MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    FILED
court except for the purpose of establishing                            Feb 26 2019, 8:53 am

the defense of res judicata, collateral                                      CLERK
estoppel, or the law of the case.                                        Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy P. Broden                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana

                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Zachary Williams,                                        February 26, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1999
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy J. Williams,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D01-1607-F3-23



Bradford, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-1999 | February 26, 2019                Page 1 of 12
                                           Case Summary
[1]   Zachary Williams was convicted of a number of offenses relating to a July 9,

      2016 domestic disturbance involving his then-girlfriend Angelina Hill.1 During

      Williams’s trial, Angelina acknowledged that her trial testimony differed from

      her initial statements to police. The State proceeded to question Angelina

      about the specific discrepancies in her pretrial statements and trial testimony.

      Defense counsel did not object to the State’s line of questioning. Williams

      contends on appeal that the trial court committed fundamental error by

      allowing the State to continue to impeach Angelina after she had effectively

      impeached herself by admitting that she had lied. While we agree that the State

      should not have been permitted to continue to question Angelina in the manner

      it did once she had impeached herself, we conclude that the trial court’s error

      did not amount to fundamental error. In addition, to the extent that Williams

      also contends that the trial court committed fundamental error during the

      parties’ closing arguments, Williams has failed to demonstrate that the trial

      court erred, much less committed fundamental error. We affirm.



                              Facts and Procedural History
[2]   On July 9, 2016, Williams and Angelina became involved in an argument.

      While Angelina and Williams were arguing inside Angelina’s home, Angelina’s




      1
          Angelina and Williams have subsequently married and Angelina now goes by “Angelina Williams.”


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1999 | February 26, 2019           Page 2 of 12
      daughter and a friend were playing at the park across the street. Angelina and

      Williams continued to fight as they came outside and made their way across the

      street to where Angelina’s daughter and friend were playing. After Angelina

      and Williams came outside, Angelina’s daughter asked her neighbor’s son to

      call police because Angelina and Williams “were getting out, too out of hand.”

      Tr. p. 48. Angelina’s neighbor and her teenage son also heard Angelina and

      Williams arguing and observed Williams run after Angelina and strike her on

      the head or back with a closed fist. The neighbor’s son called 911 and the

      police arrived a short time later.


[3]   Lafayette Police Officer Jacob Daubenmier was the first to arrive at Angelina’s

      home. When he arrived, he observed that Angelina had red marks and

      scratches on her neck and “a raspy voice.” Tr. p. 109. Officer Daubenmier

      called for medical attention for Angelina. He subsequently accompanied

      Angelina to the hospital. Once at the hospital, Angelina also indicated that she

      had sustained bruising on her breast. Based on the injuries he observed on

      Angelina, Officer Daubenmier determined that there was probable cause to

      arrest Williams.


[4]   As Lafayette Police Officer Zachary Hall neared Angelina’s home, he observed

      Williams walking southbound from the area of Angelina’s home and stopped to

      speak with Williams. Officer Hall observed that Williams “was a little sweaty”

      and had “a small rip in [his] shirt on the left side.” Tr. p. 83. Williams told

      Officer Hall that he and Angelina had argued over “a set of car keys belonging

      to [their] vehicle.” Tr. p. 83. Williams indicated that he had not been hurt

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1999 | February 26, 2019   Page 3 of 12
      during the altercation. As he was speaking to Williams, Officer Hall

      “overheard through [his] ear piece another officer tell [him] that they had

      probable cause to arrest [Willilams], so at that point I directed another officer to

      place him and detain him in handcuffs.” Tr. p. 84. Following his arrest,

      Officers recovered a set of car keys from Williams’s “right front pants pocket.”

      Tr. p. 84.


