MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                       Dec 14 2017, 10:37 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.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
James D. Crum                                           Curtis T. Hill, Jr.
Coots, Henke & Wheeler, P.C.                            Attorney General of Indiana
Carmel, Indiana
                                                        Angela N. Sanchez
                                                        Supervising Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Colton Duria Lee,                                       December 14, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        29A02-1708-CR-1689
        v.                                              Appeal from the Hamilton
                                                        Superior Court
State of Indiana,                                       The Honorable Gail Bardach,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        29D06-1703-F6-1938



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017        Page 1 of 11
                                          Case Summary
[1]   Colton Duria Lee (“Lee”) appeals his conviction, following a jury trial, for

      battery resulting in moderate bodily injury as a Level 6 felony.1 We affirm.



                                                   Issues
[2]   Lee raises the following issues on appeal:


                I.       Whether the trial court committed fundamental error
                         when it allowed a police officer’s testimony that Lee did
                         not wish to speak to police after receiving Miranda
                         warnings.


                II.      Whether Lee received ineffective assistance of trial
                         counsel.


                               Facts and Procedural History
[3]   On March 2, 2017, Lee and Benjamin Sanders (“Sanders”) were housed in the

      same cell block of the Hamilton County Jail. Sanders was injured on that day

      and, on March 16, the State charged Lee with battery of Sanders, resulting in

      moderate bodily injury. Sanders testified at Lee’s June 20 jury trial that, on

      March 2, he and Lee argued over a sketch pad and Lee then “ran up on

      [Sanders] and pushed” him. Tr. Vol. II at 88. Sanders said he “caught a little




      1
          Ind. Code § 35-42-2-1(e).


      Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017   Page 2 of 11
      bit of air and then landed” on a metal chair that was bolted to the ground in a

      common area of the cell block. Id. at 89.


[4]   Sanders testified that he was not able to move or breathe properly after he

      landed on the chair. At first, he thought the pain and discomfort would pass

      and he returned to his cell. However, the pain did not pass but became worse,

      and he could not take deep breaths. Sanders testified that the pain was the

      worst pain he ever felt in his life.


[5]   Suzanne Deegan (“Deegan”), the jail nurse, also testified at the jury trial. She

      stated that jail officials brought Sanders to her that same day, and, when she

      examined him, he was unable to breathe deeply; he was sweaty and pale; and

      “he acted like he was in a lot of discomfort.” Id. at 112. Deegan observed a

      large red mark on Sanders’ right “flank,” and she determined that Sanders

      needed to be treated at a hospital emergency room. Id. Before Sanders was

      transported to the hospital, he told Deegan that Lee was the person who had

      pushed him into a chair, causing his injuries.


[6]   Sanders remained at the hospital for four days, after which the jail placed him

      in its medical ward for two additional days for monitoring and treatment of his

      pain. Sanders testified that, while he was conscious at the hospital, medical

      personnel made an incision in his side and inserted a chest tube, which caused

      him additional pain. Deegan also testified that, while Sanders was at the

      hospital, she called the hospital to obtain an update on his condition, as she

      typically does in order to obtain treatment information and provide updates for


      Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017   Page 3 of 11
      ongoing care to the jail’s doctor and other jail medical personnel. She testified,

      without objection, that the charge nurse from the hospital informed her that

      Sanders did not have a broken rib but did have a collapsing lung. Deegan

      explained that when the lung is either torn or punctured, air seeps out causing

      the lung to collapse. She stated that, when the air leaks slowly, as it appeared

      to be doing in Sanders’ case, that often is the result of a tear rather than a

      puncture in the lung tissue.


[7]   Hamilton County Jail Lieutenant Dustin Castor (“Lt. Castor”) testified at Lee’s

      trial that he was on duty as shift commander at the jail on March 2 when jail

      personnel informed him that an altercation had occurred between two inmates

      and one inmate needed to be sent to the hospital. Lt. Castor said he then went

      to the injured inmate, Sanders, and asked him what had happened. Sanders

      told Lt. Castor that Lee had pushed him. Lt. Castor testified that he later

      reviewed a surveillance video that captured the altercation, but the “video

      quality was horrible.” Tr. Vol. II at 141, 143. However, Lt. Castor testified

      that, from “what [he] could tell from the video,” it “looked like” an inmate

      other than Lee had pushed Sanders. Id. at 141-42.


[8]   Hamilton County Sheriff’s Office Detective Todd Rees (“Det. Rees”) also

      testified at Lee’s trial. He stated that he was the detective assigned to

      investigate how Sanders had been injured on March 2. Det. Rees interviewed

      Sanders at the hospital the day after the injury, and he testified that Sanders

      identified and described Lee as the person who had pushed him onto the chair.

