MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                   Apr 28 2016, 8:46 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
court except for the purpose of establishing                                  and Tax Court

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cynthia M. Carter                                        Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Julius Anderson,                                         April 28, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A04-1003-CR-162
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jane Woodward
Appellee-Plaintiff                                       Miller, Judge
                                                         Trial Court Cause No.
                                                         71D01-0904-MR-14



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1003-CR-162 | April 28, 2016             Page 1 of 16
                                             Case Summary
[1]   Julius Anderson appeals his conviction and fifty-five-year sentence for murder

      following a jury trial. He argues that the prosecutor committed misconduct

      during cross-examination and closing argument in the form of a Doyle violation

      which amounted to fundamental error. He also contends that the trial court

      abused its discretion during sentencing. Concluding that Anderson has not

      demonstrated that fundamental error occurred or that the trial court abused its

      discretion, we affirm his conviction and sentence.


                                  Facts and Procedural History
[2]   In the early morning hours on April 21, 2009, Anderson and his girlfriend,

      Dawn Brooks, were out partying and driving around with another couple,

      Terrence Eppenger, Jr. (“Terrence Jr.”), and Christine Purucker. The couples

      stopped at a local convenience store for “some chips” and “smokes.” Tr. at

      469. Anderson and Brooks entered the store while Terrence Jr. and Purucker

      stayed in the car. While in the store, Brooks ran into an old friend, Kerry

      Montgomery, and gave him a hug and got his phone number. Anderson was

      “very upset” about the interaction between Brooks and Montgomery to the

      extent that he would not let Montgomery leave the store. Id. at 332.

      Montgomery tried to explain that he was married and that he and Brooks were

      just friends, but Anderson would not listen and instead hollered “crazy stuff” at

      Montgomery. Id. at 342. Montgomery was scared. The convenience store

      cashier eventually asked all of them to leave. Montgomery saw Anderson and

      Brooks get into the car with another couple and drive away.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1003-CR-162 | April 28, 2016   Page 2 of 16
[3]   Terrence Jr. and Purucker dropped off Anderson and Brooks at Brooks’s home

      and then drove to Terrence Eppenger, Sr.’s house (“Terrence Sr.”) and went to

      bed in the basement. A little while later, Terrence Sr. was watching television

      in his bedroom when he was startled by pounding on the window. Terrence Sr.

      saw Anderson outside the window and told him to go around to the front door.

      Anderson “barged” into the house and tried to run to the basement. Id. at 427.

      Terrence Sr. stopped Anderson and told him that Terrence Jr. and Purucker

      were sleeping and that he could not go into the basement. Terrence Sr.

      observed blood on Anderson’s arm. Terrence Sr. thought that Anderson must

      be bleeding and asked him what had happened. Anderson replied that “it

      wasn’t blood.” Id. Terrence Sr. was skeptical and dialed 911. Anderson said

      “don’t call the police,” so Terrence Sr. hung up. Id. However, because

      Terrence Sr. had already dialed the number, an emergency dispatcher called

      him back. As Terrence Sr. was explaining the situation to the dispatcher,

      Anderson took off out the front door and ran away.


[4]   At 3:35 a.m., South Bend Police Corporal Tim Cichowicz was dispatched to

      Terrence Sr.’s home based on a report that a man had shown up at the home

      covered in blood. Corporal Cichowicz spoke with Terrence Sr. and Purucker.

      They told the officer that Anderson had arrived at the residence covered in

      blood and Purucker stated that she could show the officer where Anderson

      lived with Brooks. Purucker got into the police vehicle and directed Corporal

      Cichowicz to Brooks’s home.




      Court of Appeals of Indiana | Memorandum Decision 71A04-1003-CR-162 | April 28, 2016   Page 3 of 16
[5]   When Corporal Cichowicz pulled up to Brooks’s home, he noticed smoke

      coming from the roof. After he observed more smoke coming from the west

      side of the home, Corporal Cichowicz contacted dispatch and told them to send

      the fire department. To keep Purucker safe, Corporal Cichowicz quickly drove

      her back to Terrence Sr.’s house, before returning to Brooks’s home. The fire

      department had not yet arrived, but other police officers were now on the scene.

