Kenyatta ERKINS and Ugbe Ojile, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.
No. 58A01-1205-CR-215.
Court of Appeals of Indiana.
April 23, 2013.
Rehearing Denied June 20, 2013.
986 N.E.2d 299
Indiana appellate courts have formally categorized claims for appellate attorney fees into “substantive” and “procedural” bad faith claims. Boczar v. Meridian Street Found., 749 N.E.2d 87, 95 (Ind.Ct.App.2001). To prevail on a substantive bad faith claim, the party must show that the appellant‘s contentions and arguments are utterly devoid of all plausibility. Id. Procedural bad faith, on the other hand, occurs when a party flagrantly disregards the form and content requirements of the rules of appellate procedure, omits and misstates relevant facts appearing in the record, and files briefs written in a manner calculated to require the maximum expenditure of time both by the opposing party and the reviewing court. Id. Even if the appellant‘s conduct falls short of that which is “deliberate or by design,” procedural bad faith can still be found. Id. Finally, we note that even pro se litigants are liable for attorney‘s fees when they disregard the rules of procedure in bad faith. Srivastava [v. Indianapolis Hebrew Congregation, Inc.], 779 N.E.2d [52] at 61 [ (Ind.App.2002) ]; see also Watson v. Thibodeau, 559 N.E.2d 1205, 1211 (Ind.Ct.App.1990) (stating that the court could “cut [the pro se litigants] no slack simply because [they] have no formal legal training.“). Thacker v. Wentzel, 797 N.E.2d 342, 346-47 (Ind.Ct.App.2003).
RLTC contends that Wressell committed procedural bad faith by improperly arguing the fringe benefit issue. RLTC notes that while Wressell devotes a large portion of his fact pattern to the issue of fringe benefits, he does not specifically make an argument regarding fringe benefits framed in a summary judgment context. While this is technically true, Wressell does make an argument regarding the striking of portions of Moorhead‘s affidavit which related to the fringe benefits issue and had no connection with the job classification issues, which we consider sufficient to address the fringe benefits issue on the merits. Suffice it to say that we found Wressell‘s submissions more than adequate to aid our review of the issues raised in this case, and we find nothing in either Wressell‘s Appellant‘s Brief or Reply Brief to warrant a conclusion of procedural bad faith. We decline RLTC‘s request to remand for the calculation of appellate attorney‘s fees.
The judgment of the trial court is reversed and remanded for further proceedings.
RILEY, J., and BROWN, J., concur.
Jeffrey E. Stratman, Aurora, IN, Attorney for Appellant Ugbe Ojile.
Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
CRONE, Judge.
Case Summary
Kenyatta Erkins and Ugbe Ojile (collectively referred to as “Appellants“) spent an evening at a casino during which they were monitored by police. Ojile spent most of the night watching S.M. gamble and saw that he had about $20,000. Erkins waited outside in Ojile‘s girlfriend‘s car. Erkins and Ojile had several cell phone conversations about robbing S.M. that were recorded by the police. Eventually, S.M. reserved a room at the casino. Ojile left the casino and dropped Erkins off at his residence. On his way home, Ojile had another phone conversation with Erkins about robbing S.M. The following day, Ohio police stopped and searched Erkins‘s car and found dark clothing, camouflage gloves, duct tape, and a backpack containing a
Appellants appeal their convictions arguing that (1) the trial court erred in permitting the State to amend the charging information on the second day of trial; (2) the evidence was insufficient to support their convictions for class A felony conspiracy because no actual injury to S.M. occurred, and even if actual injury is not required to sustain their convictions, there was insufficient evidence that they intended and agreed to cause S.M. serious bodily injury; (3) the trial court abused its discretion in admitting the evidence gathered after they left the casino; (4) the trial court abused its discretion in admitting testimony that interpreted the slang used in their phone conversations; and (5) the prosecutor committed misconduct resulting in fundamental error during closing argument by referring to the possible murder of S.M. because it was unsupported by the evidence. Ojile also argues that his counsel provided ineffective assistance by failing to argue the defense of abandonment.
We conclude that (1) the amendment to the charging information was one of form, not substance, and therefore the trial court did not err in permitting the amendment; (2) the evidence was sufficient to show that Appellants intended and agreed to commit a robbery of S.M. that would result in serious bodily injury, which is all that is required to obtain a conviction for class A felony conspiracy to commit robbery resulting in serious bodily injury; (3) the trial court did not abuse its discretion in admitting evidence gathered after Appellants left the casino; (4) most of the testimony interpreting Appellants’ conversation was helpful to the jury and therefore admissible, and any error in admitting inadmissible interpretations was harmless; and (5) the prosecutor did not present argument that was unsupported by the evidence and therefore did not commit misconduct let alone cause fundamental error. We also conclude that Ojile‘s trial counsel did not render ineffective assistance. Accordingly, we affirm Appellants’ convictions.
