MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be
                                                                     Sep 24 2019, 9:18 am
regarded as precedent or cited before any
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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Valerie K. Boots                                         Curtis T. Hill, Jr.
Ellen M. O’Connor                                        Attorney General of Indiana
Marion County Public Defender Agency                     Sierra A. Murray
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kelly M. Hudson,                                         September 24, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-197
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Kurt Eisgruber, Judge
                                                         Trial Court Cause No.
                                                         49G01-1712-MR-46906



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-197 | September 24, 2019             Page 1 of 10
[1]   Kelly M. Hudson (“Hudson”) was convicted after a jury trial of murder,1 a

      felony. He appeals his conviction and raises the following restated issue for our

      review: whether the State violated the Fifth Amendment or Article 1, Section

      14 of the Indiana Constitution because it improperly referred to Hudson’s

      constitutional right to remain silent.


[2]   We affirm.


                                       Facts and Procedural History
[3]   In the fall of 2017, Catherine Dunaway (“Dunaway”), who went by the

      nickname Cat, lived in a studio apartment on Meridian Street in Marion

      County, Indiana. Tr. Vol. II at 28, 141. She had a brother, David Dunaway

      (“David”), with whom she had a close relationship. Id. at 28. Dunaway

      struggled with drug and alcohol issues, and David was aware that she smoked

      crack. Id. at 29-30. On October 31, 2017, Dunaway was getting ready to move

      down the street into a new apartment building, and David brought her a roll of

      black trash bags to use for packing her clothes. Id. at 28-29, 36. Dunaway was

      scheduled to move into her new apartment two days later on November 2,

      2017. Id. at 28-30, 39.


[4]   Sandra Johnson (“Johnson”) was neighbors with Dunaway and lived in the

      same apartment building. Id. at 140. On Tuesday, October 31, 2017, Johnson




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


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-197 | September 24, 2019   Page 2 of 10
      was walking down the street when Hudson, whom she had met on a previous

      occasion, approached her. Id. at 143-44. Hudson had been riding on a bus on

      Meridian Street when he saw Johnson, so he jumped off the bus and met up

      with her. Id. at 143. The two walked to Johnson’s apartment building where

      they smoked crack together. Id. at 147-48. Afterwards, Hudson asked Johnson

      if she knew “anybody to introduce him to.” Id. at 148. Johnson said yes and

      introduced him to Dunaway. Id. at 148-49. Hudson ended up staying at

      Dunaway’s apartment all night. Id. at 150.


[5]   On the next day, November 1, 2017, Johnson was doing laundry when she saw

      Hudson ringing the doorbell to get into the building at around 7:00 or 8:00 p.m.

      Id. at 150-51. Dunaway let him inside, and she and Hudson went upstairs to

      her apartment. Id. at 151-52. At some point later, Hudson came downstairs to

      Johnson’s apartment and told her that while he was in the shower, Dunaway

      had stolen some of his crack. Id. at 155. He said that he “was going to hit her,”

      but Johnson “didn’t think nothing of it.” Id. at 156.


[6]   Around 9:00 or 10:00 p.m., Johnson went upstairs “to see what [Hudson and

      Dunaway were] doing.” Id. at 152. Hudson asked Johnson for some laundry

      detergent in exchange for “a little piece of crack.” Id. at 153, 163. Johnson put

      some detergent in a cup that Hudson had gotten from inside of Dunaway’s

      apartment, and Hudson gave her the crack. Id. Johnson then returned to her

      apartment. Id. at 154. She saw Dunaway for the last time at around 12:00 or

      1:00 a.m. that night when Johnson went back to Dunaway’s apartment “[j]ust

      to check on them to see what they [were] doing.” Id. When Dunaway
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-197 | September 24, 2019   Page 3 of 10
      answered the door, she asked Johnson for a cigarette. Id. at 155, 168. Johnson

      went back downstairs and never saw Dunaway or Hudson again. Id. at 154-56.


[7]   The next morning, November 2, 2017, Dunaway did not move into her new

      apartment as scheduled. Id. at 39. Theresa Wyatt (“Wyatt”), who managed

      the new apartment building where Dunaway was supposed to move, was a

      close friend with Dunaway and also shared a son with Dunaway’s brother,

      David. Id. at 30, 38. When Dunaway failed to move into the new apartment

      building that day, Wyatt called her, and someone with a “deeper voice”

      answered the phone and said they would call Wyatt back. Id. at 39, 43-45.

      Wyatt did not believe that the voice sounded like Dunaway, but thought that

      maybe her voice sounded deeper because Dunaway was just waking up. Id. at

      44-45.


[8]   By November 3, 2017, neither David nor Wyatt had heard from Dunaway for a

      couple of days. Id. at 30, 39-40. The two of them went to her old apartment,

      but she did not answer the door when they knocked. Id. at 40. They were able

      to obtain a key to the apartment from the manager to conduct a wellness check.

