                                                                       FILED
                                                                  Aug 24 2016, 8:17 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Scott L. Barnhart                                        Gregory F. Zoeller
Brooke Smith                                             Attorney General of Indiana
Keffer Barnhart LLP                                      Larry D. Allen
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher Compton,                                     August 24, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1511-CR-1997
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court
State of Indiana,                                        The Honorable Robert J. Pigman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         82D02-1403-MR-355



Robb, Judge.




Court of Appeals of Indiana | Opinion 82A01-1511-CR-1997 | August 24, 2016                 Page 1 of 13
                               Case Summary and Issues
[1]   Following a trifurcated jury trial, Christopher Compton was convicted of three

      counts of felony murder and found to be an habitual offender. Compton

      appeals, raising two restated issues: (1) whether Compton was deprived of due

      process when the trial court allowed the media to Tweet live updates of his trial

      from the courtroom, and (2) whether the trial court abused its discretion in

      admitting evidence of Compton’s incriminatory statements. Concluding the

      trial court did not deprive Compton of due process nor did it err in admitting

      evidence of Compton’s statements, we affirm.



                            Facts and Procedural History
[2]   In March 2014, Keri Jones, along with her two twin three-year-old daughters,

      lived in a second-floor apartment in Evansville with several family members

      and friends. Compton and Jones had been dating on and off for a few years,

      but Compton did not live in the apartment. On the afternoon of March 17,

      2014, Compton visited the apartment. Compton and Jones were both

      intoxicated and the pair began arguing. After the argument, Compton stated,

      “Something is going to happen real soon.” Transcript at 817. Not long

      thereafter, Compton and Jones began arguing again, with Compton

      threatening, “[I]f you don’t leave with me, if you and the babies don’t leave

      with me now, I’m going to burn this mother f***er to the ground . . . .” Id. at

      964. Jones’s uncle, the owner of the apartment, then ordered Compton to

      leave. A few minutes later, the occupants of the apartment smelled smoke,

      Court of Appeals of Indiana | Opinion 82A01-1511-CR-1997 | August 24, 2016   Page 2 of 13
      observed flames coming from the stairwell, and attempted to escape through the

      apartment’s second-floor windows. Jones, one of Jones’s daughters, and

      another occupant were unable to escape and died from smoke inhalation

      and/or carbon monoxide poisoning.


[3]   Meanwhile, a neighbor, Earl Iverson, observed Compton walking away from

      the apartment and explained to Compton smoke was coming from the

      apartment. Compton replied, “I know, I started it.” Id. at 570, 618. Iverson

      immediately walked towards the apartment and told responding police officers

      Compton admitted to starting the fire. Police officer William Arbaugh

      identified Compton outside a nearby liquor store. After Compton made

      incriminating statements,1 police officers advised Compton of his Miranda

      rights. Thereafter, Compton explained, “I flicked the Mild, I mean that Black

      and Mild, (inaudible) went in there, I have no clue. . . . I know I flicked the, I

      flicked the fire (inaudible) lighting my Black and Mild (inaudible).” Id. at 593.

      Compton was arrested. During an interview with Detective Keith Whitler,

      Compton stated the fire started when he flicked a cigar onto some clothing

      resting on a baby stroller near the stairwell.




      1
        We note the conversation between Compton and police officers was captured on Officer Arbaugh’s body
      camera, which the State admitted into evidence and played for the jury. After Officer Arbaugh asked
      Compton his name, Compton stated, “I just flicked the fire, I just flicked the fire onto the umm, onto the
      umm. . . . I flicked it umm—I ain’t going to lie. I flicked on a (inaudible) umm baby stroller, that was it.”
      Tr. at 590. A police officer responded, “You flicked a spark on a baby stroller?” Id. Compton provided an
      inaudible answer.

      Court of Appeals of Indiana | Opinion 82A01-1511-CR-1997 | August 24, 2016                         Page 3 of 13
[4]   The State charged Compton with three counts of felony murder, fourteen

      counts of Class A felony arson, and alleged Compton was an habitual offender.

