Shawn D. Parker v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Apr 19 2018, 9:36 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Marielena Duerring Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shawn D. Parker, April 19, 2018
Appellant-Defendant, Court of Appeals Case No.
20A03-1709-CR-2237
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Dean O. Burton,
Appellee-Plaintiff. Judge Pro Tempore
Trial Court Cause No.
20D01-1605-F3-18
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Shawn D. Parker (Parker), appeals his conviction for two
Counts of rape, Level 3 felonies; and one Count of kidnapping, a Level 5
felony.
[2] We affirm.
ISSUE
[3] Parker raises one issue on appeal, which we restate as: Whether Parker was
denied his due process right to a fair trial.
FACTS AND PROCEDURAL HISTORY
[4] In 2015, Parker was employed as “an independent contractor” for Ron
Davidhizar (Davidhizar). (Tr. Vol. II, p. 148). Davidhizar buys, remodels, and
rents houses in Goshen, Elkhart County, Indiana, and he hired Parker to assist
with projects and “odd jobs.” (Tr. Vol. II, p. 148). Davidhizar owns a property
located at 1413 South Main Street in Goshen (1413 Property), which he leased
to Valerie Hunley (Hunley) and her children beginning in May of 2015.
Davidhizar also owns a vacant house located at 521 South Main Street in
Goshen (521 Property). Several times per week, Parker stopped by the 1413
Property, ostensibly to “fix different things in the house that was [sic] falling
apart.” (Tr. Vol. III, p. 44).
[5] On the afternoon of July 28, 2015, seventeen-year-old H.A., who was then
friends with Hunley’s oldest daughter, A.H., walked to the 1413 Property,
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hoping to “hang out” with A.H. as they regularly did. (Tr. Vol. II, pp. 185-86).
At the time, Parker was at the 1413 Property, and Hunley indicated that H.A.
could not stay. Accordingly, H.A. commenced walking back to her house. A
short time later, as H.A. waited to cross the street at a stoplight, a green Dodge
Durango pulled up next to her. Parker emerged, walked over and grabbed
H.A., and forced her into the back seat. As Parker drove off, H.A.
unsuccessfully attempted to open the door to escape. Parker drove to the 521
Property, which H.A. described as “abandoned” and “really trashy.” (Tr. Vol.
II, pp. 188, 190). Parker dragged H.A. out of the vehicle and into the 521
Property through a rear door as H.A.’s screams for help went unheard. Parker
pushed H.A. down onto the filthy floor, grabbed her head, and made her
perform fellatio. He then grabbed her legs, removed her pants and underwear,
and “shoved his penis into [her] vagina and was pushing really hard on [her].
Then he gets off.” (Tr. Vol. III, p. 8). At that point, Parker released H.A. and
“[t]old [her] not to tell nobody [sic].” (Tr. Vol. II, p. 191).
[6] Hysterical, scratched, and covered in paint debris from the floor, H.A. ran to a
friend’s house. Once H.A. was calm enough to inform her friend that “she got
raped” by a man named “Shawn,” they called the police. (Tr. Vol. II, pp. 161,
162). H.A. indicated that she was experiencing pain and was transported to
Goshen Hospital by ambulance. At the hospital, a sexual assault nurse
examiner (SANE) interviewed H.A, and a rape kit was completed. The SANE
observed some bruising and tearing to H.A.’s genital area and determined that
the physical examination was consistent with H.A.’s recitation of events.
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[7] Based on H.A.’s identification of “Shawn” as the perpetrator and the other
information provided, the investigating officers summoned Parker for an
interview and apprised him of the allegations. (Tr. Vol. II, p. 118). At that
time, Parker asserted his right to have an attorney present for any questioning.
Subsequently, Detective Kyle Priem (Detective Priem) obtained a warrant to
collect a sample of Parker’s DNA. When Parker appeared at the police station
to submit his sample per the warrant, Parker questioned Detective Priem as to
what he needed to do “to prove that [he had] done nothing wrong” and as to
whether “it [was] looking bad on [him].” (State’s Exh. 4). Detective Priem
asked whether Parker had yet retained an attorney, and when Parker indicated
that he could not afford the legal fees, Detective Priem inquired as to whether
Parker wanted to speak with a representative from Legal Aid to be present for
Parker to give his “side of the story.” (State’s Exh. 4). Detective Priem stated
that he did not “want to get into anything with [Parker]” based on his
previously-asserted desire for representation, but Parker nevertheless insisted
that he never “touched” H.A. and that he “would [bet] a million dollars” that
his DNA would not be found on H.A. (State’s Exh. 4). At some point, H.A.
identified Parker in a photo array as her assailant.
