                                                                   FILED
MEMORANDUM DECISION                                           Aug 26 2016, 9:38 am

Pursuant to Ind. Appellate Rule 65(D),                             CLERK
                                                               Indiana Supreme Court
this Memorandum Decision shall not be                             Court of Appeals
                                                                    and Tax Court

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
Douglas M. Grimes                                        Gregory F. Zoeller
Douglas M. Grimes, P.C.                                  Attorney General of Indiana
Gary, Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Freddie Rhodes,                                          August 26, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         20A03-1508-CR-1181
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Terry C.
Appellee-Plaintiff.                                      Shewmaker, Judge
                                                         Trial Court Cause No.
                                                         20C01-1409-MR-5



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1181 | August 26, 2016   Page 1 of 15
                                                Case Summary
[1]   Freddie Rhodes appeals his conviction for felony murder. We affirm.


                                                        Issues
[2]   Rhodes raises several issues, which we revise and restate as:


                        I.       whether the trial court properly denied his
                                 request for a trial separate from his co-
                                 defendant;

                        II.      whether the trial court properly denied his
                                 request to compel discovery;

                        III.     whether the trial court properly required
                                 Rhodes and his co-defendant to share
                                 peremptory challenges;

                        IV.      whether the trial court properly ordered
                                 individualized voir dire with respect to one of
                                 the jurors; and

                        V.       whether the evidence is sufficient to sustain his
                                 conviction for felony murder.

                                                         Facts1
[3]   Brenda Marsh and her husband lived in Goshen with Brenda’s children,

      Daosha, Laqwela, ZaCarra, Zameishia, and Dramar, Laqwela’s boyfriend,

      Norman Gray, and their baby, Daosha’s child, and Brenda’s brother, Joe. The




      1
        Rhodes’s statement of the facts is merely a detailed recitation of the statement of the case. Rhodes fails to
      discuss any of the actual facts of the case, despite his challenge to the sufficiency of the evidence. We remind
      Rhodes that Indiana Appellate Rule 46(A)(6) provides the statement of facts “shall describe the facts relevant
      to the issues presented for review but need not repeat what is in the statement of the case.”

      Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1181 | August 26, 2016              Page 2 of 15
      family knew Rhodes, Deante Dalton, and Dretarrius Rodgers. On the night of

      September 14, 2015, Brenda left the house at approximately 10:30 p.m. to take

      her mother home. While she was gone, Rhodes, Dalton, and Rodgers arrived

      and entered the house. Each had his face covered with a ski mask or bandana,

      and each was armed with a handgun.


[4]   Rhodes and Rodgers went downstairs to the basement, and Dalton stayed on

      the main level of the house. Rhodes and Rodgers pointed their guns at Norman

      and Laqwela, who was holding their baby, and demanded, “Where is the

      stuff.” Tr. p. 1329. Laqwela recognized the men as Rhodes and Rodgers.

      Norman directed the men to the laundry room. In the laundry room, Norman

      began fighting with Rodgers and trying to take the gun from him, and Laqwela

      ran upstairs with the baby. Rodgers started shooting, and Norman was injured

      on his hip, chest, hand, and shoulder. Rodgers was also shot in the neck, wrist,

      hip, and buttock, and died from his wounds in the basement.


[5]   During the scuffle downstairs, Brenda returned from dropping off her mother.

      She recognized Rhodes’s vehicle, which was parked in front of the house.

      Brenda walked into the house and encountered a man wearing a ski mask and

      carrying a handgun. Brenda recognized the man as Dalton. Dalton aimed his

      gun at her and told her to “sit the F-down,” and Brenda responded, “little boy,

      this is not Halloween . . . stop playing.” Id. at 655. Dalton then told Brenda to

      sit down again, and she realized that he was serious. Dalton was holding her

      laptop under his arm. Brenda could hear a “scuffle downstairs” and then heard

      four or five quick gunshots. Id. at 660. Brenda then heard footsteps coming up

      Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1181 | August 26, 2016   Page 3 of 15
      the stairs and a second set of two or three gunshots, which were softer than the

      others. Immediately after the second set of gunshots, Rhodes came up the

      stairs, tapped Dalton on the shoulder, and said, “let’s go.” Id. at 665. The two

      men walked outside, and Brenda called 911. Brenda looked out the front door,

      and she saw Dalton get in the front passenger seat of Rhodes’s vehicle. As they

      drove away, Dalton was hanging out of the window and shooting at the house.


