Darryl Leigh Kilgore, Jr. 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 Oct 04 2017, 8:10 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
Kristin A. Mulholland Curtis T. Hill, Jr.
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Darryl Leigh Kilgore, Jr., October 4, 2017
Appellant-Defendant, Court of Appeals Case No.
45A04-1704-CR-882
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Plaintiff Judge
Trial Court Cause No.
45G01-1501-FB-1
Crone, Judge.
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Case Summary
[1] Following a jury trial, Darryl Leigh Kilgore, Jr., appeals his conviction for class
B felony robbery resulting in bodily injury. He argues that the trial court erred
in denying his motion for mistrial following an unprompted remark by his ex-
girlfriend. We find no error and therefore affirm.
Facts and Procedural History
[2] Around 8:30 a.m. on June 27, 2014, octogenarian Kenneth Meier walked from
his home to the nearby commuter train station in Hammond, got a newspaper
on the platform, and started walking homeward. An African-American male
“got behind [him] and put [him] in a bear hug.” Tr. Vol. 1 at 24. Meier yelled
for help. The man lifted Meier up and pushed him down onto the platform.
The man then grabbed Meier’s wallet, containing over $100 in cash, out of his
left front pants pocket and “took off” down the platform. Id. Meier suffered
“bad scratch[es]” on his elbow and back during the assault. Id. at 25. Meier
did not see his assailant’s face.
[3] Meier’s neighbor, Nancy Roberts, was outside her home preparing for a yard
sale with her friend Jean Wells when she heard Meier’s cries for help. Roberts
ran to the train station and saw a “husky” black male running down the
platform stairs. Id. at 64. She “looked up at him” and “saw his face and eyes.”
Id. at 44, 72. Roberts moved aside “so he could run down and [she] ran up” the
stairs and helped the “banged up” Meier off the ground. Id. at 44, 45. Wells,
who was approximately 300 to 400 feet away, saw a “husky” black male in
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profile as he “[ran] down the stairs of the platform and [took] off running down
the street going south.” Id. at 86, 76. Roberts and Wells provided a description
of the man to Northern Indiana Commuter Transportation District (“NICTD”)
police, who distributed security camera footage of the robbery to local media
“to seek[] the public’s help and assistance in identifying the suspect.” Id. at 95.
[4] On June 28, Kilgore’s ex-girlfriend, Michelle Cleveland, who had dated him
“off and on” for approximately eight months, saw video and a still image from
the security footage on television. Id. at 126. She called NICTD Police
Sergeant Howard Morgan and identified the robbery suspect as Kilgore based
on the distinctive markings of name-brand jeans and shoes that she had bought
for him, a “gray cut-off shirt he always wore[,]” the way he walked, and the
way he carried his left arm due to an injury. Id. at 123.
[5] On July 1, Kilgore called NICTD Police Chief Robert Byrd and said that “he
wanted to clear his name.” Id. at 96. Kilgore said that he had been at the
Hammond station on June 26 between 2:00 and 3:00 p.m. and that if police
“reviewed the security camera videos at the station that he would be easily
identifiable because he was wearing a black t-shirt with … large white letters on
the shirt that said Arsenal Tech.” Id. at 97. Sergeant Morgan reviewed the
Hammond station camera footage from 1:00 to 4:00 p.m. on June 26 and “did
not see anybody wearing that kind of clothing either inside the station” or “on
the platform.” Id. at 164. Sergeant Morgan reported this to Kilgore, who said
that “possibly” he had been at the East Chicago station. Id. Sergeant Morgan
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reviewed the camera footage from that station “and again did not see anybody
wearing that type of clothing.” Id. at 165.
[6] With the assistance of a Hammond police detective, Sergeant Morgan
developed an array containing frontal photos of six different men, including
Kilgore. The sergeant showed the array to Roberts on July 5 and Wells on July
9. He told them that he
want[ed] them to look at the series of pictures, if they recognize
anybody. The person [police] are looking for may or may not be
on there and not to get too caught up on hairstyles in case
anything has changed, and … to basically look at facial features,
eyes, things like that.
Id. at 167. According to Sergeant Morgan, Wells “immediately” identified
Kilgore as the person she had seen on June 27, and Roberts also identified
Kilgore “as the offender that she saw.” Id. at 160, 161-62.
[7] The State charged Kilgore with class B felony robbery resulting in bodily injury.
At Kilgore’s jury trial, the State called Cleveland as a witness and asked her
about a phone conversation that she had with Kilgore on June 26. Cleveland
replied, “Well, he needed a job and he needed a card from the office in Miller,
so he asked if I could come and get him. I stated no, I cannot, because there’s
drug activity in the home.” Id. at 115. Kilgore’s counsel objected and moved
for a mistrial, acknowledging his belief that not “by any stretch of the
imagination did the prosecutor prompt this.” Id. at 116. The trial court denied
the motion but admonished the jury as follows:
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That last comment by the witness was absolutely unsolicited by
the state. It was quite frankly improper. This case has nothing to
do with drug usage, drug activity, drug anything whatsoever.
