Freddie Rhodes v. State of Indiana (mem. dec.)

FILED

MEMORANDUM DECISION Aug 26 2016, 9:38 am

Pursuant to Ind. Appellate Rule 65(D), CLERK

Indiana Supreme Court

this Memorandum Decision shall not be Court of Appeals

and Tax Court

regarded as precedent or cited before any

court except for the purpose of establishing

the defense of res judicata, collateral

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Douglas M. Grimes Gregory F. Zoeller

Douglas M. Grimes, P.C. Attorney General of Indiana

Gary, Indiana

Ellen H. Meilaender

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Freddie Rhodes, August 26, 2016

Appellant-Defendant, Court of Appeals Cause No.

20A03-1508-CR-1181

v. Appeal from the Elkhart Circuit

Court

State of Indiana, The Honorable Terry C.

Appellee-Plaintiff. Shewmaker, Judge

Trial Court Cause No.

20C01-1409-MR-5

Barnes, Judge.

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Case Summary

[1] Freddie Rhodes appeals his conviction for felony murder. We affirm.

Issues

[2] Rhodes raises several issues, which we revise and restate as:

I. whether the trial court properly denied his

request for a trial separate from his co-

defendant;

II. whether the trial court properly denied his

request to compel discovery;

III. whether the trial court properly required

Rhodes and his co-defendant to share

peremptory challenges;

IV. whether the trial court properly ordered

individualized voir dire with respect to one of

the jurors; and

V. whether the evidence is sufficient to sustain his

conviction for felony murder.

Facts1

[3] Brenda Marsh and her husband lived in Goshen with Brenda’s children,

Daosha, Laqwela, ZaCarra, Zameishia, and Dramar, Laqwela’s boyfriend,

Norman Gray, and their baby, Daosha’s child, and Brenda’s brother, Joe. The

1

Rhodes’s statement of the facts is merely a detailed recitation of the statement of the case. Rhodes fails to

discuss any of the actual facts of the case, despite his challenge to the sufficiency of the evidence. We remind

Rhodes that Indiana Appellate Rule 46(A)(6) provides the statement of facts “shall describe the facts relevant

to the issues presented for review but need not repeat what is in the statement of the case.”

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family knew Rhodes, Deante Dalton, and Dretarrius Rodgers. On the night of

September 14, 2015, Brenda left the house at approximately 10:30 p.m. to take

her mother home. While she was gone, Rhodes, Dalton, and Rodgers arrived

and entered the house. Each had his face covered with a ski mask or bandana,

and each was armed with a handgun.

[4] Rhodes and Rodgers went downstairs to the basement, and Dalton stayed on

the main level of the house. Rhodes and Rodgers pointed their guns at Norman

and Laqwela, who was holding their baby, and demanded, “Where is the

stuff.” Tr. p. 1329. Laqwela recognized the men as Rhodes and Rodgers.

Norman directed the men to the laundry room. In the laundry room, Norman

began fighting with Rodgers and trying to take the gun from him, and Laqwela

ran upstairs with the baby. Rodgers started shooting, and Norman was injured

on his hip, chest, hand, and shoulder. Rodgers was also shot in the neck, wrist,

hip, and buttock, and died from his wounds in the basement.

[5] During the scuffle downstairs, Brenda returned from dropping off her mother.

She recognized Rhodes’s vehicle, which was parked in front of the house.

Brenda walked into the house and encountered a man wearing a ski mask and

carrying a handgun. Brenda recognized the man as Dalton. Dalton aimed his

gun at her and told her to “sit the F-down,” and Brenda responded, “little boy,

this is not Halloween . . . stop playing.” Id. at 655. Dalton then told Brenda to

sit down again, and she realized that he was serious. Dalton was holding her

laptop under his arm. Brenda could hear a “scuffle downstairs” and then heard

four or five quick gunshots. Id. at 660. Brenda then heard footsteps coming up

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the stairs and a second set of two or three gunshots, which were softer than the

others. Immediately after the second set of gunshots, Rhodes came up the

stairs, tapped Dalton on the shoulder, and said, “let’s go.” Id. at 665. The two

men walked outside, and Brenda called 911. Brenda looked out the front door,

and she saw Dalton get in the front passenger seat of Rhodes’s vehicle. As they

drove away, Dalton was hanging out of the window and shooting at the house.

