Shakka Eugene Brogdon v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 27 2018, 9:55 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stacy R. Uliana Curtis T. Hill, Jr.
Bargersville, Indiana Attorney General of Indiana
Justin F. Roebel
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shakka Eugene Brogdon, December 27, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-734
v. Appeal from the Hamilton Superior
Court
State of Indiana, The Honorable Steven R. Nation,
Appellee-Plaintiff. Judge
Trial Court Cause No.
29D01-1612-F3-9127
Altice, Judge.
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Case Summary
[1] Following a jury trial, Shakka Brogdon was found guilty of two counts of Level
3 felony aggravated battery, stemming from his involvement in a fight in which
one person died. The trial court merged the counts and sentenced Brogdon to
sixteen years of incarceration. He raises two issues that we restate as:
I. Whether the trial court abused its discretion when it denied his
request for a continuance of the jury trial; and
II. Whether Brogdon’s sentence is inappropriate in light of the
nature of the offense and the character of the offender.
[2] We affirm.
Facts & Procedural History
[3] Brogdon was one of four young men involved in a physical fight occurring
during the afternoon of December 7, 2016. Earlier that day, Daniel Zuluaga
and his long-time friend Cory Zimmer decided to purchase and smoke
marijuana, although neither had any money. Zuluaga called his dealer, Joseph
Coccaro and arranged a buy. Around 2:00 p.m., Zimmer and Zuluaga took
Zuluaga’s mother’s SUV to Coccaro’s apartment complex.1 They parked the
SUV, and Zimmer moved to the back seat, and Zuluaga moved to the driver’s
seat. Zuluaga called Coccaro, who came down from his upstairs apartment,
1
Zimmer drove the SUV because Zuluaga did not have a driver’s license.
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entered the car, and sat in the passenger seat. Coccaro gave Zuluaga the
marijuana, and Zuluaga told him that he was not going to pay for it because
Coccaro recently had shorted Zuluaga on an Adderall purchase. A
disagreement ensued. While Coccaro was in the car with Zimmer and
Zuluaga, Coccaro texted his friend and roommate, Brogdon, who at the time
was getting a ride home from work. Coccaro told Brogdon that he was in a
black Expedition, and Brogdon believed that Coccaro sounded “panicked.”
Transcript Vol. 4 at 148. When Brogdon’s co-worker, Andrew Segal, dropped
off Brogdon at the apartment complex, Segal saw Coccaro, who he knew, in an
SUV with another individual. As Brogdon was exiting Segal’s car, Brogdon
said to Segal something along the lines of “I’m about to beat this dude’s ass.”
Transcript Vol. 3 at 74.
[4] Meanwhile, in the SUV, Coccaro punched Zuluaga, and Zuluaga’s glasses flew
off. As Zuluaga looked for his glasses, Coccaro continued to hit him. Zimmer,
from the back seat, then started hitting Coccaro. Brogdon walked up to the
SUV, entered the backseat, and began hitting Zimmer. At some point Zimmer
and Brogdon moved from inside the car to outside of it and continued fighting.
Zuluaga put the car in reverse, which caused Coccaro to stop hitting Zuluaga
and jump out of the SUV. Coccaro joined Brogdon in punching Zimmer.
Zuluaga shouted at them to stop, and Coccaro yelled back and threatened
Zuluaga that if he told the police that “he would f-ing kill” him. Id. at 101.
Zuluaga drove away, looped around the parking lot, and returned to see
Brogdon still hitting Zimmer and Coccaro running to a car while yelling to
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Brogdon to leave with him. Zuluaga recalled that as Coccaro was running
away, Zimmer was standing, but when Zuluaga looked back from Coccaro to
Brogdon, Zimmer was on the ground on his back. Brogdon thereafter got into a
car with Coccaro and the two left.
