Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                        Feb 28 2014, 8:34 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

DOUGLAS K. MAWHORR                               GREGORY F. ZOELLER
Public Defender’s Office                         Attorney General of Indiana
Muncie, Indiana
                                                 ERIC P. BABBS
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ALONZO GOLSTON WILLIAMS III,                     )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )        No. 18A02-1307-CR-624
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE DELAWARE CIRCUIT COURT
                        The Honorable Thomas A. Cannon, Jr., Judge
                              Cause No. 18C05-1104-FD-41



                                      February 28, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Alonzo Golston Williams III appeals his conviction for intimidation, as a Class D

felony, following a jury trial. Williams raises two issues for our review, which we

consolidate and restate as whether the trial court abused its discretion when it denied his

proposed jury instruction and whether the State denied him his right to due process when

it failed to preserve potentially useful evidence. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On April 13, 2011, Williams was incarcerated in the Delaware County Jail.

Corporal Robert L. Brooks of the Delaware County Sheriff’s Office was working inside

the jail that day, and he observed “pornography pictures” on the wall of Williams’ cell.

Transcript at 230. Having pictures of any kind on the walls of a cell is against the rules

of the jail, and Corporal Brooks instructed Williams to remove the pictures. Later that

day, Corporal Brooks returned to Williams’ cell and observed the pictures still on the

wall. Corporal Brooks again instructed Williams to remove the pictures, but Williams

responded, “fuck you, I’m not taking them down.” Id. at 138.

       Corporal Brooks then removed Williams from his cell, placed Williams in

handcuffs, and proceeded to remove the pictures from Williams’ wall. Correctional

Officer John Taylor arrived to assist Corporal Brooks in searching the rest of Williams’

cell for contraband. During the search, Williams “kept yelling” and “cussing” and so,

pursuant to the jail’s policies, the officers removed Williams to the segregation unit of the

jail. Id. at 140. En route, Jeremy Dye, an administrative assistant for the Sheriff’s




                                             2
Office, overheard Williams saying that “he was gonna . . . get or kill . . . Officer Taylor

and Officer Brooks.” Id. at 193.

       Corporal Brooks placed Williams inside a segregation cell. Williams asked for

medical attention, but then proceeded to tell Corporal Brooks that “when he see[s] me on

the street he [i]s going to kill me” and that Williams “hoped [Corporal Brooks’] mother

and . . . kids die.” Id. at 140. Williams told Officer Taylor that Officer Taylor “was dead

when [Williams] gets out.” Id. at 172. And Williams spit at Officer Taylor, though he

missed. Williams then refused to allow a responding nurse into his cell, and she did not

even get to look at him.

       On April 18, the State charged Williams with intimidation, as a Class D felony,

and attempted battery by body waste, as a Class D felony. At his ensuing jury trial,

Williams argued to the jury that, although the jail had a video surveillance system, “I bet

you don’t see any video today. . . . [W]hy is that? Why isn’t there any video?” Id. at

132-33. Williams then asked Corporal Brooks and Officer Taylor if they were familiar

with the jail’s surveillance system.     Corporal Brooks testified that the surveillance

cameras captured only movement and not sound. When asked if he attempted to review

or preserve the video from the incident, Corporal Brooks testified:

       A       No I did not, because we simply escorted him to that segregation
       [cell,] which is routine, and took the handcuffs off of him and tried to exit
       the cell.

                                           ***

       Q      Did you think about it at all?

       A      No I did not.


                                               3
       Q      Did you do anything to destroy the tape?

       A      No I didn’t.

Id. at 145-46. Officer Taylor likewise testified that, in light of the routine nature of the

events, he did not “think to even pull the tape, or to look at it.” Id. at 174. And Officer

Taylor added that, if force had been involved in the incident, jail policy would have

required him to fill out a form, which he did not do.

       However, Williams testified and painted a dramatically different picture of the

events. According to Williams, Corporal Brooks and Officer Taylor attacked him, struck

him repeatedly, and unnecessarily placed him in restraints. He further testified that the

officers’ assault left him with a bloody mouth and that the officers destroyed photographs

of his child. Williams did not explain why he refused the offered medical treatment.

       Williams tendered the following proposed jury instruction: “In this case, there has

been evidence that the Delaware County Sheriff Department destroyed evidence. If you

believe that the State engaged in such conduct, then you may infer that such evidence

would have been unfavorable to the State and beneficial to the accused.” Appellant’s

App. at 84. The trial court rejected Williams’ tendered instruction, stating that “[t]here is

no evidence . . . that the Delaware County Sheriff’s Department destroyed evidence.”