      South Bend Police Officer Anthony Dawson broke a window of the home and

      yelled to see if anyone was inside. He then tried to open the front door of the

      home, and although the knob would turn, he was unable to push the door open.

      Officers went to the back of the house and noticed blood on the back door and

      in several other areas.


[6]   It had begun to rain by the time the fire department trucks and other emergency

      vehicles arrived. Firefighters had difficulty getting through the front door and

      discovered that a couch had been blocking the entry. After gaining entry to the

      home, the firefighters found Brooks’s body. She “was almost completely nude,

      except for a bra which was around her neck.” Id. at 174. She was unresponsive

      with no “signs of life.” Id. Her body was placed in an ambulance and Corporal

      Cichowicz accompanied the ambulance to the morgue.


[7]   Around the same time period, Scott Sousa and his girlfriend Kai Legge were

      awakened to the sound of Sousa’s barking dog. When they investigated, they

      found Anderson lying on the floor of the back porch of Sousa’s apartment.

      Sousa did not know Anderson very well. Sousa allowed Anderson inside his

      apartment and observed that Anderson was “covered in blood” but did not

      Court of Appeals of Indiana | Memorandum Decision 71A04-1003-CR-162 | April 28, 2016   Page 4 of 16
      appear to be injured in any way. Id. at 280. After Sousa helped clean Anderson

      up, Sousa saw that Anderson had a cut on his finger. Sousa believed that all of

      the blood was much more than would have come from just a cut on Anderson’s

      finger. Anderson told Sousa he had been in a fight at Brooks’s house with “a

      person” and that it was “somebody that knew [Brooks].” Id. at 281. Anderson

      mentioned a fire in the house, that he jumped out the window, and that he

      “didn’t know if the person he was fighting was hurt or dead, but he stabbed

      them.” Id. Anderson instructed Sousa not to call the police.


[8]   Sousa noted that Anderson “kept changing his story” and “didn’t seem to know

      what story” to tell him. Id. at 284. Within ten minutes of discovering

      Anderson, Sousa heard the sirens of an ambulance, police car, and fire truck go

      by his apartment. Legge was astonished by the amount of blood on Anderson.

      She “got real concerned that maybe there was more to the story” than

      Anderson had told them. Id. at 319. Sousa inquired about Brooks’s well-being

      and Anderson said that he did not know, “that she had a few blows to the

      face,” but that he believed that “she was okay.” Id. at 284. Anderson asked

      Sousa if he could sleep on his couch, and Sousa obliged. Sousa felt uneasy, so

      he did not go back to sleep.


[9]   Around 11:00 that morning, Anderson asked Sousa to drive him somewhere.

      Sousa and another individual who had been asleep in Sousa’s apartment,

      Patrick Florant, subsequently drove Anderson and dropped him off at a burger

      place. Before they left, Florant noticed blood on Anderson’s pants. Anderson

      and Florant spoke a little bit, and Anderson told Florant not to call police.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1003-CR-162 | April 28, 2016   Page 5 of 16
       Anderson was behaving “[a] little sketchy” in the car and “was laying down

       like he didn’t want to be seen.” Id. at 287. Florant wanted Anderson out of his

       car because of the “odd” way he was acting. Id. at 301. Florant was afraid of

       the “repercussions” because of whatever was “going on” with Anderson. Id.


