MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be                                          Jul 09 2019, 6:10 am
regarded as precedent or cited before any
                                                                                   CLERK
court except for the purpose of establishing                                   Indiana Supreme Court
                                                                                  Court of Appeals
the defense of res judicata, collateral                                             and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark K. Phillips                                          Curtis T. Hill, Jr.
M. Robert Phillips                                        Attorney General of Indiana
Boonville, Indiana
                                                          Ian McLean
                                                          Supervising Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Isaiah Albert Hagan,                                      July 9, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1953
        v.                                                Appeal from the Warrick Circuit
                                                          Court
State of Indiana,                                         The Honorable Greg A. Granger,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          87C01-1705-MR-203



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019                           Page 1 of 23
                                             Case Summary
[1]   Following a jury trial, Isaiah Albert Hagan (“Hagan”) was convicted of several

      offenses: Murder, a felony;1 Murder While Committing or Attempting to

      Commit Robbery, a felony;2 Robbery Resulting in Serious Bodily Injury, a

      Level 2 felony;3 and Obstruction of Justice, a Level 6 felony.4 Hagan presents

      several appellate issues, which we revise and restate as follows:


                 I.           Whether the trial court abused its discretion when making
                              certain evidentiary rulings, including admitting statements
                              Hagan made to his mother, an employee of the Warrick
                              County Sheriff’s Department, after Hagan had invoked the
                              right to remain silent during a police interrogation.


                 II.          Whether the State hindered the jury’s ability to effectively
                              act as the fact-finder.


                 III.         Whether Hagan was deprived of an impartial judge.


[2]   We conclude Hagan has not identified reversible error. However, three of his

      convictions rely on the same evidence—that Hagan shot his victim—violating

      principles of double jeopardy. We affirm in part, reverse in part, and remand

      with instructions to remedy the violation. In doing so, we note that because




      1
          Ind. Code § 35-42-1-1.
      2
          I.C. § 35-42-1-1.
      3
          I.C. § 35-42-5-1.
      4
          I.C. § 35-44.1-2-2.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019           Page 2 of 23
      Hagan agreed to a fixed sentence of sixty years to avoid the possibility of life

      imprisonment without parole, our disposition does not affect his sentence.



                            Facts and Procedural History
[3]   On April 24, 2017, the body of Halee Rathgeber (“Rathgeber”) was found in a

      parking lot in rural Warrick County, next to a bloody blue towel. She died

      from a gunshot wound to the head. On the day Rathgeber was found, Hagan—

      who lived with his mother Donna Hagan (“Donna”) and father Wandel Hagan

      (“Wandel”)—told Donna he had been with Rathgeber the previous day.

      Donna was a long-time employee of the Warrick County Sheriff’s Department,

      employed at the Warrick County Jail. She suggested that Hagan speak with

      law enforcement to help with the investigation, which Hagan did. Law

      enforcement later searched the residence that Hagan, Donna, and Wandel

      shared. The search produced a blue towel—the same brand as the towel next to

      Rathgeber. Law enforcement also discovered that a handgun was missing.


[4]   The investigation led to an interview with Hagan on April 26, 2017, at the start

      of which Detective Paul Kruse (“Detective Kruse”) read line-by-line from a

      form containing an advisement of rights. This form also contained a Waiver of

      Rights section, which Hagan signed. On April 29, 2017, Detective Kruse again

      met with Hagan, who agreed to another interview at the Sheriff’s Department.

      On the way to the interview, Detective Kruse reminded Hagan “of the waiver

      that he had signed” and “asked if he recalled those rights.” Tr. Vol. II at 153.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019   Page 3 of 23
      Hagan said that he understood. Before the interview began, Detective Kruse

      obtained a blank copy of the advisement form. Hagan again signed the waiver.


[5]   During the interview, Hagan said he had driven Rathgeber to the parking lot

      where her body was found—contradicting a prior statement that he dropped her

      off elsewhere. Hagan also said he had thrown away Rathgeber’s phone after

      finding it in his car. At some point, Hagan said he wanted to talk with Donna.

      Hagan eventually said he was done talking. Law enforcement then arranged a

      meeting with Donna, who was on duty. Donna—in full uniform—met with

      Hagan in a room at the Sheriff’s Department. This meeting was not recorded,

      and Hagan was not given additional advisements prior to meeting with Donna.


