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 establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

DAVID BECSEY                                        GREGORY F. ZOELLER
Zeigler Cohen & Koch                                Attorney General of Indiana
Indianapolis, Indiana
                                                    ERIC P. BABBS
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                                                                           Oct 10 2014, 9:51 am


                               IN THE
                     COURT OF APPEALS OF INDIANA

ALEXIS CAMERON,                                     )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 49A02-1403-CR-176
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Helen Marchal, Judge
                            Cause No. 49G16-1311-FD-76083



                                         October 10, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Alexis Cameron appeals his conviction for class D felony domestic battery, arguing

that the prosecutor committed fundamental error by violating his Fifth Amendment privilege

against self-incrimination. We conclude that the prosecutor’s questions and comments were

an appropriate response to defense counsel’s questions and argument. Finding no error, let

alone fundamental error, we affirm.

                              Facts and Procedural History

       Cameron lived with Shirley Carson and her four children in Indianapolis. Cameron

and Carson had dated for two years and had lived together eight or nine months, sharing

expenses and child care responsibilities. One evening, Cameron woke up Carson and asked

her for ten dollars. She refused, and he became angry. He yelled and screamed at her. He

spat on her, and she realized that he had been drinking. He stepped on her bare feet, twisting

his shoe into her skin, which hurt. He scratched her on the face and chest, causing her pain.

Carson suffered a bloody scratch on her chest several inches long. Carson tried to push

Cameron away, sustaining a bruise to her finger and an injury to her left arm. Carson’s

oldest daughter, A.A., witnessed the fighting and called 911.

       Carson yelled at Cameron to leave, and he went to the door and opened it. Carson

pushed him out the door and locked it. Cameron kicked the door in and reentered. He

continued yelling and began throwing things, including a DVD player, a humidifier, and an

iron. He went to the kitchen and poured a drink. When police lights became visible from

inside the house, he threw his drink at Carson. He also threw a chair toward a couch where


                                              2
Carson’s two-year-old daughter was sitting. The chair put a hole in the wall and broke.

Carson ran out the back door before police arrived.

       Indianapolis Metropolitan Police Officer Ericka Daniels arrived at the scene. Carson

explained what happened, and police took pictures of her injuries and the damage to the

house. After the police left, Cameron returned. He eventually went to sleep, and A.A. called

911 again. Officer Daniels returned and arrested Cameron. She did not notice any injuries to

Cameron, and he did not indicate that he had any. The State charged Cameron with class D

felony domestic battery of Carson, class D felony battery of a family or household member

(Carson), and class A misdemeanor battery of A.A.

       At trial, Carson, A.A., and Officer Daniels testified. During cross-examination of

Carson, defense counsel asked her whether she stabbed Cameron that night. The State

objected on the grounds of relevancy and prejudice. The trial court overruled the objection,

and Carson testified that she did not stab Cameron. Defense counsel asked her whether she

had a knife that night, saw a knife at her house, or hid a knife. To each question, she

answered, “No I didn’t.” Tr. at 84. Defense counsel introduced two photographs: Exhibit

D, a photograph of a knife handle sticking out of a floor vent; and Exhibit E, a photograph of

the tip of a knife blade sticking out from under A.A.’s mattress. The trial court admitted the

exhibits over the State’s objection.

       During direct examination, A.A. testified that she kept a knife under her mattress

because she felt unsafe at home, that neither she nor her mother wielded a knife that night,




                                              3
and that Cameron did not get stabbed. On cross-examination, A.A. testified that she never

saw Cameron get stabbed or saw him bleeding.

       Officer Daniels testified last. The prosecutor asked her whether she saw any marks on

Cameron that night, whether he mentioned any injuries, and whether she saw any blood on

him, to which she responded negatively. The prosecutor also questioned her as follows:

       Q:     When you went in to arrest [Cameron] did he say anything to you?
       A:     No.
       Q:     He didn’t say anything to you? He didn’t complain of any injuries?
       A:     No.
       Q:     You didn’t visibly see anything?
       A:     No.

Id. at 164-65 (emphasis added).