[5] Zuluaga helped Zimmer sit up and tried to get Zimmer to his feet, but was
unable to support him or get him to the SUV. Zimmer was breathing heavily
and bleeding from his face. Meanwhile, Brogdon and Coccaro had returned to
their apartment and, from their balcony, Brogdon yelled down to Zuluaga, “I
should come down and get you too, mother f-er.” Id. at 109. Zuluaga got
scared and ran to the SUV. When he attempted to call for help, he found that
his phone was shattered and Zimmer’s lacked power. Zuluaga then drove
home, leaving Zimmer in the parking lot. Rather than calling 911, Zuluaga
called Zimmer’s mother.
[6] Meanwhile, at around 1:45 p.m., Jane Flanders heard screaming and looked
out her apartment window and saw Brogdon and Coccaro in an argument with
the driver of an SUV. Moments later, she saw the SUV “peeling out” and, at
that time, she saw Coccaro and Brogdon standing by Coccaro’s car together
and they “fist-bumped” each other. Id. at 146. After that, Flanders left her
apartment for an appointment, and she saw Zimmer “laying flat” in the parking
lot. Id. at 149. She called 911 and an EMT arrived at 2:40 p.m. By the time
Zimmer was placed in the ambulance, the emergency personnel could not find
a pulse. They attempted to revive Zimmer but were unsuccessful.
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[7] According to a subsequent autopsy, Zimmer died from a combination of
multiple injuries, including blunt force trauma to his head. Zimmer’s left
orbital bone under the eye was fractured, he had contusions to his face and
head in a circular shape consistent with a brass knuckle or shoe, and he had a
fractured skull. The skull fracture was consistent with Zimmer falling to the
ground from a minimum of about six feet or being struck while already on the
ground.
[8] On the evening of December 7, police questioned Brogdon, Coccaro, Coccaro’s
girlfriend Megan, and their friend Dylan. Brogdon denied having any
knowledge of the incident. When Brogdon and Megan were left alone at the
police station, Brogdon was recorded telling Megan not to say anything. Two
days later, Brogdon was arrested. After his arrest, Brogdon gave a second
statement indicating that he joined the fight because Coccaro asked for help and
that it was Coccaro who kicked Zimmer in the head. Brogdon admitted to
police that he hit Zimmer “in order for him to pass out.” Transcript Vol. 4 at
211.
[9] On December 9, 2016, the State charged Brogdon with: Count I, involuntary
Manslaughter, a Level 5 felony; Count II, aggravated battery, a Level 3 felony;
and Count III, aggravated battery, a Level 3 felony. The State charged his co-
defendant, Coccaro, with the same offenses, and also Count IV, intimidation, a
Level 6 felony, and Count V, dealing in marijuana, a Level 6 felony.
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[10] Trial initially was set for February 6, 2017. Thereafter, Brogdon sought and
received ten continuances of the trial setting. Ultimately, by order of October
19, 2017, the trial was set for January 8, 2018. On or around December 14,
2017, Brogdon learned that on December 5 Coccaro had pled guilty and signed
a special factual basis, a copy of which was provided to Brogdon upon his
request. On December 21, the trial court held Coccaro’s guilty plea hearing and
set the sentencing hearing for February 22, 2018.2
[11] On December 22, 2017, about two weeks prior to trial, Brogdon filed an
“Eleventh Motion for Continuance” requesting a continuance of trial so that he
could depose Coccaro after Coccaro’s February 22, 2018 sentencing hearing.
Appellant’s Appendix Vol. II at 86. Brogdon asserted that Coccaro “has essential
exculpatory information that will affect the defense strategy in this matter,” and
he was seeking a continuance until after Coccaro was sentenced, when Coccaro
“no longer possesses a 5th Amendment privilege against self-incrimination for
any participation that he might have had in this matter.” Id. at 88. Brogdon
sought a continuance “to allow for a deposition of Witness Coccaro so that
[Brogdon] has the ability to fully investigate all available defenses in this
matter.” Id. at 89. The State objected to the continuance, asserting that (1) it
did not intend to call Coccaro as a witness, and (2) the factual basis for
Coccaro’s plea was not exculpatory for Brogdon.
