Clay Howard v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Feb 25 2015, 9:57 am
Memorandum Decision shall not be regarded as
precedent or cited before 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
John B. Steinhart Gregory F. Zoeller
Lafayette, Indiana Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Clay Howard, February 25, 2015
Appellant-Defendant, Court of Appeals Case No.
48A02-1406-CR-384
v. Appeal from the Madison Circuit
Court.
The Honorable Thomas Newman,
State of Indiana, Jr., Judge.
Appellee-Plaintiff Cause No. 48D03-1012-MR-893
Baker, Judge.
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[1] Clay Howard appeals his conviction for Murder,1 a felony. Howard contends
that the trial court erroneously (1) permitted the State to amend the charging
information at trial; (2) permitted the jury to view the crime scene, which was
his prison cell; (3) admitted into evidence a letter allegedly written by Howard;
and (4) permitted the jury to view Howard’s Aryan Brotherhood gang tattoo.
Finding no error, we affirm.
Facts
[2] In April 2007, Howard was an inmate at the Pendleton Correctional Facility.
On April 5, 2007, Howard was transferred into cell 103 in Building D, where
inmates live two to a cell with individual doors on each cell. Howard’s new
cellmate was Kent McDonald, a convicted child molester.
[3] On the night of April 5, 2007, two inmates played dominos with McDonald
and later heard McDonald and Howard arguing around 11:30 p.m. On the
morning of April 6, 2007, a correctional officer doing a body count observed
Howard on the top bunk and McDonald lying under the covers on the lower
bunk with his legs sticking up at an unusual angle. Although McDonald had
never previously missed a meal, he missed breakfast that morning. Two
inmates later came to see if McDonald wanted to join them for lunch and
talked with Howard, who was “shaking” and appeared “afraid.” Tr. p. 518.
1
Ind. Code § 35-42-1-1.
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Howard blocked the door so that they could not see into the cell and told them
that McDonald was sleeping.
[4] Shortly after noon on April 6, correctional officers found McDonald lying on
the bottom bunk, with his legs still in the unusual position they had been in
earlier that morning. McDonald’s leg was cold to the touch, and when his
blankets were removed, the officers discovered that he had a pillowcase tied
around his head and observed a substantial amount of blood. He was not
breathing, and medical personnel were unable to resuscitate him. Later, a
pathologist conducting an autopsy observed that McDonald had multiple blunt
force injuries to the head and neck, with evidence of asphyxiation.
[5] In December 2010, the State charged Howard with McDonald’s murder,
alleging that Howard, “acting in concert with Paul M. Rayle, did knowingly
kill” McDonald. Appellant’s App. p. 266. Howard’s jury trial took place from
February 18 through 26, 2014. At the beginning of trial, the State filed an
amended information omitting the phrase “acting in concert with Paul M.
Rayle.” Id. at 263. Howard objected that the amendment was untimely but the
trial court overruled the objection, finding that the amendment was not
substantive because it merely removed a surplusage of language.
[6] During the trial, the State requested that the jury view the cell where the murder
took place. The trial court allowed the jury to view the crime scene over
Howard’s objection, finding that it was “beneficial” to the jury to view the
scene. Tr. p. 274.
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[7] At trial, the State introduced a letter into evidence. The State alleged that
approximately one year after McDonald’s murder, a corrections officer
screening outgoing mail observed a letter from Howard to his father. The
screening officer placed the letter in a secured box for further review. The letter
was later retrieved by a Department of Correction (DOC) investigator and sent
to Indiana State Police officers. In relevant part, the letter stated as follows:
I still go hunting. Just not your typical Game though. Tell Shane I
Bagged and Tagged a [illegible]. It’s got a gamey taste but a lot like
Beef. They tried to get me on Poaching charges because the Son Bitch
wasn’t in season. The charges never stuck. That was 2 Birds w/one
stone not only did he Play with kids, he Played with Boys so he was a
F*g. How about that for earning some stripes. Thats something you
can be Proud of. Throw this letter in the Fire Place or Burn it non-the less
when your done reading it. Serious.
Ex. 33 (grammatical and spelling errors original; emphasis original). Howard
objected that the State had failed to establish a sufficient chain of custody to
introduce the letter into evidence. The trial court overruled the objection and
admitted the letter into evidence.