       During cross-examination, defense counsel questioned Officer Daniels as follows:

       Q:     You didn’t ask [Cameron] what happened?
       A:     I did.
       Q:     You did? Earlier on the record you didn’t say you asked him. I
              believe, you said he didn’t say anything.
       A:     He didn’t say anything after I asked him.

Id. at 166.

       On redirect, the following exchange occurred:

       Q:     And the first time you came you did speak to the people that were
              there?
       A:     Yes.
       Q:     Ms. Carson.
       A:     Yes.
       Q:     Shirley Carson.
       A:     Yes.
       Q:     And [A.A.]?
       A:     Yes.
       Q:     You didn’t speak to [Cameron]?
       A:     Correct.

                                             4
       Q:     Because he wasn’t there, correct?
       A:     Correct.
       Q:     And then the second time you came you did ask him if there was any
              injuries.
       A:     Yes.
       Q:     And you did ask him for his side of the story?
       A:     Yes.
       Q:     And he didn’t say anything?
       A:     No.

Id. at 173-74 (emphasis added).

       In closing argument, the prosecutor explained the elements of each offense and argued

that the evidence proved each element. The prosecutor did not mention Officer Daniels’s

questioning of Cameron on the night of the arrest nor his response. During the defense’s

closing argument, counsel contended that Carson lied about Cameron kicking in the door.

He then asserted, “Now why would she lie, ’cause she stabbed him.” Id. at 191. The

prosecutor objected that this was a mischaracterization of the evidence. The trial court

overruled the objection and said that it would remind the jury that it was just argument.

Defense counsel continued, “The problem is you don’t have all the evidence. We talked

about the officer’s investigation. The officer said before she even saw [Cameron], before she

even talked to him, before she even got a chance[,] she made arrangements to arrest him

when she saw him.” Id. at 192. After acknowledging that Carson had visible wounds,

defense counsel stated, “There weren’t any photos of my client though, no photos were taken

of him to show [that] he had wounds, prove he didn’t have wounds. Alex, stand up show

’em you[r] knife wound.” Id. at 197. The State objected. The trial court sustained the




                                             5
objection and stated that it would instruct the jury not to consider that part of defense

counsel’s argument. The State moved for mistrial, which the trial court denied.

       In rebuttal, the prosecutor stated,

       There has been no evidence whatsoever that has come out that [the] defendant
       was stabbed that night. Not by [A.A.], not by Shirley Carson, defiantly [sic]
       not by Officer Daniels, nobody was stabbed that night. If he was stabbed why
       isn’t he shouting in the open 9-1-1 line, hey I’ve been stabbed, someone help
       me, someone help me! But he wasn’t[,] nobody said anything. If he was
       stabbed why didn’t he tell Officer Daniels when Officer Daniels asked him.”

Id. at 203 (emphasis added). Defense counsel objected on the basis that the last statement

violated Cameron’s right to remain silent, which the trial court overruled. The prosecutor

also told the jury, “Officer Daniels said that she tries to take both sides of the story[,] he

didn’t give her a side of the story that night. … I’m asking you to go back there and use your

life experiences, use your common sense, think about [what] was given to you today, think

about what the testimony said, think about the evidence that you’ve seen and heard.” Id. at

204 (emphases added).

       The jury found Cameron guilty of the class D felony batteries and not guilty of class A

misdemeanor battery. The trial court entered judgment of conviction for domestic battery.

Cameron appeals.

                                  Discussion and Decision

       Cameron argues that during questioning and closing argument, the prosecutor violated

his right against self-incrimination by commenting on his post-arrest, pre-Miranda silence

and his failure to testify. Cameron concedes that he did not move for an admonishment or

request a mistrial and therefore did not properly preserve his claim. See Cooper v. State, 854

                                              6
N.E.2d 831, 835 (Ind. 2006) (stating that to properly preserve prosecutorial misconduct claim

for appeal, defendant must raise contemporaneous objection and request admonishment, and

if admonishment is not given or is insufficient to cure error, then defendant must request

mistrial). To prevail on a claim of prosecutorial misconduct that has been procedurally

defaulted, the defendant must establish not only the grounds for the prosecutorial

misconduct, but also the additional grounds for fundamental error. Id. In reviewing a claim

of prosecutorial misconduct, we “determine (1) whether the prosecutor engaged in

misconduct, and if so, (2) whether that misconduct, under all of the circumstances, placed the

defendant in a position of grave peril to which he or she would not have been subjected.”

