Kelly M. Hudson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Sep 24 2019, 9:18 am
regarded as precedent or cited before any
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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Curtis T. Hill, Jr.
Ellen M. O’Connor Attorney General of Indiana
Marion County Public Defender Agency Sierra A. Murray
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kelly M. Hudson, September 24, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-197
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Kurt Eisgruber, Judge
Trial Court Cause No.
49G01-1712-MR-46906
Kirsch, Judge.
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[1] Kelly M. Hudson (“Hudson”) was convicted after a jury trial of murder,1 a
felony. He appeals his conviction and raises the following restated issue for our
review: whether the State violated the Fifth Amendment or Article 1, Section
14 of the Indiana Constitution because it improperly referred to Hudson’s
constitutional right to remain silent.
[2] We affirm.
Facts and Procedural History
[3] In the fall of 2017, Catherine Dunaway (“Dunaway”), who went by the
nickname Cat, lived in a studio apartment on Meridian Street in Marion
County, Indiana. Tr. Vol. II at 28, 141. She had a brother, David Dunaway
(“David”), with whom she had a close relationship. Id. at 28. Dunaway
struggled with drug and alcohol issues, and David was aware that she smoked
crack. Id. at 29-30. On October 31, 2017, Dunaway was getting ready to move
down the street into a new apartment building, and David brought her a roll of
black trash bags to use for packing her clothes. Id. at 28-29, 36. Dunaway was
scheduled to move into her new apartment two days later on November 2,
2017. Id. at 28-30, 39.
[4] Sandra Johnson (“Johnson”) was neighbors with Dunaway and lived in the
same apartment building. Id. at 140. On Tuesday, October 31, 2017, Johnson
1
See Ind. Code § 35-42-1-1.
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was walking down the street when Hudson, whom she had met on a previous
occasion, approached her. Id. at 143-44. Hudson had been riding on a bus on
Meridian Street when he saw Johnson, so he jumped off the bus and met up
with her. Id. at 143. The two walked to Johnson’s apartment building where
they smoked crack together. Id. at 147-48. Afterwards, Hudson asked Johnson
if she knew “anybody to introduce him to.” Id. at 148. Johnson said yes and
introduced him to Dunaway. Id. at 148-49. Hudson ended up staying at
Dunaway’s apartment all night. Id. at 150.
[5] On the next day, November 1, 2017, Johnson was doing laundry when she saw
Hudson ringing the doorbell to get into the building at around 7:00 or 8:00 p.m.
Id. at 150-51. Dunaway let him inside, and she and Hudson went upstairs to
her apartment. Id. at 151-52. At some point later, Hudson came downstairs to
Johnson’s apartment and told her that while he was in the shower, Dunaway
had stolen some of his crack. Id. at 155. He said that he “was going to hit her,”
but Johnson “didn’t think nothing of it.” Id. at 156.
[6] Around 9:00 or 10:00 p.m., Johnson went upstairs “to see what [Hudson and
Dunaway were] doing.” Id. at 152. Hudson asked Johnson for some laundry
detergent in exchange for “a little piece of crack.” Id. at 153, 163. Johnson put
some detergent in a cup that Hudson had gotten from inside of Dunaway’s
apartment, and Hudson gave her the crack. Id. Johnson then returned to her
apartment. Id. at 154. She saw Dunaway for the last time at around 12:00 or
1:00 a.m. that night when Johnson went back to Dunaway’s apartment “[j]ust
to check on them to see what they [were] doing.” Id. When Dunaway
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answered the door, she asked Johnson for a cigarette. Id. at 155, 168. Johnson
went back downstairs and never saw Dunaway or Hudson again. Id. at 154-56.
[7] The next morning, November 2, 2017, Dunaway did not move into her new
apartment as scheduled. Id. at 39. Theresa Wyatt (“Wyatt”), who managed
the new apartment building where Dunaway was supposed to move, was a
close friend with Dunaway and also shared a son with Dunaway’s brother,
David. Id. at 30, 38. When Dunaway failed to move into the new apartment
building that day, Wyatt called her, and someone with a “deeper voice”
answered the phone and said they would call Wyatt back. Id. at 39, 43-45.
Wyatt did not believe that the voice sounded like Dunaway, but thought that
maybe her voice sounded deeper because Dunaway was just waking up. Id. at
44-45.
[8] By November 3, 2017, neither David nor Wyatt had heard from Dunaway for a
couple of days. Id. at 30, 39-40. The two of them went to her old apartment,
but she did not answer the door when they knocked. Id. at 40. They were able
to obtain a key to the apartment from the manager to conduct a wellness check.
Id. at 31, 40. Once inside the apartment, they noticed that nothing was packed
for Dunaway’s move to the new apartment. Id. at 31. Dunaway’s shoes were
by the door, and her purse was on the stove. Id. at 40-41, 201. A large pile of
clothing was on the floor in the living room. Id. at 31, 40-41, 201. After
checking the rest of the apartment, David walked over to the pile and picked up
some of the clothing. Id. at 31, 42. Dunaway’s dead body was hidden
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underneath, face down with a stab wound to her neck. Id. at 31-32, 201; Tr.
Vol. III at 57.