[8] The Indiana State Laboratory later compared Parker’s DNA to the specimens
included in H.A.’s rape kit. Seminal material was discovered on external
genital swabs taken from H.A. The DNA profile was consistent with that of
Parker—specifically, it was “estimated to occur once in 4.5 trillion unrelated
individuals.” (State’s Exh. 29). On May 2, 2016, the State filed an
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Information, charging Parker with Counts I and II, rape, Level 3 felonies, Ind.
Code § 35-42-4-1(a)(1); Count III, kidnapping, a Level 5 felony, I.C. § 35-42-3-
2(a),(b)(1)(B); and criminal confinement, a Level 5 felony, I.C. § 35-42-3-
3(a),(b)(1)(B). The State also charged Parker as being a repeat sexual offender
pursuant to Indiana Code section 35-50-2-14. 1
[9] On August 15 through 17, 2017, the trial court conducted a jury trial. At the
close of the evidence, the jury returned guilty verdicts on all four Counts.
Thereafter, Parker admitted to being a repeat sexual offender. On September
11, 2017, the trial court held a sentencing hearing. The trial court merged
Count IV into Count III and sentenced Parker to twelve years each for Counts I
and II, Level 3 felony rape; and four years for Count III, Level 5 felony
kidnapping. The sentences were ordered to run concurrently. Based on
Parker’s repeat sex offender status, the trial court then enhanced the sentence by
nine years, with seven years to be executed and two years suspended to
probation. Accordingly, Parker received an aggregate sentence of twenty-one
years, with nineteen of those years to be executed in the Indiana Department of
Correction. The trial court further determined that Parker is to be classified as a
sexually violent predator.
[10] Parker now appeals. Additional facts will be provided as necessary.
1
On November 3, 1998, Parker was convicted of felony rape in Georgia. He was sentenced to fifteen years
and was released from incarceration on May 15, 2013. Parker also has a 1990 conviction for statutory rape
out of Georgia, for which he received a five-year sentence.
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DISCUSSION AND DECISION
[11] On appeal, Parker claims that his right to due process was violated when the
State presented evidence to the jury indicating that Parker had invoked his right
to an attorney. We review claims of federal constitutional error de novo, and
any error must be harmless beyond a reasonable doubt. Anderson v. State, 961
N.E.2d 19, 28 (Ind. Ct. App. 2012), trans. denied. Here, Parker contends that he
was denied a right to a fair trial in violation of Doyle v. Ohio, 426 U.S. 610(1976). In Doyle, the Supreme Court “held that under the Fourteenth
Amendment a prosecutor may not use the silence of a defendant who has been
arrested and Mirandized to impeach the defendant.” Sobolewski v. State, 889
N.E.2d 849, 857 (Ind. Ct. App. 2008) (citing Doyle, 426 U.S. at 619), trans.
denied. Because Miranda warnings “inform a person of his right to remain
silent,” there is an implicit assurance to a defendant that his silence will not
subsequently be used against him. Id.[12] Unless the defendant opens the door to its admission, “post-Miranda silence is
generally not admissible” out of concern for the Due Process Clause’s
“prohibition against fundamental unfairness.” Barton v. State, 936 N.E.2d 842,
851 (Ind. Ct. App. 2010), trans. denied; Sobolewski, 889 N.E.2d at 856. “[A]
defendant’s prearrest, post-Miranda silence enjoys the same protection as a
defendant’s postarrest, post-Miranda silence.” Kubsch v. State, 784 N.E.2d 905,
914 (Ind. 2003). “‘Silence’ does not mean only muteness; it includes the
statement of a desire to remain silent as well as a desire to remain silent until an
attorney has been consulted.” Id. The Doyle rule is not limited solely to use for
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impeachment purposes; “it also applies to the use of a defendant’s silence as
affirmative proof in the State’s case in chief.” Id.[13] When Parker appeared at the police station to have his DNA collected pursuant
to a search warrant, he engaged in the following video-recorded discussion, in
pertinent part, with Detective Priem:
Parker: What would it take to prove that I haven’t done
nothing wrong? Look . . . I’ve kept my nose clean, stay out of
stuff.
Detective: Uh-huh.
Parker: Period.
Detective: Yeah.