[6]   The State later charged Hagan with two counts of Murder—alleging, in one

      count, that Hagan had murdered Rathgeber while committing or attempting to

      commit Robbery. The State also charged Hagan with Level 2 felony Robbery

      Resulting in Serious Bodily Injury and Level 6 felony Obstruction of Justice.

      In addition to these counts, the State filed an enhancement seeking a sentence

      of life imprisonment without parole.5 A jury trial began in early May 2018, but

      resulted in a mistrial. A second jury trial commenced later that month.


[7]   At trial, Donna testified about her meeting with Hagan. At the meeting, Hagan

      told Donna that he accidentally shot Rathgeber. Hagan also told Donna that

      he disposed of the gun in a dumpster behind a liquor store. Despite that




      5
          I.C. § 35-50-2-9.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019   Page 4 of 23
       assertion of accident, there was evidence at trial that Hagan had tried to cover

       his tracks—sending Rathgeber a text message well after discarding her phone.

       There was also evidence that Rathgeber owed Hagan money, and that Hagan

       owed Wandel money. The morning Rathgeber was found dead, Hagan put

       $210 on the counter for Wandel. Later that day, Hagan tried to sell concert

       tickets, claiming he was selling them for Rathgeber. Eventually, Rathgeber’s

       wallet was found along the side of a road. The wallet had no paper bills inside.


[8]    The jury found Hagan guilty of the four substantive counts. Hagan and the

       State then reached an agreement whereby Hagan would avoid life without

       parole, instead serving a sentence of sixty years in the Indiana Department of

       Correction. The trial court sentenced Hagan in accordance with the agreement.


[9]    Hagan now appeals.



                                  Discussion and Decision
                                         Evidentiary Rulings
                              Admission of Statements to Donna
[10]   Hagan challenges the denial of a pretrial motion to suppress evidence. Because

       Hagan is appealing after a completed trial, we reframe this issue as “a request to

       review the court’s decision to admit the evidence at trial.” Carpenter v. State, 18

       N.E.3d 998, 1001 (Ind. 2014). In general, we review evidentiary rulings for an

       abuse of discretion. Timberlake v. State, 690 N.E.2d 243, 255 (Ind. 1997), cert.

       denied. “An abuse of discretion occurs when the ruling is clearly against the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019   Page 5 of 23
       logic and effect of the facts and circumstances.” Snow v. State, 77 N.E.3d 173,

       176 (Ind. 2017). We will affirm an evidentiary ruling “if it is sustainable on any

       basis in the record.” Barker v. State, 695 N.E.2d 925, 930 (Ind. 1998).


[11]   Hagan challenges the admission of his statements to Donna. However, because

       Hagan failed to contemporaneously object to the admission of these statements,

       he has waived this issue for appellate review. See Brown v. State, 929 N.E.2d

       204, 207 (Ind. 2010) (“A contemporaneous objection at the time the evidence is

       introduced at trial is required to preserve the issue for appeal, whether or not

       the appellant has filed a pretrial motion to suppress.”). “A claim that has been

       waived by a defendant’s failure to raise a contemporaneous objection can be

       reviewed on appeal if the reviewing court determines that a fundamental error

       occurred.” Id. This exception is “extremely narrow, and applies only when the

       error constitutes a blatant violation of basic principles, the harm or potential for

       harm is substantial, and the resulting error denies the defendant fundamental

       due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006).


[12]   According to Hagan, his statements to Donna were inadmissible because they

       were obtained in violation of the Fifth Amendment to the United States

       Constitution. Hagan directs us to Miranda v. Arizona, wherein the U.S. Supreme

       Court held that a custodial interrogation jeopardizes “the privilege against self-

       incrimination” conferred by the Fifth Amendment. 384 U.S. 436, 478 (1966).

       To protect this privilege, evidence elicited through a custodial interrogation is

       admissible against the defendant only if he received adequate warnings and

       “knowingly and intelligently” waived his rights. Id. at 479. Moreover, Miranda

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019   Page 6 of 23
       and its progeny protect the right to cut off police questioning. Michigan v.

       Mosley, 423 U.S. 96, 103 (1975). To safeguard this right, when the accused

       invokes the right to remain silent, “[t]he police must cease questioning

       immediately and may resume questioning only after the passage of a significant

       amount of time and after giving a fresh set of Miranda warnings.” Pilarski v.

       State, 635 N.E.2d 166, 170 (Ind. 1994). As to the admissibility of statements

       obtained after the accused invoked the right to remain silent, “[t]he burden

       remains on the State to show the police scrupulously honored the accused’s

       right to remain silent.” Moore v. State, 498 N.E.2d 1, 10 (Ind. 1986).


