MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                         Feb 12 2015, 10:22 am
Memorandum Decision shall not be regarded as
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
John Jacob Warrum                                         Gregory F. Zoeller
Mount Vernon, Indiana                                     Attorney General of Indiana
                                                          Katherine Modesitt Cooper
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Derrick Demarco Armstead,                                February 12, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         65A01-1408-CR-232
        v.                                               Appeal from the Posey Superior
                                                         Court
                                                         The Honorable S. Brent Almon,
State of Indiana,                                        Judge
Appellee-Plaintiff.                                      Cause No. 65D01-1307-FA-337




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 65A01-1408-CR-232 | February 12, 2015     Page 1 of 11
                                          Case Summary
[1]   On July 29, 2013, Appellant-Defendant Derrick Demarco Armstead engaged in

      an altercation outside a mobile-home community which resulted in two men

      being stabbed and beaten. Although Armstead admitted to stabbing one of the

      victims, he argues that he did so in self-defense after the victim poured gasoline

      on him. At trial, Appellee-Plaintiff the State of Indiana (the “State”) introduced

      evidence of a cell phone video which captured a portion of the events.

      Armstead attempted to elicit testimony from a detective regarding what is

      shown on the video. The State objected to the detective’s opinion testimony and

      the trial court sustained the objection. Soon thereafter, the State began asking

      the detective a question about whether Armstead requested that the detective

      test his clothes for accelerant. Armstead objected and the trial court sustained

      the objection. On appeal, Armstead argues (1) it was prosecutorial misconduct

      for the State to have asked the question regarding accelerant testing and (2) the

      trial court abused its discretion by not allowing him to question the detective

      about the contents of the video. We affirm.



                            Facts and Procedural History
[2]   On July 29, 2013, Armstead and Christopher Bradshaw began arguing outside

      at the mobile-home community in which Christopher lived. Property manager

      Tyfney Bennett intervened and attempted to settle the dispute between the two.

      After Armstead’s girlfriend and Christopher’s wife began to argue, Bennett told



      Court of Appeals of Indiana | Memorandum Decision 65A01-1408-CR-232 | February 12, 2015   Page 2 of 11
      Christopher’s wife to call the police. Armstead then backed off, began walking

      away and said, “I will f***ing kill you all.” Tr. p. 256.


[3]   Soon thereafter, Larry Bradshaw, Christopher’s father, arrived at the mobile

      home. Larry worked as a handyman for the property and was delivering

      materials to another trailer. When he arrived, Larry was unaware of the prior

      altercation between Christopher and Armstead. Upon exiting his truck, Larry

      noticed Armstead standing nearby and asked him if there was a problem.

      Armstead replied, “F*** yes there is, I am going to cut your f***ing throat.”

      Tr. p. 290. Armstead then removed a folded knife from his pocket and

      approached Larry. Armstead’s girlfriend also approached Larry carrying a

      baseball bat. The two attacked Larry, Armstead stabbing him multiple times in

      the chest, arm, and back, and Armstead’s girlfriend striking Larry in the head

      with the baseball bat. Christopher ran to aid his father but was in turn stabbed

      by Armstead in the chest and neck. Armstead admitted to stabbing Larry but

      contends that it was in retaliation after Larry poured gasoline on him. Larry

      testified that he did not pour or attempt to pour gasoline on Armstead.


[4]   At trial, the State introduced a short video recording taken by neighbor Lynn

      Owens. Owens testified that she saw Armstead, his girlfriend, and two other

      men approach and attack Larry. At no point did Owens see Larry pour

      gasoline on Armstead. Owens began recording the altercation with her cell

      phone after Christopher ran to help his father. Owens testified as to the events

      recorded in the video which showed Christopher rolling on the ground after

      being attacked followed by two men attempting to assist Christopher. Later in

      Court of Appeals of Indiana | Memorandum Decision 65A01-1408-CR-232 | February 12, 2015   Page 3 of 11
the trial, defense counsel questioned Detective Jeremy Fortune about Owens’s

video:

         Q: Detective, you have had an opportunity to view that video multiple
         times, I believe that I was saying after [Armstead] knocks Chris down
         were you able to tell that somebody comes from right to left and gets
         back into, or gets into the fight?
         A. Yes.
         [The State objects]
         The State: He is asking him to give an opinion as to what is on the
         video, he was not a party to that video, he didn’t make the video, he is
         not one of the witnesses on the video, what he is asking him to do is
         give an opinion which is in the purview of the Jury …


Tr. p. 441. Armstead responded that the detective’s testimony was permissible

under Rule 701 of the Indiana Rules of Evidence. The trial court sustained the

State’s objection but allowed Armstead to continue questioning Detective

Fortune about other events depicted on the video.

