MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                        Mar 26 2015, 9:04 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
Jesse R. Poag                                            Gregory F. Zoeller
Newburgh, Indiana                                        Attorney General of Indiana

                                                         Ellen M. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Malaysia D. Lockhart,                                    March 26, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1408-CR-369
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelli E. Fink, Judge
Appellee-Plaintiff
                                                         The Honorable Robert R. Aylsworth,
                                                         Special Judge

                                                         Case No. 82C01-1306-FB-677




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1408-CR-369 | March 26, 2015      Page 1 of 9
                                             Case Summary
[1]   Malaysia D. Lockhart appeals her convictions for two counts of class B felony

      unlawful possession of a firearm by a serious violent felon. Lockhart claims

      that, during closing argument, the prosecutor committed misconduct that put

      her in a position of grave peril that amounted to fundamental error. Lockhart

      also claims that the trial court erred in denying her motion to correct error

      alleging newly discovered evidence. Concluding that no misconduct or

      fundamental error occurred and also concluding that the trial court properly

      denied Lockhart’s motion to correct error, we affirm.


                                 Facts and Procedural History
[2]   On May 23, 2013, Evansville police officers assigned to a federal Drug

      Enforcement Administration task force went to Lockhart’s home to speak with

      her regarding an ongoing narcotics investigation. Lockhart shared her home

      with her brother, Bryant, and Christina Aguilar. When the officers arrived,

      Lockhart was outside mowing the lawn. Aguilar was also outside. Bryant was

      inside the home. Detectives Cliff Simpson and Heath Stewart spoke to

      Lockhart and asked her for consent to search the home. Detective Todd Seibert

      was also at the scene assisting with the investigation. Lockhart consented to a

      search of the residence and signed a written consent to search form. Lockhart

      told the detectives that she had a gun inside the residence and explained that it

      was for protection. After the detectives read Lockhart her Miranda rights, she

      told them that the gun was in her bedroom under the mattress.



      Court of Appeals of Indiana | Memorandum Decision 82A01-1408-CR-369 | March 26, 2015   Page 2 of 9
[3]   Lockhart and Aguilar accompanied the detectives into the bedroom and

      pointed to the mattress. The detectives lifted the mattress and located a .40

      caliber Glock handgun. The detectives also found a magazine for that gun in a

      gun box inside Lockhart’s bedroom. Lockhart told the detectives that Bryant

      had given her the handgun for protection. A further search of the residence

      revealed a loaded Tek-9 handgun and a magazine on the bed in Bryant’s

      bedroom. Bryant told the detectives that he had purchased both guns and that

      he had given the Glock to Lockhart for protection. Bryant stated that he knew

      that Lockhart was not permitted to legally possess any guns due to her status as

      a serious violent felon.


[4]   The State charged Lockhart with two counts of class B felony unlawful

      possession of a firearm by a serious violent felon. During the jury trial,

      Detectives Simpson and Seibert both testified regarding Lockhart’s inculpatory

      statements and their subsequent discovery of the two guns. The State chose not

      to call Detective Stewart as a witness. During closing argument, Lockhart

      argued that Detectives Simpson’s and Seibert’s testimony regarding her

      statements was not credible and reminded the jury that a third detective who

      was “supposedly” at the scene and would have been present for those same

      statements did not testify. Tr. at 280. During rebuttal, the State responded to

      Lockhart’s closing argument by saying, “The fact that Detective Stewart isn’t

      here and is unavailable for this trial is not inconsistent with the testimony, it just

      means he’s not here, but Cliff Simpson heard it, Detective Seibert heard her

      admission….” Id. at 290. Lockhart did not object to the prosecutor’s rebuttal


      Court of Appeals of Indiana | Memorandum Decision 82A01-1408-CR-369 | March 26, 2015   Page 3 of 9
      argument or move to admonish the jury. Thereafter, the jury found Lockhart

      guilty as charged.


[5]   Lockhart filed a motion to correct error alleging newly discovered evidence.

      Specifically, Lockhart argued that Detective Stewart was available to be called

      as a witness by the State but that the State had chosen not to call him because

      he was being investigated for altering a report in an unrelated case and the State

      knew his credibility might be impeached on that basis. Following a hearing, the

      trial court denied the motion to correct error. Specifically, the trial court

      concluded that there is no indication that the State failed to reveal any

      exculpatory evidence directly related to Lockhart’s case. This appeal ensued.