[10]   An autopsy of Brooks’s body was performed by forensic pathologist Dr. Joseph

       Prahlow. Dr. Prahlow found multiple external injures to the body including “at

       least a couple dozen” blunt force injuries, several sharp force injuries, as well as

       additional injuries suggesting the possibility of strangulation. An internal

       examination also revealed that Brooks endured significant brain trauma as well

       as bleeding around the brain. The examination also revealed thermal injuries

       caused by smoke and soot inhalation. Regarding the sharp force injuries,

       Brooks had some “superficial or shallow” stab wounds and “three definite stab

       wounds.” Id. at 384. One of the stab wounds went through the left side of her

       neck, cut her epiglottis, broke through a bone in her neck, and exited the right

       side of her neck. Another stab wound was seven inches in length, stretching

       from her left elbow to her shoulder, and cut through muscles and soft tissue in

       her arm. While all of the stab wounds would have caused significant bleeding,

       Dr. Prahlow opined that none of them “would be considered rapidly lethal.”

       Id. at 387. Similarly, the blunt force head injuries “were not instantaneously

       lethal.” Id. at 388. The evidence of the thermal injuries caused by smoke and

       soot inhalation indicated that Brooks was still breathing during the fire and that

       although all of her other injuries “did not kill her by themselves, [] they

       certainly could have.” Id. at 388. Dr. Prahlow opined that the cause of


       Court of Appeals of Indiana | Memorandum Decision 71A04-1003-CR-162 | April 28, 2016   Page 6 of 16
       Brooks’s death was “a combination of blunt force, sharp force, possible

       strangulation, thermal and smoke and soot inhalation.” Id. at 393.


[11]   Various items of evidence were collected from the crime scene which revealed

       the presence of Anderson’s DNA. His DNA was found on a red stain on the

       latch of the back gate in the yard, and a white shirt found on Brooks’s bed had

       numerous reddish-brown stains that contained both Anderson’s and Brooks’s

       DNA. A knife was also found in the home that had reddish-brown staining.

       DNA testing revealed Anderson’s DNA on the knife handle and Brooks’s DNA

       on the blade.


[12]   The State charged Anderson with two counts of class B felony arson and one

       count of murder. A four-day jury trial began on December 14, 2009. Anderson

       testified at trial. He claimed that, after he and Brooks went to bed, three men

       entered Brooks’s bedroom and attacked them. He said that one of the men had

       a gun. The man with the gun set fire to one of the sheets on the bed. Anderson

       stated that he saw the men stab Brooks. He claimed that he fought with the

       men, and maybe even killed one of them, before he was eventually able to

       escape. He stated that he heard Brooks screaming as he ran away. In response

       to the prosecutor’s question on cross-examination, Anderson admitted that he

       had never told law enforcement this version of events prior to trial. The jury

       found Anderson not guilty of arson but guilty of murder. A sentencing hearing

       was held on February 12, 2010. The trial court sentenced Anderson to fifty-five

       years executed in the Department of Correction. This appeal ensued.



       Court of Appeals of Indiana | Memorandum Decision 71A04-1003-CR-162 | April 28, 2016   Page 7 of 16
                                      Discussion and Decision

            Section 1 – Anderson has failed to establish fundamental
                                    error.
[13]   Anderson first claims that the State violated his rights under the Fifth

       Amendment to the United States Constitution when, during cross-examination

       and closing argument, the prosecutor commented on his “post-detention

       silence.” Appellant’s Br. at 10. Anderson points to the following questions

       asked of him during the State’s cross-examination:


               Q: And with respect to the final count in this case, murder, you
               agree that Dawn Brooks was a living breathing human being
               before April 21?

               A: Yes, she was, sir.

               Q: That she was killed at the hands of another human being?

               A: Yes, sir.

               Q: And that wasn’t some sort of weird accident?

               A: No.

               Q: Somebody attacked her?

               A: Yes.

               Q: Again, you’re just saying that wasn’t you?

               A: Yes, it wasn’t me, sir.

               Q: You’re saying it was these three guys that you have a

       Court of Appeals of Indiana | Memorandum Decision 71A04-1003-CR-162 | April 28, 2016   Page 8 of 16
               description about now today?

               A: Yes, sir.

               Q: That you assume pretty strongly was an ex-boyfriend?

               A: It seemed like it. I’m not going to say it was. Didn’t nobody
               tell me. It seemed like it.