[6]   A bullet recovered from Rodgers’s body was a large caliber bullet, possibly a

      0.40 or 0.45 caliber. A .380 semi-automatic handgun was found near Rodgers’s

      body. No other guns were found in the house. Bullets found on the main level

      of the house were all fired by a .38 Special revolver or a .357 Magnum revolver.


[7]   The police later located Rhodes’s vehicle, and the Marsh family’s laptop was

      inside of it. Dalton admitted to the police that he had gone to the Marsh

      residence with Rhodes and Rodgers to rob them. The State charged Rhodes

      and Dalton with felony murder. Rhodes filed a motion for a trial separate from

      Dalton, which the trial court denied. Rhodes also repeatedly filed motions to

      compel the State to produce police reports in discovery, which the trial court

      also denied. A jury found Rhodes and Dalton guilty as charged. Rhodes now

      appeals.2




      2
       We affirmed Dalton’s conviction in his direct appeal. See Dalton v. State, No. 20A05-1508-CR-1098, 2016
      WL 3556433 (Ind. Ct. App. June 29, 2016).

      Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1181 | August 26, 2016        Page 4 of 15
                                                  Analysis
                                                 I. Severance

[8]   Rhodes argues that the trial court abused its discretion by denying his motion to

      sever his trial from that of his co-defendant, Dalton. Although Rhodes sets

      forth the standard for severance of a trial, he fails to apply that standard to this

      case and conduct any analysis of the issue. The issue is waived for failure to

      make a cogent argument. See Ind. Appellate Rule 46(A)(8)(a) (requiring

      argument be supported by coherent reasoning with citations to authority);

      Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the failure to

      present a cogent argument or citation to authority constitutes waiver of issue for

      appellate review).


[9]   Waiver notwithstanding, our supreme court has held that several defendants

      may be joined in a single prosecution. Lee v. State, 684 N.E.2d 1143, 1147 (Ind.

      1997) (citing Ind. Code § 35-34-1-9). However, upon the filing of a motion by a

      defendant, the trial court may order a separate trial “whenever the court

      determines that a separate trial is necessary to protect a defendant’s right to a

      speedy trial or is appropriate to promote a fair determination of the guilt or

      innocence of a defendant.” Id. (quoting Ind. Code § 35-34-1-11(b)). The trial

      court has discretion to grant or deny a motion for separate trials. Id. However,

      a trial court must grant severance if there are mutually antagonistic defenses

      and the acceptance of one defense precludes the acquittal of the other

      defendant. Id. On appellate review, the trial court’s decision is measured by

      what actually occurred at trial rather than what is alleged in the motion. Id.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1181 | August 26, 2016   Page 5 of 15
[10]   In denying Rhodes’s motion for a separate trial, the trial court noted that

       “Defendant, by counsel, presented no argument, and offered no reason,

       authority or case law in support of his request for separate trials.” App. p. 85.

       On appeal, his sole argument is: “Counsel for co-defendant in closing argument

       pointed to Rhodes and argued to the jury that Rhodes committed Robbery and

       Felony Murder, not his client.” Appellant’s Br. p. 17.


[11]   Rhodes and Dalton were charged with the same offense, they were

       accomplices, and the same evidence applied to each. Rhodes did not

       demonstrate that a separate trial was necessary to protect his right to a speedy

       trial or was appropriate to promote a fair determination of his guilt or

       innocence. Rhodes also failed to demonstrate that he and Dalton had mutually

       antagonistic defenses or that the acceptance of Dalton’s defense precluded his

       acquittal. Although Dalton may have argued during closing that Rhodes fired

       the fatal shots, given the felony murder charge and accomplice liability

       principles, it was irrelevant whether Rhodes or Dalton actually fired the shots.

       Consequently, we conclude that the trial court did not abuse its discretion when

       it denied Rhodes’s request for a trial separate from Dalton.