      Prior to trial, Compton filed a motion to exclude evidence of the inculpatory

      statements he made to Iverson, police officers, and Detective Whitler, alleging

      the State failed to establish the corpus delicti of arson. Specifically, Compton

      argued there was no evidence an arson occurred apart from his inculpatory

      statements. At a hearing on the motion, fire investigator Jennifer Hunt testified

      the fire originated at the bottom of the stairwell. She did not find any evidence

      of accelerants nor was she able to determine the source of the fire. Hunt ruled

      out all potential natural and accidental causes of the fire, but could not rule out

      the possibility the fire was intentionally set. Ultimately, Hunt concluded the

      cause of the fire was undetermined.2 The State also introduced evidence to

      establish a timeline of Compton’s whereabouts before and during the fire. After

      taking the matter under advisement, the trial court denied Compton’s motion.


[5]   Prior to trial, the trial court instructed the jury not to use the internet to gather

      information about the case and not to read, watch, or listen to any source

      discussing the trial, including newspapers, radio, television, and the internet.

      During trial, but outside the presence of the jury, a reporter approached the trial

      court and asked whether the media could give live updates of the trial via the




      2
          Hunt reiterated her conclusions at trial.


      Court of Appeals of Indiana | Opinion 82A01-1511-CR-1997 | August 24, 2016   Page 4 of 13
      social media application, Twitter. Compton objected and the trial court

      overruled his objection, noting,


                 I’m going to—I am going to instruct the parties to tell their
                 witnesses to turn off their Twitter accounts until after they’ve
                 testified. . . . But I am going to allow those of you in the media
                 that are here that are Tweeting, I think that’s what it’s called,
                 you’re going to be permitted to do that so long as it’s done in a
                 way that doesn’t interfere with the proceedings.


      Id. at 553. Also during trial, the State sought to admit evidence of Compton’s

      inculpatory statements. Compton renewed his objection on the basis the State

      failed to establish the corpus delicti of arson, which the trial court overruled. The

      jury found Compton guilty but mentally ill on all three counts of felony murder

      and further found Compton to be an habitual offender. 3 This appeal ensued.



                                    Discussion and Decision
                                             I. Use of Twitter
[6]   Compton contends the trial court violated Rule 2.17 of the Code of Judicial

      Conduct in allowing the media to Tweet live updates of his trial from the

      courtroom, arguing Tweeting live updates of his criminal trial amounts to




      3
          The State dismissed the arson charges against Compton.


      Court of Appeals of Indiana | Opinion 82A01-1511-CR-1997 | August 24, 2016      Page 5 of 13
      inherently prejudicial “broadcasting” that violates his right to due process.4 The

      State counters Tweeting does not amount to broadcasting, and even if so,

      Compton has not demonstrated he suffered any prejudice.5 Because

      broadcasting a defendant’s trial is not inherently prejudicial and Compton has

      not demonstrated he suffered prejudice as a result of the alleged broadcasting,

      we need not address whether Tweeting live updates of a criminal trial is deemed

      “broadcasting.”


[7]   At the outset, we note the First Amendment to the United States Constitution

      guarantees freedom of the press and the Sixth Amendment guarantees a public

      trial by an impartial jury. U.S. CONST. amends. I and VI. A public criminal

      trial ensures the proceedings are fair because it allows members of the public to

      observe proceedings. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,

      580-81 (1980). “The requirements of a public trial are satisfied by the

      opportunity for both the public and the press not only to attend the trial but to

      report what they observe.” Van Orden v. State, 469 N.E.2d 1153, 1157 (Ind.