               Q: And so because you loved Dawn, certainly you would want
               the correct person in this case discovered and arrested, right?

               A: Of course.

               Q: So you wait until the morning of trial testimony to give
               information about the suspects to law enforcement?

               A: I was advised by my lawyers not to say nothing.


       Tr. at 693-95.


[14]   Anderson also points to the following excerpt from the State’s closing

       argument:

               Mr. Anderson testified that he loved Dawn. Loved her. Was his
               girlfriend. He felt like less of man because he couldn’t buy her
               pretty things on her birthday. He could have been a hero. He
               just defended his woman with honor by throwing a guy into a
               corner of that cabinet thing. Instead, a guy who doesn’t feel like
               a man because he can’t buy her a thing, runs away for hours and
               hours and hours, knowing that she’s still alive in a burning house
               without saying a flipping thing to anybody? Are you kidding me?

               Speaking of not saying a thing to anybody, he told you he didn’t
               tell anybody this story before. He told some of the folks at

       Court of Appeals of Indiana | Memorandum Decision 71A04-1003-CR-162 | April 28, 2016   Page 9 of 16
               Indiana, although what they said he told them was not what you
               heard today. He didn’t tell the police back then. He didn’t tell the
               fire guys when they’re swarming all over the neighborhood and
               at Dawn’s house. In fact, he didn’t tell anybody that could do
               anything about it until he came and sat on the stand in trial. He
               claims to have information about the attackers, information not
               just about their physical descriptions, but his assumptions about
               who they might be. He doesn’t offer that to anybody so that
               anybody could be followed up on, so that people could be
               questioned about Dawn’s ex-boyfriend[s] or acquaintances or
               anything like that.

               He doesn’t say, hey, I think I might even killed a guy. He bashed
               his head, and he was bleeding, and all the stuff you scraped up,
               check some of that to see if it is his blood. Anything that could
               have been verified, or stated differently, anything that could have
               been positively disproved. What did he do? He waited until he
               sat here. This from a man who claims to be in love with Dawn.
               This from a man who claims to be a human being trying to do
               the right thing and just too flustered to do it.


       Id. at 725-26.


[15]   Although not specifically framed us such, we discern that Anderson is claiming

       that the prosecutor committed misconduct in the form of what is referred to as a

       Doyle violation. In Doyle v. Ohio, 426 U.S. 610, 619 (1976), the United States

       Supreme Court held that using a defendant's post-arrest, post-Miranda silence to

       impeach an exculpatory story told for the first time at trial violated the

       defendant's due process rights. “Doyle rests on the fundamental unfairness of

       implicitly assuring a suspect that his silence will not be used against him and

       then using his silence to impeach an explanation subsequently offered at trial.”

       Barton v. State, 936 N.E.2d 842, 850 (Ind. Ct. App. 2010), trans. denied (2011).
       Court of Appeals of Indiana | Memorandum Decision 71A04-1003-CR-162 | April 28, 2016   Page 10 of 16
       “The key to Doyle is that it protects the defendant from being found guilty

       simply on the basis of a legitimate choice to remain silent.” Trice v. State, 766

       N.E.2d 1180, 1183-84 (Ind. 2002). 1 While Anderson frames the issue as a

       violation of his Fifth Amendment privilege against self-incrimination, a Doyle

       violation is actually a violation of the Fourteenth Amendment’s Due Process

       Clause prohibition against fundamental unfairness. Sobolewski v. State, 889

       N.E.2d 849, 856 (Ind. Ct. App. 2008), trans. denied.