Facts and Procedural History
The evidence most favorable to the convictions follows. On the evening of October 5, 2010, Ojile and Erkins were being monitored by police as they drove to and from various casinos. The police had obtained a wiretap warrant for Erkins‘s cell phone and a warrant to attach GPS monitors to Erkins‘s vehicle and Ojile‘s girlfriend‘s vehicle. That night, Ojile drove his girlfriend‘s Volkswagen Jetta from Erkins‘s residence to the Hollywood Casino in Lawrenceburg, to the Grand Victoria Casino (now Rising Sun), and then to Belterra Casino in Florence. Finally, they drove back to the Grand Victoria Casino, arriving at 12:50 a.m. Ojile went inside the casino, and Erkins stayed in the car. Ojile remained in the casino for about two and a half hours. Ojile‘s actions in the casino were recorded by the casino‘s surveillance cameras. Except for the times Ojile stepped away to make a phone call, he stood near a card table watching S.M. play cards.
During the early morning hours of October 6, 2010, Ojile and Erkins spoke on their cell phones multiple times. Around 1:00 a.m., Ojile called Erkins and told him that S.M. was playing cards and had about $600 in front of him on the table, but Ojile was going to leave. Ten minutes later, Ojile called Erkins and told him that as he was about to leave, he saw S.M. take what
At 2:48 a.m., Erkins called Ojile to ask what was going on. Ojile told him that he had heard S.M. turn down an offer from the casino for a room, so he knew that S.M. was not going to spend the night at the casino. Ojile told Erkins that “we should go lay on him” because S.M. just won $28,000 on the roulette machine. Tr. at 321; State‘s Ex. 3, 7. Ojile said, “I willing like, go all the way with this mother f* *er.” ... I don‘t think we are going to see any like this like anytime soon.” Id.; State‘s Ex. 3, 7. Ojile told Erkins that S.M. was drunk. Ojile said that he was going to get some chips and something to eat, and Erkins said that was all right.
At 3:37 a.m., Ojile walked out of the casino. At 3:41 a.m., S.M. reserved a hotel room at the casino. At 3:49 a.m., Ojile and Erkins left Grand Victoria Casino and drove to the Hollywood Casino. They stayed there thirty minutes and then drove to Erkins‘s residence. Ojile dropped Erkins off and drove home. While Ojile was driving home, they had another cell phone conversation (the “Last Conversation“), in which they discussed robbing S.M. the following day and agreed that S.M. would not easily surrender his money:
Ojile: Yeah, so I take it‘s a wrap like that‘s a hot area right?
Erkins: I mean, it might not be a wrap but I‘m just saying though like, like just being around there in the day time and s* *t like that going off knowing that that‘s a working neighborhood.
Ojile: Right.
Erkins: You know what I‘m saying? Like it probably still can work [robbing S.M.] but, I just think he gonna be a problem.
Ojile: Yeah, he ain‘t gonna just be no smooth.
Erkins: Yeah I don‘t think he a be smooth.
Ojile: Especially cuz it‘s day, he might just ...
Erkins: Yeah that‘s what I‘m saying like, being day time and you know whatever, whatever, you know really ain‘t got nobody to help, if we kind of like roughed him up and s* *t like that like. I don‘t know, like I said man, them mother f* *ing arabs, be thinking like they like they, they be thinking they niggas and s* *t.
Ojile: Right.
Erkins: They not niggas, cause even a nigga could try to do mother f* *ers be on some bulls* *t. Smack them around a little bit.
Ojile: F* *k.
Erkins: I told you man, seems like everything I told you, like when you see something, told you, mother f* *ers be staying (laughing).
Ojile: Right.
Erkins: That‘s exactly what be happening, mother f* *ers be stayin, you like all hell no. Yep, you can‘t put to much energy in this s* *t.
....
Ojile: Try again tomorrow or something with this s* *t.
Erkins: That‘s it. Yeah, but you know. Like I said, you can‘t be putting too much into it, you know these week,
these weekdays, you know what I mean? Either, either it is or it ain‘t. You know what I mean. It‘s like s* *t, if it ain‘t like just keep it moving, you know cuz I mean like you know s* *t mother f* *ers, think mother f* *ers should put their overtime in on a mother f* *ing weekends man. Them weekdays, man, them days should kind of end earlier, like if you don‘t see, if you don‘t see nothing early it‘s probably just time to just keep it moving.
....