      Det. Rees also showed Sanders a photograph of Lee, and Sanders again

      Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017   Page 4 of 11
       identified Lee, the person in the photograph, as the person who had pushed

       him.


[9]    At the end of Det. Rees’ testimony, the following exchange occurred, without

       objection:


               [Prosecutor:] All right. What’s the next step you took in the
               investigation, if any?


               [Det. Rees:] Then I went back to the Hamilton County Jail[,] and
               me and another detective interviewed approximately six inmates
               in Mr. Lee’s cell. And I ended up interviewing Mr. Lee and read
               him his Miranda Rights and he didn’t want to talk.


               [Prosecutor:] Okay. Any further steps in the investigation?


               [Det. Rees:] I mean, just filled out charging information and sent
               it over.


       Tr. Vol. II at 150.


[10]   On June 20, 2017, the jury found Lee guilty as charged, and, on June 28, the

       trial court sentenced him accordingly. This appeal ensued.



                                 Discussion and Decision
                                            Doyle Violation
[11]   Citing Doyle v. Ohio, 426 U.S. 610 (1976), Lee contends that the trial court erred

       in allowing Det. Rees to testify that Lee did not wish to speak to police after


       Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017   Page 5 of 11
       receiving Miranda warnings. In Doyle, the United States Supreme Court held

       that using a defendant’s post-arrest, post-Miranda silence to impeach an

       exculpatory explanation offered for the first time at trial violated the

       defendant’s due process rights. Id. at 618; see also Wainwright v. Greenfield, 474

       U.S. 284, 292 (1986) (applying Doyle to also prohibit use of a defendant’s

       silence to establish guilt). The Doyle principle “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, or “as affirmative proof in the State’s case in chief.” Kubsch v. State, 784

       N.E.2d 905, 914 (Ind. 2003).


[12]   However, as an initial matter, we observe that Lee admittedly failed to object at

       trial to Det. Rees’ testimony regarding Lee’s silence. It is well-established that

       we generally will not address an argument that was not raised in the trial court

       and is raised for the first time on appeal.


               [A] trial court cannot be found to have erred as to an issue or
               argument that it never had an opportunity to consider.
               Accordingly, as a general rule, a party may not present an
               argument or issue on appeal unless the party raised that
               argument or issue before the trial court. Marshall v. State, 621
               N.E.2d 308, 314 (Ind. 1993). In such circumstances the
               argument is waived. Id.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017   Page 6 of 11
       Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004). By failing to raise his

       objection to Det. Rees’ testimony at trial, Lee has waived our review of that

       issue.


[13]   Waiver notwithstanding, we find no Doyle violation.2 The rule articulated in

       Doyle is not “‘a prima facie bar against any mention whatsoever of a

       defendant’s right to request counsel, but instead guards against the exploitation

       of that constitutional right by the prosecutor.’” Willsey v. State, 698 N.E.2d 784,

       793 (Ind. 1998) (quoting Lindgren v. Lane, 925 F.2d 198, 202 (7th Cir. 1991)).

       The crucial constitutional question “is ‘the particular use to which the post-

       arrest silence is being put.’” Id. (citing Lindgren, 925 F.2d at 202). “A jury’s

       knowledge that a defendant initially remained silent is not a problem when that

       knowledge is not used to subvert the defense in Doyle fashion.” Mendenhall v.

       State, 963 N.E.2d 553, 565 (Ind. Ct. App. 2012), trans. denied.


[14]   Here, the testimony of Det. Rees that Lee now challenges is, in full: “And I

       ended up interviewing Mr. Lee and read him his Miranda Rights and he didn’t

       want to talk.” Tr. Vol. II at 150. The prosecutor did not specifically elicit that

       information from Det. Rees, nor did the prosecutor—or anyone else—make

       prior or further mention of that information. Certainly no one urged the jury to

       draw any conclusion from Lee’s decision not to speak to the police. Thus,

       unlike in Doyle, the State did not put Lee’s post-arrest silence to any improper



       2
         Because we find no Doyle error, we need not address Lee’s contention that the fundamental error exception
       to waiver applies.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017       Page 7 of 11
       use, either as evidence of guilt or to impeach him. And, the mere mention of

       Lee’s post-arrest silence, alone, does not constitute a Doyle violation.

       Mendenhall, 963 N.E.2d at 565.


                         Ineffective Assistance of Trial Counsel
[15]   Lee asserts that his trial counsel was ineffective for failing to object to Det.