      1984) (referencing Nixon v. Warner Comm., Inc., 435 U.S. 589 (1978)), cert.

      denied, 471 U.S. 1104 (1985). In addition, “the right to attend criminal trials is




      4
       Rule 2.17 provides, in relevant part, “Except with prior approval of the Indiana Supreme Court, a judge
      shall prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas
      immediately adjacent thereto during sessions of court or recesses between sessions . . . .”
      5
       The State also argues Compton waived this argument by not moving for a mistrial or requesting an
      admonishment. We disagree. A request for an admonishment or mistrial was unnecessary because all
      discussions about Twitter, up until that point, had been outside the jury’s presence. Compton
      contemporaneously objected to allowing the media to use Twitter thereby preserving the issue for appeal.

      Court of Appeals of Indiana | Opinion 82A01-1511-CR-1997 | August 24, 2016                      Page 6 of 13
      implicit in the guarantees of the First Amendment.” Richmond Newspapers, Inc.,

      448 U.S. at 580 (footnote omitted).


[8]   In Estes v. Texas, 381 U.S. 532 (1965), the trial court denied Estes’s motion to

      bar the broadcasting of his trial by television, radio, and photography. Estes

      argued broadcasting a criminal trial is inherently prejudicial and therefore

      broadcasting a trial deprives a defendant of due process. Writing for the Court,

      Justice Clark agreed with Estes, noting,


              [T]his Court itself has found instances in which a showing of
              actual prejudice is not a prerequisite to reversal. This is such a
              case. It is true that in most cases involving claims of due process
              deprivations we require a showing of identifiable prejudice to the
              accused. Nevertheless, at times a procedure employed by the
              State involves such a probability that prejudice will result that is
              deemed inherently lacking in due process.


      Id. at 542-43. Four justices concurred, including Justice Harlan who filed a

      limited concurring opinion. Justice Harlan agreed reversal was necessary but

      he could not agree broadcasting criminal trials inherently deprived defendants

      of a fair trial. See id. at 590-91 (Harlan, J., concurring). Dissenting, Justice

      Brennan wrote,


              I write merely to emphasize that only four of the five Justices
              voting to reverse rest on the proposition that televised criminal
              trials are constitutionally infirm, whatever the circumstances.
              Although the opinion announced by my Brother CLARK
              purports to be an “opinion of the Court,” my Brother HARLAN
              subscribes to a significantly less sweeping proposition. . . . Thus



      Court of Appeals of Indiana | Opinion 82A01-1511-CR-1997 | August 24, 2016    Page 7 of 13
                today’s decision is not a blanket constitutional prohibition against
                the televising of state criminal trials.


       Id. at 617 (Brennan, J., dissenting).


[9]    In Willard v. State, 272 Ind. 589, 400 N.E.2d 151 (1980), the State charged

       Willard with, inter alia, murder. Over Willard’s objection, the trial court

       permitted live video taping of the trial and further allowed the tapes to be

       disseminated to the media. As the trial progressed, the Indiana Commission on

       Judicial Qualifications discovered Willard’s trial was being videotaped and

       disseminated to the media. In response, the Commission notified the trial court

       it was violating the Code of Judicial Conduct by broadcasting and/or recording

       courtroom proceedings. After Willard became aware of the Commission’s

       concerns, he moved for a mistrial, which the trial court denied.


[10]   Before our supreme court, Willard relied on Estes, arguing the broadcasting of

       his trial was inherently prejudicial. Upon examining Estes, the court concluded

       Estes did not stand for the proposition televised criminal trials are inherently

       prejudicial; rather, such determinations “must be made on a case by case

       basis.”6 Id. at 599. In addressing the merits of Willard’s claim, the court noted

       the trial court did violate the Code of Judicial Conduct in broadcasting the trial,

       but that fact alone did not require a reversal. Id. Rather, because of the




       6
        For this reason, we reject Compton’s argument that the act of Tweeting live updates of his criminal trial, if
       considered broadcasting, is inherently prejudicial.

       Court of Appeals of Indiana | Opinion 82A01-1511-CR-1997 | August 24, 2016                         Page 8 of 13
       overwhelming evidence supporting Willard’s conviction, the lack of evidence

       indicating a “carnival atmosphere” surrounding the trial, and the fact the jury

       was sequestered and not made aware of the recordings, the court concluded the

       broadcasting of Willard’s criminal trial did violate due process. Id. at 599-600.