      Id. at 31, 40. Once inside the apartment, they noticed that nothing was packed

      for Dunaway’s move to the new apartment. Id. at 31. Dunaway’s shoes were

      by the door, and her purse was on the stove. Id. at 40-41, 201. A large pile of

      clothing was on the floor in the living room. Id. at 31, 40-41, 201. After

      checking the rest of the apartment, David walked over to the pile and picked up

      some of the clothing. Id. at 31, 42. Dunaway’s dead body was hidden



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-197 | September 24, 2019   Page 4 of 10
       underneath, face down with a stab wound to her neck. Id. at 31-32, 201; Tr.

       Vol. III at 57.


[9]    In their investigation of the apartment, the police found twenty-one of Hudson’s

       fingerprints inside of Dunaway’s apartment. Tr. Vol. II at 116-17. His

       fingerprints were found on several black garbage bags inside the apartment,

       including one that contained a bloody pillow. Id. at 114-16, 207. It appeared as

       though the garbage bags had contained clothing that was dumped onto

       Dunaway’s body. Id. at 201-03. Hudson’s fingerprints were also found on an

       ashtray that was located on top of a blanket that had been used to cover a chair

       covered with blood stains, which was likely the place where Dunaway was

       stabbed. Id. at 116, 209-10, 215. It appeared that Dunaway’s body had been

       dragged from the chair to where her body was located on the floor. Id. at 88.

       Male DNA was discovered on Dunaway’s left wrist. Id. at 184-85.


[10]   On December 1, 2017, the police brought Hudson into the homicide office for

       questioning. Id. at 217. During the interview, which was recorded, Hudson

       denied knowing anything about the murder. State’s Ex. 108. Initially, he denied

       ever meeting Dunaway, but he later changed his story and said he met another

       woman but did not know her name. Id. The detective interviewing Hudson

       told him the other woman’s name was “Catherine,” and Hudson later admitted

       that he went back to see “Cat.” Id. However, he denied ever being inside of

       Dunaway’s apartment. Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-197 | September 24, 2019   Page 5 of 10
[11]   On December 4, 2017, the State charged Hudson with murder. Appellant’s App.

       Vol. II at 23, 32-34. At the jury trial, Hudson did not testify, but his recorded

       interview with police was admitted into evidence. Tr. Vol. II at 220-21. During

       closing argument, defense counsel contended that there were innocent

       explanations for Hudson’s fingerprints being inside of Dunaway’s apartment.

       Tr. Vol. III at 80-81. As an explanation as to why Hudson’s fingerprints were

       on the trash bags, defense counsel stated that testimony established that

       Dunaway was moving, and “[i]t is entirely reasonable that [Hudson] was

       helping her with that.” Id. at 80. To explain why Hudson had lied to the police

       about being inside Dunaway’s apartment, defense counsel stated, “We talked in

       voir dire about reasons that people might not be truthful with the police, . . .

       and one suggestion was being afraid, because who wouldn’t [be] if you’re being

       investigated for [murder]?” Id. at 86. In its rebuttal argument, the State

       remarked on the lack of evidence to support these defense theories. Id. at 89.

       The prosecutor stated,


               Your verdict and your decision is [sic] not to be based on
               speculation. And I want to talk about some things that were
               talked about in the defense closing that I have evidence that
               disproves, and I do want to talk about that, because we talked
               this morning, or yesterday morning, about your job as a juror,
               and your job as a juror is to put all of this together, and I want to
               talk about some specifics here. The Defendant was helping her
               move, and that’s an innocent explanation for why his fingerprints
               are on there? You have no evidence from this stand. You have .
               . . no evidence here. . . . That’s speculation.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-197 | September 24, 2019   Page 6 of 10
       Id. Hudson objected to these statements by the prosecutor, and the trial court

       overruled the objection. The prosecutor additionally stated,


               You can look to the lack of evidence. You can look at things that
               might not be there, but you can’t speculate intent. The defense
               said an awful lot he was afraid when he talked to the police. You
               have no evidence of that. You heard Detective Dunn. You
               heard Detective Dunn, that statement say, “I want to make sure
               that I get what’s going on here. Hey, I’m trying to be reasonable
               with you. I’m trying to be understanding.” He was not yelling at
               the Defendant. He was not aggressive with him. The Defendant
               didn’t say “I’m scared” in that statement. You have absolutely
               no evidence that that man was scared. It sounds good, but you
               have no evidence of it, and that’s the speculation that I am
               talking about.


       Id. at 90-91. The jury found Hudson guilty of murder. Hudson now appeals.


