Shannon Randolph v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 03 2017, 9:13 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Deborah Markisohn Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shannon Randolph, February 3, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1605-CR-972
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark Stoner,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G06-1502-F1-4006
Vaidik, Chief Judge.
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Case Summary
[1] Shannon Randolph appeals his convictions for Level 1 felony rape, two counts
of Level 3 felony rape, and one count of Level 3 felony robbery resulting in
bodily injury. He argues that the State committed prosecutorial misconduct
when it accused one of his attorneys of “victim blaming” and “vouched” for the
victim’s testimony. Finding no error, we affirm.
Facts and Procedural History
[2] The evidence most favorable to the verdicts is that in September 2014 Randolph
and N.D. began a consensual, sexual relationship, which ended when N.D.
found out that Randolph had a “girlfriend” (Randolph was actually married at
the time). Randolph and N.D. continued to text off and on, and on November
7, 2014, they met at N.D.’s apartment. They talked, watched a movie, and
consumed alcohol. At one point during the evening, N.D. got up to use the
bathroom. When N.D. exited, Randolph was waiting outside the bathroom
door for her; he grabbed her and began kissing her. N.D. repeatedly asked him
to stop. Randolph threw her to the ground by her hair, climbed on top of her,
ripped off her underwear,1 bit her lip, performed oral sex on her, and inserted
his penis inside her vagina. Throughout the ordeal N.D. screamed for him to
stop. Randolph punched N.D. in the mouth and told her, “Shut up. I’ll go get
1
N.D. testified that she took off her sweatpants and left them by the bed before using the bathroom. She had
not put her sweatpants back on when Randolph grabbed her and began kissing her. See Tr. p. 181-82.
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my gun.” Tr. p. 149. N.D. believed this threat was credible because Randolph
had previously brought a gun to her apartment on two separate occasions.
Randolph eventually removed his penis from her vagina and placed it in her
mouth, where he ejaculated. N.D. spit out his ejaculate and asked him to leave.
[3] On his way out of the apartment, Randolph grabbed N.D.’s TV, cellphone,
laptop, and wallet. Realizing she would have no way to call police if Randolph
left with her phone, N.D. tried to stop Randolph. He punched N.D. in the
mouth a second time and threw her to the ground by her hair, this time ripping
out part of her weave. Randolph walked to his car with N.D.’s belongings.
Fearing that Randolph was going to his car to get his gun, N.D., who was
naked from the waist down, ran to a neighbor’s apartment for help. The
neighbor let her inside, gave her a sheet to cover herself, and called 911. The
police responded, and N.D. was taken to the hospital for a sexual-assault exam.
N.D. identified Randolph for police from a photo array; Randolph was later
arrested and charged with eight felonies and one misdemeanor.
[4] During closing arguments of the jury trial, Randolph’s attorney brought up the
fact that Randolph and N.D. had been drinking on November 7. He argued
that N.D. and Randolph engaged in consensual sex that night and that
afterward N.D., upon discovering that Randolph was married, attacked
Randolph:
[Defense Attorney 1:] Now I want to talk also about what was
going on that night prior to this. They had been drinking. This
call came in around 2:00 in the morning. [N.D.’s] blood was
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drawn at 4:27, that’s two and a half hours after this incident - -
the end of this incident. Two and a half hours later. And her
blood alcohol content was still .10. She was legally intoxicated.
It was going down, not up, following this event. So we really
don’t know what blood alcohol content she was at the time that
this occurred, but it was higher than .10, which is the legal limit
of intoxication. So we could say for certain[] that she was drunk.
Does that mean that if something happened that she deserved it?
No. That’s not what I’m saying. I’m just simply saying it goes to
whether or not she might have overreacted to something - - to
what she found out about Mr. Randolph and his marital
relationship. People do stupid stuff when they are drunk.
Id. at 348.