[11]   As noted above, it is unnecessary to decide whether Twitter is “broadcasting,”

       because even assuming it is, broadcasting is not inherently prejudicial and

       Compton has shown no specific prejudice to him in this case.7 Similar to

       Willard, the evidence against Compton, including his inculpatory statements, is

       overwhelming, see infra Part II.B; prior to trial, the trial court instructed the jury

       not to receive information about the case from any source, including internet



       7
         Despite our ultimate conclusion, we take this opportunity to express our concern as to the impact social
       media applications have on due process and trials. Social media applications, such as Twitter, allow users to
       disseminate information immediately from their portable devices, similar to live television and radio
       broadcasts. The use of Twitter has already created multiple issues surrounding whether such use may
       compromise a defendant’s due process rights. See generally Jamie K. Winnick, A Tweet is(n’t) Worth a
       Thousand Words: The Dangers of Journalist’s Use of Twitter to Send News Updates from the Courtroom, 64 Syracuse
       L. Rev. 335 (2014). For example, jurors and prosecutors have utilized Twitter during criminal trials. See
       Dimas-Martinez v. State, 385 S.W.3d 238, 242 (Ark. 2011) (“[A] second juror was posting on his Twitter
       account during the case, and continued to do so even after being questioned by the circuit court, [which was]
       evidence of juror misconduct that calls into question the fairness of his trial.”) (footnote omitted); State v.
       Polk, 415 S.W.3d 692, 696 (Mo. Ct. App. 2013) (noting how troubling it was that a state prosecutor, who was
       not involved in the defendant’s case, tweeted live updates of the defendant’s criminal trial and such conduct
       “greatly magnified the risk that a jury will be tainted by undue extrajudicial influences”). There are also
       concerns potential witnesses may see information tweeted about other witnesses’ testimonies despite a trial
       court’s separation of witnesses order, a concern shared by Compton. See Winnick, supra, at 347-48. Despite
       these concerns, we decline to opine whether the use of Twitter should be permitted in the courtroom.
       We note, however, the pretrial instructions in this case did not instruct the jury not to refrain from seeking
       information through social media applications. Rather, the instructions merely instructed the jurors not to
       receive information from the internet. Given how easily one may access the internet in this technological
       age, we fear such an instruction may not be specific enough to deter jurors from using Twitter now and in the
       future. In addition, we note when the ethics rules regarding “broadcasting” were written, social media was a
       vastly different medium than today. We believe judges and attorneys are in need of guidance on how they
       approach the use of social media during criminal trials. Therefore, given the rapidly evolving relationship
       between Twitter and our judicial system, we believe it is time for all appropriate judicial, attorney, and ethics
       committees to come together to specifically address these concerns.

       Court of Appeals of Indiana | Opinion 82A01-1511-CR-1997 | August 24, 2016                          Page 9 of 13
       sources; the jury was sequestered during the Twitter discussion; the trial court

       instructed the media not to Tweet in a manner that would disrupt proceedings;

       the trial court instructed the attorneys to notify their respective witnesses not to

       use Twitter until after they testified; and there is no evidence any witnesses or

       jurors viewed any Tweets pertaining to the trial.8 We conclude Compton was

       not deprived of due process when the media was allowed to Tweet live updates

       of his criminal trial from the courtroom.


                                    II. Admission of Evidence
                                         A. Standard of Review
[12]   The admissibility of evidence is within the sound discretion of the trial court.

       Cherry v. State, 971 N.E.2d 726, 730 (Ind. Ct. App. 2012), trans. denied. A trial

       court may abuse its discretion if its decision is clearly against the logic and

       effect of the facts and circumstances before the court, or if the court has

       misinterpreted the law. Id.