2
According to the State, “Coccaro pleaded guilty to involuntary manslaughter and aggravated battery with
an agreement that the involuntary manslaughter was a lesser included offense.” Appellee’s Brief at 23.
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[12] The trial court considered Brogdon’s request for a continuance at the December
29, 2017 final pretrial hearing. In support of his motion, Brogdon argued that
Coccaro is “a material fact witness, an eyewitness, and a participant to the
event all rolled into one,” and he urged the trial court to allow a continuance to
allow Brogdon the opportunity to investigate what Coccaro “may or may not
have to say if he actually loses that 5th Amendment privilege against self-
incrimination.” Transcript Vol. 2 at 6. Counsel conceded, “I don’t know what
[Coccaro] may provide to us, but I think that he could provide exculpatory
information” that “could change the defense strategy of Mr. Brogdon” and that
Brogdon “should be allowed the opportunity to question [Coccaro] on that.”
Id. at 14.
[13] The State responded that, first, “[Coccaro’s] factual basis . . . is not
exculpatory,” and, second, even if Coccaro were to say something else in a
deposition that was exculpatory, then “you have a witness that’s given four or
five different statements. How is that exculpatory.” Id. at 9, 11. The State
argued that the sought continuance was “a delay for the sake of delay” and
should be denied. Id. at 11. The State informed the court that it had twenty
witnesses “lined up and ready for this trial on January 8th,” including a
pathologist and a witness in Florida. The State observed that any continuance
would delay the case at least until March, and the State had “no idea” whether
the witnesses would be available then. Id. The trial court denied Brogdon’s
motion for continuance. Prior to the start of trial, Brogdon renewed the
motion, and the trial court affirmed its prior ruling.
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[14] During the January 8-12, 2018 jury trial, the State argued that Zimmer’s fatal
skull fracture was caused by Zimmer hitting the back of his head on the ground
after being knocked out by a punch from Brogdon. The State also argued that
even if the fatal injury was caused by Coccaro, Brogdon was still guilty as an
accomplice. Brogdon argued that he went to the scene because Coccaro
seemed panicked, and when he approached the SUV he saw Zuluaga and
Zimmer hitting Coccaro. According to Brogdon, Coccaro begged Brogdon to
help him and that, in response, Brogdon yanked Coccaro out of the SUV.
Brogdon stated that Zimmer then pulled him into the car, hit him, and the two
grappled. Brogdon described that as he was getting out of the car, Zimmer hit
him again and they began fighting outside the SUV. Brogdon testified that at
one point when he hit Zimmer, Zimmer fell to his knees or a sitting position,
and then Coccaro “soccer kicked” Zimmer, who fell back and hit the ground.
Transcript Vol. 4 at 163. Brogdon stated that Coccaro “proceeded to . . . stomp”
Zimmer in the face two or three times. Id. at 165. Although Brogdon admitted
that he punched Zimmer multiple times, he testified he did so in defense of
himself and Coccaro. Brogdon stated that he never touched Zimmer while
Zimmer was lying on the ground. Brogdon admitted that, after the fight, he
yelled down from the balcony at Zuluaga as he was trying to help Zimmer.
[15] A jury found Brogdon guilty of two counts of Level 3 felony aggravated battery
as an accomplice, but acquitted him of involuntary manslaughter. On March
22, 2018, the trial court merged Counts II and III, and entered judgment of
conviction on only Count III.
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[16] At his sentencing hearing, Brogdon expressed remorse to Zimmer’s family,
asked for forgiveness, and stated that Zimmer’s death “haunts [him] every
single day.” Transcript Vol. 5 at 140. Brogdon acknowledged that what he did
was wrong and stated that he accepted responsibility for it, but maintained that
he acted to defend himself. He expressed regret that he did not do more “to
stop [] Coccaro from doing what he did.” Id. at 141. Brogdon asked the trial
court for the advisory sentence of nine years.