[8] At trial, inmate Toby Hicks testified that Howard admitted to him that he had
discovered that his cellmate was a child molester and that he was ordered by the
prison gang Aryan Brotherhood to “take care of it.” Tr. p. 636. Howard told
Hicks that he was in the process of joining the gang at that time. According to
Hicks, Howard said that he had attempted to extort money from McDonald
and McDonald refused to pay, after which Howard and another gang member
“beat him and tortured him and left him in his bed and went to chow.” Id. at
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637. Howard stated that they “choked him out” until he passed out and then
“put him on the bed and left him there.” Id. at 639.
[9] The State sought to enter pictures of Howard’s Aryan Brotherhood tattoo into
evidence. Howard objected because the photographs had not been disclosed to
him prior to trial. The trial court granted the objection in part, denying the
State’s request to admit the photographs into evidence and instead ordering
Howard to show his tattoo to the jury. The trial court reasoned that the State
had laid a sufficient foundation by presenting Hicks’s testimony regarding
Howard’s membership in the Aryan Brotherhood gang. A DOC investigator
who monitors prison gang activity testified regarding gang activity in Indiana
prisons and the Aryan Brotherhood tattoo, and then identified Howard’s chest
tattoo as an Aryan Brotherhood gang tattoo. The investigator also testified that
the Aryan Brotherhood requires an act of violence to earn admission into the
gang and that this particular gang is known for targeting and extorting child
molesters.
[10] At the close of trial, the jury found Howard guilty as charged. On May 5, 2014,
the trial court sentenced Howard to sixty-five years imprisonment. Howard
now appeals.
Discussion and Decision
I. Amendment of Charging Information
[11] Howard first argues that the trial court erred by permitting the State to amend
the charging information at the start of the trial. We review a trial court’s
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decision to allow a late amendment to a charging information for an abuse of
discretion. Brown v. State, 912 N.E.2d 881, 892 (Ind. Ct. App. 2009). Whether
an amendment is of form or substance is a question of law that is reviewed de
novo. Gibbs v. State, 952 N.E.2d 214, 221 (Ind. Ct. App. 2011).
[12] Amendments of substance must be filed before trial begins, while amendments
of form may be made at any time. Ind. Code § 35-34-1-5. The relevant statute
lists examples of “immaterial defect[s]” in a charging information that may be
amended “at any time”:
(1) any miswriting, misspelling, or grammatical error;
(2) any misjoinder of parties defendant or offenses charged;
(3) the presence of any unnecessary repugnant allegation;
(4) the failure to negate any exception, excuse, or provision
contained in the statute defining the offense;
(5) the use of alternative or disjunctive allegations as to the acts,
means, intents, or results charged;
(6) any mistake in the name of the court or county in the title of the
action, or the statutory provision alleged to have been violated;
(7) the failure to state the time or place at which the offense was
committed where the time or place is not of the essence of the
offense;
(8) the failure to state an amount of value or price of any matter
where that value or price is not of the essence of the offense; or
(9) any other defect which does not prejudice the substantial rights
of the defendant.
I.C. § 35-34-1-5(a).
[13] To prove Howard guilty of murder, the State was merely required to prove that
he knowingly or intentionally killed Howard. I.C. § 35-42-1-1. The additional
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language that he had acted “in concert with Paul M. Rayle” involved both
unnecessary language and a misjoinder of another individual. Appellant’s App.
p. 266. Facts that may be omitted from a charging information without
affecting the sufficiency of the charge are mere surplusage. Jones v. State, 938
N.E.2d 1248, 1252 (Ind. Ct. App. 2010); see also Erkins v. State, 13 N.E.3d 400,
406 (Ind. 2014) (finding no error where trial court permitted amendment to
charging information on the second day of trial to change the allegation of
which co-conspirator committed the alleged act because the changed language
was “not essential to making a valid conspiracy charge”).
[14] Howard argues that this change caused a “complete shift” in the way the crime
was to be tried. Appellant’s Br. p. 18. We disagree. The substance of the
omitted language related to Howard’s membership in the Aryan Brotherhood
gang and the fact that he committed the crime with another gang member to
gain full membership in the gang. All of that evidence was presented to the jury
via Hicks’s testimony. Therefore, the change in the charging information did
not, in fact, substantively change the way the State tried its case. We find that
the language in question here was mere surplusage, that the amendment was
one of form rather than substance, and that the trial court did not abuse its
discretion by permitting the State to amend its charging information at the
beginning of trial.