[6] A bullet recovered from Rodgers’s body was a large caliber bullet, possibly a

0.40 or 0.45 caliber. A .380 semi-automatic handgun was found near Rodgers’s

body. No other guns were found in the house. Bullets found on the main level

of the house were all fired by a .38 Special revolver or a .357 Magnum revolver.

[7] The police later located Rhodes’s vehicle, and the Marsh family’s laptop was

inside of it. Dalton admitted to the police that he had gone to the Marsh

residence with Rhodes and Rodgers to rob them. The State charged Rhodes

and Dalton with felony murder. Rhodes filed a motion for a trial separate from

Dalton, which the trial court denied. Rhodes also repeatedly filed motions to

compel the State to produce police reports in discovery, which the trial court

also denied. A jury found Rhodes and Dalton guilty as charged. Rhodes now

appeals.2

2

We affirmed Dalton’s conviction in his direct appeal. See Dalton v. State, No. 20A05-1508-CR-1098, 2016

WL 3556433 (Ind. Ct. App. June 29, 2016).

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Analysis

I. Severance

[8] Rhodes argues that the trial court abused its discretion by denying his motion to

sever his trial from that of his co-defendant, Dalton. Although Rhodes sets

forth the standard for severance of a trial, he fails to apply that standard to this

case and conduct any analysis of the issue. The issue is waived for failure to

make a cogent argument. See Ind. Appellate Rule 46(A)(8)(a) (requiring

argument be supported by coherent reasoning with citations to authority);

Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the failure to

present a cogent argument or citation to authority constitutes waiver of issue for

appellate review).

[9] Waiver notwithstanding, our supreme court has held that several defendants

may be joined in a single prosecution. Lee v. State, 684 N.E.2d 1143, 1147 (Ind.

1997) (citing Ind. Code § 35-34-1-9). However, upon the filing of a motion by a

defendant, the trial court may order a separate trial “whenever the court

determines that a separate trial is necessary to protect a defendant’s right to a

speedy trial or is appropriate to promote a fair determination of the guilt or

innocence of a defendant.” Id. (quoting Ind. Code § 35-34-1-11(b)). The trial

court has discretion to grant or deny a motion for separate trials. Id. However,

a trial court must grant severance if there are mutually antagonistic defenses

and the acceptance of one defense precludes the acquittal of the other

defendant. Id. On appellate review, the trial court’s decision is measured by

what actually occurred at trial rather than what is alleged in the motion. Id.

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[10] In denying Rhodes’s motion for a separate trial, the trial court noted that

“Defendant, by counsel, presented no argument, and offered no reason,

authority or case law in support of his request for separate trials.” App. p. 85.

On appeal, his sole argument is: “Counsel for co-defendant in closing argument

pointed to Rhodes and argued to the jury that Rhodes committed Robbery and

Felony Murder, not his client.” Appellant’s Br. p. 17.

[11] Rhodes and Dalton were charged with the same offense, they were

accomplices, and the same evidence applied to each. Rhodes did not

demonstrate that a separate trial was necessary to protect his right to a speedy

trial or was appropriate to promote a fair determination of his guilt or

innocence. Rhodes also failed to demonstrate that he and Dalton had mutually

antagonistic defenses or that the acceptance of Dalton’s defense precluded his

acquittal. Although Dalton may have argued during closing that Rhodes fired

the fatal shots, given the felony murder charge and accomplice liability

principles, it was irrelevant whether Rhodes or Dalton actually fired the shots.

