Opinion
23A-CR-2515
11-21-2024
Darren D. Lloyd, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Talisha R. Griffin, Sarah Medlin, Marion County Public Defender Agency Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita, Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Marshelle D. Broadwell, Judge The Honorable Joel A. Schneider, Magistrate Trial Court Cause No. 49D07-2111-F4-36274.
ATTORNEYS FOR APPELLANT Talisha R. Griffin, Sarah Medlin, Marion County Public Defender Agency Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita, Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Mathias, Judge
[¶1] Darren D. Lloyd appeals his conviction for Level 4 felony unlawful possession of a firearm by a serious violent felon following a bifurcated jury trial. Lloyd raises two issues for our review, which we restate as follows:
1. Whether the manner in which the State addressed Lloyd's affirmative defenses to the jury amounts to prosecutorial misconduct establishing fundamental error.
2. Whether the State misstated the law of constructive possession in its arguments to the jury.
[¶2] We affirm.
Facts and Procedural History
[¶3] In the evening hours of November 26, 2021, Indianapolis Metropolitan Police Department Officer Jacob Kinnett received a report of a person shot in the 1900 block of Linwood Avenue. Less than two minutes later, Officer Kinnett was on the scene and observed two males, one lying on the ground with an apparent gunshot wound to his torso and another, Lloyd, standing near him. Lloyd admitted to Officer Kinnett that he had just shot the other man, Shonta Phillips. Officer Kinnett arrested Lloyd and paramedics rushed Phillips to a nearby hospital. He survived the gunshot wound.
[¶4] The shooting occurred in front of the residence where Lloyd lived with his girlfriend, Rhonda Schmalfeldt. Officers searched the house following the shooting and seized a handgun that was sitting on a couch. Officers located another handgun "outside in the leaves." Tr. Vol. 3, p. 4. The handgun recovered from inside the residence had been purchased by Schmalfeldt one year before the shooting. Officers believed the handgun found outside of the residence belonged to Phillips.
[¶5] In an ensuing interview with a detective, Lloyd stated that he believed Phillips "had shot [Lloyd's] cousin." Appellant's App. Vol. 2, p. 29. On November 26, Phillips knocked on Lloyd's front door, and Schmalfeldt told Lloyd that Phillips was at the door. Lloyd grabbed "his gun" and put it in "his back pocket." Id. He then "stepped outside on[to] his porch to talk" with Phillips. Id. There, Lloyd observed Phillips "reach[] in his front and side like [he] was pulling a gun out." Id. Lloyd then shot Phillips, who collapsed near the sidewalk. Lloyd "put the handgun on the sofa's arm rest inside his residence," and Schmalfeldt called 91-1. Id.
[¶6] Lloyd has a prior felony conviction in Michigan for "assault with intent to rob while armed," and, a few days after the November shooting, the State charged Lloyd with Level 4 felony unlawful possession of a firearm by a serious violent felon. Tr. Vol. 3, p. 47. The morning of his ensuing bifurcated jury trial, defense counsel informed the court and the State that the theory of the defense would be that Lloyd acted out of self-defense and necessity when he possessed the firearm. In response, the State objected to bifurcation as Lloyd was not challenging the elements of the charged offense but rather only his culpability notwithstanding his possession of the firearm. In the alternative, the State requested that the first phase of the trial be only on the question of Lloyd's possession of the firearm and that the affirmative defenses be raised only during the second phase, which would be about the legality of that possession. The trial court overruled the State's objections, ordered the trial to be bifurcated between Lloyd's possession of the firearm and his status as a serious violent felon, and informed the defense that it could argue its affirmative defenses "at both phases of the trial." Tr. Vol. 2, p. 112.
