Bobby Holsey v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Nov 18 2013, 5:34 am
Nov 18 2013, 5:34 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DEBORAH MARKISOHN GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BOBBY HOLSEY, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1304-CR-305
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Clayton A. Graham, Judge
Cause No. 49G17-1206-FD-42399
November 18, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Bobby Holsey appeals his conviction for domestic battery, as a Class A
misdemeanor, following a jury trial. Holsey presents two issues for our review:
1. Whether the trial court abused its discretion when it excluded certain
evidence during cross-examination of the victim.
2. Whether the prosecutor’s remarks during closing argument
constituted misconduct and whether that misconduct placed Holsey
in a position of grave peril.
We affirm.
FACTS AND PROCEDURAL HISTORY
On May 27, 2012, at approximately 11:00 p.m., Holsey and his girlfriend,
Quanisha Owens, argued about whether Holsey would watch their child the following
day while Owens was at work. After Holsey told Owens that he would not watch the
child, Owens went into her bedroom to make phone calls to try to find a babysitter. At
one point, Holsey came to the doorway and told Owens to get off of the phone. When
Owens refused, Holsey repeated his demand that Owens get off of the phone. Then
Holsey said, “Get off [of] the phone or else.” Transcript at 113. Owens then asked
Holsey, “Or else what?” Id. And Holsey responded, “[You]’ll see.” Id.
At that point, Owens told the person on the phone to call the police if Owens did
not call her back in “a few minutes.” Id. Holsey then “charged at” Owens and a physical
fight ensued. Id. Holsey had a hand on Owens’ neck and threw her against a wall, and
Owens’ elbow punched a hole in the wall. Owens then fell to the floor, and Holsey kept
his hand on her neck. Holsey then took Owens’ phone and left the apartment. Holsey
had shut the door so hard that the door knob fell off, and Owens could not get the door
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open. Owens found another phone in her apartment and called 911. When police
officers arrived at Owens’ apartment, they were unable to open the door from the outside,
and Owens was unable to open it from the inside despite their instructions on how to
operate the mechanism without the door knob. The officers had to force the door open to
gain access to the apartment. Once inside, the officers took photographs of Owens’ neck
and elbow, as well as the hole in the bedroom wall created by Owens’ elbow during the
fight with Holsey.
The State charged Holsey with confinement, as a Class D felony; strangulation, a
Class D felony; domestic battery, as a Class D felony; battery, as a Class D felony;
intimidation, as a Class A misdemeanor; domestic battery, as a Class A misdemeanor;
battery, as a Class A misdemeanor; and interference with reporting a crime, a Class A
misdemeanor. The State dismissed the intimidation and strangulation charges prior to
trial. A jury found Holsey guilty of domestic battery, as a Class A misdemeanor, and
battery, as a Class A misdemeanor. The trial court entered judgment of conviction on
domestic battery, as a Class A misdemeanor, and sentenced Holsey accordingly. This
appeal ensued.
DISCUSSION AND DECISION
Issue One: Cross-Examination
Holsey first contends that the trial court abused its discretion when it prohibited
questions on cross-examination of Owens regarding a recent “demonstrably false”
accusation that Holsey had physically assaulted her. Appellant’s Br. at 7. We review a
trial court’s decision to admit or exclude evidence for an abuse of discretion. Ware v.
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State, 816 N.E.2d 1167, 1175 (Ind. Ct. App. 2004). An abuse of discretion occurs if a
trial court’s decision is clearly against the logic and effect of the facts and circumstances
before the court. Id.Prior to the start of trial, outside the presence of the jury, Holsey asked the trial
court to approve of a line of questioning during cross-examination of Owens. In
particular, Holsey made an offer of proof regarding an alleged false police report Owens
had made against Holsey approximately five months prior to the instant offense. Holsey
submitted to the trial court a case report created by an officer with the Indianapolis
Metropolitan Police Department (“IMPD”) dated January 6, 2012. The case report stated
that: Owens reported that she and Holsey were arguing when he “choke[d]” her, dragged
her out of a car and threw her to the ground, and hit her multiple times; Holsey denied the
allegations and alleged that Owens had hit him multiple times with her fist; and a neutral
eyewitness corroborated Holsey’s version of events. Defendant’s Exh. A. Holsey did not
call either the reporting officer or the eyewitness to testify in support of his offer of proof.
Indiana Evidence Rule 608(b) provides in relevant part as follows: “For the
purpose of attacking or supporting the witness’s credibility, other than conviction of a
crime as provided in Rule 609, specific instances may not be inquired into or proven by
extrinsic evidence.” Thus, the evidence proffered by Holsey is inadmissible. However,
Holsey maintains that the evidence is admissible under the Sixth Amendment to the
United States Constitution, citing State v. Walton, 715 N.E.2d 824 (Ind. 1999). In
particular, Holsey contends that
Walton stands for the proposition that prior demonstrably false testimony,
in circumstances where the complaining witness has made similar
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demonstrably false allegations in the past, is admissible as a defendant’s
Sixth Amendment right “to conduct an effective cross-examination of State
witnesses in order to test their believability,” [sic] necessarily trumps
Indiana Evidence Rule 608(b).
Appellant’s Br. at 10.
But in Saunders v. State, 848 N.E.2d 1117, 1122 (Ind. Ct. App. 2006), trans.
denied, this court observed that the Walton exception to Rule 608(b) is limited to prior
false accusations of rape. We decline Holsey’s invitation to extend Walton to the
circumstances in this case. Indeed, in Manuel v. State, 971 N.E.2d 1262 (Ind. Ct. App.