Ojile: But today was kind of true to the situation man, because like dude that got a lot of s* *t man, its pocket gonna look fat, and today was just a test[a]ment to it, you know, it ain‘t like, I seen it fat, I was like man that ain‘t no napkin, you know (laughing).
Erkins: Right, it wanted no (inaudible) sheet.
Ojile: Right, so dude had to go hard when nigga had that bulge, you know what it is (laugh).
....
Erkins: So, you at, you at the crib?
Ojile: No, I‘m not. I‘m a still on Colerain trying to get to 74, but I‘m straight man, so yeah, you wanna stay at home with that nigga, and then uh, we will try tomorrow.
Erkins: Alright.
State‘s Ex. 2, 7.
In the early morning hours of October 7, 2010, Erkins and Ojile drove away from the Hollywood Casino in Erkins‘s Dodge Magnum. At approximately 2:30 a.m., Ohio police stopped and searched Erkins‘s Dodge. Police seized a backpack from the floor in front of the passenger seat in which Ojile had been sitting. The backpack contained several documents with Ojile‘s name on them, a .40 caliber Glock handgun, a BB gun that looked like a handgun, and a .40 caliber cartridge. Police also found dark clothing, camouflage gloves, and a roll of duct tape. Ojile was still wearing the same clothes he had on the night before. Police also searched Ojile‘s apartment and discovered a loaded magazine for the Glock.
On March 10, 2011, Appellants were each charged with one count of class A felony conspiracy to commit robbery resulting in serious bodily injury and one count of class A felony attempt to commit robbery resulting in serious bodily injury. On March 12, 2012, a joint jury trial commenced with the selection of jurors. On the second day of trial, after the jury was sworn but before opening arguments, the State moved to dismiss the attempt charges and to amend the conspiracy charges by substituting Ojile‘s name for Erkins‘s as the person who committed the overt act of surveilling the victim. The motion was granted over Appellants’ objections. The jury found Appellants guilty as charged. They appeal.
Discussion and Decision
I. Amendment to Charging Information
Appellants argue that the trial court erred in permitting the State to amend the charging information on the second day of trial. Appellants were charged with and convicted of conspiracy, which is defined in
(a) A person conspires to commit a felony when, with intent to commit the felony, he agrees with another person to commit the felony. A conspiracy to commit a felony is a felony of the same class as the underlying felony. However, a conspiracy to commit murder is a Class A felony.
(b) The state must allege and prove that either the person or the person with whom he agreed performed an overt act in furtherance of the agreement.
The State‘s charging information originally read:
On or about October 6, 2010, in Ohio County, State of Indiana, Ugbe Ojile and Kennyatta [sic] Erkins, with intent to commit the felony of Robbery Causing Serious Bodily Injury, did agree with one another to commit the felony of Robbery Causing Serious Bodily Injury and Kennyatta [sic] Erkins did perform an overt act in furtherance of said agreement, to-wit: conducted surveillance on [S.M.] at the Grand Victoria Casino.
Ojile‘s App. at 51. The trial court permitted the State to amend the information by changing the identity of the coconspirator who conducted the surveillance from Erkins to Ojile.
Whether an indictment or information may be amended after the commencement of trial depends upon whether the amendment is one of form or substance. An amendment of substance is not permissible after trial has commenced.
“Whether an amendment is a matter of substance or form is a question of law, which we review de novo.” Gibbs v. State, 952 N.E.2d 214, 221 (Ind.Ct.App.2011) (citing Fields v. State, 888 N.E.2d 304, 310 (Ind.Ct.App.2008)), trans. denied (2012). “A defendant‘s substantial rights include a right to sufficient notice and an opportunity to be heard regarding the charge; and, if the amendment does not affect any particular defense or change the positions of either of the parties, it does not violate these rights.” Gomez v. State, 907 N.E.2d 607, 611 (Ind.Ct.App.2009), trans. denied (citation and quotation marks omitted). “Ultimately, the question is whether the defendant had a reasonable opportunity to prepare for and defend against the charges.” Hurst v. State, 890 N.E.2d 88, 95 (Ind.Ct.App.2008), trans. denied (citation and quotation marks omitted).
Appellants contend that by changing the identity of the person performing the act of surveillance, the State changed the nature of their defense, and therefore the amendment was one of substance. Specifically, they assert that they were unable to present a defense that Erkins had not engaged in surveillance of S.M. and therefore no overt act in furtherance of an agreement to commit robbery resulting in serious bodily injury had been committed.