Transcript at 237. The jury then found Williams guilty of intimidation, as a Class D

felony, but it acquitted him of attempted battery by body waste. The court entered its

judgment of conviction and sentence accordingly. This appeal ensued.




                                             4
                                DISCUSSION AND DECISION

        On appeal, Williams argues that the trial court abused its discretion when it denied

his proposed jury instruction and that the State denied him his right to due process when

it failed to preserve potentially useful evidence.1 Williams’ argument in this appeal is

nearly identical to the defendant’s argument in Jewell v. State, 672 N.E.2d 417 (Ind. Ct.

App. 1996), trans. denied. As we explained in Jewell:

        Jewell sought to take advantage of the fact that the police had not preserved
        the bloody sheets or performed further forensic tests on evidence at [the]
        crime scene. Jewell argued vigorously to the jury the possibility that, had
        the evidence been preserved and tested, it may have exonerated him by
        revealing that someone other than Jewell had committed the crime. For
        example, Jewell argues that blood tests may have revealed that someone
        else’s blood, besides his or Jones’, had been spilled at the crime scene. In
        support of this theory, Jewell tendered the following jury instruction which
        the trial court refused:

                If you find that the State has intentionally, knowingly,
                recklessly, or negligently lost, destroyed, or failed to preserve
                evidence whose contents or quality are important to the issues
                of this case, then you should weigh the explanation if any
                given for the loss or unavailability of the evidence. If you
                find that such explanation is inadequate, then you may draw
                an inference unfavorable to the State, which in itself may
                create a reasonable doubt as to the Defendant’s guilt.

        When this instruction was refused, Jewell tendered an alternative
        instruction which deleted the term “negligently.” This variation was
        refused as well. . . .


        1
           The State asserts that Williams has not properly preserved his due process claim because he did
not raise it below. We cannot agree, but we do not read Williams’ due process argument as substantively
different from his argument that the trial court abused its discretion when it denied his tendered jury
instruction. Rather, Williams’ argument on appeal, which he made to the trial court, is that the State was
required to preserve the jail’s surveillance video and that he should have been allowed to use the State’s
failure to do so against the State. Insofar as Williams may have intended another due process argument
on appeal, that argument is not supported by cogent reasoning and is waived. Ind. Appellate Rule
46(A)(8)(a).


                                                    5
        When reviewing the refusal of a tendered jury instruction, the court
on review must determine whether the tendered instruction correctly states
the law, whether there was evidence in the record to support the giving of
the instruction, and whether [the] substance of [the] tendered instruction is
covered by other instructions. Evans v. State, 571 N.E.2d 1231, 1236 (Ind.
1991). Before a defendant is entitled to reversal, he must affirmatively
show that there was error prejudicial to his substantial rights. Tyson v.
State, 619 N.E.2d 276, 300 (Ind. Ct. App. 1993), trans. denied, cert. denied,
510 U.S. 1176, 114 S. Ct. 1216, 127 L. Ed. 2d 562. The giving or refusing
of jury instructions is a matter largely entrusted to the sound discretion of
the trial court. Id. [at] 293.

        The failure to preserve potentially useful evidence may constitute a
denial of due process and require reversal where the criminal defendant can
show bad faith on the part of the police. Bivins v. State, 642 N.E.2d 928,
943 (Ind. 1994), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d
734. Indiana courts have long required a showing of bad faith on the part
of the police in evaluating whether the failure to preserve evidence
constitutes a denial of due process. Id.; McGowan v. State, 599 N.E.2d
589, 594 (Ind. 1992). Jewell argues that, even if the refusal of his
instructions did not violate his federal right to due process, we should find
that it was violative of the greater due process protection provided under
Indiana’s constitution.

        At the outset, we note that the instruction tendered by
Jewell . . . merely invites the jury to find reasonable doubt based on the
failure of the police to preserve the evidence in question.