[5]   Officer Hall then made his way to Angelina’s home. After arriving at the scene,

      Officer Hall was directed by another officer to look for a handgun in the yard of

      an unoccupied neighboring home. In the backyard of the neighboring home,

      Officer Hall found a gun “laying inside” a piece of flashing “for a roof … [that

      would] go around … a ventilation pipe, that was turned over” in tall grass near

      the back fence line of the property. Tr. p. 86. Officer Hall observed that

      although there was some vegetation on top of the gun, “[t]here was no rust” on

      the gun and it “didn’t appear weathered, like it had been out in the weather, the

      elements for a longer period of time.” Tr. p. 91. The gun was loaded with at

      least one cartridge “chambered into the firearm.” Tr. p. 91. Subsequent DNA

      and fingerprint tests were unable to conclusively link the gun to Williams.


[6]   On July 13, 2016, Williams was charged with Level 3 felony confinement,

      Level 4 felony unlawful possession of a firearm by a serious violent felon, Level

      5 felony intimidation, Level 6 felony strangulation, and Class A misdemeanor

      battery resulting in bodily injury. A no-contact order was issued barring

      Williams from contacting Angelina. Despite this no-contact order, in early



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1999 | February 26, 2019   Page 4 of 12
      2017, Angelina and Williams married and Williams began living with

      Angelina.


[7]   During a pre-trial conference, the deputy prosecutor acknowledged that while

      Angelina was not being called to testify solely for the purpose of impeachment,

      he was unsure of whether she was “going to be cooperative or not” and

      indicated that if she was uncooperative, he could see potentially having to

      impeach her. Tr. p. 9. Specifically, the deputy prosecutor indicated as follows:


              So the State could see a potentiality of which we might have to
              impeach her, recognize we cannot produce a witness solely for
              the purpose of impeachment but at this time I don’t know that
              she’s going to get on the stand and, and say something different
              than what she said the previous three times we’ve spoken to her
              but it’s—recognizing it’s a possibility. The reason that’s a
              possibility is because of all the violations of the no contact order
              and the fact that she’s been living with the defendant during the
              pendency of this case and I would note that, uh, I believe the
              statute states that (inaudible) producing a witness may impeach
              the credibility of the witness if it was indispensable that the party,
              party produce the witness and that obviously, her being the
              victim in this case, she’s fairly indispensable.


      Tr. pp. 9–10. In response, defense counsel stated that “I expect they will be

      impeaching their own witness” and indicated that he did not foresee it being an

      issue so long as “it’s done properly.” Tr. p. 10.


[8]   Trial began on May 6, 2017. During Angelina’s direct examination, the deputy

      prosecutor’s suspicions came true with Angelina giving testimony that was

      different than her pretrial statements to police and the prosecution. Angelina

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1999 | February 26, 2019   Page 5 of 12
       herself acknowledged that her testimony was different than her previous

       statements. The deputy prosecutor requested and defense counsel agreed that

       Angelina should be qualified as a hostile witness. The trial court granted the

       deputy prosecutor’s request and direct examination continued.


[9]    Angelina acknowledged that she had previously told police that Williams had

       “grabbed [her] by the neck and nearly picked [her] up off the ground[;]” “got

       physical with [her], including grabbing [her] right breast and squeezing it,

       twisting i[t;]” and “ran across the street, knocked [her] down and pulled a

       firearm on [her].” Tr. p. 63. Angelina, however, backed away from these

       statements at trial, testifying that Williams had not had a firearm. Angelina

       indicated that she told police that Williams had a gun because she was really

       angry with Williams for “arguing with me and fighting with me over something

       … so petty and materialistic.” Tr. p. 73. Angelina acknowledged that the

       police recovered a gun from near her residence following the incident.

       However, in testifying that this gun did not belong to Williams, Angelina

       explained that it had been left in the area near her home by one of Williams’s

       friends who had visited her home.


[10]   During closing argument, Williams requested that the jury find him not guilty

       of all crimes relating to possession of the gun, noting that Angelina had

       admitted during trial that she lied to police when she told them that the gun

       belonged to Williams. For its part, the State repeatedly suggested that Williams

       had tried to “sabotage” the case by continuing his involvement with Angelina.