[13]   Custodial interrogation “refers to questioning initiated by law enforcement

       officers after a person has been taken into custody or otherwise deprived of his

       freedom of action in any significant way.” Pasco v. State, 563 N.E.2d 587, 593

       (Ind. 1990). Moreover, “the term ‘interrogation’ under Miranda refers not only

       to express questioning, but also to any words or actions on the part of the police

       (other than those normally attendant to arrest and custody) that the police

       should know are reasonably likely to elicit an incriminating response from the

       suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (footnotes omitted). At

       bottom, “Miranda’s premise is that ‘the interaction of custody and official

       interrogation’ creates the danger of coercion.” D.Z. v. State, 100 N.E.3d 246,

       249 (Ind. 2018) (quoting Illinois v. Perkins, 496 U.S. 292, 297 (1990)).

       Importantly, however, “that coercion ‘is determined from the perspective of the

       suspect.’” Id. (quoting Perkins, 496 U.S. at 296). Therefore, the U.S. Supreme

       Court has “reject[ed] the argument that Miranda warnings are required

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019   Page 7 of 23
       whenever a suspect is in custody in a technical sense and converses with

       someone who happens to be a government agent.” Id. at 297. Indeed, Miranda

       concerns “are not present” when the accused “speaks freely to someone” whom

       he does not believe is an agent of the police. Id. at 296. In other words, “an

       agency relationship implicates Miranda only if the suspect is aware enough of

       the underlying police involvement to create a ‘coercive atmosphere.’” D.Z., 100

       N.E.3d at 249 (quoting Perkins, 496 U.S. at 296). “[T]he Fifth Amendment

       privilege is not concerned ‘with moral and psychological pressures to confess

       emanating from sources other than official coercion.’” Colorado v. Connelly, 479

       U.S. 157, 170 (1986) (quoting Oregon v. Elstad, 470 U.S. 298, 305 (1985)).


[14]   Evidentiary rulings involving Miranda present “a mixed question of fact and

       law.” State v. Ruiz, No. 19S-CR-336, 2019 WL 2336619, at *3 (Ind. June 3,

       2019). To the extent the ruling turns on a determination of fact, we will not

       reweigh the evidence, and will consider conflicting evidence in a light most

       favorable to the ruling. Id. However, to the extent the ruling turns on a

       question of law, our review is de novo. Id.; cf. Carpenter, 18 N.E.3d at 1001.


[15]   During the April 29 interview with Detective Kruse, Hagan invoked his right to

       remain silent by telling Detective Kruse he was done talking. See Berghuis v.

       Thompkins, 560 U.S. 370, 382 (2010). At that point, Detective Kruse stopped

       interrogating Hagan but proceeded to arrange a meeting with Donna. Hagan

       asserts Donna “was being used as an agent of the State” and that he was




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019   Page 8 of 23
       entitled to an advisement that statements to Donna could be used against him. 6

       Br. of Appellant at 22. Hagan characterizes the meeting as “encouraged and set

       up by the Sheriff’s Department.” Id. at 21. He alleges the police attempted to

       “circumvent Miranda by sending in [Donna] to question him,” id., and that

       arranging the meeting “demonstrates coercion, trickery and deceit,” id. at 22.


[16]   Yet, there is evidence that Hagan insisted on meeting with Donna. At one

       point, Hagan said, “I don’t want to lie to my mom anymore.” App. Vol. 2 at

       78. Detective Kruse tried to persuade Hagan to first explain everything to him,

       telling Hagan that Detective Kruse would then arrange a meeting with Donna.

       Hagan declined, saying: “I would like to be able to talk to [Donna] first, sir. If

       I’m under arrest, then I understand, but I would like to be able to talk to her

       first.” Id. at 79. This exchange indicates Hagan viewed a conversation with

       Donna as a personal conversation with his mother, not with an agent of the

       police. Moreover, Detective Kruse testified he did not give instructions to

       Donna before the meeting—and although law enforcement later asked Donna

       about the conversation, Donna testified she did not feel obligated to meet with

       Hagan and would have met with Hagan even if she did not work for the

       Sheriff’s Department. Further, Donna’s description of the meeting suggests the

       conversation was not the result of questioning but instead somewhat one-sided:




       6
         Hagan also asserts Donna was entitled to an advisement because she could have faced charges had she
       withheld pertinent information, but Hagan cannot obtain relief for the purported violation of Donna’s rights.
       See, e.g., Adler v. State, 225 N.E.2d 171, 172 (1967) (“Constitutional rights are personal, and violation of a
       third party’s constitutional rights cannot be claimed by a defendant in his trial.”).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019                      Page 9 of 23
       “Um, [he] came out and, um, he was crying and upset, um, telling me that he

       was innocent, and he didn’t do this. . . . [H]e said other things, but he was so

       upset I didn’t understand everything that he said.” Tr. Vol. VII at 15.