         Q: Detective Fortune, the video that you reviewed, there is a
         gentleman walking up the road, looks like he has a blood stained shirt
         on, did you see that?
         A: Yes, excuse me, yes.
         Q: Gentleman with a gray shirt with blood on it, did you believe that
         to be Larry Bradshaw?
         The State: Again, Your Honor, these are the same questions that go to
         the objection that I made.
         The Court: Alright, maybe, but I am going to let him answer this one,
         you may answer.
         A: Yes.
         Q: I will show you what I have marked as Defendant’s Exhibit “B”
         and you have already looked at this once –
         A: Yes.
         Q: – and that was the shirt you collected from the hospital and that
         was the shirt that Larry Bradshaw was wearing.
         A: Yes.
Court of Appeals of Indiana | Memorandum Decision 65A01-1408-CR-232 | February 12, 2015   Page 4 of 11
              Q: Do you believe that is the same shirt you saw him in walking up the
              hill in the video?
              A: Yes, yes.


      Tr. pp. 442-443.


[5]   Soon thereafter, defense counsel asked Detective Fortune whether the police

      had tested Armstead’s clothes for the presence of accelerants. Detective

      Fortune stated that the police lab would not accept Armstead’s clothing for

      accelerant testing because it was not an arson case. On redirect, Detective

      Fortune stated that he did not smell gasoline on Armstead’s clothing, after

      which the following exchange occurred:


[6]   The State: [addressing Detective Fortune] Did [defense counsel] ever provide

      you with a court order that would require you…

              Defense Counsel: Judge, I am going to object. I have absolutely no
              obligation to prove or disprove anything, that’s the status of the law
              and that is the implication.
              The State: First of all, I haven’t finished the question, second of all, the
              fact that he doesn’t – he doesn’t have a burden to do anything, but that
              doesn’t mean he doesn’t have the opportunity to ask this Court to
              order the State…
              The Court: This is when I am going to ask you to come to the bench to
              finish your question.


      Tr. pp. 451-52. Following a bench conference outside the jury’s presence, the

      State withdrew the question. At the conclusion of Detective Fortune’s

      testimony, Armstead moved for a mistrial, arguing that the State’s withdrawn

      question to detective Fortune hindered Armstead’s ability to receive a fair trial


      Court of Appeals of Indiana | Memorandum Decision 65A01-1408-CR-232 | February 12, 2015   Page 5 of 11
      by suggesting to the jury that Armstead had a burden of proof. The trial court

      denied Armstead’s motion.


[7]           On April 11, 2014, the jury convicted Armstead of Class A felony

      attempted murder, Class B felony aggravated battery, and two Class C felonies

      for battery by means of a deadly weapon. After a bench trial, the trial court

      found Armstead to be a habitual offender. At sentencing, the trial court vacated

      two of the battery convictions finding them to be lesser-included offenses of

      attempted murder. The trial court sentenced Armstead to thirty-eight years for

      attempted murder, enhanced thirty years for being a habitual offender, and six

      years for battery by means of a deadly weapon, to be served consecutively.



                                 Discussion and Decision
[8]           Armstead raises two issues on appeal: (1) whether it was prosecutorial

      misconduct for the State to ask Detective Fortune if defense counsel ever

      obtained a court order to have Armstead’s clothes tested for accelerant, and (2)

      whether the trial court abused its discretion by declining to allow defense

      counsel to elicit testimony from Detective Fortune about the contents of

      Owens’s video.