[17] In its sentencing order, the trial court identified three aggravators: (1) Brogdon
had “a history of criminal behavior . . . , including write-ups for failure to obey
and battery while at the Indiana Department of Correction”; (2) Brogdon
“recently violated conditions of probation . . . , including that [he] was on
probation when this offense was committed”; and (3) “[t]he nature of the
crimes of violence against a person in that, specifically, [Brogdon] failed to seek
medical attention for the victim and [Brogdon] took actions to avoid detection
or facts relating to the crime.” Appellant’s Appendix Vol. II at 218. The trial
court found no mitigators, declining to find Brogdon’s remorse as mitigating
because it found his statements to be too inconsistent. The trial court sentenced
Brogdon to the sixteen years in the Indiana Department of Correction. He now
appeals.
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Discussion & Decision
Motion for Continuance
[18] Brogdon contends that the trial court abused its discretion when it denied his
request for “a three-month continuance to permit [him] the opportunity to
decide whether to call Coccaro as a witness.” Appellant’s Brief at 17. Rulings on
non-statutory motions for continuance are within the trial court’s discretion and
will be reversed only for an abuse of discretion and resultant prejudice.3
Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018). An abuse occurs only where
the trial court’s decision is clearly against the logic and effect of the facts and
circumstances. Id. “An abuse of discretion may be found in the denial of a
motion for a continuance when the moving party has shown good cause for
granting the motion,” but “no abuse of discretion will be found when the
moving party has not demonstrated that he or she was prejudiced by the
denial.” In re K.W., 12 N.E.3d 241, 244 (Ind. 2014). “‘There is a strong
presumption that the trial court properly exercised its discretion.’” Robinson, 91
N.E.3d at 577 (quoting Warner v. State, 773 N.E.2d 239, 247 (Ind. 2002)).
[19] Here, on December 22, 2017, Brogdon sought a continuance of the January 8,
2018 trial date so that he could depose Coccaro following Coccaro’s February
3
A “defendant is statutorily entitled to a continuance where there is an ‘absence of material evidence,
absence of a material witness, or illness of the defendant, and the specially enumerated statutory criteria are
satisfied.’” Gibson v. State, 43 N.E.3d 231, 236 (Ind. 2015) (quoting Elmore v. State, 657 N.E.2d 1216, 1218
(Ind. 1995) (citing Ind. Code § 35-36-7-1)). Brogdon makes no claim that he was entitled to a continuance as
a matter of right.
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22 sentencing hearing, when Coccaro would lose his Fifth Amendment
privilege against self-incrimination, and then Brogdon could decide whether to
call Coccaro as a witness at trial. Brogdon’s position is that Coccaro may have
had exculpatory evidence or at least had testimony that would have
corroborated Brogdon’s self-defense claim. In support, Brogdon observes that,
in one of Coccaro’s statements to police, Coccaro said that while he was in the
vehicle with Zuluaga and Zimmer, he texted “I need you” to Brogdon, who
arrived to help Coccaro. Appellant’s Appendix Vol. II at 27. According to
Coccaro’s statement, Brogdon was mad that he had to become involved and
“save” Coccaro. Id. On appeal, Brogdon argues that Coccaro’s statement
about Brogdon arriving to help and save Coccaro “corroborated Brogdon’s
testimony” and was “extremely crucial to Brogdon’s self-defense claim.”
Appellant’s Brief at 15. Brogdon urges that any prejudice to the State from a
continuance would have been minimal, as the State would have suffered only
the inconvenience of the need to reschedule witnesses, but that the harm to
Brogdon “was extreme” because “[h]ad Brogdon called Coccaro as a witness,
the jury may not have rejected his claim of self-defense.” Id. at 12. Brogdon
claims that the trial court’s ruling thereby denied him the opportunity to fully
exercise his right to present a defense under the Sixth Amendment and the Due
Process Clause. Id. at 15. We disagree and find no abuse of discretion and no
violation of Brogdon’s right to present a defense.