[17]   Regardless of the employment relationship between Donna and the Sheriff’s

       Department, there is evidence indicating Hagan volunteered the incriminating

       statements during a personal, private meeting with his mother. Because

       “[c]oercion is determined from the perspective of the suspect,” Perkins, 496 U.S.

       at 297, it is inapposite whether law enforcement arranged the meeting with the

       goal of eliciting incriminating statements, see id. (“Ploys to mislead a suspect or

       lull him into a false sense of security that do not rise to the level of compulsion

       or coercion to speak are not within Miranda’s concerns.”). Ultimately, viewing

       the evidence most favorable to the evidentiary ruling, we cannot say Hagan

       made the incriminating statements under improperly coercive circumstances.

       Moreover, we cannot say law enforcement failed to scrupulously honor

       Hagan’s right to remain silent by arranging a requested meeting with Donna.

       We conclude Miranda required no additional advisements, and we discern no

       error—let alone fundamental error—in the admission of the statements.7




       7
         Hagan has directed us only to the Fifth Amendment to the United States Constitution and to the attendant
       procedural safeguards articulated in Miranda. Nevertheless, federal principles of due process independently
       require exclusion of “confessions that were obtained involuntarily.” Dickerson v. United States, 530 U.S. 428,
       434 (2000); see also D.M. v. State, 949 N.E.2d 327, 332-33 (Ind. 2011). The “due process test takes into
       consideration ‘the totality of all the surrounding circumstances—both the characteristics of the accused and
       the details of the interrogation.’” Dickerson, 530 U.S. at 434 (quoting Schneckloth v. Bustamonte, 412 U.S. 218,
       226 (1973)). Courts look to “‘whether a defendant’s will was overborne’ by the circumstances surrounding
       the giving of a confession.” Id. (quoting Schneckloth, 412 U.S. at 226). The Indiana Supreme Court has
       explained that “[t]he issues of voluntariness of a waiver [of rights] and voluntariness of a confession are

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019                       Page 10 of 23
                                          Exclusion of Evidence
[18]   Hagan directs us to certain evidentiary decisions. He points out he was not

       permitted to elicit testimony about a rumor that someone else killed Rathgeber.

       Hearsay—which is generally inadmissible, Ind. Evidence Rule 802—is “a

       statement that: (1) is not made by the declarant while testifying at the trial or

       hearing; and (2) is offered in evidence to prove the truth of the matter asserted,”

       Evid. R. 801(c). A rumor is hearsay, and we discern no applicable exception to

       the rule against hearsay evidence. Next, Hagan points out he was not permitted

       to ask a witness who the witness thought killed Rathgeber. Yet, pursuant to

       Indiana Evidence Rule 704, “[w]itnesses may not testify to opinions concerning

       intent, guilt, or innocence in a criminal case.” Thus, we are not persuaded the

       trial court abused its discretion by limiting cross-examination into these areas.


[19]   Hagan also directs us to the exclusion of two videos. The first was prepared by

       an unidentified person and used by Special Agent Kevin Horan of the Federal

       Bureau of Investigation (“Agent Horan”) early in the investigation. This video

       purportedly depicts the location of cellphones over time, displaying movements

       on a map. Agent Horan used the video to form a preliminary opinion about the

       movements of Hagan’s and Rathgeber’s cellphones, but later reached a different

       opinion about the movements. Hagan now argues the video was admissible,




       similar in that they both require evaluation of the totality of the circumstances,” but that “they are separate
       issues and should be presented, argued, and analyzed as such.” D.M., 949 N.E.2d at 334 n.10. Hagan has
       not presented this separate issue. Nonetheless, for the reasons already discussed, we conclude that admission
       of the statements to Donna did not run afoul of principles of due process.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019                     Page 11 of 23
       claiming it “clearly demonstrates” that Hagan and Rathgeber “were nowhere

       near each other” at a pertinent point in time. Br. of Appellant at 45. However,

       we conclude the video was not relevant because there was no evidence the

       video was accurate or the preparer used reliable methods to map the locations.

