Shayla Monique Brazier v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Aug 23 2018, 10:50 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
Court of Appeals
purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark S. Lenyo Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shayla Monique Brazier, August 23, 2018
Appellant-Defendant, Court of Appeals Cause No.
71A03-1712-CR-2949
v. Appeal from the St. Joseph Superior
Court
State of Indiana, The Honorable John M. Marnocha,
Judge
Appellee-Plaintiff.
Trial Court Cause No. 71D02-1706-
F3-36
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Shayla Monique Brazier (Brazier), appeals her conviction
for robbery, a Level 3 felony, Ind. Code § 35-42-5-1; and conspiracy to commit
burglary, a Level 4 felony, I.C. §§ 35-43-2-1(1); -41-5-2.
[2] We affirm.
ISSUES
[3] Brazier presents two issues on appeal, which we restate as the following:
(1) Whether the trial court abused its discretion by admitting certain evidence;
and
(2) Whether her Level 3 felony robbery conviction was a result of a unanimous
jury verdict.
FACTS AND PROCEDURAL HISTORY
[4] In 2017, Talanda Peck (Peck) and her three daughters, T.O., aged seven, T.O.
aged four, and R.O. aged three, resided at 1814 South Twyckenham, South
Bend, Indiana. In May 29, 2017, Peck went out of town and left her daughters
in the care of her nephew Tyshawn Owens (Owens). Jason Gibson (Gibson) is
Owens’ longtime friend and he would frequently visit Owens at Peck’s home.
Two weeks prior, Peck had informed Owens that she did not want Gibson
visiting her home.
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[5] On May 29, 2017, against Peck’s wishes, Owens invited Gibson to Peck’s
house. Brazier, who is Gibson’s girlfriend, and her one-year old son, spent the
night at Peck’s home. That night, seven-year-old T.O. encountered Gibson
who mistakenly entered her room as he was looking for the restroom. After she
directed Gibson to the restroom, she went back to sleep.
[6] The next day, May 30, 2017, Gibson, Brazier, and her son, left Peck’s home.
Later that morning, Gibson and Brazier went to Deangelo Dove’s (Dove),
apartment that he shared with his girlfriend Dezarie Parker (Parker), to obtain
some “weed.” (State’s Exh. 52 at 9:00). According to Brazier, Dove and
Parker were relocating to Chicago and they needed money for the move. At
some point, Dove asked Gibson “whose house can I break into?” and Gibson
suggested Peck’s home. (State’s Ex. 51 at 1:19:34). According to Brazier, Dove
intended to sell the property he stole from Peck’s home to his “weed man” for
money. (State’s Ex. 51 at 1:33:00). Sometime that morning, Parker purchased
duct tape from the Family Dollar store.
[7] At approximately 11:00 a.m., Peck’s home security camera captured Dove
entering the house through the front door. A neighbor saw a Buick, which had
front-end damage, backed up to the back door. Seven-year-old T.O. then heard
commotion, and subsequently saw Gibson and Dove inside her home. Dove
used duct tape to tie up Owens, seven-year-old T.O., and four-year-old T.O.
Seven-year-old T.O. observed that Dove had a gun in his pocket. Afterward,
Dove went into Peck’s bedroom where he rummaged the “drawers and . . .
stole [Peck’s] TV.” (Tr. Vol. II, p. 70). There was also a woman, and seven-
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year-old T.O. observed that the woman removed “cameras,” and a couple of
“TVs.” (Transcript Vol. II, p. 70). Owens later disclosed to seven-year-old
T.O. that the woman was Gibson’s girlfriend. In total, Dove, Gibson, and the
woman described as Gibson’s girlfriend, removed five televisions, cameras, a
computer, an iPad, a vacuum cleaner, an old cell phone, and a number of
personal items including a pair of Jordan sneakers. After the intruders left,
Owens removed the duct tape from himself and the children. The police were
then contacted.
[8] That evening, Officer Alexander Gutierrez (Officer Gutierrez) of the South
Bend Police Department was out on patrol. At approximately 8:20 p.m.,
Officer Gutierrez located a Buick that had front end damage at a parking lot.