[5] During the State’s three-minute rebuttal, it responded to defense counsel’s
suggestion that N.D. was drunk and possibly overreacted to the news that
Randolph was married:
[State]: Every single piece of physical evidence says rape. It says
rape. And the alcohol, that’s victim blaming. Because you know
what, if you drink - -
[Defense Attorney 1:] Objection. Objection.
[Defense Attorney 2:] Judge, I’m sorry. This is all prosecutorial
misconduct - -
[Defense Attorney 1:] This is too much.
[Defense Attorney 2:] By saying that we cannot or we can argue
on behalf of our client, we are going to ask for another
admonishment regarding prosecutorial misconduct and what
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they are allowed to comment upon and what they are not
allowed to comment upon when we defend our client.
[Judge:] I’m not going to give the same admonition that I just
have given to you a minute ago. And so, Ladies and Gentlemen,
the Court would remind you, again, when I previously
admonished you on. And, again, if we can restrict our argument
to the evidence please. You may continue.
Id. at 354-55. In its prior admonishment, the court instructed the jury that “[the
closing] argument is not evidence. You base your decision based on the
evidence that you heard from the stand and the law as the Court gives it [to]
you.” Id. at 353.
[6] The State concluded its rebuttal argument:
[State:] Ladies and Gentlemen, a prosecutor’s wors[t] nightmare
is, I believe her but - - I believe her but I wanted more. I believe
her but I wanted the gun. And if he had a gun he would be
charged with armed [sic]. He’s not. He’s charged with a threat.
[Defense Attorney 1:] Judge, objection.
[Judge:] Overruled.
[Defense Attorney 1:] Well, first of all she’s talking about what
she believes.
[Judge:] You’re correct about that. But we’ve got one minute
left. Let’s finish it.
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[State:] Thank you, Judge. As I was saying the prosecutor’s
worst nightmare is I believe her but.
[Defense Attorney 1:] She’s about to - -
[Defense Attorney 2:] Judge, I’m sorry.
[Judge:] Sustained. [Prosecutor] take the word I out of your
vocabulary.
[State:] Okay.
[Judge:] You cannot use I in final argument. . . . What you
believe isn’t the issue here. It’s what the jurors believe.
[State:] If you get back there and say you believe her but, but
when you walked into this courtroom yesterday you’ve never
heard of [N.D.], you’ve never heard of Shannon Randolph and
you’ve never heard of what he did to her on November 7th, 2014.
So when you get to I believe her, that’s guilty on all counts.
Thank you.
Id. at 357-58. The judge then gave final instructions to the jury. Instructions
eight and ten were similar to the admonishments and informed the jury that the
unsworn statements from the attorneys were not evidence and that the verdict
was to be based on the evidence, law, and facts. See Appellant’s App. Vol. II
pp. 121, 123. The jury then retired to deliberate.
[7] During deliberations, Randolph moved for a mistrial and argued that the
admonishments were not sufficient. The court denied the motion:
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The court does know that, one, it was a sustained objection, two,
admonished jury, three, Court gave both Final Instructions in
addition to the admonishment, the Court gave Final Instruction
number 8, as well as number 10, which were given within a very
short period of each other. The totality of the argument in
question that was objected to was a three minute argument. The
Court doesn’t find that the Defendant was placed in grave peril
which is the standard for mistrial. . . . It was a very quick and
contentious rebuttal to the point where it was difficult what was
being said from the objection from the admonishment. So I will
relisten to it while the jury is deliberating. But my initial
assessment in being here in front of the jury and watching their
demeanor while I was giving the admonishment, I don’t believe
the Defendant was placed in grave peril. So I am denying the
motion for mistrial at this time.
Tr. pp. 361-62.
[8] The jury found Randolph guilty on all nine counts. For double jeopardy
reasons, the court entered judgment of conviction on only four counts—one
count of Level 1 felony rape, two counts of Level 3 felony rape, and one count
of Level 3 felony robbery resulting in bodily injury—and sentenced him to an
aggregate term of thirty-two years in the Department of Correction, with eight
years suspended and three years of probation.