       See Evid. R. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact

       more or less probable than it would be without the evidence; and (b) the fact is

       of consequence in determining the action.”). Thus, there was no abuse of

       discretion in exclusion. Evid. R. 402 (“Irrelevant evidence is not admissible.”).


[20]   The second video showed the person rumored to have killed Rathgeber inside a

       car wielding a gun. The video cuts to another man in the car putting something

       blue on his tongue, at which point someone offscreen says: “Acid. Whoa.” Ex.

       S. At trial, Hagan asserted he was “not offering it to prove whether what’s in

       the video is accurate” but instead to question the adequacy of the investigation

       into the person with the gun. Tr. Vol. IX at 217. Yet, Indiana Evidence Rule

       404(b) provides that “[e]vidence of a crime, wrong, or other act is not

       admissible to prove a person’s character in order to show that on a particular

       occasion the person acted in accordance with the character.” The proffered

       video goes beyond connecting a one-time suspect with a weapon—admission of

       the video posed a risk of exposing the jury to prohibited evidence. A trial court

       has latitude to “exclude relevant evidence if its probative value is substantially

       outweighed by a danger of one or more of the following: unfair prejudice,

       confusing the issues, misleading the jury, undue delay, or needlessly presenting

       cumulative evidence.” Evid. R. 403. Here, Hagan had already elicited


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019   Page 12 of 23
       testimony about the third-party suspect, offered a possible motive, and explored

       why law enforcement stopped investigating the person. The video lacked

       probative value. There was no abuse of discretion in excluding this evidence.


[21]   Hagan directs us to a line of cases analyzing whether evidentiary rulings

       deprived a defendant of “a meaningful opportunity to present a complete

       defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v.

       Trombetta, 467 U.S. 479, 485 (1984)). He argues that principles of due process

       entitle him to present exculpatory evidence and present a theory of third-party

       guilt. Yet, we have concluded that the curtailment of cross-examination and

       the exclusion of the videos was proper under the Indiana Rules of Evidence.

       The U.S. Supreme Court has noted: “Only rarely have we held that the right to

       present a complete defense was violated by the exclusion of defense evidence

       under a state rule of evidence.” Nevada v. Jackson, 569 U.S. 505, 509 (2013). In

       Nevada, the Court cited four cases where it had identified a constitutional

       violation despite a proffered justification under a state rule of evidence—in each

       case, the State either “did not even attempt to explain the reason for its rule” or

       the evidentiary rule itself was not defensible. Id. (noting one rule “did not

       rationally serve any discernible purpose,” another was “arbitrary,” and a third

       “could not be rationally defended”). As the instant evidentiary rulings were

       justified under classic principles of evidence, we conclude the challenged rulings

       did not violate the right to due process. See also Montana v. Egelhoff, 518 U.S. 37,

       53 (1996) (explaining that a prior holding that exclusion of certain evidence

       violated constitutional rights “rested not on a theory that all ‘competent,


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019   Page 13 of 23
       reliable evidence’ must be admitted, but rather on the ground that the . . . sole

       rationale for the exclusion . . . was wrong”). In any case, Hagan was permitted

       to present his theory of third-party guilt despite adverse evidentiary rulings.8


                                     Reliance Upon Testimony
[22]   Hagan alleges the State knowingly relied on false testimony.9 Because Hagan

       did not assert this claim at trial, we review only for fundamental error. See, e.g.,

       Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009).


[23]   The State may not knowingly rely on false evidence. E.g., Napue v. Illinois, 360

       U.S. 264, 269 (1959). “Active or passive behavior by the State that hinders the

       jury’s ability to effectively act as the fact-finder is impermissible and may violate

       a defendant’s due process rights.” Smith v. State, 34 N.E.3d 1211, 1220 (Ind.

       2015). “[T]he case law in this area focuses on whether the jury’s ability to

       assess all of the facts and the credibility of the witnesses supplying those facts

       has been impeded to the unfair disadvantage of the defendant.” Id.