Officer Gutierrez turned his vehicle around, parked it, and waited to “see if [the
Buick] was going to move.” (Tr. Vol. II, p. 85). When the Buick began leaving
the area, Officer Gutierrez followed the vehicle. At some point, the vehicle
stopped, and a man matching Dove’s description exited the vehicle. The Buick
continued to travel, and shortly thereafter, Officer Gutierrez initiated a traffic
stop.
[9] The Buick was being driven by Dove’s sister, Caprice Guiden (Guiden), and
Parker and her son were also inside. The vehicle “was loaded with a lot of . . .
electronics [and] some clothing.” (Tr. Vol. II, p. 87). Guiden and Parker were
arrested and transported to the police station for questioning. During a search
of the Buick, the officers located Dove’s ATM card on the front passenger seat.
Guiden later consented to the search of her home. In Guiden’s detached
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garage, the police recovered some of the items stolen at Peck’s home—i.e., a
vacuum cleaner, two televisions, a cell phone, an iPad, and a Jordan shoe box.
Gibson’s fingerprints were found on the iPad.
[10] That same evening, Brazier was arrested for questioning. After she was read
her Miranda rights, Brazier claimed that she had no role in the home invasion.
She claimed that earlier that morning, Gibson, Dove, and Parker, had
deliberated on committing a robbery of Peck’s home. Brazier stated that she
agreed to watch Parker’s and Dove’s baby, so that the baby would not be left
alone while the three were out committing the robbery. According to Brazier,
at approximately 2:30 p.m., she met up with Dove and Parker to return their
baby, and while conversing, Dove and Parker mentioned that they had broken
“one or two TVs” while carrying them out of Peck’s home. (State’s Ex. 51 at
1:44). Afterward, Brazier drove to her mother’s apartment. Dove, Parker, and
Gibson followed her there. Referring to the items that they had stolen from
Peck’s house, Gibson asked Dove “where all the stuff at?” and Dove and Parker
stated that they had sold the stolen items “to the weed man . . . for half money
half weed.” (State’s Exh. 52, at 12:00).
[11] On June 5, 2017, the State filed an Information, charging Brazier with Counts
I, II, and III, armed robbery, Level 3 felonies. On October 25, 2017, the State
filed a Motion to Amend Information and stated,
3. By this motion, the State seeks to amend Counts I, II, and III of the
information to allege that [Brazier] [a]ided, [i]nduced, or [c]aused
another person in committing the robberies against Tyshawn Owens
and the two minor children at [Peck’s home].
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4. The State also seeks to file an [a]dded Count IV, to charge
[c]onspiracy to [c]ommit [b]urglary, a Level 4 [f]elony. This charge
also relates to the same conduct that forms the basis for Counts I, II,
and III of the [I]nformation, but focuses on the alleged agreement that
[Brazier] and others made leading up to the offense.
(Appellant’s App. Vol. II, p. 100).
[12] On November 13, 2017, ahead of Brazier’s jury trial, the trial court conducted a
hearing on Brazier’s motion to suppress any in-court identification testimony
from seven-year-old T.O., and four-year-old T.O. At the close of the
suppression hearing, the trial court determined that four-year-old T.O. did not
understand the “nature of an oath and a promise to tell the truth,” and was
therefore an incompetent witness. (Tr. Vol. II, p. 16). However, the trial court
determined that seven-year-old T.O., had sufficient recollection of the home
invasion, and there was “in sufficient [sic] detail” that seven-year-old T.O. had
been susceptible to “any sort of outside influence” that would taint her “in-
court identification” of the robbers. (Tr. Vol. II, p. 17).
[13] The trial court afterward proceeded with Brazier’s jury trial, which concluded
on November 15, 2017. At the close of the evidence, the jury found Brazier
guilty of Count I, Level 3 felony armed robbery, and Count IV, Level 4
conspiracy to commit burglary. On December 13, 2017, the trial court
conducted a sentencing hearing, and subsequently sentenced Brazier to
concurrent terms of nine years on each offense in the Department of Correction
(DOC). However, the trial court suspended five years of each offense to
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probation, and further ordered Brazier to serve probation for twelve months
following her release from the DOC.