[9] Randolph now appeals.
Discussion and Decision
[10] Randolph contends that the State committed prosecutorial misconduct when it
accused one of his attorneys of “victim blaming” and “vouched” for N.D.’s
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testimony. In order to preserve a claim of prosecutorial misconduct, the
defense must raise a contemporaneous objection and request an admonishment.
Bass v. State, 947 N.E.2d 456, 461 (Ind. Ct. App. 2011), trans. denied. If an
admonishment is not given or is insufficient to cure the error, the defense must
request a mistrial. Id. When reviewing a properly preserved claim for
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.” Cooper v. State, 854 N.E.2d 831, 835 (Ind.
2006). “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.” Id.
[11] Randolph first argues that the State engaged in prosecutorial misconduct when
it said, “And the alcohol, that’s victim blaming.” Tr. p. 354. Randolph’s
counsel was the one who initially argued that alcohol might have played a part
in the events of November 7. The State’s comment about alcohol was in
response to defense counsel’s statement that N.D. was “legally intoxicated” and
as a result “might have overreacted” to finding out Randolph was married. Id.
at 348. The State is “entitled to respond to allegations and inferences raised by
the defense even if the [State’s] response would otherwise be objectionable.”
Ryan v. State, 9 N.E.3d 663, 669 (Ind. 2014). Given that the State’s comment
about “victim blaming” was in response to allegations from Randolph’s
counsel, we conclude that the State’s argument did not constitute misconduct.
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[12] Randolph next argues that the State engaged in prosecutorial misconduct in its
rebuttal by “vouching” for N.D.: “[A] prosecutor’s wors[t] nightmare is, I
believe her but - - I believe her but I wanted more.” Id. at 357. Randolph
argues that this statement was the State expressing its “personal nightmare” that
it believed N.D. but that the jury might not, a violation of the Indiana Rules of
Professional Conduct. Appellant’s Br. p. 15-16. The State contends that the
prosecutor was merely explaining that her “nightmare” is when a juror thinks
to himself or herself, “I believe the victim, but I wanted some more evidence
beyond her testimony.” Appellee’s Br. p. 16. We agree with the State’s
explanation. After the court sustained Randolph’s objection, it instructed the
State to remove the word “I” from its closing argument. The State then
concluded its rebuttal by saying, “If you get back there and say you believe her .
. . when you get to I believe her, that’s guilty on all counts.” Tr. p. 358
(emphasis added). Rephrasing its argument, the State illustrated that it was not
“vouching” for N.D.’s testimony, but rather addressing any potential
shortcomings in its case and what was required for the jury to reach a guilty
verdict under the beyond-a-reasonable-doubt standard. This is not misconduct.
[13] Even if one of the challenged statements constituted misconduct, Randolph was
not placed in a position of grave peril. Randolph objected to both statements;
both objections were sustained; and the court, at Randolph’s request, gave an
admonishing statement to the jury after the “victim blaming” comment.
Additionally, the final jury instructions were given immediately after the close
of the State’s three-minute rebuttal. They included additional guidance for the
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jury on what was and was not evidence to be considered when reaching its
verdict, and there was sufficient physical evidence presented at trial to support
Randolph’s conviction: N.D.’s ripped panties, chunks of N.D.’s hair on the
floor, bruises on N.D.’s body, a cut on N.D.’s lip, and Randolph’s semen on
N.D.’s body. Furthermore, when the trial court ruled on Randolph’s motion
for a mistrial, it explicitly stated that it watched the demeanor of the jury during
the admonishments and that it believed Randolph was not placed in grave peril.
Based on the physical evidence and the court’s observations of the jury during
the admonishing statements, we conclude that, even if the challenged
statements during the State’s rebuttal had been misconduct, they had no
probable persuasive effect on the jury’s verdict.
[14] Affirmed.
Bradford, J., and Brown, J., concur.
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