       8
         Hagan suggests the State has an independent “duty to introduce exculpatory evidence” at trial. Reply Br. at
       33. We are aware of no such duty. Rather, a trial is an adversarial proceeding—and, as the U.S. Supreme
       Court has explained, even the accused “does not have an unfettered right to offer [evidence] that is
       incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Montana, 518 U.S. at
       42 (alteration in original) (quoting Taylor v. Illinois, 484 U.S. 400, 410 (1988)).
       9
         Hagan also asserts that certain witnesses gave incredibly dubious testimony. To obtain relief under “the
       incredible dubiosity rule, there must be: ‘1) a sole testifying witness; 2) testimony that is inherently
       contradictory, equivocal, or the result of coercion; and 3) a complete absence of circumstantial evidence.’”
       Smith v. State, 34 N.E.3d 1211, 1221 (Ind. 2015) (quoting Moore v. State, 27 N.E.3d 749, 756 (Ind. 2015)).
       Because there were multiple witnesses, this rule is inapplicable.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019                     Page 14 of 23
[24]   Hagan claims Donna lied at trial. He draws our attention to allegedly

       inconsistent statements Donna made before the trial, contending Donna must

       have been lying at trial because she had not previously said Hagan admitted to

       accidentally shooting Rathgeber. Yet, Donna gave vague pretrial statements—

       relaying, for example, that Hagan “said that he would never intentionally hurt

       somebody.” Tr. Vol. VII at 23. Donna’s trial testimony was not per se

       incompatible with her pretrial statements. Moreover, even if pretrial statements

       were wholly incompatible with trial testimony, the existence of inconsistent

       statements “does not inescapably lead to the conclusion that [the witness] was

       lying” on the stand. Wallace v. State, 474 N.E.2d 1006, 1008 (Ind. 1985).


[25]   Hagan also directs us to trial testimony from a police officer, who said he

       heard—from Wandel—that Hagan told Donna it was an accident. Hagan

       claims the officer must have been lying, and suggests the State must have

       known as much, because this information was not contained in discovery.

       Hagan further asserts that his parents “acted in collusion with one another in an

       attempt to interfere with the evidence to be adduced at trial,” directing us to

       evidence Donna and Wandel at one point discussed trial testimony. Br. of

       Appellant at 26. Moreover, Hagan speculates that “[t]he State clearly took

       advantage of [Donna’s] propensity for lying; her fear of losing her job; or her

       belief that she could outsmart the system by concocting a story that she believed

       created a barrier to the conviction of her son.” Id. at 25. Yet, Hagan ultimately

       falls short of demonstrating the State knew witnesses were giving false testimony

       at trial. Further, to the extent witnesses gave inconsistent statements regarding


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019   Page 15 of 23
       what Hagan told Donna, Hagan subjected witnesses to vigorous cross-

       examination on this issue. Indeed, his cross-examination strategy often focused

       on impeachment through prior statements. Thus, we cannot say the jury was

       impeded in its ability to fully function as an informed fact finder. See Smith, 34

       N.E.3d at 1220-21 (noting, when finding no due process violation, “the defense

       was enabled to, and did, actively emphasize such inconsistencies to the

       defendant’s advantage”). Hagan has not demonstrated fundamental error.


                                           Trial Court Judge
[26]   “A trial before an impartial judge is an essential element of due process.”

       Everling v. State, 929 N.E.2d 1281, 1287 (Ind. 2010) (citing Caperton v. A.T.

       Massey Coal Co., Inc., 556 U.S. 868, 876 (2009)). Indeed, justice “requires that

       litigants (be they civil or criminal) receive equal opportunity to present their

       case to an impartial factfinder.” Bedolla v. State, No. 19S-PC-328, 2019 WL

       2264236, at *4 (Ind. May 28, 2019). Yet, merely asserting bias “does not make

       it so.” Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002). The law presumes a

       judge is unbiased. Id. “[T]o rebut that presumption, a defendant must establish

       from the judge’s conduct actual bias or prejudice that places the defendant in

       jeopardy.” Id. A defendant makes this showing “only where there is an

       undisputed claim or where the judge expressed an opinion of the controversy

       over which the judge was presiding.” Id. “The mere assertion that certain

       adverse rulings by a judge constitute bias and prejudice does not establish the

       requisite showing.” Voss v. State, 856 N.E.2d 1211, 1217 (Ind. 2006).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019   Page 16 of 23
[27]   Hagan identifies several ways the trial court judge allegedly displayed partiality,

       claiming this is a non-exhaustive list.10 We address these contentions in turn.