In support of their argument that the amendment was one of substance, Appellants cite Gibbs, 952 N.E.2d 214. Gibbs lived by himself in an apartment within a multi-family residence containing three different apartments. After he set his apart
On appeal, Gibbs argued that the amendments were impermissible substantive amendments. The Gibbs court agreed, explaining as follows:
As Gibbs contended in his objection to the State‘s amendment, he had planned to argue at trial that he was not guilty of the charges as they were originally stated because he did not actually cause damage to Tallie[‘s] and Anthony‘s apartments. Instead, the fires only damaged Gibbs‘[s] apartment. When the State amended the Information to omit Tallie[‘s] and Anthony‘s names from the charges, he was no longer able to make the same defense. Accordingly, the amendment was substantive because his defense was not equally available after the amendment and his evidence did not apply equally to the Information in either form.
Id. at 221 (citation and quotation marks omitted).
Gibbs is not dispositive. There, to sustain a conviction for class B felony arson, the State was required to prove that Gibbs damaged a person‘s property.
In this case, the State was required to prove all the elements of conspiracy. The relevant element in issue is the commission of an overt act. The conspiracy statute provides that the “state must allege and prove that either the person or the person with whom he agreed performed an overt act in furtherance of the agreement.”
In addition, the amendment did not prejudice Appellants’ substantial rights. The probable cause affidavit and all the video surveillance indicated that Ojile was the person in the casino performing the surveillance, and Appellants knew it. See Tr. at 190 (Erkins‘s counsel stating that the
II. Sufficiency of Evidence
Appellants next contend that the evidence is insufficient to support their convictions for class A felony conspiracy to commit robbery resulting in serious bodily injury. Our standard of review is well settled:
In reviewing a claim of insufficient evidence, we will affirm the conviction unless, considering only the evidence and reasonable inferences favorable to the judgment, and neither reweighing the evidence nor judging the credibility of the witnesses, we conclude that no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.
Wieland v. State, 736 N.E.2d 1198, 1201 (Ind.2000).
A person commits the crime of conspiracy when: (1) with intent to commit a felony; (2) the person agrees with another person to commit the felony; and (3) an overt act is performed by the defendant or the person with whom the defendant made the agreement in furtherance of that agreement.
Robbery is defined in
A person who knowingly or intentionally takes property from another person or from the presence of another person:
(1) by using or threatening the use of force on any person; or
(2) by putting any person in fear;
commits robbery, a Class C felony. However, the offense is a Class B felony if it is committed while armed with a deadly weapon or results in bodily injury to any person other than a defendant, and a Class A felony if it results in serious bodily injury to any person other than a defendant.
(Emphasis added.)
“Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes:
(1) serious permanent disfigurement;
(2) unconsciousness;
(3) extreme pain;
(4) permanent or protracted loss or impairment of the function of a bodily member or organ; or
(5) loss of a fetus.
Appellants first contend that the robbery statute requires the actual existence of serious bodily injury because the robbery statute uses “results” and S.M. did not suffer any injury whatsoever. This is an issue of first impression.2
Here, however, Appellants did not actually commit robbery and were not charged with robbery. Appellants were charged with and convicted of conspiracy. By its very nature, conspiracy is a crime of intent and agreement. To sustain a conviction for conspiracy, the State is not required to prove that the crime intended and agreed upon was actually committed or even attempted. Coleman v. State, 952 N.E.2d 377, 382 (Ind.Ct.App.2011). Appellants’ argument that the robbery statute requires actual injury ignores the fact that Appellants’ were charged with conspiracy to commit robbery resulting in serious bodily injury.3 Conspiracy is a felony of the same class as the underlying felony.
Appellants also assert that even if the mere intent to inflict serious bodily injury while committing a robbery supports a conviction for class A conspiracy, there was insufficient evidence that they intended to inflict serious bodily injury on S.M. We disagree. The evidence shows that in the middle of the night Ojile surveilled S.M. for two and a half hours. Meanwhile, Erkins waited in Ojile‘s girlfriend‘s car. During the surveillance, Ojile told Erkins that they “should go lay on [S.M.]” and that he was willing to “go all
III. Admissibility of Evidence Obtained After Appellants Left Grand Victoria Casino
Appellants contend that the recording of their Last Conversation and the items police seized from Erkins‘s car and Ojile‘s apartment were extrinsic to the alleged crime, and therefore were improperly admitted into evidence. “The admission and exclusion of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for abuse of discretion.” Bradford v. State, 960 N.E.2d 871, 873 (Ind.Ct.App.2012). “An abuse of discretion occurs ‘where the decision is clearly against the logic and effect of the facts and circumstances.’ ” Id. (quoting Smith v. State, 754 N.E.2d 502, 504 (Ind.2001)).