[16]   Because Anderson’s trial counsel failed to object to the prosecutor’s questions

       or comments, request a jury admonishment, or move for a mistrial, Anderson

       maintains that the prosecutor’s conduct constituted fundamental error. 2 We

       review a claim of prosecutorial misconduct by determining (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. Ryan v. State, 9 N.E.3d 663, 667

       (Ind. 2014) (citation and quotation marks omitted). Where, as here, a




       1
         We note that “[w]here a defendant asserts a Doyle violation, he ‘ordinarily bears the burden of showing that
       Miranda warnings were given prior to the post-arrest silence used by the state for impeachment purposes.’”
       Lainhart v. State, 916 N.E.2d 924, 936 (Ind. Ct. App. 2009) (quoting 3 WAYNE R. LAFAVE, Criminal Procedure
       § 9.6(a) n.47 (3d ed. 2007)). Although the State contends that Anderson has not met that burden, we think
       that the record belies any assertion that Anderson was not Mirandized at some point prior to trial. He was
       arrested and detained in the St. Joseph County Jail pending trial, so we will presume that he received the
       standard advisement of his constitutional rights at the time of his arrest and booking. Also, Anderson’s
       statement on the witness stand that “I was advised by my lawyers not to say nothing” indicates that he was
       aware that he had a legitimate choice to remain silent. Tr. at 695.

       2
        “To preserve a claim of prosecutorial misconduct, the defendant must—at the time the alleged misconduct
       occur—request an admonishment to the jury, and if further relief is desired, move for a mistrial.” Ryan v.
       State, 9 N.E.3d 663, 668 (Ind. 2014).

       Court of Appeals of Indiana | Memorandum Decision 71A04-1003-CR-162 | April 28, 2016             Page 11 of 16
       defendant fails to properly preserve his claim, he must establish both that the

       grounds for prosecutorial misconduct are present and that the prosecutorial

       misconduct constituted fundamental error. Id.


[17]   “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.’” Id. at

       668 (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)). Indeed, 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 constituted clearly blatant violations of basic and elementary

       principles of due process and presented an undeniable and substantial potential

       for harm. Id. “An alleged Doyle violation is of constitutional magnitude and

       may be reviewed under the fundamental error doctrine.” Sobolewski, 889

       N.E.2d at 857.


[18]   First, our review of some of the closing argument reveals that, for the most part,

       the prosecutor was referring not to Anderson’s post-Miranda silence but to his

       pre-arrest failure to mention his version of events regarding the three attackers

       to the multiple witnesses, firemen, and law enforcement personnel whom he

       encountered shortly after he and Brooks were allegedly attacked, but before he

       was arrested. Therefore, Doyle was not implicated, as a prosecutor’s comment

       on a defendant’s pre-arrest, pre-Miranda silence is not prohibited. Jenkins v.

       Anderson, 447 U.S.231, 240 (1980) (impeachment by use of pre-arrest silence

       does not violate the Fourteenth Amendment).

       Court of Appeals of Indiana | Memorandum Decision 71A04-1003-CR-162 | April 28, 2016   Page 12 of 16
[19]   As far as the challenged cross-examination questions and the remainder of the

       closing argument, we conclude that even assuming that the prosecutor’s

       comments are deemed a Doyle violation, any such violation did not amount to

       fundamental error. To determine whether a Doyle violation denied a defendant

       a fair trial, we must examine five factors: (1) the use to which the prosecution

       puts the post-Miranda silence; (2) who elected to pursue the line of questioning;

       (3) the quantum of other evidence indicative of guilt; (4) the intensity and

       frequency of the reference; and (5) the availability to the trial court judge of an

       opportunity to grant a motion for mistrial or to give curative instructions.

       Barton, 936 N.E.2d at 852-53.


[20]   Regarding the first two factors, the State elected to briefly refer to Anderson’s

       post-Miranda silence to impeach his novel claim at trial that he and Brooks were

       attacked by three men and that those men were responsible for the murder. As

       to the quantum of other evidence indicative of Anderson’s guilt, the jury heard

       extensive circumstantial evidence, as well as DNA evidence found on one of

       the murder weapons, which clearly implicated Anderson in the murder. As to

       the intensity and frequency of the prosecutor’s reference to Anderson’s post-

       arrest silence, it was brief and did not comprise a substantial part of the State’s

       case against Anderson. The State’s cross-examination of Anderson comprises

       forty-four pages of the record, only two of which involve the prosecutor’s

       questions regarding Anderson’s post-arrest silence. Moreover, during closing

       argument, the prosecutor concentrated primarily on the ample circumstantial

       evidence of Anderson’s guilt and did not emphasize his post-Miranda silence.