Consequently, we conclude that the trial court did not abuse its discretion when

it denied Rhodes’s request for a trial separate from Dalton.

II. Discovery

[12] Next, Rhodes seems to argue that the trial court abused its discretion when it

denied his motions to compel discovery. Rhodes’s argument lacks a standard

of review or analysis of the issue. He fails to make a cogent argument, and the

issue is waived. See Ind. Appellate Rule 46(A)(8)(a); Cooper, 854 N.E.2d at 834

n.1.

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[13] Waiver notwithstanding, “[d]ecisions relating to discovery requests are

committed to the discretion of the trial court and will not be reversed absent

clear error in the exercise of that discretion.” Goudy v. State, 689 N.E.2d 686,

695 (Ind. 1997). Rhodes’s argument seems to concern police reports that

summarized witnesses’ statements. “In general, police reports constitute work

product of the prosecutor, and a trial court is powerless to order production of

such reports.” Robinson v. State, 693 N.E.2d 548, 552 (Ind. 1998); see also

Goudy, 689 N.E.2d at 695 (“Unless the privilege has been waived, investigative

police reports are not discoverable and are considered protected as the work

product of the prosecutor.”). Substantially-verbatim witness statements,

however, are subject to discovery. Robinson, 693 N.E.2d at 552. “When a

police report allegedly contains a verbatim witness statement interspersed with

the officer’s work product, ‘in-camera inspection by the trial court should

permit the court to determine whether a document is essentially a verbatim

statement and therefore discoverable or essentially a police report containing

occasional quotations and thus privileged.’” Id. (quoting Crawford v. Superior

Court of Lake County, 549 N.E.2d 374, 376 (Ind. 1990)).

[14] Further, Elkhart County Local Rule 20-CR00-CRDD-14(A) provides, in part:

In any criminal case, each party shall routinely disclose:

1) The names, dates of birth, Social Security Account Numbers,

and last-known addresses of all persons whom that party may

call as witnesses, together with any written or recorded

statements the person may have made, any memoranda containing

substantially-verbatim reports of any oral statements the person may

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have made and summaries of the anticipated testimony of each

potential witness . . . .

(emphasis added).

[15] On appeal, Rhodes argues that he was entitled to receive the reports pursuant to

the local rule.3 Rhodes seems to be confusing the police reports with witness

summaries, which are also required by the local rule and were provided to

Rhodes by the State. The State noted that the police reports were merely

summaries of audio and video interviews, which had already been provided to

Rhodes in discovery. According to the State, the police reports were not

verbatim reports of oral statements or even substantially-verbatim. The State

argued that the police reports were work product that was not required to be

produced in discovery, and the trial court repeatedly denied Rhodes’s requests

for production of those police reports.

[16] Rhodes presents no argument or evidence that the police reports qualified as

substantially-verbatim reports of oral statements, and he cites nothing to

indicate that he requested an in camera inspection by the trial court. Given the

lack of any evidence that the police reports contained substantially-verbatim

witness statements, we cannot say that the trial court abused its discretion by

denying Rhodes’s motions to compel.

3

Rhodes also complains that Dalton’s counsel received the police reports. The State notes that Dalton’s

counsel signed a confidentiality agreement and was provided with the police reports. Rhodes’s counsel, on

the other hand, did not sign a confidentiality agreement.

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III. Peremptory Challenges

[17] Rhodes seems to argue that the trial court erred by ordering that he share

peremptory challenges with his co-defendant Dalton. However, Rhodes’s one-

sentence argument is neither supported by cogent reasoning, citations to the

record, or citation to relevant authority. Consequently, the argument is waived.

See Ind. Appellate Rule 46(A)(8)(a); Cooper, 854 N.E.2d at 834 n.1.

[18] Waiver notwithstanding, we note that Indiana Code Section 35-37-1-3 provides,

in part:

(b) In prosecutions for murder, where the death penalty is not

sought, and Level 1, Level 2, Level 3, Level 4, or Level 5

felonies, the defendant may challenge, peremptorily, ten (10)

jurors.