2012), we affirmed the trial court’s exclusion of evidence that the domestic abuse victim
in that case had previously filed domestic abuse charges against the same defendant. In
making his offer of proof, the defendant questioned the victim, who admitted that she had
recanted her story and the charges had been dropped. On appeal, we held, as here, that
that evidence was inadmissible under Evidence Rule 608(b).
Holsey also contends that the evidence of Owens’ January 2012 allegations
against Holsey was admissible because Owens “opened the door” with her testimony that
“she was afraid [of Holsey] and asked her friend to call the police[.]” Appellant’s Br. at
11. Holsey maintains that the jury “could reasonably conclude that her fear was based on
prior bad acts or instances of domestic violence, rather than on the present incident.” Id.And Holsey points out that a juror submitted the following question to the trial court
during deliberations: “During their 3[-]year relationship/friendship, had [Holsey] ever
acted violently against her before this night? If so, why was it not reported before this
incident?” Appellant’s App. at 108. Thus, Holsey asserts, Owens’ testimony “left jurors
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with the false impression that prior instances of [Holsey] committing domestic violence
against [Owens] had occurred.” Appellant’s Br. at 11.
A party may “open the door” to otherwise inadmissible evidence by presenting
similar evidence that leaves the trier of fact with a false or misleading impression of the
facts related. Walker v. Cuppett, 808 N.E.2d 85, 98 (Ind. Ct. App. 2004). But we
disagree with Holsey that Owens’ testimony likely created a false impression that he had
previously battered her. Owens testified that after she and Holsey had argued, she was
talking to a friend on the phone when Holsey told her to “[g]et off the phone, or else.”
Transcript at 113. When Owens inquired, “[O]r else what?”, Holsey answered, “[You]’ll
see.” Id. Owens’ testimony indicated that she had told her friend to call the police if she
did not call back in a few minutes because Holsey had threatened her. Nothing in
Owens’ testimony alludes to prior violent acts by Holsey. Holsey’s contention that
Owens opened the door to the evidence of the January 2012 allegations is without merit.
Issue Two: Prosecutorial Misconduct
Holsey next contends that the Prosecutor committed misconduct in her closing
argument. Holsey acknowledges that he failed to object to the challenged comments at
trial. Thus, he contends that the comments constitute fundamental error. As this court
has stated:
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
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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. The mere fact
that an alleged error implicates constitutional issues does not establish that
fundamental error has occurred.
Ryan v. State, 992 N.E.2d 776, 782-83 (Ind. Ct. App. 2013) (quoting Nichols v. State,
974 N.E.2d 531, 535 (Ind. Ct. App. 2012)).
Here, during her closing argument, defense counsel argued that Owens told “a
story” but that the “story fell apart while she was telling it.” Transcript at 188-89. She
stated that while Owens testified that Holsey had grabbed her neck, the jury “saw no
injuries on her neck.” Id. at 189. Among other alleged inconsistencies, defense counsel
pointed out that Owens did not report having been injured during the 911 call and that the
first responding police officer did not observe any injuries to Owens. In response to
those assertions that Owens was not credible, the deputy prosecutor on rebuttal stated:
Ms. Owens didn’t get up there today and tell a story. She got up there
today and told you the truth. She got up there today and told you about a
traumatizing event that [Holsey] did. . . . When you piece together that
evidence, you will see that Ms. Owens was telling the truth today. . . .
Everything that she said today, every piece of evidence that the State has
presented is absolutely consistent. Ms. Owens is absolutely telling you the
truth. . . . Absolutely every piece of evidence is consistent with the truth
that she told as she sat before you today.
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Id. at 193-95.
In Jones v. State, 976 N.E.2d 1271 (Ind. Ct. App. 2012), trans. denied, we
addressed a nearly identical claim of fundamental error based on alleged prosecutorial
misconduct. In Jones, the prosecutor asserted in closing argument that the victim was
telling the truth. And in response, defense counsel asserted in closing argument that the
victim was not credible. We rejected Jones’ claim of fundamental error and held as
follows:
Jones’s theory at trial was that R.O.’s story was inconsistent and could not
be believed. During closing argument, the State asserted that R.O. was
telling the truth. In rebuttal, defense counsel again asserted that R.O.’s
story was inconsistent. Here, where R.O.’s credibility was at issue and both
sides had their say on the matter, we cannot say that the statements made by
the State placed Jones in a position of grave peril to which he should not
have been subjected. Furthermore, because the statements did not deny
Jones a fair trial, we find no fundamental error.
Id. at 1282.
In support of his contention on this issue, Holsey cites Ryan, 992 N.E.2d at 776.
In Ryan, we concluded that during closing argument the prosecutor improperly:
commented on the defendant’s right to a jury trial; disparaged defense counsel; asked the
jury to send a message with its verdict; and vouched for the victim’s credibility. Id. at
790. And we held that “the cumulative effects of the prosecutor’s improprieties deprived
Ryan of a fair trial.” Id. at 791. Thus, the defendant prevailed on his claim that the
prosecutorial misconduct constituted fundamental error.
Here, the circumstances are similar to those in Jones in that Holsey’s defense
theory at trial was that Owens’ testimony was inconsistent and that she was not credible.
And this case is readily distinguishable from Ryan because the prosecutor here did not
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make a myriad of improper remarks during closing argument to cumulatively deprive
Holsey of a fair trial. We hold that, because Owens’ credibility was at issue “and both
sides had their say on the matter,” we cannot say that the statements made by the State
placed Holsey in a position of grave peril to which he should not have been subjected.
See Jones, 976 N.E.2d at 1282. Holsey has not demonstrated fundamental error.
Affirmed.
MATHIAS, J., and BROWN, J., concur.
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