[14] Brazier now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
A. In-Court Identification
[15] Brazier challenges the trial court’s denial of her motion to suppress the
testimony of seven-year-old T.O.’s in-court identification that depicts her as one
of the robbers. We note, however, that Brazier did not file an interlocutory
appeal. Rather, she proceeded to trial. Once a case proceeds to trial, the
question of whether the trial court erred in denying a motion to suppress is no
longer viable. Baird v. State, 854 N.E.2d 398, 403 (Ind. Ct. App. 2006), trans.
denied. A ruling upon a pretrial motion to suppress is not intended to serve as
the final determination of admissibility because it was subject to modification at
trial. Id. On appeal, Brazier’s only available argument is whether the trial court
abused its discretion in admitting T.O.’s in-court identification testimony at
trial. Id.[16] The admission or exclusion of evidence falls within the sound discretion of the
trial court, and its determination regarding the admissibility of evidence is
reviewed on appeal only for an abuse of discretion. Wilson v. State, 765 N.E.2d
1265, 1272 (Ind. 2002). An abuse of discretion occurs when the trial court’s
decision is clearly against the logic and effect of the facts and circumstances
before the court. Doolin v. State, 970 N.E.2d 785, 787 (Ind. Ct. App. 2012).
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[17] During the trial, when the State elicited T.O.’s in-court identification, Brazier
did not object. “[F]ailure to make a contemporaneous objection to the
admission of evidence at trial, so as to provide the trial court an opportunity to
make a final ruling on the matter in the context in which the evidence is
introduced, results in waiver of the error on appeal.” Brown v. State, 783 N.E.2d
1121, 1125 (Ind. 2003). Absent a showing of fundamental error, a party may
not raise an issue on appeal when that issue was not raised at trial. Hornback v.
State, 693 N.E.2d 81, 84 (Ind. Ct. App. 1998). Brazier did not make a
contemporaneous objection to the admission of T.O.’s in-court identification.
Furthermore, Brazier does not argue that fundamental error occurred as a result
of the admission. Waiver notwithstanding, we address her claim on the merits.
[18] Due process of law under the Fourteenth Amendment requires suppression of
testimony concerning a pretrial identification when the procedure employed is
impermissibly suggestive. Harris v. State, 716 N.E.2d 406, 410 (Ind. 1999).
Nevertheless, a witness who participates in an improper pretrial identification
procedure may still identify a defendant in-court if the totality of the
circumstances shows clearly and convincingly that the witness has an
independent basis for the in-court identification. Young v. State, 700 N.E.2d
1143, 1146 (Ind. 1998).
[19] To determine whether a witness had an independent basis for the in-court
identification, we consider the following factors: (1) the amount of time the
witness was in the presence of the perpetrator; (2) the distance between the
witness and the perpetrator; (3) the lighting conditions at the time; (4) the
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witness’s degree of attention to the perpetrator; (5) the witness’s capacity for
observation; (6) the witness’s opportunity to perceive particular characteristics
of the perpetrator; (7) the accuracy of any prior description of the perpetrator by
the witness; (8) the witness’s level of certainty at the pretrial identification; and
(9) the length of time between the crime and the identification. Id.[20] Brazier argues that
In the present case, there was not an adequate independent basis for
T.O.’s in-court identification. According to T.O.’s testimony, the male
was the person who taped up T.O. and not the female. There is no
evidence on the record as to the length of time that T.O. was in the
presence of the woman. Furthermore, there is no evidence in the
record as to the distance that T.O. was from the woman nor is there
any evidence of the lighting conditions at the time. T.O.’s capacity for
observation is also questionable, given that at the hearing on the
motion to suppress she said that [T.O.] and [four-year-old T.O. were]
in her mother’s bedroom when they heard a noise[,] and at trial she
stated they were in the living room when they heard a noise.
Furthermore, . . . T.O.’s only description of the woman is that she was
black and had an afro. She couldn’t remember any other details.
(Appellant’s Br. p. 18).
[21] Seven-year-old T.O. testified that “two boys and one girl” committed the
robbery in her home. (Suppression Tr. p. 5). T.O. identified one of the men as
Gibson, and she stated that she knew Gibson because he regularly visited her
home to “rap” with Owens “on the computer.” (Suppression Tr. p. 5). Based
on previous encounters, T.O. accurately identified Gibson as one of the robbers.