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II. Jury Viewing of the Crime Scene
[15] Next, Howard argues that the trial court abused its discretion in permitting the
jury to view the crime scene, which happened to be his prison cell. It is well
established that a jury may view the place in which any material fact of the
crime occurred. Ind. Code § 35-37-2-5. Whether to allow the jury view is
within the trial court’s sound discretion, and we will reverse only if the trial
court abused that discretion. Jackson v. State, 597 N.E.2d 950, 962 (Ind. 1992).
[16] Howard emphasizes that in this case, there was both photographic and
videographic evidence of the prison cell at issue. He argues, therefore, that it
was unnecessary for the jury to view the cell in person. The trial court
disagreed, finding that “it would be beneficial to the jury to allow the view” of
the cell. Tr. p. 274.
[17] Initially, we note that there is no case law supporting a proposition that if there
is photographic and/or videographic evidence available that a trial court should
not permit a jury view. Furthermore, we note that much of the State’s evidence
in this case was circumstantial, placing special importance on the layout of the
cell. Specifically, evidence related to the following was presented to the jury:
whether inmates could hear McDonald inside of the cell before the killing;
whether Howard could have blocked the door in a way that limited the view of
the body; and, whether the guards were able to view the scene from the control
room or during their inspection rounds. Given the questions before the jury
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and the relevance of the layout of the prison cell, we do not find that the trial
court abused its discretion in permitting the jury view. 2
III. Admission of Evidence
[18] Finally, Howard argues that the trial court erred by admitting certain evidence
proffered by the State. Specifically, he contends that the trial court should not
have admitted the letter allegedly written by Howard or required him to show
his gang tattoo to the jury. The decision to admit evidence is within the trial
court’s sound discretion, and an abuse of discretion occurs only when the trial
court’s decision is clearly against the logic and effect of the facts and
circumstances before it. Lindsey v. State, 916 N.E.2d 230, 238 (Ind. Ct. App.
2009).
A. Letter
[19] Howard argues that the trial court abused its discretion by admitting the letter
allegedly written by him to his father. At trial, Howard objected that the State
had failed to establish a sufficient chain of custody of the letter: “I don’t believe
we have proper complete chain-of-custody as to how [the letter] got into that
2
Howard also argues that the jury view was impermissible because it reminded the jurors that he was an
inmate. He did not object on this basis at trial and has therefore waived it for appeal. Regardless, the jury
was acutely aware that Howard was an inmate, based on the testimony of nearly every witness as well as the
photographic and videographic evidence. We agree with the State that the protections in place to ensure a
defendant is not unfairly viewed as dangerous are qualitatively different than shielding a jury from observing
a crime scene that happens to be in a prison. Therefore, even if the objection had been raised, it would have
been properly overruled.
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box.” Tr. p. 327. The State offered the following evidence with respect to the
chain of custody of the letter:
 Daniel Harrison was a correctional officer at Pendleton at the relevant
time. Among his duties was screening outgoing inmate mail, which was
not permitted to be sealed. He noticed a sealed letter that was addressed
to Norman Howard, Jr., with a return address from Clay Howard. He
unsealed the letter, read it, and placed it in a box for further investigation
by internal affairs.
 Michael Raines was a DOC investigator. He retrieved the letter from the
box in which Howard had placed it. The box was locked and only DOC
employees were able to access it. Raines notified Indiana State Police
Detective Robert May about the letter.
 Detective May picked up the letter from Raines and placed it in evidence
storage at the Indiana State Police Post. The letter remained in evidence
storage until Detective May picked it up the day before he testified and
brought it to court with him. It was in his possession the entire time
between pickup from storage and bringing it to court.
[20] It is well settled that the requirement that chain of custody be established
is an attempt to satisfy the goal of assuring the trial court that the
evidence submitted has not been substituted or tampered with. While
the State is not required to exclude every possibility of tampering, the
chain of custody must give reasonable assurances that the property
passed through the hands of parties in an undisturbed condition.
Johnson v. State, 580 N.E.2d 670, 671-72 (Ind. 1991). Any gaps in the chain of
custody go to the weight of the evidence rather than its admissibility, and there
is a presumption of regularity in the handling of exhibits by public officials.
Culver v. State, 727 N.E.2d 1062, 1067 (Ind. 2000); Filice v. State, 886 N.E.2d 24,
34 (Ind. Ct. App. 2008). We find that the State adequately established the
chain of custody of the letter.