                                           Pre-trial Confinement
[28]   Hagan points out that, before trial, the judge ordered that Hagan be confined in

       the Pike County Jail—approximately one hour by car from Warrick County—

       and be transported to the Warrick County Jail three days per week for potential

       meetings with counsel. Hagan suggests that, through this arrangement, the

       judge intended to interfere with Hagan’s ability to meet with local counsel and

       prepare his defense. Yet, the record supplies a neutral goal, which was to avoid

       having Hagan confined in the Warrick County Jail while Donna was working.11


                                              Appointed Counsel
[29]   Hagan notes that the judge initially appointed defense attorneys who worked at

       separate firms. Hagan baldly suggests one attorney was appointed because her

       “law partner . . . served as Campaign Manager” for the judge’s campaign. Br.

       of Appellant at 30. This suggestion is not well taken. Nonetheless, this pretrial

       matter does not demonstrate the judge was biased against Hagan.




       10
         Hagan also alleges, without citation to the record, that the judge was incompetent due to illness. As
       Hagan has provided no support for this claim apart from the unverified assertions of counsel in briefing, we
       discern no proper basis for reversal.
       11
          Hagan appears to separately contend that this pretrial arrangement was tantamount to the complete denial
       of the assistance of counsel, resulting in presumed prejudice under United States v. Cronic, 466 U.S. 648 (1984).
       Yet, Hagan has not demonstrated that he was deprived of counsel. Indeed, although the arrangement could
       have posed an obstacle to impromptu in-person meetings, Hagan does not suggest he lacked the ability to
       communicate with counsel on the telephone if counsel was ever unable to travel to Pike County.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019                       Page 17 of 23
                                                Adverse Rulings
[30]   Hagan revives argument that he was entitled to pretrial release under Criminal

       Rule 4(A) because of delays that should not have been attributed to him. Yet,

       an adverse ruling does not demonstrate bias. See Voss, 856 N.E.2d at 1217.

       Similarly, to the extent Hagan directs us to adverse rulings concerning—inter

       alia—the admissibility of evidence and the handling of evidence by the jury, he

       has not demonstrated the rulings were animated by partiality to the State.12


                                 Redaction of Jury Questionnaires
[31]   Hagan claims that “[u]ntil days before the second trial, the trial court ordered

       jury questionnaires to be redacted thereby preventing the defense from engaging

       in meaningful examination of potential jurors.” Br. of Appellant at 34. Yet,

       Hagan does not assert the judge gave the State unredacted questionnaires while

       withholding them from Hagan. Rather, Hagan points out that “[t]he State

       joined in on at least one of these motions.” Id. Thus, we discern no partiality.


                                           Treatment of Counsel
[32]   Hagan asserts the judge demonstrated bias through the treatment of his counsel,

       directing us to different points of the trial. He claims that when counsel was




       12
          Hagan focuses on whether the judge compromised the integrity of evidence by allowing the jury to handle
       exhibits, purportedly affecting future testing of evidence. Assuming arguendo the judge was indifferent to risk
       of contamination, the judge had no way of knowing the outcome of the trial. Thus, the judge would have
       had no way of knowing which party would be prejudiced by an inability to seek reliable testing in the future.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019                      Page 18 of 23
       trying to supplement argument on a motion, the judge told him to sit down. 13

       Yet, the record reflects it was not the judge who said “sit down” but instead

       counsel, with the remark directed toward co-counsel. Tr. Vol. IX at 76. Hagan

       also asserts that when he “complained that the trial judge was doing nothing to

       safeguard Hagan’s rights, the trial judge rose and walked out of the courtroom.”

       Br. of Appellant at 33. Even if abrupt, this action was outside the presence of

       the jury. Moreover, shortly before the recess, counsel had interrupted the judge

       on several occasions and the judge had asked counsel to use a different tone in

       argument to the court. “We afford trial judges ample ‘latitude to run the

       courtroom and maintain discipline and control of the trial.’” In re J.K., 30

       N.E.3d 695, 698 (Ind. 2015) (quoting Timberlake, 690 N.E.2d at 256). The

       judge’s decision to recess does not evince bias.


[33]   Hagan also points out that the judge questioned whether his counsel needed a

       requested bathroom break, despite having previously let a prosecutor leave for

       the bathroom without asking for a recess. Hagan argues this handling of

       bathroom breaks reflected disparate treatment of counsel. Yet, where the

       prosecutor left without requesting a recess, Hagan was seeking a recess. The

       judge questioned whether a break was necessary in light of a recent recess.




       13
         Hagan draws our attention to the treatment of his counsel during argument in support of a motion for
       mistrial. Although Hagan provides background concerning the grounds for this motion, he articulates no
       appellate argument of entitlement to mistrial. We therefore do not further address the denial of this motion.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019                     Page 19 of 23
       Although it might have been better to avoid inquiry into urgency of bathroom

       breaks, we discern nothing more than an attempt to keep the trial moving.