       Rees’ testimony regarding Lee’s post-Miranda silence and to the testimony of

       the jail nurse, Deegan, regarding the hospital’s diagnosis of Lee’s condition. 3

       As the Indiana Supreme Court has observed, we


                review claims of ineffective assistance of counsel under the two
                components set forth in Strickland v. Washington, 466 U.S. 668,
                104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must
                show that counsel’s performance was deficient. Id. at 687, 104
                S.Ct. 2052. This requires a showing that counsel’s representation
                fell below an objective standard of reasonableness, id. at 688, 104
                S.Ct. 2052, and that the errors were so serious that they resulted
                in a denial of the right to counsel guaranteed the defendant by the
                Sixth Amendment, id. at 687, 104 S.Ct. 2052. Second, the
                defendant must show that the deficient performance prejudiced
                the defendant. Id. To establish prejudice, a defendant must
                show that there is a reasonable probability that, but for counsel’s
                unprofessional errors, the result of the proceeding would have
                been different. Id. at 694, 104 S.Ct. 2052. A reasonable
                probability is a probability sufficient to undermine confidence in
                the outcome. Id.




       3
         Because he raises a record-based claim of ineffective assistance of trial counsel, Lee properly raises the
       claim on direct appeal. See Woods v. State, 701 N.E.2d 1208, 1211-12 (Ind. 1998).

       Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017             Page 8 of 11
       Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002).


[16]   We will not second-guess trial counsel’s strategy and tactics unless they are so

       unreasonable that they fall outside objective standards. See, e.g., Benefield v.

       State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011). Isolated mistakes, poor

       strategy, inexperience, and instances of bad judgment do not necessarily render

       representation ineffective. Wentz, 766 N.E.2d at 361. And if a claim of

       ineffective assistance of counsel can be disposed of by analyzing the prejudice

       prong alone, we will do so. Benefield, 935 N.E.2d at 797 (citing Wentz, 766

       N.E.2d at 360).


[17]   Here, we need not address whether trial counsel’s performance was deficient

       because, even if it was, Lee has failed to show a reasonable probability that, but

       for counsel’s alleged errors, the result of his trial would have been different. As

       noted above, Lee was not harmed by his counsel’s failure to object to testimony

       about his post-Miranda silence because there was no Doyle violation. Moreover,

       even if there had been a Doyle violation, Lee failed to establish that the outcome

       of his trial would have been different had Det. Rees’ not been permitted to

       testify that Lee remained silent after Miranda warnings. The victim, Sanders,

       testified that he was acquainted with Lee, and Lee was the person who pushed

       him and caused his injuries. There was evidence that Sanders identified Lee as

       the perpetrator immediately after the incident—to Lt. Castor and to the jail

       nurse, Deegan—and also the next day—to Det. Rees. Given the evidence that

       Lee was the person who pushed Sanders, we cannot say the outcome of Lee’s



       Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017   Page 9 of 11
       trial would have been different without Det. Rees’ testimony mentioning that

       Lee remained silent after being given Miranda warnings.


[18]   Similarly, even if we assume for the sake of argument that Lee’s counsel should

       have objected to the jail nurse’s hearsay testimony regarding Sanders’

       punctured lung, there was sufficient non-hearsay evidence that Sanders suffered

       “moderate bodily injury” to sustain Lee’s conviction. Sanders testified that

       Lee pushed him, causing him to fall onto a metal chair and experience the

       worst pain of his life. Both Sanders and Deegan testified that Sanders had

       trouble breathing and was in pain. Deegan testified that Sanders also had a

       large red mark on his right side, and that his condition was serious enough that

       he needed to be treated at a hospital. And both Sanders and Deegan testified

       that Sanders was, in fact, hospitalized for four days due to the injury caused by

       Lee and placed on the medical ward of the jail for another two days after his

       release from the hospital. That evidence, alone, is sufficient to show that

       Sanders suffered “moderate bodily injury” as a result of Lee’s battery of him.

       Cf., e.g., Whitlow v. State, 901 N.E.2d 659, 661-62 (Ind. Ct. App. 2009) (holding

       that evidence that defendant struck victim, caused her severe pain, and left

       marks on her body was sufficient evidence to show serious bodily injury, even

       though victim did not seek medical attention or take pain medications for her

       injuries). Lee has failed to establish that the outcome of his trial would have

       been different if Deegan had not been permitted to testify that the hospital said

       Sanders had a punctured lung.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017   Page 10 of 11
                                               Conclusion
[19]   Lee waived his Doyle claim by failing to raise it in the trial court. Waiver

       notwithstanding, Lee has failed to show that Det. Rees’ testimony about Lee’s

       silence amounted to a Doyle violation. And Lee has failed to show that he was

       prejudiced by his trial counsel’s alleged ineffective performance.


[20]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1689 | December 14, 2017   Page 11 of 11