Also, T.O. provided a precise description of Dove as the other perpetrator.
T.O. testified that the third robber was a woman she had never met before, and
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she described the woman as a “little fat and a little skinny,” and her “skin was
black and her hair was in an afro.” (Suppression Tr. p. 5). T.O. stated that
while the robbery was taking place, she looked at the woman “for two
seconds,” but looked away because the woman was looking at her.
(Suppression Tr. p. 9). T.O. testified that it was Owens who later disclosed to
her that the woman was Gibson’s girlfriend. T.O. added that the woman—
Gibson’s girlfriend—took “the cameras and [she] ran upstairs to take the other
TVs.” (Suppression Tr. p. 7). T.O. stated that the robbers, Dove, Gibson, and
Gibson’s girlfriend, were in her “house for like five minutes or [] ten minutes.”
(Suppression Tr. p. 8). When asked the distance between Gibson’s girlfriend
and herself, T.O. testified that she was “closer”. (Suppression Tr. p. 8).
[22] At Brazier’s jury trial, T.O. consistently testified that the first time she saw the
woman who assisted Dove and Gibson in the robbery was during the home
invasion. When asked if she could identify the woman, T.O. first described the
woman’s race as African-American and added that the woman “had an afro.”
(Tr. Vol. II, p. 68). Twice, T.O. was asked to give other descriptive features of
the woman, but T.O. shrugged her “shoulders,” and at that moment she offered
“no response.” (Tr. Vol. II, p. 69). However, when T.O. was asked to point at
the woman whom she had seen during the robbery, she pointed at Brazier.
When asked how she found out that Brazier was Gibson’s girlfriend, T.O.
stated, “[B]ecause I saw her in my house.” (Tr. Vol. II, p. 69). T.O. was then
asked what role Brazier played during the robbery, and T.O. stated that Brazier
took “cameras” and “went upstairs and took the TVs.” (Tr. Vol. II, p. 70). At
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some point during her direct examination, T.O. described Brazier physique as
“kind of fat, kind of skinny.” (Tr. Vol. II, p. 76).
[23] Brazier argues that T.O.’s description of her became more accurate only after
Owens informed T.O., ahead of the jury trial, that she was Gibson’s girlfriend.
In turn, the State argues that
First, the record is clear that [T.O.] was not subjected to any suggestive
pretrial identification procedures prior to making her in-court
identification, nor does [Brazier] make any argument that she was [].
[T.O.] was not taken to do a show-up identification and was not
shown a photo array or any photograph of [Brazier]. There is also no
evidence in the record that she was exposed to any pretrial media
reports about the robbery or ever had anyone identify [Brazier] to her
as the robber. Rather, at both the pre-trial hearing and during her trial
testimony, [T.O.] consistently testified that the robbery was the first
time she had ever seen [Brazier], that she had not ever seen [Brazier]
again after the robbery until that day in court, and that she had not
been shown any pictures of [Brazier] since the crime.
(Appellees’ Br. pp. 11-12) (internal citations omitted).
[24] Although Owens informed T.O. that Brazier was Gibson’s girlfriend, thereby
implying that T.O. was exposed to suggestive pre-trial identification, we find
that T.O.’s in-court identification did not rest on any post-robbery knowledge.
Considering the factors identified in Young, we find that the ten minutes that the
robbers were inside Peck’s home, was sufficient time for T.O. to be able to
observe and identify the robbers. T.O.’s description of Brazier was consistent at
both the suppression hearing and at trial. T.O. testified that she was close to
Brazier, and that they looked directly at each other during the robbery. T.O.
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stated that Brazier was “kind of fat, kind of skinny.” (Tr. Vol. II, p. 70). T.O.
then described Brazier’s race as African-American and that Brazier had “afro
hair.” (Tr. Vol. II, pp. 68, 76). Notably, the robbery occurred around mid-
morning, so the record supports the inference that the lighting was reasonably
good. Referring to Brazier, T.O. confidently stated, “I saw her in my house,”
and she took “cameras” and “went upstairs and took the TVs.” (Tr. Vol. II, pp.,
69, 70). Here, we find no indication that T.O. was ever equivocal in her
identification of Brazier, and in view of the totality of the circumstances, we
conclude that T.O. had an independent basis upon which to identify Brazier in
court as a perpetrator to the robbery. Accordingly, we conclude that the trial
court did not abuse its discretion in admitting T.O.’s in-court identification of
Brazier.