[20] Here, just a few weeks before trial, Brogdon filed his eleventh motion for
continuance. While a number of the prior continuances were related to
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discovery, the trial had been delayed at that point by almost a year. The State
had twenty witnesses arranged to appear at the January 8 trial, including a
doctor and a witness coming from Florida. Any continuance would have
delayed the trial by at least another three months. Brogdon sought the
continuance in order to have the opportunity to (1) depose co-defendant
Coccaro after Coccaro had been sentenced, and (2) decide whether to call
Coccaro as a witness. While Brogdon maintains that Coccaro may have
offered testimony that corroborated Brogdon’s self-defense claim – based on the
fact that Coccaro in one statement to police stated the Brogdon arrived after the
fight and came with the purpose of saving Coccaro – other statements that
Coccaro made to police were more incriminating of Brogdon and indicated that
(1) Brogdon pulled Zimmer from the vehicle and was “kicking [Zimmer’s] ass,”
(2) Coccaro saw Brogdon punch and kick Zimmer while he was on the ground,
and (3) Brogdon had stated that he hoped he had not killed Zimmer. Appellant’s
Appendix Vol. II at 27-28. At best, any trial testimony that Coccaro would have
given, even if to some degree exculpatory, would have been conflicting with his
other statements. We agree with the State that Brogdon’s “mere speculation
that Coccaro may have provided corroborating testimony did not meet
[Brogdon’s] obligation to prove prejudice” stemming from the trial court’s
denial of his request for a continuance. Appellee’s Brief at 17. Based on the
circumstances before us, we find no error with the trial court’s denial of
Brogdon’s motion for continuance.
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Inappropriate Sentence
[21] Brogdon claims that his sixteen-year sentence is inappropriate. Pursuant to Ind.
Appellate Rule 7(B), this Court “may revise a sentence authorized by statute if,
after due consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” Our Supreme Court has explained that the principal role of
appellate review should be to attempt to leaven the outliers, “not to achieve a
perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008). Sentencing review under Appellate Rule 7(B) is very deferential to
the trial court. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such
deference should prevail unless overcome by compelling evidence portraying in
a positive light the nature of the offense (such as accompanied by restraint,
regard, and lack of brutality) and the defendant’s character (such as substantial
virtuous traits or persistent examples of good character).” Stephenson v. State, 29
N.E.3d 111, 122 (Ind. 2015).
[22] The determination of whether we regard a sentence as inappropriate “turns on
our sense of the culpability of the defendant, the severity of the crime, the
damage done to others, and myriad other factors that come to light in a given
case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895
N.E.2d at 1224). The question under App. R. 7(B) is “not whether another
sentence is more appropriate” but rather “whether the sentence imposed is
inappropriate.” Miller v. State, 105 N.E.3d 194, 196 (Ind. Ct. App. 2018).
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Brogdon bears the burden of persuading us that his sentence is inappropriate.
Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied.
[23] In order to assess the appropriateness of a sentence, we first look to the
statutory range established for the classification of the relevant offenses.
Brogdon was convicted of a Level 3 felony. The sentencing range for a Level 3
felony is three to sixteen years, with an advisory sentence of nine years. Ind.
Code § 35-50-2-5. In this case, Brogdon received the maximum sentence of
sixteen years, and he asks this court to revise his sentence to the advisory of
nine years.
[24] As this court has recognized, “[t]he nature of the offense is found in the details
and circumstances of the commission of the offense and the defendant’s
participation.” Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011).