Parker: What will it take to prove I haven’t?
Detective: Well. One, I’d like to get your side of the story.
****
Parker: I don’t go out and drink, I don’t go to bars, I don’t
do nothin’.
Detective: Mmhmm.
Parker: The one time I took a minute off and here I am,
seeing you.
Detective: Mmhmm. Well, it’s . . . nothing personal. Trust
me . . .
Parker: I know it’s nothing personal . . .
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Detective . . . But I do have to follow up with the information
that was provided to me. Okay?
Parker: Can you tell me how this is looking on me?
Detective: Okay. Umm, right now, I’ve got, like I said, one
side of the story and some . . . witnesses saying, you know,
saying . . . kind of saying what they know. . . .
Parker: . . . Is it looking bad on me? Don’t know. Up in the
air. I don’t see how it can look bad because . . . .
Detective: I don’t know at this point. I can’t tell you cuz I
don’t know what the result of . . . the evidence we’ve collected so
far, and I don’t know if anything’s going to match with you.
You know, so, umm, that’s what I’m, that’s what I’m here to
find out. Okay. Umm, let me go grab the gal that’s gonna be
doing this real quick . . .
****
Detective: . . . Did you . . . actually speak to Mike . . . Yoder,
the attorney?
Parker: No. I went to, uh, Jenny Miller, and . . .
Detective: Okay. And, would he be willing, if you want him
to, to come with you to talk about this?
Parker: If I do that, it’s gonna cost me $7,500.
Detective: [Whistles]
****
Parker: . . . If you arrest me, I’ve got to sign over my house
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and pay $10,000 for him to, for his father-in-law to represent me.
Detective: Interested in talking to some Legal Aid or
something like that that might be able to assist you?
****
[DNA and fingernail evidence collected]
Detective: So, think maybe you talk to somebody at Legal Aid
to get you . . . some representation . . . . Otherwise, this is what
I’m going to do is just get the information that I have or that
information that I can get from anybody that had anything to do
with this situation . . . and then send it over to the prosecutor’s
office to take a look at to see if there’s anything . . . we’re
charging, so.
Parker: Look at Walmart’s cameras, you’ll see where I was.
Detective: Okay. When you left, are you talking about when
you left?
Parker: At, me and [Hunley] went to Walmart. Look at
Walmart’s cameras.
Detective: . . . I talked to her about that.
Parker: At the time, she says that I did this, everything that
I’ve heard, I was at Walmart. Look at the cameras.
Detective: With [Hunley]?
Parker: [Hunley and her daughter]. Look at it, they’re time-
dated.
Detective: Yeah, I talked with her about this, so, but, before I .
. . I don’t want to get into anything with you since you said you
need an attorney, so, um, I don’t want to ask you questions about
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...
Parker: How ‘bout, how ‘bout this? I’ll allow you to ask
specific questions, if I don’t feel comfortable . . . answering that
question, I’ll say so.
Detective: Well, like I say, since you said . . . you wanted an
attorney, I have to honor that right . . . for you to do that. Okay.
Parker: Only thing I can say is, I have not touched this girl.
Detective: Okay.
Parker: I have tried my damnedest to avoid this girl because
people that, around me that work with me and everything know
this girl, and they have warned me, avoid her with a passion.
And that’s what I’ve tried to do. If she was over at [Hunley’s]
house, and [Hunley] will vouch for this, I would stay the heck
away or someone had to be around. That’s all I can say. I have
not, I will give you any DNA, blood, anything you want. I have
not . . .
Detective: . . . If that, I mean, that may be what kind of
eliminates you from this case as far as being a suspect, if we don’t
have the, you know . . .
Parker: Now, in that house, yes, you might find my DNA.
Detective: Yeah, we know you’ve been there.
Parker: I’ve been there, I slept, it had a lot of . . . squatters,
and, every so often, I would sleep there just to try to catch ‘em,
run ‘em out.
Detective: Okay.
Parker: So, I’ve used the bathroom there. Everything. My
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DNA is there, yes.
Detective: Mmhmm.
Parker: But, I . . . haven’t touched her.
Detective: Okay.
Parker: I would not touch her, even though she’s age of
consent, if she tried to throw it on me, I would not touch her.
Number one, she stinks. Gross. Number two, you can see she’s
trouble. I don’t need trouble. The only place I go, if I go to drink
a beer, is somewhere that’s calm. Older folks. And that’s very
rare. Because if . . . there was something I could tell you, there’s
really nothing I can tell you.