A. Recording of Appellants’ Last Conversation
Although a significant portion of the Last Conversation is set forth above, we review it here and add some additional content. In the Last Conversation, Appellants discussed robbing S.M. the following day and the necessity of using violence against S.M. to succeed in the robbery because he was not going to be a “smooth.” State‘s Exhibit 2, 7. Erkins said that no one would be around to help S.M. “if we kind of like roughed him up and s* *t like that like.” Id. Erkins also said, “Smack them around a little bit.” Id. They agreed to try again the next day. Then Erkins stated that they had stayed out late that night and that on weekdays they should not stay out so late. Ojile expressed his excitement about the large amount of money in S.M.‘s pocket, apparently to explain why he had wanted to stay so long. Appellants agreed that on weekdays the cutoff time should be seven to eleven and on weekends eleven to four. Erkins said, “You know what I‘m saying, cause you know mother f* *ers ... are prone to leaving late on the weekends and then the weekdays. The weekdays mother f* *ers are prone to leave early.” Id. Ojile said, “[W]e will try again tomorrow,” and Erkins said, “Alright.” Id.
Appellants argue that the Last Conversation was inadmissible based on
Here, the crime charged was conspiracy to rob S.M. resulting in serious bodily injury. The State had to prove that Appellants intended to rob S.M. resulting in serious bodily injury, had an agreement to rob S.M. resulting in serious bodily injury, and had performed an overt act in furtherance of their agreement. The overwhelming bulk of the Last Conversation was directly related to S.M. The Last Conversation contained evidence that was clearly relevant in establishing that Appellants intended and agreed to rob S.M., that they had spent most of that evening monitoring S.M. (the overt act) and waiting for him to leave because he had an impressive amount of money, that they had not given up on their plan to rob S.M. but were planning to rob him the following day, and that they intended to use violence to rob S.M. To the extent that Appellants discussed hours to go out, that discussion arose because they had stayed out so late that night surveilling S.M., which they concluded was not efficacious. Accordingly, we are unpersuaded by Appellants’ argument that the Last Conversation was extrinsic to the crimes charged. As their assumption underlying their Evidence Rule 404(b) argument is invalid, we need not address that argument further.
Appellants also contend that the Last Conversation was inadmissible based on
Appellants assert that the items police recovered from the search of Erkins‘s car and Ojile‘s residence were inadmissible because they “had no connection to the October 6th alleged crime.” Erkins‘s Br. at 28; Ojile‘s Br. at 26. These items include a .40 caliber Glock handgun, a BB gun that looked like a handgun, a .40 caliber cartridge, dark clothing, camouflage gloves, and a roll of duct tape. In addition, a loaded magazine for the Glock was recovered from Ojile‘s apartment. Appellants argue that the items were unconnected to the alleged offense because they were found in a different car and in a different state, and there was no evidence that they had the backpack on October 6, 2010.
Appellants’ arguments disregard the ongoing nature of their conspiracy. We agree with the State that “[b]ecause the conspiracy was active, the contents of Ojile‘s backpack were relevant and probative, particularly because there was evidence that [Appellants] intended to inflict injury on [S.M.] in the course of the robbery.” Appellee‘s Br. at 22. Appellants’ argument goes to the weight of the evidence rather than its admissibility. See Taylor v. State, 587 N.E.2d 1293, 1300 (Ind.1992) (“We have held that any evidence which connects the defendant with the crime is admissible. We also have held that if evidence only inconclusively connects the defendant with the crime, this goes to the weight, not to the admissibility, of the evidence.“) (citation omitted). As for the loaded magazine found in Ojile‘s apartment, that was relevant and probative to establish ownership of the handgun found in the backpack in Erkins‘s car.
Appellants’ rely on Brown v. State, 747 N.E.2d 66 (Ind.Ct.App.2001), to support their argument that the dark clothing, handgun, duct tape, and ammunition were irrelevant to the charged offenses. Brown was charged with possession of an unlicensed handgun. The Brown court concluded that a shotgun, duct tape, and ski masks were irrelevant to the charged offense and were therefore inadmissible. Appellants contend that the items in Brown are almost exactly like the items found in this case. Appellants ignore that the defendant in Brown was charged with a different crime. Appellants were charged with conspiracy to commit robbery resulting in serious bodily injury, and therefore, the gun, ammunition, mask, dark clothing, and other items were relevant. In fact, the Brown court noted, “There could be instances where such evidence would have been relevant, a burglary or robbery charge for instance.” Id. at 68. We cannot say that the trial court abused its discretion in admitting the items seized from Erkins‘s car and Ojile‘s apartment.
IV. Admissibility of Lay Witness Testimony
The State offered the testimony of Detective Tina Ziegler to provide the jury with an understanding of Appellants’ use of street jargon in their phone conversations. Her testimony follows:
Q. He used the language on the phone call at 1:10 on 10/6/2010—Mr. Ojile said, “cause I don‘t want to waste all night here, but damn, if the nigga leaving, it‘s way worth it man.” What is your interpretation of that?