[¶7] The court then provided the following preliminary instruction to the jury:
The trial of this charge will be in two . . . stages. In the first stage, there will be a trial on the issue of whether the defendant knowingly or intentionally[] possessed the firearm as charged. If you find beyond a reasonable doubt[] that the defendant [knowingly] or intentionally possessed the firearm as charged[, t]here will be a second stage of this trial . . . to determine whether the defendant committed a crime by possessing the firearm.Id. at 189. The State thus asserted as follows to the jury in its opening statement:
You're going to hear evidence that Darren Lloyd possessed a firearm[] before the shooting, during the shooting, and after the shooting. In this phase . . . we're only going to decide whether Darren Lloyd possessed a firearm that day. Phase two . . . will decide whether that was a criminal act.Id. at 195. Defense counsel did not object to the court's preliminary instruction or to the State's opening statement.
[¶8] During the first phase of the trial, the State presented Officer Kinnett's testimony, the testimony of an investigating detective, and Lloyd's recorded admissions to that detective. Defense counsel did not present evidence.
[¶9] The trial court then instructed the jury as to the charged offense as well as the affirmative defenses of self-defense and necessity. Those instructions included the following regarding "possession":
There are two . . . kinds of possession, actual possession[] and constructive possession. A person who knowingly has direct physical control of a thing at a given time is[] . . . [i]n actual possession of it. A person who[,] although not [i]n actual possession, knowingly has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons is then in constructive possession of it .... [I]f you establish constructive possession, the state must prove the person had both the capability and intent to maintain[] dominion or control over the contraband. The capability requirement means the state must show a person was able to reduce the contraband to his personal possession. The intent requirement means the state must show a person had knowledge of the contraband's presence. Knowledge may be inferred from additional circumstances ....Tr. Vol. 3, p. 25.
[¶10] Following those instructions, the State argued as follows in its closing statement, again without objection by defense counsel: "Possession, that's what we're here to decide right now. That's wh[at] I want you to keep in mind. Phase two (2) is whether[] there was a crime committed by possessing a firearm. Phase one (1) is possession." Id. at 29. The State then emphasized: "how do we know[] the defendant possessed a firearm that day? . . . [H]e admitted to it." Id. The State also argued that Lloyd's admissions showed "both actual and constructive" possession. Id. at 30. Regarding constructive possession specifically, the State argued:
the two . . . things I need for constructive possession, we talked about it. You have both the capability and intent to maintain . . . dominion and control over an item. And what does that mean? Well, there's the capability requirement. They're able to reduce the contraband to their personal possession. It's as easy as I'm able to pick something up. Which the defendant did, he picked up the gun. He was able to do that[. A]nd the intent requirement means . . . the defendant had knowledge of the contraband's presence. It's his gun, it's his house. He even knows who bought the gun, he knows about the gun, because it's his gun. He told you that. There, we have both-we have both actual and constructive .... Before Shonta ever goes up to the door ....Id.
[¶11] In contrast, defense counsel argued that the evidence supported a finding for Lloyd on either self-defense or necessity and, as such, "[t]here's no need for a phase two" because Lloyd "was completely justified in what he did ...." Id. at 36. In rebuttal, the State responded as follows without objection:
[W]hat I'm hearing from the defense is, we want to talk [about] whether this is a crime right now. So . . . don't find guilty of possession. Just decide this isn't a crime right now. That's not what we're here to decide. That's not what the instruction says .... [T]his is phase one . . . about the possession. We're not getting into anything about a shooting[] and whether a shooting was justified .... We're not here to decide whether this is a criminal act. We're here to decide possession ...."Id. at 36-37.
[¶12] The jury found Lloyd guilty of possessing a firearm, and the trial proceeded to phase two. In its opening statement for that phase, the State asserted that Lloyd "was committing a crime before any shooting took place." Id. at 53. In response, defense counsel asserted that the State wanted the jury to "ignore [Lloyd's] justification" for the shooting and require Lloyd to allow Phillips to "just go ahead and shoot and kill" him. Id. at 53-54. During its case in chief, the State submitted certified documents of Lloyd's prior felony conviction out of Michigan. The State then presented additional evidence of Lloyd's possession of the firearm.