                                                 II. Discovery

[12]   Next, Rhodes seems to argue that the trial court abused its discretion when it

       denied his motions to compel discovery. Rhodes’s argument lacks a standard

       of review or analysis of the issue. He fails to make a cogent argument, and the

       issue is waived. See Ind. Appellate Rule 46(A)(8)(a); Cooper, 854 N.E.2d at 834

       n.1.
       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1181 | August 26, 2016   Page 6 of 15
[13]   Waiver notwithstanding, “[d]ecisions relating to discovery requests are

       committed to the discretion of the trial court and will not be reversed absent

       clear error in the exercise of that discretion.” Goudy v. State, 689 N.E.2d 686,

       695 (Ind. 1997). Rhodes’s argument seems to concern police reports that

       summarized witnesses’ statements. “In general, police reports constitute work

       product of the prosecutor, and a trial court is powerless to order production of

       such reports.” Robinson v. State, 693 N.E.2d 548, 552 (Ind. 1998); see also

       Goudy, 689 N.E.2d at 695 (“Unless the privilege has been waived, investigative

       police reports are not discoverable and are considered protected as the work

       product of the prosecutor.”). Substantially-verbatim witness statements,

       however, are subject to discovery. Robinson, 693 N.E.2d at 552. “When a

       police report allegedly contains a verbatim witness statement interspersed with

       the officer’s work product, ‘in-camera inspection by the trial court should

       permit the court to determine whether a document is essentially a verbatim

       statement and therefore discoverable or essentially a police report containing

       occasional quotations and thus privileged.’” Id. (quoting Crawford v. Superior

       Court of Lake County, 549 N.E.2d 374, 376 (Ind. 1990)).


[14]   Further, Elkhart County Local Rule 20-CR00-CRDD-14(A) provides, in part:

               In any criminal case, each party shall routinely disclose:


               1) The names, dates of birth, Social Security Account Numbers,
               and last-known addresses of all persons whom that party may
               call as witnesses, together with any written or recorded
               statements the person may have made, any memoranda containing
               substantially-verbatim reports of any oral statements the person may
       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1181 | August 26, 2016   Page 7 of 15
               have made and summaries of the anticipated testimony of each
               potential witness . . . .


       (emphasis added).


[15]   On appeal, Rhodes argues that he was entitled to receive the reports pursuant to

       the local rule.3 Rhodes seems to be confusing the police reports with witness

       summaries, which are also required by the local rule and were provided to

       Rhodes by the State. The State noted that the police reports were merely

       summaries of audio and video interviews, which had already been provided to

       Rhodes in discovery. According to the State, the police reports were not

       verbatim reports of oral statements or even substantially-verbatim. The State

       argued that the police reports were work product that was not required to be

       produced in discovery, and the trial court repeatedly denied Rhodes’s requests

       for production of those police reports.


[16]   Rhodes presents no argument or evidence that the police reports qualified as

       substantially-verbatim reports of oral statements, and he cites nothing to

       indicate that he requested an in camera inspection by the trial court. Given the

       lack of any evidence that the police reports contained substantially-verbatim

       witness statements, we cannot say that the trial court abused its discretion by

       denying Rhodes’s motions to compel.




       3
         Rhodes also complains that Dalton’s counsel received the police reports. The State notes that Dalton’s
       counsel signed a confidentiality agreement and was provided with the police reports. Rhodes’s counsel, on
       the other hand, did not sign a confidentiality agreement.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1181 | August 26, 2016         Page 8 of 15
                                        III. Peremptory Challenges

[17]   Rhodes seems to argue that the trial court erred by ordering that he share

       peremptory challenges with his co-defendant Dalton. However, Rhodes’s one-

       sentence argument is neither supported by cogent reasoning, citations to the

       record, or citation to relevant authority. Consequently, the argument is waived.

       See Ind. Appellate Rule 46(A)(8)(a); Cooper, 854 N.E.2d at 834 n.1.


[18]   Waiver notwithstanding, we note that Indiana Code Section 35-37-1-3 provides,

       in part:

               (b) In prosecutions for murder, where the death penalty is not
               sought, and Level 1, Level 2, Level 3, Level 4, or Level 5
               felonies, the defendant may challenge, peremptorily, ten (10)
               jurors.