A. It‘s worth going after him to rob him, because he has so much money.
....
Q. And then he states: “even if this mother f* *er leaves for real, I think we should go lay on him, man.” In your training and experience, what does “go lay on him” mean?
Q. And when he says, “go all the way with this mother f* *er, man” what does he mean by that?
A. Go all the way would mean to do whatever it takes, use whatever act of violence, to rob him.
Q. And, uh, that was Ugbe Ojile that said “we should go lay on him, and go all the way with this mother f* *er, man?”
A. That‘s correct.
....
Q. And when he states—Ugbe Ojile states, “I think he‘s going to leave, man, and even if he don‘t, even to be honest with you, I‘m going to go try see if I can find a sitter for D.J., man” and he says, “I‘m just going to go post up at the crib, man, because I already know where he‘s staying.” What does he mean by, “I‘m going to go post up at the crib, man, because I already know where he staying?”
A. That means he already knows the location of where this target lives and he‘s going to go and wait for him, so that he can rob him.
Q. And in the subsequent phone call, in the last phone call taken—or recorded at 4:57 a.m., when Ugbe Ojile says, “I take it it‘s a rap, like that‘s a hot area, right?” and Kennyatta [sic] Erkins says, “I mean, it might not be a rap, but I‘m just saying, like, just being around there in the daytime and s* *t like that going off, knowing that that‘s a working neighborhood“—what do they mean by that?
A. That means that if they wait until it‘s daylight hours to rob this target, then there‘s too many people around and too many witnesses and it would not be a good idea, so they will not follow through.
....
Q. Um, in your interpretation, in your training and experience, when he says—training and experience as being Cincinnati police officer for eighteen years and dealing with individuals involved in the criminal enterprise and using their lingo, when Kennyatta [sic] Erkins says, “them mother f* *in’ Arabs be thinkin’ like they—like they, they be thinkin’ they like niggas and s* *t“—what is Kennyatta [sic] Erkins referring to?
A. That they may put up a fight and get robbed.
Q. And when Ugbe Ojile says, “yeah, he ain‘t gonna just be no—just be no smoothe [sic],” what does that mean in your training and experience as a law enforcement officer?
A. That means he‘s not going to submit; if he‘s robbed, he is going to fight back.
Q. As stated earlier, they‘re prepared to go all the way with it, correct?
A. Correct.
Tr. at 321-24.
Appellants assert that the trial court abused its discretion in admitting Detective Ziegler‘s testimony because it violated
Appellants contend that Detective Ziegler‘s testimony was not helpful to the jury because the various meanings of their conversations were already clear, and therefore her testimony was inadmissible pursuant to
If the witness is not testifying as an expert, the witness‘s testimony in the form of opinions or inferences is limited
to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness‘s testimony or the determination of a fact in issue.
In support of their argument, Appellants cite United States v. Wilson, 484 F.3d 267 (4th Cir.2007).7 There, a detective for the prosecution interpreted the phrase “he take too long, I‘m going to go see my other man, yo” to mean that if he “keeps on taking forever to supply him, that he‘s going to go to another supplier.” Id. at 276 (citation and quotation marks omitted). The Wilson court concluded that the testimony was unhelpful to the jury, stating that the detective “was not so much interpreting the meaning of [the] quoted language as he was adding language to it,” and the “actual language used ... needed no translation.” Id. at 277. However, the Wilson court concluded that
although the district court erred in failing to exclude [the detective‘s] testimony when that testimony either interpreted language that needed no interpretation, or when [he] did not adequately explain his methodology in reaching a questionable interpretation, the net effect was harmless because the overwhelming majority of [his] expert testimony was properly admitted, that properly admitted testimony was alone sufficient to show Appellants’ guilt with respect to the conspiracy charges, and any prejudice that flowed from the limited amount of improper testimony was outweighed by [the detective‘s] properly admitted expert testimony and the corroborative testimony of coconspirators.
Id. at 278 (footnote omitted).