That comment should not, and I’m instructing you that it will
not enter into your discussions at any regard in further discussion
about this case. Whether it’s during these breaks where you are
allowed to discuss this case at all or during deliberations when
you finally receive the case, this comment should not in any
regard influence you on any issue involved in this case. It’s a
robbery case, robbery allegation. It was not evidence, and I am
striking that from your consideration. Please keep this in mind as
we move forward.
Id. at 119-20.
[8] Following this admonition, Cleveland testified that Kilgore called her on June
26. He asked her to pick him up at the Miller train station on June 27 and said
that he would give her a call. Cleveland “didn’t hear from him” until around
9:30 a.m. on June 27, when he called her “and said he went for a run because
he was out of breath.” Id. at 121. Kilgore “said he had money” and wanted
Cleveland to pick him up because he could pay for her gas, but she refused. Id.
at 125.
[9] The jury found Kilgore guilty as charged, and the trial court sentenced him to
eight years executed. This appeal followed.
Discussion and Decision
[10] Kilgore contends that the trial court erred in denying his motion for mistrial. A
mistrial is an extreme remedy that is justified only when other remedial
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measures are insufficient to rectify the situation. Shouse v. State, 849 N.E.2d
650, 655 (Ind. Ct. App. 2006), trans. denied. “On appeal, the trial judge’s
discretion in determining whether to grant a mistrial is afforded great deference
because the judge is in the best position to gauge the surrounding circumstances
of an event and its impact on the jury.” Id. Therefore, we review the trial
court’s decision solely for an abuse of discretion. Id. “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.” Vaughn v. State, 971 N.E.2d 63,
68 (Ind. 2012). To prevail on appeal, Kilgore must demonstrate that
Cleveland’s statement was so prejudicial and inflammatory that he was placed
in a position of grave peril to which he should not have been subjected. Norton
v. State, 785 N.E.2d 625, 627 (Ind. Ct. App. 2003).1 “To determine the gravity
of peril, an appellate court considers the probable persuasive effect of the
misconduct on the jury’s decision, not the degree of impropriety of the conduct.
Generally, a timely and accurate admonition is an adequate curative measure
for any prejudice that results.” Id. (citation omitted). “We seldom find
reversible error when the trial court admonishes the jury to disregard [a]
statement made during the proceedings.” Davidson v. State, 580 N.E.2d 238,
241 (Ind. 1991).
1
The parties disagree about whether Cleveland’s statement constitutes an evidentiary harpoon, but they
agree that the prosecutor did not intentionally elicit the statement. Therefore, we need not resolve the
terminology dispute.
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[11] Kilgore argues that the trial court’s admonition in this case “was not sufficient
to overcome the taint of the allegation” that he was involved in drug activity
because “[t]he State’s case was entirely based” on what he characterizes as
“suspect eyewitness identifications.” Appellant’s Br. at 11, 12. We first
observe that Cleveland’s statement was brief and did not implicate Kilgore
directly in drug activity or describe that activity in any detail. We further
observe that the State’s case was also based on Cleveland’s identification of
Kilgore from the security footage, as well as the police officers’ testimony about
Kilgore’s attempt to clear his name, which did not pan out as well as Kilgore
might have hoped. Kilgore criticizes the clarity of the footage and questions
Cleveland’s ability to recognize his clothing, but we note that Cleveland also
based her identification on Kilgore’s gait and the posture of his left arm. The
jurors were able to see the footage for themselves and evaluate Cleveland’s
credibility accordingly.
[12] Likewise, the briefness of Roberts’s encounter with Kilgore, Wells’s distance
from and profile view of Kilgore, and the alleged suggestiveness of the photo
array regarding the subjects’ physiques and clothing were all thoroughly
explored before the jury on direct, cross, and redirect examination. Kilgore
disregards Roberts’s testimony that she “saw his face and eyes” as he ran down
the platform stairs, Sergeant Morgan’s testimony that Wells “immediately”
identified Kilgore as the robbery suspect in the photo array, and Cleveland’s
testimony that Kilgore called her shortly after the robbery and said that he had
money and was out of breath from running. Tr. Vol. 1 at 72, 160.
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[13] Based on the foregoing, we conclude that the probable persuasive effect of
Cleveland’s brief statement on the jury’s decision was minimal. We further
conclude that the trial court’s prompt and thorough admonition instructing the
jury to disregard Cleveland’s statement cured any resulting prejudice.
Therefore, we conclude that the trial court did not abuse its discretion in
denying Kilgore’s motion for mistrial. His conviction is affirmed.
[14] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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