                                I. Prosecutorial Misconduct
[9]   “In reviewing a claim of prosecutorial misconduct properly raised in the trial

      court, we determine (1) whether misconduct occurred, and if so, (2) ‘whether

      the misconduct, under all of the circumstances, placed the defendant in a

      Court of Appeals of Indiana | Memorandum Decision 65A01-1408-CR-232 | February 12, 2015   Page 6 of 11
       position of grave peril to which he or she would not have been subjected’

       otherwise.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014), reh’g denied (quoting

       Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)). To preserve a claim of

       prosecutorial misconduct on appeal, a defendant must (1) raise a

       contemporaneous objection, (2) request an admonishment, and (3) if the

       admonishment is not given or is insufficient to cure the error, then he must

       request a mistrial. Washington v. State, 902 N.E.2d 280, 289-90 (Ind. Ct. App.

       2009) (citing Flowers v. State, 738 N.E.2d 1051, 1058 (Ind. 2000)). “Failure to

       request an admonishment or to move for mistrial results in waiver.” Dumas v.

       State, 803 N.E.2d 1113, 1117 (Ind. 2004) (citing Brewer v. State, 605 N.E.2d 181,

       182 (Ind. 1993)).


[10]   Armstead properly objected to the alleged misconduct at trial but failed to

       request an admonishment. As such, he has waived this issue for review.

               Our standard of review is different where a claim of prosecutorial
               misconduct has been procedurally defaulted for failure to properly
               raise the claim in the trial court, that is, waived for failure to preserve
               the claim of error. The defendant must establish not only the grounds
               for prosecutorial misconduct but must also establish that the
               prosecutorial misconduct constituted fundamental error. Fundamental
               error is an extremely narrow exception to the waiver rule where the
               defendant faces the heavy burden of showing that the alleged errors are
               so prejudicial to the defendant’s rights as to make a fair trial
               impossible. In other words, to establish fundamental error, the
               defendant must show that, under the circumstances, the trial judge
               erred in not sua sponte raising the issue because alleged errors (a)
               constitute clearly blatant violations of basic and elementary principles
               of due process and (b) present an undeniable and substantial potential
               for harm. The element of such harm is not established by the fact of
               ultimate conviction but rather depends upon whether the defendant’s

       Court of Appeals of Indiana | Memorandum Decision 65A01-1408-CR-232 | February 12, 2015   Page 7 of 11
               right to a fair trial was detrimentally affected by the denial of
               procedural opportunities for the ascertainment of truth to which he
               otherwise would have been entitled. In evaluating the issue of
               fundamental error, our task in this case is to look at the alleged
               misconduct in the context of all that happened and all relevant
               information given to the jury—including evidence admitted at trial,
               closing argument, and jury instructions—to determine whether the
               misconduct had such an undeniable and substantial effect on the jury’s
               decision that a fair trial was impossible.


       Ryan, 9 N.E.3d at 667-68. (quotations and citations omitted).


[11]   We are unpersuaded by the logical leap Armstead makes in suggesting that the

       prosecutor’s question – or half question – “operated to shift the burden of proof

       from the State to the defendant,” and thus placed Armstead in “grave peril.”

       Appellant’s Br. p. 7. Asking whether Armstead ever requested that the State

       test his clothes for accelerant does not imply that he had an obligation to do so.

       Furthermore, even if the question had been asked in its entirety, it was an

       invited response to defense counsel’s questions concerning the testing of the

       shirt for accelerants. “Prosecutors are entitled to respond to allegations and

       inferences raised by the defense even if the prosecutor’s response would

       otherwise be objectionable.” Dumas v. State, 803 N.E.2d 1113, 1118 (Ind. 2004)

       (citing Brown v. State, 746 N.E.2d 63, 68 (Ind. 2001)).