                                                    *****


               (d) When several defendants are tried together, they must join in
               their challenges.


[19]   Similarly, Indiana Jury Rule 18(a) provides:

               In criminal cases the defendant and prosecution each may
               challenge peremptorily:


                                                    *****


               (2) ten (10) jurors when neither the death penalty nor life without
               parole is sought in prosecutions for murder, and Class A, B, or C



       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1181 | August 26, 2016   Page 9 of 15
               felonies, including enhancements, and Level 1, 2, 3, 4, or 5
               felonies, including any enhancement(s);


                                                    *****


               When several defendants are tried together, they must join their
               challenges.


[20]   Although Rhodes and Dalton objected to sharing peremptory challenges, the

       trial court overruled their objections and indicated that it would follow Jury

       Rule 18(a). Our supreme court has held that the sharing of peremptory

       challenges does not constitute reversible error absent a showing of actual

       prejudice. Peck v. State, 563 N.E.2d 554, 557 (Ind. 1990). Given the statutory

       authority, the jury rule on the subject, and the lack of any showing of actual

       prejudice, the trial court did not err by requiring Rhodes and his co-defendant

       to share the peremptory challenges.


                                                 IV. Voir Dire

[21]   Next, Rhodes argues that the trial court abused its discretion and “deprived

       Rhodes of a fair trial by treating [a] prospective juror, Juror #5580, different

       than other jurors by excusing other prospective jurors from the courtroom to

       prevent them from hearing what Juror #5580 said on voir dire.” Appellant’s

       Br. p. 17. Again, Rhodes has failed to make a cogent argument, and the

       argument is waived. See Ind. Appellate Rule 46(A)(8)(a); Cooper, 854 N.E.2d at

       834 n.1.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1181 | August 26, 2016   Page 10 of 15
[22]   Waiver notwithstanding, we note that trial courts have broad discretionary

       power in regulating the form and substance of voir dire. Logan v. State, 729

       N.E.2d 125, 133 (Ind. 2000). “The decision of the trial court will be reversed

       only if there is a showing of a manifest abuse of discretion and a denial of a fair

       trial.” Id. “This will usually require a showing by the defendant that he was in

       some way prejudiced by the voir dire.” Id. “Individualized voir dire of

       prospective jurors may be required where the circumstances are highly unusual

       or potentially damaging to the defendant.” Hadley v. State, 496 N.E.2d 67, 72

       (Ind. 1986). The use of individual voir dire is a matter that falls within the trial

       court’s broad discretionary power in regulating the form and substance of voir

       dire examination. Carr v. State, 728 N.E.2d 125, 129 (Ind. 2000).


[23]   Here, the prospective juror was questioned about holding one accountable for

       his or her actions, and the prospective juror started to raise a different criminal

       case as an example. The trial court stopped the questioning and said, “We’re

       not going to talk about other cases.” Tr. p. 434. The trial court later allowed

       the prospective juror to be questioned outside the presence of the other jurors.

       The trial court was concerned that the prospective juror was referring to a

       recent felony murder case that had been tried in that court and that a discussion

       of the other case would “poison the well.” Id. at 479. Rhodes objected and

       requested a mistrial. The trial court overruled the objection and denied the




       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1181 | August 26, 2016   Page 11 of 15
       motion for a mistrial.4 The trial court was well within its discretion to have the

       prospective juror questioned individually given the unusual circumstances, and

       Rhodes has not identified how he was prejudiced by the procedure.


                                           V. Sufficiency of the Evidence

[24]   Rhodes also argues that the evidence is insufficient to sustain his conviction for

       felony murder. When reviewing the sufficiency of the evidence needed to

       support a criminal conviction, we neither reweigh evidence nor judge witness

       credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider

       only the evidence supporting the judgment and any reasonable inferences that

       can be drawn from such evidence.” Id. We will affirm if there is substantial

       evidence of probative value such that a reasonable trier of fact could have

       concluded the defendant was guilty beyond a reasonable doubt. Id.


[25]   Rhodes was convicted of felony murder. Under the felony murder statute, the

       State was required to prove that Rhodes killed Rodgers while committing or

       attempting to commit robbery. Ind. Code § 35-42-1-1(2). The fact that the

       robbery resulted in the death of a co-perpetrator does not save Rhodes from

       criminal liability for murder. Forney v. State, 742 N.E.2d 934, 938 (Ind. 2001).

