested were



       Court of Appeals of Indiana | Opinion 45A03-1405-CR-156 | February 5, 2015   Page 9 of 11
       inconclusive for a match with K.W.’s blood. In response, the prosecutor

       argued as follows:

               They want you to believe that this DNA—hit on that it’s not
               inconclusive. She told you it was presumptive blood. They don’t have
               the equipment to finish out the confirmatory or the DNA analysis.
               They had a minimal amount of time because of the speedy trial request in
               which to get all this testing done. Did as much testing as we could.


       Tr. p. 492 (emphasis added). The right to a speedy trial is guaranteed by both

       the Sixth Amendment to the United States Constitution and Article 1, Section

       12 of the Indiana Constitution. This right is “fundamental to our system of

       justice[.]” Crawford v. State, 669 N.E.2d 141, 145 (Ind. 1996).


[18]   To blame a shortcoming in the State’s evidence on a defendant’s invocation of a

       fundamental constitutional right surely constitutes prosecutorial misconduct,

       and likely also constitutes fundamental error. See Whitlock v. State, 576 N.E.2d

       640, 641 (Ind. Ct. App. 1991) (holding, in the context of the Fifth Amendment

       right to refrain from testifying, that “[a]ny [prosecutorial] comment which

       directly or even indirectly may be interpreted by the jury as comment on the

       accused’s exercise of his rights is reversible error” even in the absence of a

       contemporaneous objection). We caution the prosecutor to avoid making a

       similar comment in the future should the State choose to retry Thornton.


[19]   Thornton’s second claim of prosecutorial misconduct also arises from closing

       argument. The prosecutor made the following comments:




       Court of Appeals of Indiana | Opinion 45A03-1405-CR-156 | February 5, 2015    Page 10 of 11
               [K.W.] was brave enough to follow through. Most women don’t.
               Why? Because they’re made to feel like they’re on trial. We treat
               them like they’re criminals, when they have the courage to say no way.
               I can’t let this go on. She followed through every step of the way and
               came here to you guys this week to face everybody in here and told
               you her story.


       Tr. p. 476. Then, on rebuttal, the prosecutor stated that “[s]omething I want

       you to consider is that we re-victimize these people who come forward with

       rape.” Id. at 498.


[20]   A prosecutor may not request that a jury convict a defendant for any reason

       other than his guilt. Cooper, 854 N.E.2d at 837-38. It is improper for a

       prosecutor to invoke sympathy for a victim as a basis for a conviction. Woolston

       v. State, 453 N.E.2d 965, 970 (Ind. 1983). Similarly, a prosecutor may not urge

       a jury to convict a defendant to encourage other victims to come forward. Hand

       v. State, 863 N.E.2d 386, 396 (Ind. Ct. App. 2007). In this case, the prosecutor’s

       statements made during closing argument and rebuttal fell into all three of these

       prohibited categories of argument. Should the State decide to retry Thornton,

       we admonish the prosecutor to avoid making similar comments the next time

       around.


[21]   The judgment of the trial court is reversed and remanded.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 45A03-1405-CR-156 | February 5, 2015   Page 11 of 11