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[21] Moreover, as the trial court observed, the letter is a nonfungible, readily
identifiable item. In such a case, establishing a chain of custody is not
necessary if a witness with knowledge of the item identifies it in court. Rice ex
rel. Lopez v. Harper, 892 N.E.2d 209, 214 (Ind. Ct. App. 2008). Here, all of the
witnesses who testified about the letter, including Harrison, who first retrieved
it, recognized and identified it as the letter in question. Consequently, even if
the chain of custody had been faulty, it would have been of no moment.
[22] On appeal, Howard attempts to fold in a new argument that he did not make to
the trial court, which is not permitted. Specifically, he now raises
authentication questions, complaining that Howard’s handwriting was not
identified and that there was no testimony that Harrison had actually observed
Howard creating the document.3 Inasmuch as he did not raise this argument to
the trial court, it is waived. Furthermore, given that the envelope in which the
letter was sealed was addressed to Howard’s father and bore a return address
listing Howard, with his DOC number, as the author, authentication or
identification beyond the testimony provided by Harrison was not necessary.
We find that the trial court did not abuse its discretion by admitting the letter
into evidence.
3
Howard complains that there was no testimony about how Harrison collected the letter or how he knew it
was written by Howard. This argument goes to the weight rather than the admissibility of this evidence, and
these questions could have been raised to Harrison on cross-examination but were not. It is too late now to
raise these issues. We also note that while Howard baldly states that he was prejudiced by the admission of
this letter into evidence, he in no way expounds upon this assertion to explain why it was prejudicial.
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B. Tattoo
[23] Finally, Howard argues that the trial court erred by admitting evidence of his
Aryan Brotherhood tattoo and requiring that he show the tattoo to the jury. 4
[24] First, Howard argues that the evidence is inadmissible because “the state
conducted a physical examination of Howard without notifying his counsel . . .
during the course of litigating this matter,” thereby violating his constitutional
rights. Appellant’s Br. p. 21. Howard offers no evidence whatsoever that any
physical examination occurred “during the course of this litigation” or at any
other time when presence of counsel would have been required. And indeed, it
can reasonably be assumed that a DOC inmate is frequently subjected to
physical examinations and that the State, through DOC, had knowledge of his
tattoo as a result. Consequently, we find no error on this basis.
[25] Next, Howard contends that evidence of his tattoo should not have been
admitted because the State failed to lay an adequate foundation. Specifically,
he argues that “[n]o evidence was presented as to when it was obtained or how
it was specifically tied to the crime at hand[.]” Id. at 23. We disagree,
inasmuch as inmate Hicks’s testimony specifically tied the Aryan Brotherhood
tattoo to the crime at hand. Hicks testified that Howard had joined the gang
4
To the extent that Howard premises his argument on the State’s failure to produce the photographs of the
tattoo to his attorney within discovery deadlines, we note that the photographs themselves were not admitted
into evidence. The only evidence that was admitted was evidence of which Howard had direct, personal
knowledge: his own tattoo. Consequently, no error can be found in this regard.
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and committed the murder at the direction of the gang. Therefore, a tattoo
tending to establish that he was, in fact, a member of the gang, relates directly
to some of the most damning evidence of the crime. As to the date on which
the tattoo was obtained, we find that such information goes to the weight of the
evidence rather than its admissibility. Howard’s counsel was free to highlight
to the jury that the State did not know the date on which he had gotten the
tattoo. But the absence of that information does not render the evidence
inadmissible.
[26] Finally, Howard contends that the probative value of the evidence of his tattoo
was substantially outweighed by its prejudicial effect. See Ind. Evidence Rule
403. We acknowledge that the act of raising his shirt and showing the tattoo to
the jury had a prejudicial effect. But we find that the probative value of this
evidence readily outweighed that prejudice. As noted above, Howard’s
membership in the Aryan Brotherhood gang was directly relevant to the State’s
theory of the case, and directly tied to Hicks’s testimony regarding Howard’s
confession. Given the direct relevance to the matters at hand, we find that the
trial court did not abuse its discretion by admitting evidence of Howard’s tattoo
or requiring that he show it to the jury. See Robinson v. State, 682 N.E.2d 806,
809-10 (Ind. Ct. App. 1997) (affirming trial court’s decision to require defendant
to show gang tattoo to jury because, while “evidence of gang membership may
contain some inherent prejudice, prejudice alone is not sufficient to render [the]
evidence inadmissible”).
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[27] The judgment of the trial court is affirmed.
Vaidik, C.J., and Riley, J., concur.
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