       Our supreme court has held that the felony murder rule applies “‘when, in

       committing any of the designated felonies, the felon contributes to the death of

       any person.’” Id. (quoting Palmer v. State, 704 N.E.2d 124, 126 (Ind. 1999)). It




       4
           Rhodes does not appeal the denial of the motion for a mistrial.


       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1181 | August 26, 2016   Page 12 of 15
       does not matter “whether the death caused is that of the intended victim, a

       passerby or even a co-perpetrator.” Id. at 938-39. Further, our supreme court

       has explained:

               Where the accused reasonably should have . . . foreseen that the
               commission of or attempt to commit the contemplated felony
               would likely create a situation which would expose another to
               the danger of death at the hands of a nonparticipant in the felony,
               and where death in fact occurs as was foreseeable, the creation of
               such a dangerous situation is an intermediary, secondary, or
               medium in effecting or bringing about the death of the victim.
               There, the situation is a mediate contribution to the victim’s
               killing.


       Palmer, 704 N.E.2d at 126.


[26]   Rhodes argues that there was no evidence that he “or others in the house stole

       or robbed any person of any property” and that Rodgers’s death was not

       reasonably foreseeable. Appellant’s Br. p. 13. Rhodes also summarizes some

       of Norman Gary’s testimony and seems to argue that he did not shoot Rodgers.


[27]   The State presented evidence that Rhodes, Dalton, and Rodgers entered the

       Marsh residence armed with handguns to rob the family. They in fact left the

       house with the family’s laptop. Based on the ballistics evidence, the State

       points out that “by far the most reasonable inference from the evidence is that it

       was [Rhodes] himself who fired the shots that killed Rodgers during this

       attempted robbery gone wrong.” Appellee’s Br. p. 18. Moreover, it was




       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1181 | August 26, 2016   Page 13 of 15
       reasonably foreseeable that engaging in a violent home invasion armed with

       handguns would result in someone’s death.5


[28]   We addressed the same argument in Dalton’s appeal. There, we concluded that

       the evidence was sufficient to sustain Dalton’s conviction for felony murder.

       We noted that “the State presented sufficient evidence to prove that Dalton’s

       actions, both as a principal and as an accomplice, were a mediate or immediate

       cause of Rodgers’s death.” Dalton v. State, No. 20A05-1508-CR-1098, 2016 WL

       3556433, at *7 (Ind. Ct. App. June 29, 2016). Similarly, here, Rhodes’s actions,

       both as a principal and as an accomplice, were a mediate or immediate cause of

       Rodgers’s death. The evidence is sufficient to sustain Rhodes’s conviction.


                                                     Conclusion
[29]   The trial court properly denied Rhodes’s motion for a separate trial and his

       motions to compel discovery. The trial court also properly conducted voir dire

       and ordered the sharing of peremptory challenges. Finally, the evidence is

       sufficient to sustain Rhodes’s conviction for felony murder. We affirm.




       5
         Our supreme court recently reversed a felony murder conviction in Layman v. State, 42 N.E.3d 972, 979-80
       (Ind. 2015), where a group of young men broke into and entered the residence of a homeowner intending to
       commit a burglary and one of the men was killed by the homeowner. Our supreme court pointed out that the
       men were unarmed and that they were not engaged in any “dangerously violent and threatening conduct.”
       Layman, 42 N.E.3d at 979. “There was simply nothing about the Appellants’ conduct or the conduct of their
       cohorts that was ‘clearly the mediate or immediate cause’ of their friend’s death.” Id. at 979-80 (quoting
       Palmer, 704 N.E.2d at 126). The court held that, while the evidence was sufficient to sustain a conviction for
       the underlying burglary, it was not sufficient to sustain a conviction for felony murder in the perpetration of a
       burglary. This case is distinguishable because Rhodes, Dalton, and Rodgers entered the home armed with
       handguns and engaged in a violent confrontation with residents of the home.


       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1181 | August 26, 2016             Page 14 of 15
[30]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1181 | August 26, 2016   Page 15 of 15