*****

(d) When several defendants are tried together, they must join in

their challenges.

[19] Similarly, Indiana Jury Rule 18(a) provides:

In criminal cases the defendant and prosecution each may

challenge peremptorily:

*****

(2) ten (10) jurors when neither the death penalty nor life without

parole is sought in prosecutions for murder, and Class A, B, or C

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felonies, including enhancements, and Level 1, 2, 3, 4, or 5

felonies, including any enhancement(s);

*****

When several defendants are tried together, they must join their

challenges.

[20] Although Rhodes and Dalton objected to sharing peremptory challenges, the

trial court overruled their objections and indicated that it would follow Jury

Rule 18(a). Our supreme court has held that the sharing of peremptory

challenges does not constitute reversible error absent a showing of actual

prejudice. Peck v. State, 563 N.E.2d 554, 557 (Ind. 1990). Given the statutory

authority, the jury rule on the subject, and the lack of any showing of actual

prejudice, the trial court did not err by requiring Rhodes and his co-defendant

to share the peremptory challenges.

IV. Voir Dire

[21] Next, Rhodes argues that the trial court abused its discretion and “deprived

Rhodes of a fair trial by treating [a] prospective juror, Juror #5580, different

than other jurors by excusing other prospective jurors from the courtroom to

prevent them from hearing what Juror #5580 said on voir dire.” Appellant’s

Br. p. 17. Again, Rhodes has failed to make a cogent argument, and the

argument is waived. See Ind. Appellate Rule 46(A)(8)(a); Cooper, 854 N.E.2d at

834 n.1.

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[22] Waiver notwithstanding, we note that trial courts have broad discretionary

power in regulating the form and substance of voir dire. Logan v. State, 729

N.E.2d 125, 133 (Ind. 2000). “The decision of the trial court will be reversed

only if there is a showing of a manifest abuse of discretion and a denial of a fair

trial.” Id. “This will usually require a showing by the defendant that he was in

some way prejudiced by the voir dire.” Id. “Individualized voir dire of

prospective jurors may be required where the circumstances are highly unusual

or potentially damaging to the defendant.” Hadley v. State, 496 N.E.2d 67, 72

(Ind. 1986). The use of individual voir dire is a matter that falls within the trial

court’s broad discretionary power in regulating the form and substance of voir

dire examination. Carr v. State, 728 N.E.2d 125, 129 (Ind. 2000).

[23] Here, the prospective juror was questioned about holding one accountable for

his or her actions, and the prospective juror started to raise a different criminal

case as an example. The trial court stopped the questioning and said, “We’re

not going to talk about other cases.” Tr. p. 434. The trial court later allowed

the prospective juror to be questioned outside the presence of the other jurors.

The trial court was concerned that the prospective juror was referring to a

recent felony murder case that had been tried in that court and that a discussion

of the other case would “poison the well.” Id. at 479. Rhodes objected and

requested a mistrial. The trial court overruled the objection and denied the

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motion for a mistrial.4 The trial court was well within its discretion to have the

prospective juror questioned individually given the unusual circumstances, and

Rhodes has not identified how he was prejudiced by the procedure.

V. Sufficiency of the Evidence

[24] Rhodes also argues that the evidence is insufficient to sustain his conviction for

felony murder. When reviewing the sufficiency of the evidence needed to

support a criminal conviction, we neither reweigh evidence nor judge witness

credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider

only the evidence supporting the judgment and any reasonable inferences that

can be drawn from such evidence.” Id. We will affirm if there is substantial

evidence of probative value such that a reasonable trier of fact could have

concluded the defendant was guilty beyond a reasonable doubt. Id.

[25] Rhodes was convicted of felony murder. Under the felony murder statute, the

State was required to prove that Rhodes killed Rodgers while committing or

attempting to commit robbery. Ind. Code § 35-42-1-1(2). The fact that the

robbery resulted in the death of a co-perpetrator does not save Rhodes from

criminal liability for murder. Forney v. State, 742 N.E.2d 934, 938 (Ind. 2001).