Although not every phrase of Appellants’ phone conversations needed interpretation, the meanings of the majority of the phrases were not clear to persons who have no knowledge of street slang, and we think that Detective Ziegler‘s interpretation was helpful to the jury. The meanings of phrases such as “go lay on him,” “post up at the crib,” “it‘s a rap, like that‘s a hot area,” “he ain‘t gonna just be no smooth,” “they be thinkin’ they like niggas” are not obvious to people who are unfamiliar with street slang. Tr. at 321-22, 324. However, not all of Appellants’ language needed to be interpreted. The phrase “cause I don‘t want to waste all night here but damn, if the nigga leaving, it‘s way worth it, man,” does not contain any special street slang. Id. at 321. Nevertheless, “[a]n error in the admission of evidence does not justify setting aside a conviction unless the erroneous admission appears inconsistent with substantial justice or affects the substantial rights of the parties.” Udarbe v. State, 749 N.E.2d 562, 567 (Ind.Ct.App.2001);
Here, the independent evidence of Appellants’ guilt, including their recorded phone conversations, the surveillance video, and the items recovered from the searches of Erkins‘s vehicle and Ojile‘s apartment, was substantial. In addition, the questionable aspect of Detective Ziegler‘s testimony was minimal, and therefore we conclude that it is highly unlikely that any erroneously admitted evidence
Appellants also assert that Detective Ziegler‘s testimony violated
(a) Testimony in the form of an opinion or inference otherwise admissible is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact.
(b) Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.
Appellants argue that Detective Ziegler‘s testimony “goes beyond analyzing the language used and puts her own opinion on what the men intended to do” and that “her opinions go to the legal conclusion the jury must determine—whether the men conspired to rob S.M.” Erkins‘s Br. at 39; Ojile‘s Br. at 35. Appellants mistakenly contend that “[w]itnesses may not give an opinion regarding the ultimate issue to be determined by the jury.” Erkins‘s Br. at 39; Ojile‘s Br. at 35. Appellants’ claim is contrary to
Detective Ziegler never directly testified about her belief regarding Appellants’ guilt or innocence, whether any allegations were true or false, or whether any witness testified truthfully, and she offered no legal opinion. Accordingly, we conclude that Detective Ziegler‘s testimony did not violate
V. Prosecutorial Misconduct
During closing argument, the prosecutor made the following statements to the jury:
Go all the way. Do whatever it takes, be prepared to commit violence and that‘s where I want to talk about next. “I don‘t think we‘re going to see anything like this—we‘re not going to see anybody with twenty grand on them anytime soon. We‘ve got to hit this guy and we‘ve got to hit him hard and do whatever it takes.” I will submit to you that go all the way—all the way only really means one thing, to kill him. But we didn‘t charge them with attempted murder.
....
“He gonna be a problem. He ain‘t gonna be no smooth.” He‘s gonna be a problem. We‘re going to have to use violence. We‘re going to have to hurt him. We know they‘re prepared to do it, because he had a gun to do it and the
ammunition. A 40 caliber bullet can do a lot of damage. It can do serious bodily injury, no doubt, and can kill somebody.
....
Guns—that‘s a violent instrument when used against a human being. The evidence clearly shows he was intending to use that against [S.M.] and that would cause serious harm ladies and gentlemen, serious bodily injury, no doubt. It may have even killed him. A bullet—as I said, you don‘t travel with your guns loaded until you‘re ready to use them. The opportunity didn‘t present itself to use it, but they were ready. They were ready. That bullet—this magazine, full of ammunition, is found in that man‘s house, somewhat hidden above a piece of furniture. That bullet matches the same bullet in the bag at his feet. No doubt where it came from, no doubt whose it is. There the defendant is eyeing his prey.
Tr. at 417-18, 421, 423-24.
Appellants contend that the prosecutor‘s comments constituted misconduct. Generally, in order to properly preserve a claim of prosecutorial misconduct for appeal, a defendant must not only raise a contemporaneous objection but must also request an admonishment; if the admonishment is not given or is insufficient to cure the error, then the defendant must request a mistrial. Cooper v. State, 854 N.E.2d 831, 835 (Ind.2006). Appellants acknowledge that they did not object to the prosecutor‘s comments and therefore did not properly preserve their claims.
To prevail on a claim of prosecutorial misconduct that has been procedurally defaulted, the defendant must establish not only the grounds for the prosecutorial misconduct, but also the additional grounds for fundamental error. In reviewing a claim of prosecutorial misconduct, we determine (1) whether the prosecutor engaged in misconduct, 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. Whether a prosecutor‘s argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct. The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury‘s decision rather than the degree of impropriety of the conduct.
Fundamental error is an extremely narrow exception to the contemporaneous objection rule that allows a defendant to avoid waiver of an issue. For a claim of prosecutorial misconduct to rise to the level of fundamental error, it must make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process and present an undeniable and substantial potential for harm. The element of harm is not shown by the fact that a defendant was ultimately convicted. Rather, it depends upon whether the defendant‘s right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he would have been entitled. Neville v. State, 976 N.E.2d 1252, 1258-59 (Ind.Ct.App.2012) (citations and quotation marks omitted), trans. denied (2013).