                                        Discussion and Decision

       Section 1 – The prosecutor did not commit misconduct that
      put Lockhart in a position of grave peril and the trial court did
          not commit fundamental error in failing to intervene.
[6]   Lockhart claims that the prosecutor committed misconduct during rebuttal

      closing argument in using the term “unavailable” when referring to the fact that

      the State did not call Detective Stewart as a witness. Lockhart argues that

      Detective Stewart was not truly “unavailable” in a legal sense, and therefore the

      prosecutor’s statement was false and placed her in a position of grave peril. 1




      1
        We note that Lockhart relies on the legal definition of witness unavailability for purposes of the
      Confrontation Clause of the Sixth Amendment to the U.S. Constitution which prohibits the admission in a
      criminal trial of testimonial statements by a person who is absent from trial, unless the person is unavailable

      Court of Appeals of Indiana | Memorandum Decision 82A01-1408-CR-369 | March 26, 2015                 Page 4 of 9
[7]   In reviewing a claim of prosecutorial misconduct, we determine first whether

      misconduct occurred, and second whether the misconduct placed the defendant

      in a position of grave peril to which he or she would not have been otherwise

      subjected. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). When the alleged

      misconduct concerns the prosecutor’s arguments to the jury, we measure the

      gravity of the peril by the probable persuasive effect of the misconduct on the

      jury’s decision rather than the degree of impropriety of the conduct. Id.


[8]   To preserve a claim of prosecutorial misconduct, the defendant must request an

      admonishment at the time the alleged misconduct occurs and, if further relief is

      desired, move for a mistrial. Id. Where, as here, a defendant has failed to

      preserve his or her claim but wishes to raise it on appeal, the defendant must

      establish not only the grounds of prosecutorial misconduct but must also

      establish that the misconduct constituted fundamental error. Id. at 667-68.

      Fundamental error is an extremely narrow exception to the waiver rule where

      the defendant faces the heavy burden of showing that the alleged errors were so

      prejudicial to his or her rights as to “make a fair trial impossible.” Id. at 668.

      “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 the alleged errors (a) ‘constitute clearly blatant violations of basic and




      and the defendant had a prior opportunity to cross-examine the person. Crawford v. Washington, 541 U.S. 36,
      68 (2004). With regard to such unavailability, our supreme court has stated that “[a] witness is unavailable
      for purposes of the Confrontation Clause requirement only if the prosecution has made a good faith effort to
      obtain the witness’s presence at trial.” Garner v. State, 777 N.E.2d 721, 724 (Ind. 2002).

      Court of Appeals of Indiana | Memorandum Decision 82A01-1408-CR-369 | March 26, 2015              Page 5 of 9
       elementary principles of due process’ and (b) ‘present an undeniable and

       substantial potential for harm.’” Id. (quoting Benson v. State, 762 N.E.2d 748,

       756 (Ind. 2002)). Our task is to look at the alleged misconduct in the context of

       all that happened and all relevant information given to the jury and to

       determine whether the misconduct had such an undeniable and substantial

       effect on the jury’s decision that a fair trial was impossible. Id


[9]    We are unpersuaded by Lockhart’s suggestion that the prosecutor’s mere use of

       the term “unavailable” to explain Detective Stewart’s absence from trial placed

       her in a position of grave peril. The prosecutor used his rebuttal to respond to

       defense counsel’s closing argument, in which defense counsel stated that

       although Detective Stewart was “supposedly” at the scene of Lockhart’s crimes,

       he did not appear at trial and corroborate the testimony of the other two

       detectives. Tr. at 280. Defense counsel was clearly implying that the State did

       not call Detective Stewart as a witness because his testimony would not be

       consistent with the other officers. The prosecutor simply explained, “The fact

       that Detective Stewart isn’t here and is unavailable for this trial is not

       inconsistent with the testimony, it just means he is not here….” Id. at 290.


[10]   “Prosecutors are entitled to respond to allegations and inferences raised by the

       defense even if the prosecutor’s response would otherwise be objectionable.”

       Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006). Whether Detective Stewart

       was truly “unavailable” in a legal sense, or just not called as a witness, is of no

       moment, as it is unlikely that the jury attributed any significance to the use of

       that term to explain his absence. Rather, it is more likely that the jury accepted

       Court of Appeals of Indiana | Memorandum Decision 82A01-1408-CR-369 | March 26, 2015   Page 6 of 9
       that two of the three detectives present at the scene corroborated that Lockhart

       made certain statements and that it was unnecessary for the State to present the

       testimony of yet a third witness regarding those same statements. The jurors

       were clearly instructed that it was their province to judge the credibility of the

       evidence presented, including the testimony of the witnesses, and nothing that

       the prosecutor said during closing argument detracted from that instruction.