Coleman v. State, 750 N.E.2d 370, 374 (Ind. 2001). “The gravity of peril is measured by the

probable persuasive effect of the misconduct on the jury’s decision rather than the degree of

impropriety of the conduct.” Cooper, 854 N.E.2d at 835. For a claim of prosecutorial

misconduct to rise to the level of fundamental error, it must “make a fair trial impossible or

constitute clearly blatant violations of basic and elementary principles of due process [and]

present an undeniable and substantial potential for harm.” Benson v. State, 762 N.E.2d 748,

756 (Ind. 2002).

       The Fifth Amendment to the U.S. Constitution provides that no person “shall be

compelled in any criminal case to be a witness against himself.” This privilege extends to the

states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 8 (1964). The Fifth

Amendment prohibits the prosecution from commenting on a defendant’s decision not to

testify at trial. Griffin v. California, 380 U.S. 609, 615 (1965). However, we reject


                                              7
Cameron’s contention that any of the prosecutor’s comments were directed toward his failure

to testify. Rather, the questions and argument of which Cameron complains relate to his

post-arrest, pre-Miranda silence. “Whether a defendant’s post-arrest, pre-Miranda silence

may be used substantively has yet to be addressed by the United States Supreme Court, but

Indiana courts have held post-arrest, pre-Miranda silence cannot be used as substantive

evidence in the State’s case-in-chief.”1 Peters v. State, 959 N.E.2d 347, 353 (Ind. Ct. App.

2011).

         We need not address whether Cameron’s post-arrest, pre-Miranda silence is protected

by the Fifth Amendment because even if the prosecutor’s questions and comments could be

considered a violation of Cameron’s right against self-incrimination, Cameron opened the

door to those questions and comments. We observe that “otherwise inadmissible evidence

may become admissible where the defendant ‘opens the door’ to questioning on that

evidence.” Ludack v. State, 967 N.E.2d 41, 45 (Ind. Ct. App. 2012), trans. denied. “‘In

order to open the door, the evidence relied upon must leave the trier of fact with a false or

misleading impression of the facts related.’” Id. at 46 (quoting Bryant v. State, 802 N.E.2d

486, 500 (Ind. Ct. App. 2004), trans. denied). “The State may introduce evidence that might

otherwise be a violation of the defendant’s Fifth Amendment right against self-incrimination

if the State’s evidence is a fair response to evidence elicited by the defendant.” Id.




         1
           In Salinas v. Texas, 133 S. Ct. 2174, 2178-79 (2013), the U.S. Supreme Court held that a
defendant’s pre-arrest, pre-Miranda silence was not protected by the Fifth Amendment because the defendant
had not asserted his privilege against self-incrimination.

                                                    8
       Here, defense counsel introduced the allegation that Carson stabbed Cameron. The

photographs showed that there were knives in Carson’s house, but there was no evidence that

Cameron was stabbed. In response to defense counsel’s questions, the prosecutor attempted

to show the jury that Officer Daniels had not received any indication from Cameron that he

was injured by asking her whether he had said anything to her about it. On cross-

examination, defense counsel asked Officer Daniels whether she had asked Cameron what

happened. This question opened the door to the prosecutor to question Officer Daniels on

redirect as to whether she asked for Cameron’s side of the story.

       As for closing arguments, the prosecutor initially said nothing about Cameron’s post-

arrest, pre-Miranda silence. Defense counsel again raised the allegation that Carson stabbed

Cameron and argued that no photographs had been taken of Cameron to show whether he had

wounds. These comments opened the door to the prosecutor’s statement that Cameron did not

say anything to Officer Daniels about being wounded. We conclude that the prosecutor’s

questions and remarks were an appropriate response to defense counsel’s questions and

remarks, and thus no error occurred. See id. at 46-47 (concluding that defense counsel’s

questions to detective regarding interview with defendant opened door to prosecutor to ask

questions regarding scope of interview). Therefore, we affirm Cameron’s conviction.

       Affirmed.

RILEY, J., and MATHIAS, J., concur.




                                             9