Our supreme court has held that the felony murder rule applies “‘when, in

committing any of the designated felonies, the felon contributes to the death of

any person.’” Id. (quoting Palmer v. State, 704 N.E.2d 124, 126 (Ind. 1999)). It

4

Rhodes does not appeal the denial of the motion for a mistrial.

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does not matter “whether the death caused is that of the intended victim, a

passerby or even a co-perpetrator.” Id. at 938-39. Further, our supreme court

has explained:

Where the accused reasonably should have . . . foreseen that the

commission of or attempt to commit the contemplated felony

would likely create a situation which would expose another to

the danger of death at the hands of a nonparticipant in the felony,

and where death in fact occurs as was foreseeable, the creation of

such a dangerous situation is an intermediary, secondary, or

medium in effecting or bringing about the death of the victim.

There, the situation is a mediate contribution to the victim’s

killing.

Palmer, 704 N.E.2d at 126.

[26] Rhodes argues that there was no evidence that he “or others in the house stole

or robbed any person of any property” and that Rodgers’s death was not

reasonably foreseeable. Appellant’s Br. p. 13. Rhodes also summarizes some

of Norman Gary’s testimony and seems to argue that he did not shoot Rodgers.

[27] The State presented evidence that Rhodes, Dalton, and Rodgers entered the

Marsh residence armed with handguns to rob the family. They in fact left the

house with the family’s laptop. Based on the ballistics evidence, the State

points out that “by far the most reasonable inference from the evidence is that it

was [Rhodes] himself who fired the shots that killed Rodgers during this

attempted robbery gone wrong.” Appellee’s Br. p. 18. Moreover, it was

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reasonably foreseeable that engaging in a violent home invasion armed with

handguns would result in someone’s death.5

[28] We addressed the same argument in Dalton’s appeal. There, we concluded that

the evidence was sufficient to sustain Dalton’s conviction for felony murder.

We noted that “the State presented sufficient evidence to prove that Dalton’s

actions, both as a principal and as an accomplice, were a mediate or immediate

cause of Rodgers’s death.” Dalton v. State, No. 20A05-1508-CR-1098, 2016 WL

3556433, at *7 (Ind. Ct. App. June 29, 2016). Similarly, here, Rhodes’s actions,

both as a principal and as an accomplice, were a mediate or immediate cause of

Rodgers’s death. The evidence is sufficient to sustain Rhodes’s conviction.

Conclusion

[29] The trial court properly denied Rhodes’s motion for a separate trial and his

motions to compel discovery. The trial court also properly conducted voir dire

and ordered the sharing of peremptory challenges. Finally, the evidence is

sufficient to sustain Rhodes’s conviction for felony murder. We affirm.

5

Our supreme court recently reversed a felony murder conviction in Layman v. State, 42 N.E.3d 972, 979-80

(Ind. 2015), where a group of young men broke into and entered the residence of a homeowner intending to

commit a burglary and one of the men was killed by the homeowner. Our supreme court pointed out that the

men were unarmed and that they were not engaged in any “dangerously violent and threatening conduct.”

Layman, 42 N.E.3d at 979. “There was simply nothing about the Appellants’ conduct or the conduct of their

cohorts that was ‘clearly the mediate or immediate cause’ of their friend’s death.” Id. at 979-80 (quoting

Palmer, 704 N.E.2d at 126). The court held that, while the evidence was sufficient to sustain a conviction for

the underlying burglary, it was not sufficient to sustain a conviction for felony murder in the perpetration of a

burglary. This case is distinguishable because Rhodes, Dalton, and Rodgers entered the home armed with

handguns and engaged in a violent confrontation with residents of the home.

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[30] Affirmed.

Vaidik, C.J., and Mathias, J., concur.

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