[¶13] At that point, defense counsel moved for a mistrial based on "the procedure that's happening right now." Id. at 76. Defense counsel asserted that "[s]elf-defense was an issue in the first phase and the State misstated that during its closing argument. And . . . [t]he second phase is supposed to be, does the defendant have the requisite prior conviction, . . . not whether there was a crime." Id. The State responded that it had followed the court's instructions. The court denied the motion for a mistrial and further noted that "the court's instructions in phase two . . . incorporate the instructions [from] phase one which included the defense's . . . instructions . . . of self-defense and necessity," and thus those questions were "still within the province of the jury." Id. at 77.
[¶14] Following the close of the evidence in phase two and the court's additional instructions, the State argued to the jury that it "just had to . . . prove to you that [Lloyd] was convicted of [the Michigan] crime, . . . which I've done, and I ask[ that] you . . . find him guilty." Id. at 96. In response, defense counsel reiterated the arguments from phase one on self-defense and necessity, asserting that those arguments were relevant then and "still relevant now." Id. at 97. In its rebuttal, the State asserted, without objection: "We're not here to decide whether [Lloyd's possession of the firearm] was justified or not." Id. at 98.
[¶15] The jury found Lloyd guilty of being a serious violent felon. The court then entered its judgment of conviction for Level 4 felony unlawful possession of a firearm by a serious violent felon and sentenced Lloyd accordingly. This appeal ensued.
Standard of Review
[¶16] On appeal, Lloyd asserts that the trial court committed fundamental error when it allowed the State to, according to Lloyd, misstate the law during its closing arguments. As Lloyd did not properly object to these issues in the trial court, he must demonstrate fundamental error on appeal. As our Supreme Court has made clear, "[a]n error is fundamental, and thus reviewable on appeal, if it made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm." Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018). Thus, fundamental error
is extremely narrow and encompasses only errors so blatant that the trial judge should have acted independently to correct the situation. At the same time, if the judge could recognize a viable reason why an effective attorney might not object, the error is not blatant enough to constitute fundamental error.Id. (quotation marks and citations omitted).
1. The State did not engage in misconduct with respect to Lloyd's affirmative defenses, and no fundamental error resulted in any event.
[¶17] We first address Lloyd's argument that the State engaged in misconduct in its arguments to the jury with respect to Lloyd's affirmative defenses. To show prosecutorial misconduct, a defendant must show (1) that the prosecutor "engaged in misconduct" and, if so, (2) that "the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected" otherwise. Isom v. State, 31 N.E.3d 469, 490 (Ind. 2015) (quotation marks omitted). Of course, where, as here, the claim of misconduct is on review for fundamental error, "the defendant must establish not only the grounds for the misconduct but also the additional grounds for fundamental error." Id. (quotation marks omitted).
[¶18] No misconduct occurred. At least until the State's closing rebuttal at the end of the second phase of Lloyd's trial, how the State framed its arguments to the jury was consistent with the trial court's preliminary instructions, which Lloyd does not challenge on appeal. As noted above, in its preliminary instructions to the jury, the trial court stated that:
The trial of this charge will be in two . . . stages. In the first stage, there will be a trial on the issue of whether the defendant knowingly or intentionally[] possessed the firearm as charged. If you find beyond a reasonable doubt[] that the defendant [knowingly] or intentionally possessed the firearm as charged[, t]here will be a second stage of this trial . . . to determine whether the defendant committed a crime by possessing the firearm.Tr. Vol. 2, p. 189. Nearly all of the State's comments to the jury were consistent with that unchallenged instruction. And Lloyd cites no authority on appeal for the suggestion that a prosecutor engages in "misconduct" when he or she follows the trial court's instructions.
[¶19] As for the State's closing rebuttal at the end of the second phase of Lloyd's trial, the State did, confusingly, assert to the jury that "[w]e're not here to decide whether [Lloyd's possession of the firearm] was justified or not." Tr. Vol. 3, p. 98. But while that comment may have been objectionable, we cannot say that objectionable comments are per se equivalent to inappropriate "misconduct."
