      MEMORANDUM DECISION
                                                                    Jan 29 2015, 9:51 am
      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
      Jill M. Acklin                                            Gregory F. Zoeller
      McGrath, LLC                                              Attorney General of Indiana
      Carmel, Indiana
                                                                Katherine Modesitt Cooper
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Deaundra Patterson,                                      January 29, 2015

      Appellant-Defendant,                                     Court of Appeals Cause No.
                                                               48A02-1404-CR-237
              v.                                               Appeal from the Madison Circuit
                                                               Court, The Honorable Dennis D.
                                                               Carroll, Judge
      State of Indiana,                                        Cause No. 48C06-1305-FB-1079
      Appellee-Plaintiff




      Najam, Judge.


                                         Statement of the Case
[1]   Deaundra Patterson appeals his convictions, following a jury trial, for robbery,

      as a Class B felony; battery, as a Class C felony; battery, as a Class D felony;

      resisting law enforcement, as a Class D felony; and operating a motor vehicle

      Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-237 | January 29, 2015   Page 1 of 7
      while privileges are forfeited for life, a Class C felony. Patterson presents one

      issue for our review, namely, whether certain statements made by the

      prosecutor during the rebuttal portion of closing arguments amounted to

      fundamental error.


[2]   We affirm.


                                    Facts and Procedural History
[3]   From May 5, 2013, to May 27, 2013, Patterson committed four armed

      robberies in Anderson, Indiana.1 He robbed the same gas station twice, on May

      5 and on May 15, and he also robbed a discount tobacco store on May 12 and a

      liquor store on May 27. In all four robberies, Patterson carried a handgun and

      a plastic bag, and, in all four, he demanded money and Newport cigarettes.

      During the first robbery of the gas station, Patterson threatened the lives of the

      employees, and he also robbed a customer, who entered the station during the

      commission of the robbery. And, during the subsequent robbery of the gas

      station, Patterson fired a warning shot at an employee and robbed him of his

      wallet. Police recovered a .40 caliber shell casing and a .40 caliber round

      lodged in the store’s fuel pump control box.


[4]   Over the course of the robberies, the victims of the robberies observed that

      Patterson wore a number of clothing items, including: baggy clothes, black




      1
       Patterson committed four robberies but was not identified as the assailant until after the fourth.
      Nevertheless, for the sake of clarity and ease of writing, we refer to Patterson by name.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-237 | January 29, 2015                Page 2 of 7
      pants, a red hoodie sweatshirt, a ski mask, a camouflage mask, a tan jacket, and

      a puffy winter coat. During some, but not all, of the robberies, Patterson also

      wore black gloves.


[5]   Patterson fled from all four robberies, but police were unable to locate him after

      the first three. However, after the fourth, witnesses communicated to police

      that Patterson had fled north in a red truck, and, on his way to the scene, a

      responding officer observed a speeding red Chevrolet Tahoe. He pursued the

      Tahoe, with lights and siren activated, but the vehicle fled and the officer lost

      track of it. Not long after, another officer, Matt Jarrett with the Anderson

      Police Department, located the Tahoe parked in a driveway, and he observed

      Patterson knocking on the front door of the residence. Officer Jarrett drew his

      weapon, and ordered Patterson to turn around with his hands in the air.

      Patterson, however, placed his hands into his pockets and ran towards the

      Tahoe. Officer Jarrett approached the vehicle, knocked on the door, and

      demanded that Patterson stop, but Patterson backed out of the driveway

      quickly, which caused the vehicle to strike the officer and knock him down.

      Officer Jarrett fired two rounds at Patterson, but he continued to flee.


[6]   Sergeant Kevin Earley, also with the Anderson Police Department, then began

      pursuit of Patterson with his lights and sirens activated. Patterson led Sergeant

      Earley on a high-speed chase that concluded when Patterson crashed the Tahoe

      into a telephone pole. Officers took Patterson into custody, and, when they

      did, officers recovered on his person a loaded .40 caliber Smith and Wesson

      handgun magazine. Also, pursuant to a search warrant for the Tahoe, officers

      Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-237 | January 29, 2015   Page 3 of 7
      recovered from the vehicle two bandanas; a pair of black leather gloves; a black

      ski mask; a black coat with a gray hood; a red and black sweatshirt; a plastic

      bag; an empty Newport cigarette pack; a black and silver .40 caliber Smith and

      Wesson handgun; and a loaded Smith and Wesson .40 caliber magazine.


[7]   Police also obtained and reviewed surveillance video from all four robberies.

      From those videos, detectives were able to determine that Patterson used the

      Smith and Wesson handgun in at least two of the robberies. Further, they

      observed that Patterson conducted all four robberies in the same way. And, in

      one of the videos, the distinctive soles of the robbery perpetrator’s shoes were

      visible. From this, detectives were able to determine, after comparing those

      soles to approximately 300 samples, that they matched only the soles of the

      shoes taken from Patterson at the police station following his arrest.


[8]   On May 31, 2013, the State charged Patterson with five counts of robbery, as

      Class B felonies; battery, as a Class C felony; battery as a Class D felony;

      resisting law enforcement, as a Class D felony; and operating a motor vehicle

      while privileges are forfeited for life, a Class C felony. Patterson’s jury trial was

      held over the span of five days in January and February 2014. At trial, the State

      called seventeen law-enforcement officers, who testified about the investigation

      they conducted, and several other witnesses. Two of the witnesses, employees

      present at the first robbery of the gas station, identified Patterson as the

      perpetrator. During the rebuttal portion of the State’s closing argument, the

      prosecutor stated, “They did a very thorough investigation, our Anderson

      Police Department.” Tr. at 1173. Patterson did not object to this statement.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-237 | January 29, 2015   Page 4 of 7
[9]    At the conclusion of the trial, the jury convicted Patterson as charged, and the

       trial court sentenced him to an aggregate, executed term of seventy-three years

       in the Indiana Department of Correction. This appeal ensued.