[11]   We are unconvinced that the prosecutor committed misconduct that placed

       Lockhart in a position of grave peril. Thus, we cannot say that any error

       occurred that deprived Lockhart of a fair trial, much less fundamental error.


            Section 2 – The trial court did not abuse its discretion in
                  denying Lockhart’s motion to correct error.
[12]   Lockhart next challenges the trial court’s denial of her motion to correct error

       alleging newly discovered evidence. A trial court’s order denying a motion to

       correct error on the basis of newly discovered evidence is reviewed on appeal

       for an abuse of discretion. Martinez v. State, 917 N.E.2d 1242, 1247 (Ind. Ct.

       App. 2009), trans. denied (2010). We give the trial court’s decision substantial

       deference and reverse only if the trial court’s judgment is contrary to the logic

       and effect of the facts, or if the court has misinterpreted the law. Id. Our

       supreme court has enunciated the following factors to consider upon review of

       such a ruling:

               [N]ew evidence will mandate a new trial only when the defendant
               demonstrates that: (1) the evidence has been discovered since the trial;
               (2) it is material and relevant; (3) it is not cumulative; (4) it is not
               merely impeaching; (5) it is not privileged or incompetent; (6) due
       Court of Appeals of Indiana | Memorandum Decision 82A01-1408-CR-369 | March 26, 2015   Page 7 of 9
               diligence was used to discover it in time for trial; (7) the evidence is
               worthy of credit; (8) it can be produced upon a retrial of the case; and
               (9) it will probably produce a different result at retrial.


       Taylor v. State, 840 N.E.2d 324, 329-30 (Ind. 2006). We analyze these nine

       factors “with care, as ‘[t]he basis for newly discovered evidence should be

       received with great caution and the alleged new evidence carefully

       scrutinized.’” Carter v. State, 738 N.E.2d 665, 671 (Ind. 2000) (quoting Reed v.

       State, 508 N.E.2d 4, 6 (Ind. 1987)). The burden of showing that all nine

       requirements are met rests with the defendant. Taylor, 840 N.E.2d at 330.


       In ruling on whether the alleged newly discovered evidence would probably

       produce a different result, “the trial court may properly consider the weight that

       a reasonable trier of fact would give it and while so doing may also evaluate its

       probable impact on a new trial in light of all the facts and circumstances shown

       at the original trial of the case.” Bunch v. State, 964 N.E.2d 274, 296 (Ind. Ct.

       App. 2012) (citation omitted), trans. denied. “[T]he defendant must raise a

       strong presumption that the result of any subsequent trial in all probability

       would be different.” Id. Indeed, a sufficient probability of a different result is

       present “when the omitted evidence creates a reasonable doubt that did not

       otherwise exist.” Id.


[13]   Here, Lockhart asserts that the newly discovered evidence is her post-trial

       discovery of the reason Detective Stewart was not called as a witness by the

       State. However, the reason for his absence from trial is not evidence, and we

       fail to see how this information satisfies any of the nine factors, particularly that

       Court of Appeals of Indiana | Memorandum Decision 82A01-1408-CR-369 | March 26, 2015   Page 8 of 9
       the information would probably produce a different result on retrial. As noted

       by the trial court, this is not a case where the State allegedly failed to disclose

       exculpatory evidence directly related to this case. Lockhart essentially

       complains that she was deprived of the ability to impeach the credibility of a

       witness who did not testify. Her complaint rings hollow. We agree with the

       trial court that, even had Detective Stewart been called as a witness or if he

       were to be called as a witness on retrial, his act of misconduct in an unrelated

       case is not admissible for impeachment purposes. See Manuel v. State, 971

       N.E.2d 1262, 1266 (Ind. Ct. App. 2012) (citing Ind. Evidence Rule 608(b) that

       witness may not be impeached by specific acts of misconduct that have not

       resulted in criminal convictions). Moreover, Detective Stewart’s testimony

       would have been corroborative and cumulative of the testimony of the two

       other detectives, and in all probability would not produce a different result on

       retrial regardless of what Lockhart perceives to be Detective Stewart’s

       credibility issues. The trial court did not abuse its discretion in denying

       Lockhart’s motion to correct error on the basis of newly discovered evidence.

       We therefore affirm her convictions.


[14]   Affirmed.


       Friedlander, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1408-CR-369 | March 26, 2015   Page 9 of 9