B. Unanimous Verdict
[25] Brazier argues that at her jury trial, “the State’s theory shifted between Brazier
actually participating in the home invasion and being present [in] removing
items . . . from [Peck’s] house to watching [Parker’s] child so that [Dove,
Parker, and Gibson] could commit the robbery.” (Appellant’s Br. p. 19).
Brazier then argues, “[b]ased upon these mutually exclusive theories of guilt
advanced by the State, it is impossible to determine whether or not the jury
actually reached a unanimous verdict in the case.” (Appellant’s Br. p. 20).
[26] Here, the State advanced alternative theories about Brazier’s criminal liability
with respect to the Level 3 felony robbery offense, namely, either that she was
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guilty of: (1) personally committing the robbery with Dove and Gibson; or (2)
aiding or abetting in the robbery. The trial court instructed the jury on
accomplice liability. Under the theory of accomplice liability, a person who
knowingly or intentionally aids, induces, or causes another person to commit a
crime is guilty of committing that crime himself. See Ind. Code § 35-41-2-4; also
see, Brooks v. State, 895 N.E.2d 130, 133 (Ind. Ct. App. 2008). To be convicted
as an accomplice, there must be affirmative evidence showing the defendant
was acting in concert with the principal in the commission of the crime. Brooks,
895 N.E.2d at 133-34.
[27] “There is no distinction between the criminal responsibility of a principal and
that of an accomplice.” Norvell v. State, 960 N.E.2d 165, 168 (Ind. Ct. App.
2011). A person may be convicted as an accomplice even if he was charged as a
principal; in fact, the State may even change its theory of liability during the
trial itself. See Suggs, 883 N.E.2d at 1192. Therefore, “individual jurors
themselves need not choose among the theories, so long as each is convinced of
guilt.”’ Taylor v. State, 840 N.E.2d 324, 334 (Ind. 2006).
[28] In Taylor, the State pursued two theories on how the defendant could be guilty
of murder, either by killing the victim or by aiding and abetting another person
to kill the victim. Taylor, 840 N.E.2d at 331. Taylor argued in part that the jury
should have been instructed that in order to convict him of murder, the verdict
had to be unanimous on one of the two prosecution theories. Id. at 332. Our
supreme court observed that the jury had to determine only whether Taylor
committed one act of murder either as the principal or as an accomplice and
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noted that Taylor would have been equally guilty of murder whether he acted
as the principal shooter or merely as an accomplice. Id. at 333.
[29] In the instant case, the State presented evidence that Brazier was present during
the robbery, and that she removed televisions and cameras from Peck’s home.
That evidence was sufficient to prove that Brazier acted as a principal. When
the police interviewed Brazier, Brazier acknowledged that she was aware of the
planned robbery, and she stated that she agreed to babysit Parker’s child to
enable Parker, Dove, and Gibson to execute the robbery at Peck’s home.
Indeed, this evidence was sufficient to sustain Brazier’s conviction for robbery
as an accomplice.
[30] In Taylor, our supreme court held that the “[t]he jury need not unanimously
agree on the precise factual details of how [an offense] occurred in order to
convict.” Id. at 334 (citation and quotation marks omitted). Instead, “the jury
must agree unanimously that each element of the charged crime has been
proved.” Id. Applying the rationale advanced in Taylor to the present case, and
because there was sufficient evidence to convict Brazier of her charged offense
under either of the State’s theory, we conclude that the jury did not need to
reach a unanimous verdict.
CONCLUSION
[31] For the foregoing reasons, we conclude that the trial court did not abuse its
discretion by admitting T.O.’s testimony, and the evidence was sufficient to
convict Brazier of robbery either as a principal or as an accomplice.
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[32] Affirmed.
[33] Vaidik, C. J. and Kirsch, J. concur
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