                                      Discussion and Decision
[10]   Patterson contends that the prosecutor’s statement regarding the Anderson

       Police Department’s investigation, to which he did not object, constituted

       fundamental error. Specifically, Patterson argues that prosecutorial misconduct

       occurred because the prosecution bolstered its case by “vouching” for seventeen

       witnesses, the officers, whose testimony “was at the heart of the case.”

       Appellant’s Br. 5-6. Thus, he reasons, the statement by the prosecutor placed

       him in grave peril. We cannot agree. Even if we assume that the prosecutor’s

       comments were inappropriate, they do not amount to fundamental error.


[11]   As our supreme court recently explained:

               In reviewing a claim of prosecutorial misconduct properly raised in the
               trial court, we determine (1) whether misconduct occurred, and if so,
               (2) “whether the 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” otherwise. Cooper v. State, 854 N.E.2d 831, 835
               (Ind. 2006), quoted in Castillo v. State, 974 N.E.2d 458, 468 (Ind. 2012).
               A prosecutor has the duty to present a persuasive final argument and
               thus placing a defendant in grave peril, by itself, is not misconduct.
               Mahla v. State, 496 N.E.2d 568, 572 (Ind. 1986). “Whether a
               prosecutor’s argument constitutes misconduct is measured by reference
               to case law and the Rules of Professional Conduct. 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 (emphasis added) (citations
               omitted). To preserve a claim of prosecutorial misconduct, the

       Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-237 | January 29, 2015   Page 5 of 7
        defendant must—at the time the alleged misconduct occurs—request
        an admonishment to the jury, and if further relief is desired, move for a
        mistrial. Id.; see also Maldonado v. State, 265 Ind. 492, 355 N.E.2d 843,
        848 (1976).


        Our standard of review is different where a claim of prosecutorial
        misconduct has been procedurally defaulted for failure to properly
        raise the claim in the trial court, that is, waived for failure to preserve
        the claim of error. Booher v. State, 773 N.E.2d 814, 817-18 (Ind. 2002).
        The defendant must establish not only the grounds for prosecutorial
        misconduct but must also establish that the prosecutorial misconduct
        constituted fundamental error. Id. at 818. Fundamental error is an
        extremely narrow exception to the waiver rule where the defendant
        faces the heavy burden of showing that the alleged errors are so
        prejudicial to the defendant’s rights as to “make a fair trial
        impossible.” Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002), quoted
        in Castillo, 974 N.E.2d at 468 and Cooper, 854 N.E.2d at 835. 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 alleged errors (a) “constitute clearly blatant
        violations of basic and elementary principles of due process” and (b)
        “present an undeniable and substantial potential for harm.” Id. The
        element of such harm is not established by the fact of ultimate
        conviction but rather “depends upon whether [the defendant’s] right to
        a fair trial was detrimentally affected by the denial of procedural
        opportunities for the ascertainment of truth to which he otherwise
        would have been entitled.” Townsend v. State, 632 N.E.2d 727, 730
        (Ind. 1994) (quoting Hart v. State, 578 N.E.2d 336, 338 (Ind. 1991)). In
        evaluating the issue of fundamental error, our task in this case is to
        look at the alleged misconduct in the context of all that happened and
        all relevant information given to the jury—including evidence
        admitted at trial, closing argument, and jury instructions—to
        determine whether the misconduct had such an undeniable and
        substantial effect on the jury’s decision that a fair trial was impossible.
        See Boesch v. State, 778 N.E.2d 1276, 1279 (Ind. 2002); Townsend, 632
        N.E.2d at 730; see, e.g., Castillo, 974 N.E.2d at 469 n. 11 (noting closing
        arguments are perceived as partisan advocacy).




Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-237 | January 29, 2015   Page 6 of 7
               We stress that “[a] finding of fundamental error essentially means that
               the trial judge erred . . . by not acting when he or she should
               have . . . .” Whiting v. State, 969 N.E.2d 24, 34 (Ind. 2012).
               Fundamental error is meant to permit appellate courts a means to
               correct the most egregious and blatant trial errors that otherwise would
               have been procedurally barred, not to provide a second bite at the
               apple for defense counsel who ignorantly, carelessly, or strategically
               fail to preserve an error. See Baer v. State, 942 N.E.2d 80, 99 (Ind.
               2011) (noting it is “highly unlikely” to prevail on a claim of
               fundamental error relating to prosecutorial misconduct); Stevens v.
               State, 691 N.E.2d 412, 420 n. 2 (Ind. 1997); Wilson v. State, 222 Ind. 63,
               51 N.E.2d 848, 856 (1943).


       Ryan v. State, 9 N.E.3d 663, 667-68 (Ind. 2014).


[12]   Here, we cannot say that the trial court erred by not acting when it should have.

       Even if we assume for the sake of argument that the prosecutor’s statement,

       “[t]hey did a very thorough investigation, our Anderson Police Department[,]”

       was misconduct, it was neither blatant nor egregious. Tr. at 1173. Further,

       even if the statement amounted to misconduct, it could not have had an

       undeniable and substantial effect on the jury’s decision, so as to make a fair trial

       impossible. Patterson received a five-day jury trial, and volumes of evidence

       were provided to the jury. Even if some of the evidence tying Patterson to his

       crimes was circumstantial, it was nevertheless overwhelming. In other words,

       the prosecutor’s statement did not deny Patterson a fair trial.


[13]           Affirmed.


       Mathias, J., and Bradford, J., concur.



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