       Moreover, Jewell has never seriously argued that the police
exercised bad faith in failing to preserve evidence from the crime scene. As
noted above, the police had explained that they had not considered the
possibility that the blood of anyone else besides Jones could have been left
at the crime scene. This conclusion is reasonable. The cowardly attack
upon Jones took place while he was sleeping. While Jones awoke and
struggled with his attacker, there is little reason to expect that the unarmed
Jones, soon beaten unconscious with a board, could have drawn blood from
his assailant. Therefore, it does not follow logically that the failure of the
police to preserve evidence from the crime scene would give rise to an
inference adverse to the State. Further preservation and testing of evidence
from the crime scene may well have produced additional evidence against
Jewell. Thus, Jewell’s instruction is not supported by evidence and was
properly refused. See Nettles v. State, 565 N.E.2d 1064, 1069 (Ind. 1991)
(Trial court properly refused instruction that jury could infer that evidence


                                      6
        destroyed or permitted to deteriorate by the State would have been
        unfavorable to the State and beneficial to the accused); Greene v. State, 515
        N.E.2d 1376, 1382 (Ind. 1987) (Trial court properly refused instruction that
        jury could presume that videotapes recorded over by the State would have
        provided evidence against its interest).

                Under the circumstances present in this case, Jewell’s due process
        rights, whether derived from the United States or the Indiana Constitution,
        have not been compromised by the trial court’s refusal of the tendered
        instruction that the jury could draw an inference adverse to the State from
        its destruction of or failure to preserve evidence. Therefore, we find no
        error.

Id. at 424-26 (emphases added; some citations omitted). Although Williams recognizes

Jewell in his brief on appeal, he makes no attempt to distinguish it.

        Here, Williams sought to take advantage of the fact that the State did not preserve

the jail surveillance video. Williams argued to the jury that the State’s failure to produce

the video should be questioned. Williams continues this attack on appeal, asserting that

“the video images . . . would have corroborated Williams’ version of the facts and

discredited Brooks’ and Taylor’s version of the facts, thus supporting Williams’

credibility . . . .” Appellant’s Br. at 8. Accordingly, Williams contends that the trial

court abused its discretion when it denied his tendered instruction and that the State

denied him his right to due process when it failed to preserve this potentially useful

evidence.2

        As in Jewell, the instruction here “merely invite[d] the jury to find reasonable

doubt based on the failure of the [State] to preserve the evidence in question.” 672


        2
          Williams also asserts that the State’s failure to preserve the potentially useful evidence violated
a local rule of Delaware County. Insofar as that local rule might apply here, Williams’ argument is
substantively identical to his due process argument. As such, for the same reasons we reject his due
process argument we reject his argument under the local rule.


                                                     7
N.E.2d at 425. But Williams “has never seriously argued that the police [or any other

agent of the State] exercised bad faith in failing to preserve [the] evidence . . . .” Id. On

appeal, Williams argues that the evidence was in dispute regarding the witness’

credibility. Be that as it may, he points to no evidence that suggests the police acted in

bad faith when they did not preserve the video images. To the contrary, both Corporal

Brooks and Officer Taylor testified that they simply never even thought to review the

video tape, which is reasonable because the tape did not record sound and the basis for

the State’s intimidation charge was Williams’ statements to Corporal Brooks and Officer

Taylor.3    Officer Taylor also testified that, after Williams had been moved to the

segregation cell, Officer Taylor did not fill out paperwork that would have been

mandatory had force been involved. And Williams acknowledged, without explanation,

that he had refused medical treatment upon being placed in the segregation cell.

       “[T]he State does not have ‘an undifferentiated and absolute duty to retain and

preserve all material that might be of conceivable evidentiary significance in a particular

prosecution.’”     Terry v. State, 857 N.E.2d 396, 406 (Ind. Ct. App. 2006) (quoting

Arizona v. Youngblood, 488 U.S. 51, 58 (1988)), trans. denied. And even if the officers

had preserved the surveillance video, Williams’ assertion on appeal that it would have

corroborated his testimony is speculation. It is at least equally likely that the video “may

well have produced additional evidence against” Williams by discrediting his testimony

rather than crediting it. See Jewell, 672 N.E.2d at 425.


       3
         Perhaps the video could have been relevant evidence on the State’s charge of attempted battery
by body waste, but we need not consider that question since the jury acquitted Williams of that charge.


                                                  8
       In sum, Williams’ tendered instruction was not supported by the evidence and was

properly refused. See id. Williams’ due process rights have not been compromised by

either the trial court’s refusal of the tendered instruction or the State’s failure to preserve

the potential evidence. As such, we affirm Williams’ conviction.

       Affirmed.

BAKER, J., and CRONE, J., concur.




                                              9