Detective: Okay. Like I say, you’re not under arrest. . . .
****
Parker: . . . You gotta understand, be in my shoes . . .
Detective: Mmhmm.
Parker: What would you do?
Detective: . . . I mean, I’d be concerned, absolutely. For sure.
Parker: Any, anything. I’ve been told Indiana is a woman
state.
****
Detective: Um, I don’t know what to say about that.
Parker: I don’t know . . . I come up here to take care of my
daughter, to, I work, that’s it. I can, I would put a million
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dollars, you will not find my DNA or none of her DNA under
my nails on her. In the house, yes you might . . . it’s gonna be
there. You know that as well as I do.
****
(State’s Exh. 4). After the parties stipulated to certain redactions, the video-
recorded meeting was admitted without objection.
[14] Parker now asserts that the numerous references to his invocation of his right to
counsel in the jury’s presence amounted to a Doyle violation. In addition to the
admission of the video itself, which contained “a number of references by the
investigator of Parker’s earlier request for an attorney,” Detective Priem
testified prior to the admission of the video to provide context for Parker’s
statements and explained that Parker “had in our previous meeting requested
that an attorney be present during questioning—if he was going to be
questioned. I warned him that he had made that request, and I was going to
honor that request but he continued to speak with me.” (Appellant’s Br. p. 8;
Tr. Vol. II, p. 127). Parker also points out that “[w]hile the prosecutor did not
specifically refer to the evidence that Parker had invoked his right to counsel,
the prosecutor did make numerous references to the videotaped statement of
Parker in her closing argument.” (Appellant’s Br. p. 9). Acknowledging his
own failure to timely object during Detective Priem’s testimony, the video-
recording, and the prosecutor’s closing argument—which would ordinarily
result in waiver of the issue for appeal—Parker now maintains that the repeated
remarks relating to his invocation of his right to counsel amounted to
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fundamental error. See Trice v. State, 766 N.E.2d 1180, 1182 (Ind. 2002) (noting
that an “error [is] not generally . . . available on appeal” where the defendant
fails to object at trial).
[15] We need not address the parameters of the fundamental error doctrine in this
case because we find no due process/Doyle violation, let alone one that rises to
the level of fundamental error. There is no dispute that the jury was aware of
Parker’s request for an attorney at some point during the investigative process,
but “Doyle does not impose a prima facie bar against any mention whatsoever of
a defendant’s right to counsel.” Id. at 1183. Rather, Doyle “guards against the
exploitation of that constitutional right by the prosecutor.” Id. (quoting Willsey
v. State, 698 N.E.2d 784, 793 (Ind. 1998)). In the present case, the State did not
rely on Parker’s post-Miranda silence to either “impeach an [exculpatory]
explanation subsequently offered at trial” or otherwise “create an inference of
guilt.” Teague v. State, 891 N.E.2d 1121, 1125 (Ind. Ct. App. 2008) (quoting
Willsey, 698 N.E.2d at 792). In fact, the State could not use Parker’s silence
against him because Parker failed to remain silent. It is well established that “if
a defendant does not remain silent, he cannot later claim that the silence was
used against him.” Trice, 766 N.E.2d at 1184 (quoting Sylvester v. State, 698
N.E.2d 1126, 1130-31 (Ind. 1998)).
[16] When Parker arrived at the police station to submit his DNA sample, he
advised Detective Priem that he wanted to clear his name. Thereafter,
Detective Priem inquired as to whether Parker had obtained legal
representation and explicitly stated that he intended to honor Parker’s request
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for counsel to be present. Detective Priem informed Parker that he would not
engage in discussing the details of the case absent the presence of Parker’s
counsel. Yet, despite the fact that Detective Priem did not probe for any
information, Parker voluntarily explained that he had never touched H.A.
because “she stinks,” and he assured Detective Priem that there was no chance
that his DNA would be found on H.A. (State’s Exh. 4). In fact, Parker’s DNA
was present on H.A.’s genital swabs, and the State was not prohibited from
admitting Parker’s voluntary statements to the contrary at trial. Accordingly,
we conclude that the State did not violate Doyle, and Parker was not deprived of
his right to a fair trial.
CONCLUSION
[17] Based on the foregoing, we conclude that Parker is not entitled to a new trial
because he was not denied his due process right to a fair trial.
[18] Affirmed.
[19] May, J. and Mathias, J. concur
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