                                      Discussion and Decision
[12]   The Fifth Amendment to the United States Constitution prohibits the State

       from commenting on a defendant’s failure to testify in his own defense. Feyka

       v. State, 972 N.E.2d 387, 389 (Ind. Ct. App. 2012), trans. denied. Article 1,

       section 14, of the Indiana Constitution also protects a defendant’s right to

       remain silent at trial. Boatright v. State, 759 N.E.2d 1038, 1043 (Ind. 2001). A

       defendant’s privilege against compulsory self-incrimination is violated when a

       prosecutor makes a statement that a jury could reasonably interpret as an

       invitation to draw an adverse inference from a defendant’s silence. Huls v. State,

       971 N.E.2d 739, 744 (Ind. Ct. App. 2012), trans. denied. However, if the

       prosecutor’s comment in its totality addresses other evidence, and not the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-197 | September 24, 2019   Page 7 of 10
       defendant’s failure to testify, it is not grounds for reversal. Feyka, 972 N.E.2d at

       389. “The prosecutor may, for example, comment that the State’s evidence is

       uncontradicted without violating the defendant’s Fifth Amendment rights.” Id.

       If a prosecutor’s statement is found to be improper, “we must presume that

       reversal is necessary until the State proves beyond a reasonable doubt that any

       error was harmless.” Moore v. State, 669 N.E.2d 733, 736 (Ind. 1996) (citing

       Chapman v. California, 386 U.S. 18, 23 (1967)). The question then is whether the

       jury would have found the defendant guilty without the improper remark. Id.


[13]   Hudson argues that statements made by the State in its rebuttal argument

       violated his constitutional rights because the statements improperly remarked

       on his failure to testify at trial. He specifically asserts that the statement, “You

       have no evidence from this stand” “could reasonably have been an invitation to

       draw an adverse inference from his failure to testify.” Appellant’s Br. at 11.

       Hudson contends that the State’s remarks were an attempt to impeach his lack

       of testimony and invited the jury to infer guilt from his silence at trial. He

       further contends that the statements were not harmless.


[14]   During closing argument, defense counsel argued that there were innocent

       explanations as to why Hudson’s fingerprints were found in Dunaway’s

       apartment, specifically that his fingerprints were on trash bags because “[i]t is

       entirely reasonable that [Hudson] was helping her with [moving].” Tr. Vol. III

       at 80. In rebuttal argument, the State responded to this argument by remarking

       on the lack of evidence to support it and specifically stated,



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-197 | September 24, 2019   Page 8 of 10
               Your verdict and your decision is [sic] not to be based on
               speculation. And I want to talk about some things that were
               talked about in the defense closing that I have evidence that
               disproves, and . . . your job as a juror is to put all of this together,
               and I want to talk about some specifics here. The Defendant was
               helping her move, and that’s an innocent explanation for why his
               fingerprints are on there? You have no evidence from this stand.
               You have . . . no evidence here . . . That’s speculation.


       Id. at 89.


[15]   Hudson specifically takes issue with the State’s remark, “You have no evidence

       from this stand” and argues that it was an improper comment on his failure to

       testify at trial. However, the statement by the prosecutor did not make any

       specific mention of Hudson and his failure to testify. Instead, it was a remark

       on the lack of any evidence presented to support the defense theory to explain

       why Hudson’s fingerprints were present in Dunaway’s apartment, that Hudson

       was helping Dunaway pack her things to move. The prosecutor may comment

       on the uncontradicted nature of the State’s evidence without violating the Fifth

       Amendment. Owens v. State, 937 N.E.2d 880, 893 (Ind. Ct. App. 2010), trans.

       denied. The evidence presented by the State showed that Hudson had been

       inside of Dunaway’s apartment and had lied to the police about it. State’s Exs.

       77, 108. No evidence was presented by Hudson to contradict that he had been

       present in Dunaway’s apartment, only the defense counsel’s argument in

       closing that there could have been a reasonable, innocent explanation why his

       fingerprints were on the trash bags. The State’s comment did not focus on




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-197 | September 24, 2019   Page 9 of 10
       Hudson’s failure to testify; it was merely a remark on the lack of any evidence

       to support the defense theory presented in closing argument.


[16]   Defense counsel also proffered an explanation as to why Hudson lied to the

       police about being inside of Dunaway’s apartment. Counsel stated, “We talked

       in voir dire about reasons that people might not be truthful with the police, . . .

       and one suggestion was being afraid, because who wouldn’t [be] if you’re being

       investigated for [murder]?” Tr. Vol. III at 86. In response, the State commented

       in rebuttal,


               You can look to the lack of evidence. You can look at things that
               might not be there, but you can’t speculate intent. The defense
               said an awful lot he was afraid when he talked to the police. You
               have no evidence of that . . . . The Defendant didn’t say “I’m
               scared” in that statement. You have absolutely no evidence that
               that man was scared. It sounds good, but you have no evidence
               of it, and that’s the speculation that I am talking about.


       Id. at 90-91. This comment by the State again was a statement concerning the

       lack of evidence presented to support the defense theory. When looking at the

       State’s comments in their totality, we conclude that the State’s remarks were

       focused on the lack of any evidence to support the defense theory and to

       contradict the State’s evidence, and, thus, the statements were not an

       inappropriate comment on Hudson’s failure to testify.


[17]   Affirmed.


       Baker, J., and Crone, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-197 | September 24, 2019   Page 10 of 10