[34]   Next, Hagan directs us to an exchange that took place after the judge observed

       counsel make a remark under his breath. The judge interrupted counsel and

       asked that he repeat the remark, at one point asking counsel whether he wanted

       to be held in contempt. Counsel eventually told the trial court that he had

       “asked my client and my [co-counsel] why you were arguing with me. That’s

       what I asked.” Tr. Vol. VI at 211. The judge then allowed counsel to proceed

       with argument. Hagan argues this exchange demonstrates judicial bias. Yet, it

       appears the judge initiated the exchange because it was concerned counsel

       made a contemptuous remark. “Contempt powers are necessary to protect the

       orderly administration of justice and maintain the authority and dignity of the

       court.” Johnson v. State, 426 N.E.2d 104, 106 (Ind. Ct. App. 1981). “Where

       immediate action is necessary to protect those interests, the court’s interests

       outweigh a defendant’s due process right to a neutral and detached bench.”

       Smith v. State, 893 N.E.2d 1149, 1153 (Ind. Ct. App. 2008).


[35]   Hagan directs us to several other exchanges and also generally asserts the trial

       court made “public derogatory comments directed toward defense counsel.”

       Br. of Appellant at 35. We have reviewed the cited instances and are satisfied

       Hagan was at no point placed in jeopardy through the treatment of his counsel.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019   Page 20 of 23
                                           Discovery Standard
[36]   Hagan alleges the judge “held Hagan to a different standard with regard to

       discovery.” Id. at 34. Contrary to Appellate Rule 46(A)(8)(a), Hagan provides

       no citation to the record to support his claim. Nevertheless, the essence of the

       argument seems to be that, upon the State’s request, Hagan willingly provided

       details about intended witnesses and exhibits. Yet, when Hagan allegedly did

       not receive reciprocal information, the judge would not order the State to

       provide that information. Hagan does not allege the State was obligated to

       volunteer this information, and we discern no bias in declining to order the

       State to do something just because Hagan volunteered additional detail.


[37]   Hagan presents other allegations of bias—weaving the allegations into other

       arguments or otherwise making “catchall” allegations. We have carefully

       reviewed the record, evaluating the allegations individually and as a whole. We

       conclude Hagan failed to rebut the presumption the judge was impartial.


                                           Double Jeopardy
[38]   Hagan has not directed us to reversible error. However, our review of the

       record reveals violations of the principles of double jeopardy, which we may

       address sua sponte when the parties have not done so. See Whitham v. State, 49

       N.E.3d 162, 168 (Ind. Ct. App. 2015), trans. denied. These violations arise from

       three convictions—upon which the court entered judgment of conviction—that

       rely on evidence Hagan shot Rathgeber: (1) Murder; (2) Murder While

       Committing or Attempting to Commit Robbery; and (3) Robbery Resulting in


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019   Page 21 of 23
       Serious Bodily Injury. See Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999)

       (explaining the “actual evidence” test for double jeopardy violations). We may

       remedy a double jeopardy violation “by reducing [a] conviction to a less serious

       form of the same offense if doing so will eliminate the violation.” Id. at 54. To

       cure the instant violations, we remand with instructions to vacate the

       conviction of Murder While Committing or Attempting to Commit Robbery

       and to revise the conviction of Robbery Resulting in Serious Bodily Injury to

       the lesser-included offense of Theft, as a Class A misdemeanor. We otherwise

       affirm the remaining convictions and the sentence.14



                                                   Conclusion
[39]   The trial court did not abuse its discretion by admitting statements Hagan made

       to his mother. The trial court did not abuse its discretion by curtailing lines of

       cross-examination or by excluding two videos, and those evidentiary rulings did

       not violate principles of due process. Hagan has not demonstrated that the

       State hindered the jury’s ability to effectively act as the fact-finder or that he was

       denied an impartial judge. However, because three convictions relied upon the

       same evidence, we remand with instructions to remedy the double jeopardy

       violation.




       14
         Hagan bargained for a sixty-year sentence to avoid a possible sentence of life without parole. Hagan
       expressly reserved the right to appeal his convictions but has waived the right to appeal his sentence. See, e.g.,
       Games v. State, 743 N.E.2d 1132, 1135 (Ind. 2001) (discussing waiver by bargaining for an agreed sentence).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019                        Page 22 of 23
[40]   Affirmed in part, reversed in part, and remanded with instructions.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019   Page 23 of 23