[12]   In any case, the State was not allowed to finish asking the allegedly

       inappropriate question, and ultimately withdrew the question. We are

       unconvinced that the jury anticipated the unasked portion of the question, and

       then proceeded to infer that the burden of proof had shifted to Armstead. This

       seems particularly unlikely considering that the jury was repeatedly informed
       Court of Appeals of Indiana | Memorandum Decision 65A01-1408-CR-232 | February 12, 2015   Page 8 of 11
       that the State carried the burden of proof, including a specific oral and written

       instruction that “[t]he State has the burden of proving beyond a reasonable

       doubt that the Defendant did not act in self-defense …. It is a strict and heavy

       burden.” Tr. pp. 479-480. We find no merit in the argument that the

       prosecutor’s alleged misconduct put Armstead in a position of grave peril,

       depriving him of a fair trial, much less that the trial court committed

       fundamental error in declining to find as much.


                          II. Exclusion of Opinion Testimony
[13]   Rule 701 of the Indiana Rules of Evidence provides: “If a witness is not

       testifying as an expert, testimony in the form of an opinion is limited to one that

       is: (a) rationally based on the witness’s perception; and (b) helpful to a clear

       understanding of the witness’s testimony or to a determination of a fact in

       issue.” While the person giving opinion testimony under Rule 701 need not be

       qualified as an expert, he should possess knowledge beyond that of the ordinary

       juror. Prewitt v. State, 819 N.E.2d 393, 413 (Ind. Ct. App. 2004) trans. denied.

       Trial courts have broad discretion in determining whether lay opinion

       testimony satisfies the requirements of admissibility under Rule 701. State v.

       Snyder, 732 N.E.2d 1240, 1245 (Ind. Ct. App. 2000). “Accordingly, we will

       reverse a trial court’s ruling on the admissibility of evidence only when the trial

       court abused its discretion. An abuse of discretion involves a decision that is

       clearly against the logic and effect of the facts and circumstances before the

       court.” Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003) (citations

       omitted). Finding that the trial court erred in the admission or exclusion of

       Court of Appeals of Indiana | Memorandum Decision 65A01-1408-CR-232 | February 12, 2015   Page 9 of 11
       evidence is not alone enough to warrant reversal. Corbett v. State, 764 N.E.2d

       622, 628 (Ind. 2002). Such errors are to be disregarded as harmless unless they

       affect the substantial rights of the party. Id.


[14]   Armstead attempts to draw comparisons to Smith v. State, 829 N.E.2d 64 (Ind.

       Ct. App. 2005). In Smith, another panel of this court affirmed the admission of

       a detective’s lay opinion testimony about what Smith appeared to be doing in a

       videotape made at the police station while Smith waited alone in an interview

       room. Id. at 72. Specifically, the detective testified that Smith appeared to be

       pulling money from a body cavity. Id. In reaching this conclusion, we noted

       that the detective had been a member of the drug task force for three-and-a-half

       years, had received specific training at the United Drug Task Force beyond that

       provided to police officers, and had conducted numerous controlled buys. As

       such, the detective’s training and experience gave her knowledge beyond that of

       the average juror with regard to the drug culture and helped the jury determine

       whether Smith had been in possession of money from a controlled drug sale

       with an informant.


[15]   Armstead’s reliance on Smith is misplaced. In this instance case, Detective

       Fortune had no specific knowledge or insight as to the events in the video

       beyond that of the average juror. Detective Fortune did not record the video

       nor was he present during the altercation. The jury heard testimony as to what

       was on the video from Owens, who recorded the video, in addition to several

       witness descriptions of the altercation. Detective Fortune had no additional

       information which could provide the jury with insight as to what was shown on

       Court of Appeals of Indiana | Memorandum Decision 65A01-1408-CR-232 | February 12, 2015   Page 10 of 11
       the video. Furthermore, simply because the trial court in Smith was within its

       discretion to allow a detective’s description of a video does not mean that the

       trial court in the instant case was not within its broad discretion to disallow a

       video description.


[16]   Even assuming the trial court erred, any such error was harmless and would not

       warrant reversal. In addition to the testimony of numerous witnesses which

       discounted Armstead’s version of the events, Owens testified that Armstead

       attacked Larry without provocation and that she at no point saw Larry with a

       gas can. It is hard to imagine any potential evidence Detective Fortune could

       have provided about the video which would bolster Armstead’s version of the

       events, much less lead the jury to a different conclusion.


[17]   The judgment of the trial court is affirmed.


       Najam, J., and Mathias, J, concur.




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