[¶20] And even if the State's comment here was inappropriate, we cannot say that, under all of the circumstances, it placed Lloyd in a position of grave peril that he otherwise would not have been in, let alone that it establishes fundamental error. Cf. LaPorte Cmty. Sch. Corp. v. Rosales, 963 N.E.2d 520, 526 (Ind. 2012) ("closing arguments of counsel cannot provide us with any assurance that the jury understood the lawyer's statements to clarify, supersede, or countermand the instructions given by the trial judge."). Lloyd still made his arguments on his affirmative defenses to the jury during the second phase, his affirmative defenses did not negate the State's evidence regarding constructive possession, and the trial court's second-phase instructions to the jury incorporated its instructions on Lloyd's defenses from the first phase. Lloyd's argument on this issue amounts to speculation that the jury disregarded both the court's instructions and defense counsels' arguments and also that the jury disregarded the State's theory of constructive possession. A showing of fundamental error requires more. See, e.g., Nix v. State, 158 N.E.3d 795, 800-01 (Ind.Ct.App. 2020), trans. denied.
2. The State did not engage in misconduct in its assertions to the jury regarding the law of constructive possession.
[¶21] Lloyd also contends on appeal that the State made a fair trial impossible because it misstated the law of constructive possession in its closing argument to the jury following the first phase of his trial. In particular, Lloyd takes exception with the State's comment that "the intent requirement" of constructive possession "means . . . the defendant had knowledge of the contraband's presence." Tr. Vol. 3, p. 30. According to Lloyd, "[t]he jury would have understood" the State's comment to mean that "Lloyd had the intention to exercise control over the gun[] and that intention was established by Lloyd's mere knowledge of the gun's presence." Appellant's Br. at 30.
In this part of his brief, Lloyd also challenges statements the prosecutor made to prospective jurors during voir dire. But Lloyd does not demonstrate that any of those prospective jurors were actually empaneled, nor does he argue that the trial court's ensuing instructions to the jury failed to cure any purported misstatements. Accordingly, we conclude that Lloyd's concerns about the statements during voir dire are not supported by cogent reasoning, and we do not consider them. Ind. Appellate Rule 46(A)(8)(a).
[¶22] The State's comment, which, again, was consistent with the trial court's unchallenged instructions to the jury, was not a misstatement of law. Again, the trial court instructed the jury as follows with respect to constructive possession:
There are two . . . kinds of possession, actual possession[] and constructive possession. A person who knowingly has direct physical control of a thing at a given time is[] . . . [i]n actual possession of it. A person who[,] although not [i]n actual possession, knowingly has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons is then in constructive possession of it .... [I]f you establish constructive possession, the state must prove the person had both the capability and intent to maintain[] dominion or control over the contraband. The capability requirement means the state must show a person was able to reduce the contraband to his personal possession. The intent requirement means the state must show a person had knowledge of the contraband's presence. Knowledge may be inferred from additional circumstances ....Tr. Vol. 3, p. 25 (emphasis added). That instruction is a correct statement of law. E.g., Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999) ("To prove the intent element, the State must demonstrate the defendant's knowledge of the presence of the contraband."). And the State's argument to the jury was, in relevant part, that "the intent requirement means . . . the defendant had knowledge of the contraband's presence. It's his gun, it's his house. He even knows who bought the gun, he knows about the gun, because it's his gun. He told you that...." Id. at 30.
[¶23] Thus, the record reflects that the State's argument to the jury was a correct representation of the law. Further, the record shows that the State asserted that the additional circumstances referenced in the jury instruction were demonstrated by Lloyd's own admissions that the firearm was his, which admissions Lloyd disregards on appeal. There is no error on this issue.
Conclusion
[¶24] For all of these reasons, we affirm Lloyd's conviction for Level 4 felony unlawful possession of a firearm by a serious violent felon.
[¶25] Affirmed.
Brown, J., and Kenworthy, J., concur.