                                              B. Corpus Delicti
[13]   Compton contends the trial court abused its discretion in admitting his

       inculpatory statements, arguing the State failed to present evidence outside of




       8
         At trial, Compton argued allowing the media to Tweet live updates of the trial would infringe upon the trial
       court’s separation of witnesses order. To the extent Compton is raising a violation of the separation of
       witnesses order on appeal, his argument fails. See Morell v. State, 933 N.E.2d 484, 490-91 (Ind. Ct. App. 2010)
       (stating with respect to separation of witnesses, “where there is no affirmative evidence introduced that the
       witnesses had in fact discussed their testimony there is no reviewable question”).

       Court of Appeals of Indiana | Opinion 82A01-1511-CR-1997 | August 24, 2016                       Page 10 of 13
       his confessions sufficient to establish the corpus delicti for arson. Specifically, he

       argues there is no evidence—apart from the inculpatory statements he made to

       Iverson, police officers, and Detective Whitler—establishing an arson occurred.

               A crime may not be proven solely on the basis of a confession.
               There must be some other proof of the crime, in order to prevent
               confessions to crimes which never occurred. In Indiana, to
               support the introduction of a defendant's confession into
               evidence, the corpus delicti of the crime must be established by
               independent evidence of (1) the occurrence of the specific kind of
               injury and (2) someone’s criminal act as the cause of the injury.
               [T]he independent evidence need not be shown beyond a
               reasonable doubt; rather, the evidence need only provide an
               inference that a crime was committed. Such inference may be
               established through circumstantial evidence.


       Sweeney v. State, 704 N.E.2d 86, 111-12 (Ind. 1998) (alteration in original)

       (citations and internal quotation marks omitted), cert. denied, 527 U.S. 1035

       (1999); see also Cherry, 971 N.E.2d at 730 (“Proof of the corpus delicti means

       proof that the specific crime charged has actually been committed by

       someone.”) (citation omitted).


[14]   At the outset, we acknowledge Hunt did not find any accelerants nor evidence

       the fire was set intentionally. However, she ruled out all possible natural and

       accidental causes to the fire, and as a result, she could not rule out the

       possibility the fire was set intentionally. See generally Fox v. State, 179 Ind. App.

       267, 277, 384 N.E.2d 1159, 1167 (1979) (“[T]here is rarely direct evidence of

       the actual lighting of a fire by an arsonist; rather, the evidence of arson is

       usually circumstantial. Such evidence is often of a negative character; that is,

       Court of Appeals of Indiana | Opinion 82A01-1511-CR-1997 | August 24, 2016   Page 11 of 13
       the criminal agency is shown by the absence of circumstances, conditions, and

       surroundings indicating that the fire resulted from an accidental cause.”)

       (citation omitted). The evidence establishes Compton was present at the

       apartment prior to the fire. While at the apartment, Compton stated,

       “Something is going to happen real soon[,]” tr. at 817, and threatened Jones by

       stating, “if you don’t leave with me, if you and the babies don’t leave with me

       now, I’m going to burn this mother f***er to the ground[,]” id. at 964. Shortly

       thereafter, the apartment caught fire and Compton was observed walking away

       from the apartment. The victims died as a result of smoke inhalation and/or

       carbon monoxide poisoning. The evidence independent of Compton’s

       inculpatory statements provides an inference an arson was committed. See

       Sweeney, 704 N.E.2d at 111-12. We therefore conclude the corpus delicti for

       arson was sufficiently established and the trial court did not err in admitting

       evidence of Compton’s inculpatory statements.



                                               Conclusion
[15]   Compton cannot demonstrate he suffered prejudice as a result of the alleged

       broadcasting of his criminal trial and we therefore conclude Compton was not

       deprived of due process. We further conclude the trial court did not err in

       admitting evidence of Compton’s inculpatory statements. Accordingly, we

       affirm.


[16]   Affirmed.



       Court of Appeals of Indiana | Opinion 82A01-1511-CR-1997 | August 24, 2016   Page 12 of 13
Najam, J., and Crone, J., concur.




Court of Appeals of Indiana | Opinion 82A01-1511-CR-1997 | August 24, 2016   Page 13 of 13