Brogdon argues that his friend Coccaro “started a fight over drugs and solicited
Brogdon’s help.” Appellant’s Brief at 12. Brogdon asserts that, “[a]lthough [he]
is responsible for Coccaro’s acts, he had no idea Coccaro was going to escalate
the fight.” Id. at 20. Brogdon asserts that from the fact that the jury acquitted
him of involuntary manslaughter, it can be inferred “the jury found that
Coccaro, not Brogdon, delivered the blow that killed Zimmer.” Id. at 19.
Brogdon maintains that his culpability was thus less than Coccaro’s, who
received a nine-year sentence, and that his “maximum sentence should be
revised to reflect his lesser culpability.” Id. at 12. We disagree that the nature
of the offense warrants a reduction in his sentence.
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[25] Even if it was Coccaro who started the fight that ultimately resulted in
Zimmer’s death, and even if Brogdon responded to the scene in order to help or
save Coccaro, the evidence favorable to the verdict is that Brogdon punched
Zimmer, pulled him from the vehicle, and continued to fight with him even
after Coccaro ran away and yelled at Brogdon to leave too. Brogdon admitted
at trial that he punched Zimmer in the head three times, and he had previously
told officers that he punched Zimmer as many as six times. In a statement to
police, Brogdon said that he hit Zimmer “in order for him to pass out.”
Transcript Vol. 4 at 211. Even if Coccaro “soccer kicked” Zimmer, as Brogdon
claims, Brogdon did nothing to stop it and, afterward, Brogdon and Coccaro
“fist bumped” in celebration of their accomplishments. Id. at 163; Transcript
Vol. 3 at 146. We cannot say that the nature of the offense warrants a reduced
sentence.
[26] “The character of the offender is found in what we learn of the offender’s life
and conduct.” Croy, 953 N.E.2d at 664. Brogdon urges that he had a “rough
childhood,” which included not having his father as part of his life, moving
residences frequently, and having older brothers that were negative influences
and included him in criminal activity. He urges that he “has a relatively minor
juvenile record” and that his criminal history is “similar to that of Coccaro’s.”
Appellant’s Brief at 21. He argues that, “[a]s to their character, the only
difference is that Coccaro plead guilty and Brogdon did not” and that “[t]he fact
that [Brogdon] exercised that right does not justify a maximum sentence where
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the principal received the advisory[.]” Id. He maintains that “the only
appropriate sentence is one similar to [] Coccaro[’s].” Id. at 22. We disagree.
[27] The court found as aggravating Defendant’s criminal history, his history of
misconduct while incarcerated, and his history of crime while on probation.
The record reflects that, as a juvenile, Brogdon had one true finding for what
would be a Class D felony drug possession. When Brogdon was eighteen years
old, he aided his brothers in committing a residential burglary and robbery, for
which Brogdon pled guilty to Class B felony robbery and burglary and received
concurrent sentences of ten years with six years suspended. Brogdon was still
on juvenile probation when he committed the burglary and robbery, and he was
on probation for those convictions when he committed the present offense. In
2013, he was convicted of possession of a cell phone while incarcerated, a Class
A misdemeanor. In 2015, Brogdon “was written up” for battery and refusing to
obey an order while in DOC, and he has received “several verbal and written
warnings” while in the Hamilton County Jail. Appellant’s Appendix Vol. III at 7.
[28] When police first spoke to Brogdon in this case, he lied and represented that he
knew nothing about it. He also told another witness to say the same. As
Zuluaga was attempting to help Zimmer, Brogdon, from his apartment balcony,
threatened Zuluaga, “I should come down and get you too, mother f-er.”
Transcript Vol. 3 at 109. We cannot say that Brogdon’s character warrants
downward revision of his sentence.
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[29] We reiterate that our task on appeal is not to determine whether another
sentence might be more appropriate; rather, the inquiry is whether the imposed
sentence is inappropriate. Barker, 994 N.E.2d at 315. Brogdon has failed to
carry his burden of establishing that his sentence is inappropriate in light of the
nature of the offense and his character.
[30] Judgment affirmed.
Brown, J. and Tavitas, J., concur.
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