       Court of Appeals of Indiana | Memorandum Decision 71A04-1003-CR-162 | April 28, 2016   Page 13 of 16
       Finally, regarding the trial court’s opportunity to give a curative instruction or

       grant a mistrial, Anderson failed to bring any concerns to the attention of the

       court, and we do not believe that Anderson has demonstrated that the trial

       court should have sua sponte recognized an undeniable or substantial potential

       for harm, as there was none. Under the circumstances presented, we cannot

       say that the State’s minimal reference to Anderson’s post-Miranda silence made

       a fair trial impossible. Consequently, we conclude that even if prosecutorial

       misconduct in the form of a Doyle violation occurred, it did not amount to

       fundamental error.


           Section 2 – The trial court did not abuse its discretion during
                                    sentencing.
[21]   Anderson next asserts that the trial court abused its discretion during

       sentencing. 3 Sentencing decisions rest within the sound discretion of the trial

       court and are reviewed on appeal only for an abuse of discretion. Anglemyer v.

       State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An

       abuse of discretion occurs when the decision is clearly against the logic and

       effect of the facts and circumstances. Id. A trial court abuses its discretion

       during sentencing by: (1) failing to enter a sentencing statement, (2) entering a

       sentencing statement that explains reasons for imposing sentence but the record

       does not support the reasons, (3) entering a sentencing statement that omits




       3
        Although Anderson mentions this Court’s sentence revision powers pursuant to Indiana Appellate Rule
       7(B), he offers no 7(B) analysis or argument. Accordingly, we do not address it.

       Court of Appeals of Indiana | Memorandum Decision 71A04-1003-CR-162 | April 28, 2016       Page 14 of 16
       reasons that are clearly supported by the record and advanced for consideration,

       or (4) considering reasons that are improper as a matter of law. Kimbrough v.

       State, 979 N.E.2d 625, 628 (Ind. 2012).


[22]   The trial court here found one aggravating factor and one mitigating factor, and

       imposed the advisory sentence of fifty-five years for the murder. Anderson

       contends that the trial court abused its discretion in finding the manner in

       which the murder was committed as an aggravating factor. It is well settled

       that the nature and circumstances of a crime may properly be considered as an

       aggravator. Anglemyer, 868 N.E.2d at 492; McCann v. State, 749 N.E.2d 1116,

       1120 (Ind. 2001). Nevertheless, Anderson takes issue with the trial court’s brief

       reference during sentencing to him setting fire to the house after he attacked

       Brooks. Anderson claims that this reference indicates that the court improperly

       relied upon arson, a crime of which he was acquitted, as the reason for finding

       the nature and circumstances of the crime as an aggravating factor. We

       disagree.


[23]   The trial court’s sentencing statement makes clear that the trial court considered

       the forensic pathology testimony, which detailed the extreme violence and

       torture inflicted upon Brooks by Anderson with a knife, as well as blunt force

       trauma and possible strangulation, all while Brooks remained alive and

       breathing. The court emphasized the suffering endured by Brooks and the fact

       that Anderson knew that she was still alive and admittedly had the opportunity

       to get her help, but that he chose to run and explicitly instructed others not to

       call the police or summon help. The court’s reference to Anderson setting the

       Court of Appeals of Indiana | Memorandum Decision 71A04-1003-CR-162 | April 28, 2016   Page 15 of 16
       fire was by no means the linchpin of its otherwise proper consideration of the

       nature and circumstances of the crime as an aggravator, and thus we find no

       abuse of discretion.


[24]   Affirmed.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1003-CR-162 | April 28, 2016   Page 16 of 16