       Tr. pp. 162, 174. Defense counsel objected to the State’s classification of

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1999 | February 26, 2019   Page 6 of 12
       Williams’s continued relationship with Angelina as an attempt to “sabotage”

       the State’s case. The trial court sustained defense counsel’s objection and stated

       the following: “Ladies and gentleman as to the term sabotage, you’re not,

       obviously, anything that counsel says is not evidence in any event, but counsel

       is going to be instructed not to use that term. Thank you.” Tr. p. 174.


[11]   Following deliberations, the jury found Williams guilty of Level 3 felony

       confinement, Class A misdemeanor carrying a handgun without a license,

       Level 5 felony intimidation, Level 6 felony strangulation, and Class A

       misdemeanor battery resulting in bodily injury. Following a bench trial on the

       serious violent felon enhancement relating to the firearm charge, the trial court

       found Williams “not guilty of SV—serious violent felon in possession of a

       handgun, due to the lack of sufficient evidence in the filed documents.” Tr. p.

       196. The trial court subsequently sentenced Williams to an aggregate term of

       four years, ordering that two years be served in the Department of Correction,

       one year served in the Tippecanoe County Jail, and the remaining year served

       on Community Corrections.



                                  Discussion and Decision
                    I. State’s Manner of Questioning Angelina
[12]   Williams contends that the trial court erred in allowing the State to impeach

       Angelina with the prior statements she gave to police. Specifically, Williams

       argues that once Angelina admitted that her testimony was inconsistent with

       her prior statements, she had “impeached herself and line-by-line recitation of
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1999 | February 26, 2019   Page 7 of 12
       the pretrial statement is superfluous and raises the very real threat that the

       impeachment evidence will be viewed by the jury as substantive evidence.”

       Appellant’s Br. p. 6. Thus, Williams asserts that the trial court should have

       limited the State’s impeachment of Angelina “to her admission that her trial

       testimony was a considerably different story from what she had told police on

       July 9, 2016[.]”2 Appellant’s Br. p. 9.


[13]   The Indiana Supreme Court has previously held that once a witness has

       admitted that he made a police statement prior to trial that was inconsistent

       with his trial testimony, impeachment was complete as the witness had

       admitted himself a liar. Appleton v. State, 740 N.E.2d 122, 126 (Ind. 2001). In

       such situations, reciting segments of the witness’s pretrial statement was

       therefore superfluous because “[t]he only purpose such recitation could have

       would be to get the details of [the witness’s former statement] before the jury as

       substantive evidence, the very thing we decided to prohibit.” Id.


[14]   The danger the Indiana Supreme Court sought to protect against in Appleton is

       present in this case, where the trial court allowed the State to question Angelina

       about the details of her prior statement after she admitted that her trial

       testimony was different than the pretrial statements she made to police.




       2
         We note that Williams does not argue that the trial court committed fundamental error by allowing
       Angelina as a witness. While it would have been improper for the State to call Angelina for the sole purpose
       of introducing otherwise inadmissible evidence cloaked as impeachment evidence, see Herron v. State, 10
       N.E.3d 552, 556 (Ind. Ct. App. 2014), a review of the record reveals that impeachment was not the State’s
       sole purpose for calling Angelina as a witness.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1999 | February 26, 2019               Page 8 of 12
       Williams, however, did not object to the admission of this line of questioning at

       trial. We will therefore only reverse if the admission of this evidence amounted

       to fundamental error.


               An error is fundamental, and thus reviewable on appeal, if it
               made a fair trial impossible or constituted a clearly blatant
               violation of basic and elementary principles of due process
               presenting an undeniable and substantial potential for harm.
               These errors create an exception to the general rule that a party’s
               failure to object at trial results in a waiver of the issue on appeal.
               This exception, however, is extremely narrow and encompasses
               only errors so blatant that the trial judge should have acted
               independently to correct the situation. At the same time, if the
               judge could recognize a viable reason why an effective attorney
               might not object, the error is not blatant enough to constitute
               fundamental error.


       Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018) (internal citation and quotations

       omitted). Williams effectively argues that the trial court committed

       fundamental error because the court should have acted independently and

       disallowed the State’s line of questioning relating to Angelina’s pretrial

       statements. Upon review, we cannot say that the trial court’s alleged error was

       blatant enough to constitute fundamental error because we recognize viable

       reasons for defense counsel’s decision to refrain from objecting to the

       problematic line of questioning.


[15]   In admitting that she had described Williams’s alleged actions differently when

       giving her pre-trial statements to police, Angelina indicated that she had crafted

       her initial statements to police in the manner she did because she was mad at


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1999 | February 26, 2019   Page 9 of 12
       Williams and hoped he would get in trouble. Specifically regarding her earlier

       allegations that Williams had pointed a gun at her, Angelina testified that

       although she told police that he had pointed a loaded gun at her, he had not

       had a gun. When asked why she told police that Williams had had a gun, she

       stated:


                 Because I was so angry at him for even arguing with me and
                 fighting with me over something over so petty and materialistic
                 and we just, like I said, we had, I thought we had a better
                 relationship at that time than that and I was really upset with him
                 and I wasn’t going to allow him to take my truck and leave me
                 stranded with my kids and so I said what I said to try to get him
                 in trouble.… I did tell the officer that he did have a gun at the
                 time.… I told them I believed it was outside somewhere like
                 around my house, the neighbor’s house.


       Tr. pp. 73–74. Angelina also provided testimony indicating that the gun

       recovered by officers following the altercation did not belong to Williams.

       Angelina explained that the gun had been left in an area near her home

       “probably a week prior” to the incident by one of Williams’s friends who was

       visiting the home. Tr. p. 60. Specifically, Angelina testified that after the friend

       showed the gun to her and Williams, she made the friend put the gun outside,

       telling him that she did not like guns and did not want them in her house. She

       further explained that the friend must have left the gun because he “didn’t want

       to drive with a gun because he lived out of town.” Tr. p. 60.


[16]   While we agree that it was error to allow the State to question Angelina about

       the specifics of her pretrial statements after she effectively impeached herself by

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1999 | February 26, 2019   Page 10 of 12
       admitting that her pretrial statements differed from her trial testimony, we

       conclude that the record presents viable reasons why an effective attorney might

       not object to the line of questioning. For instance, defense counsel might

       reasonably have wanted the jury to hear Angelina’s admission that she had lied

       to police because she was mad at Williams as this admission could potentially

       lead the jury to question the truthfulness of Angelina’s other allegations against

       Williams. Defense counsel might also reasonably have wanted the jury to hear

       an alternative explanation for the presence and Angelina’s knowledge of the

       presence of the gun besides the State’s proffered inference that the gun belonged

       to Williams. No other eyewitness observed the gun or made any statements to

       police about a gun. Forensic testing was also unable to connect Williams to the

       gun. It is entirely possible that defense counsel made the tactical decision to

       allow the line of questioning as it called into doubt the State’s case against

       Williams, specifically its claim that Williams had committed the alleged

       offenses while in possession of a gun. As such, we conclude that the trial

       court’s error in allowing the line of question is not “blatant enough” to

       constitute fundamental error. Durden, 99 N.E.3d at 652.


        II. State’s Use of the Word “Sabotage” During Closing
                               Argument
[17]   To the extent that Williams argues that the trial court also committed

       fundamental error by allowing the State to portray his continued relationship

       with Angelina as an act of sabotage against the State, we note that defense

       counsel objected to use of this term, the trial court instructed the jury that the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1999 | February 26, 2019   Page 11 of 12
       deputy prosecutor’s statements were not evidence, and instructed the deputy

       prosecutor to refrain from using the word. Williams has failed to explain how

       the trial court’s actions in this regard amounted to error, much less fundamental

       error. See generally Tharpe v. State, 955 N.E.2d 836, 842 (Ind. Ct. App. 2011)

       (“We presume juries follow the admonitions of the court and admonitions cure

       any prejudice resulting from an error.”)


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


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1999 | February 26, 2019   Page 12 of 12