Appellants argue that the prosecutor committed misconduct by suggesting that they might have murdered S.M. They rely on the legal principle that “[i]t is improper for counsel in argument to comment on matters not in evidence, and it is the duty of the trial court to see that they refrain from doing so.” Trice v. State, 519 N.E.2d 535, 538 (Ind.1988). They also cite
Appellants assert that there was no evidence that they intended to murder S.M. To bolster their argument they cite Gasper v. State, 833 N.E.2d 1036, 1042 (Ind.Ct.App.2005), trans. denied. In Gasper, a child molesting case, the prosecutor in closing argument stated that the washcloths admitted into evidence were covered with blood. The Gasper court concluded that the comment was misconduct because the record showed that “although the washcloths were admitted into evidence at trial, the State never determined that the substance covering them was blood.” Id. at 1043.
This case is distinguishable from Gasper because here there was evidence supporting the prosecutor‘s statements. Ojile‘s statement that he was willing to “go all the way” could reasonably be interpreted to mean that he was willing to go so far as to kill S.M. in order to take his money from him. The discovery of the gun and bullet in Ojile‘s backpack the following day further supports an inference that Appellants were willing to kill S.M. if need arose. “It is proper for a prosecutor to argue both law and fact during final argument and propound conclusions based upon his analysis of the evidence.” Hand v. State, 863 N.E.2d 386, 394 (Ind.Ct.App.2007). We conclude that the prosecutor did not comment improperly on matters not in evidence, and therefore his comments do not constitute misconduct.9 There was no error, let alone fundamental error.
VI. Ineffective Assistance of Ojile‘s Trial Counsel
Finally, Ojile claims that his attorney was ineffective for failing to assert a defense of abandonment at trial. We observe that
post-conviction proceedings are usually the preferred forum for adjudicating claims of ineffective assistance of counsel. This is so because presenting such claims often requires the development of new facts not present in the trial record.
Although a defendant may choose to present a claim of ineffective assistance of counsel on direct appeal, if he so chooses, the issue will be foreclosed from collateral review .... this rule would likely deter all but the most confident appellants from asserting any claim of ineffectiveness on direct appeal. It is no surprise that such claims based solely on the trial record almost always fail.
Rogers v. State, 897 N.E.2d 955, 964-65 (Ind.Ct.App.2008) (citations, quotation marks, and brackets omitted), trans. denied (2009).
Our standard of review for ineffective assistance claims is well settled:
When evaluating a claim of ineffective assistance of counsel, we apply the two-part test articulated 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. This requires a showing that counsel‘s representation fell below an objective standard of reasonableness and that the errors were so serious that they resulted in a denial of the right to counsel guaranteed to the defendant by the Sixth and Fourteenth Amendments. Second, the defendant must show that the deficient performance resulted in prejudice. 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
If a claim of ineffective assistance can be disposed by analyzing the prejudice prong alone, we will do so.
There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Counsel is afforded considerable discretion in choosing strategy and tactics, and these decisions are entitled to deferential review. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.
Benefield v. State, 945 N.E.2d 791, 797 (Ind.Ct.App.2011) (citations omitted).
Ojile contends that he and Erkins “voluntarily left the casino and went home without attempting or committing robbery of S.M.,” and therefore, “[t]here was no strategic downside to arguing an abandonment defense when the evidence clearly suggested that Ojile voluntarily abandoned any alleged conspiracy to rob and injure S.M.” Ojile‘s Br. at 44-45. We disagree.
In his closing argument, Ojile‘s counsel presented a lengthy and detailed argument that Appellants were tempted to and discussed the possibility of robbing S.M., but they never actually reached an agreement to follow through with it. Tr. at 399-403. Counsel‘s strategy is not unsound given the drawbacks of an abandonment defense under the facts of this case. First, asserting an abandonment defense essentially concedes the existence of a conspiracy. Second, Ojile‘s argument completely overlooks the evidence of an ongoing conspiracy contained in the Last Conversation. Third, abandonment must be voluntary. “To be considered voluntary, the decision to abandon must originate with the accused and not be the product of extrinsic factors that increase the probability of detection or make more difficult the accomplishment of the criminal purpose.” Munford v. State, 923 N.E.2d 11, 18 (Ind.Ct.App.2010) (quoting Smith v. State, 636 N.E.2d 124, 127 (Ind.1994)). Here, Ojile left the casino just minutes before S.M. booked a room at the casino. The evidence supports a reasonable inference that Ojile left the casino due to extrinsic factors; namely, that S.M. was going to spend the night at the casino. We are unable to conclude that counsel‘s defense strategy fell below an objective standard of reasonableness. Accordingly, we conclude that Ojile did not receive ineffective assistance of trial counsel.
Affirmed.
KIRSCH, J., and MATHIAS, J., concur.
CRONE
JUDGE