[9] In their investigation of the apartment, the police found twenty-one of Hudson’s
fingerprints inside of Dunaway’s apartment. Tr. Vol. II at 116-17. His
fingerprints were found on several black garbage bags inside the apartment,
including one that contained a bloody pillow. Id. at 114-16, 207. It appeared as
though the garbage bags had contained clothing that was dumped onto
Dunaway’s body. Id. at 201-03. Hudson’s fingerprints were also found on an
ashtray that was located on top of a blanket that had been used to cover a chair
covered with blood stains, which was likely the place where Dunaway was
stabbed. Id. at 116, 209-10, 215. It appeared that Dunaway’s body had been
dragged from the chair to where her body was located on the floor. Id. at 88.
Male DNA was discovered on Dunaway’s left wrist. Id. at 184-85.
[10] On December 1, 2017, the police brought Hudson into the homicide office for
questioning. Id. at 217. During the interview, which was recorded, Hudson
denied knowing anything about the murder. State’s Ex. 108. Initially, he denied
ever meeting Dunaway, but he later changed his story and said he met another
woman but did not know her name. Id. The detective interviewing Hudson
told him the other woman’s name was “Catherine,” and Hudson later admitted
that he went back to see “Cat.” Id. However, he denied ever being inside of
Dunaway’s apartment. Id.
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[11] On December 4, 2017, the State charged Hudson with murder. Appellant’s App.
Vol. II at 23, 32-34. At the jury trial, Hudson did not testify, but his recorded
interview with police was admitted into evidence. Tr. Vol. II at 220-21. During
closing argument, defense counsel contended that there were innocent
explanations for Hudson’s fingerprints being inside of Dunaway’s apartment.
Tr. Vol. III at 80-81. As an explanation as to why Hudson’s fingerprints were
on the trash bags, defense counsel stated that testimony established that
Dunaway was moving, and “[i]t is entirely reasonable that [Hudson] was
helping her with that.” Id. at 80. To explain why Hudson had lied to the police
about being inside Dunaway’s apartment, defense counsel stated, “We talked in
voir dire about reasons that people might not be truthful with the police, . . .
and one suggestion was being afraid, because who wouldn’t [be] if you’re being
investigated for [murder]?” Id. at 86. In its rebuttal argument, the State
remarked on the lack of evidence to support these defense theories. Id. at 89.
The prosecutor stated,
Your verdict and your decision is [sic] not to be based on
speculation. And I want to talk about some things that were
talked about in the defense closing that I have evidence that
disproves, and I do want to talk about that, because we talked
this morning, or yesterday morning, about your job as a juror,
and your job as a juror is to put all of this together, and I want to
talk about some specifics here. The Defendant was helping her
move, and that’s an innocent explanation for why his fingerprints
are on there? You have no evidence from this stand. You have .
. . no evidence here. . . . That’s speculation.
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Id. Hudson objected to these statements by the prosecutor, and the trial court
overruled the objection. The prosecutor additionally stated,
You can look to the lack of evidence. You can look at things that
might not be there, but you can’t speculate intent. The defense
said an awful lot he was afraid when he talked to the police. You
have no evidence of that. You heard Detective Dunn. You
heard Detective Dunn, that statement say, “I want to make sure
that I get what’s going on here. Hey, I’m trying to be reasonable
with you. I’m trying to be understanding.” He was not yelling at
the Defendant. He was not aggressive with him. The Defendant
didn’t say “I’m scared” in that statement. You have absolutely
no evidence that that man was scared. It sounds good, but you
have no evidence of it, and that’s the speculation that I am
talking about.
Id. at 90-91. The jury found Hudson guilty of murder. Hudson now appeals.
Discussion and Decision
[12] The Fifth Amendment to the United States Constitution prohibits the State
from commenting on a defendant’s failure to testify in his own defense. Feyka
v. State, 972 N.E.2d 387, 389 (Ind. Ct. App. 2012), trans. denied. Article 1,
section 14, of the Indiana Constitution also protects a defendant’s right to
remain silent at trial. Boatright v. State, 759 N.E.2d 1038, 1043 (Ind. 2001). A
defendant’s privilege against compulsory self-incrimination is violated when a
prosecutor makes a statement that a jury could reasonably interpret as an
invitation to draw an adverse inference from a defendant’s silence. Huls v. State,
971 N.E.2d 739, 744 (Ind. Ct. App. 2012), trans. denied. However, if the
prosecutor’s comment in its totality addresses other evidence, and not the
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defendant’s failure to testify, it is not grounds for reversal. Feyka, 972 N.E.2d at
389. “The prosecutor may, for example, comment that the State’s evidence is
uncontradicted without violating the defendant’s Fifth Amendment rights.” Id.
If a prosecutor’s statement is found to be improper, “we must presume that
reversal is necessary until the State proves beyond a reasonable doubt that any
error was harmless.” Moore v. State, 669 N.E.2d 733, 736 (Ind. 1996) (citing
Chapman v. California, 386 U.S. 18, 23 (1967)). The question then is whether the
jury would have found the defendant guilty without the improper remark. Id.
[13] Hudson argues that statements made by the State in its rebuttal argument
violated his constitutional rights because the statements improperly remarked
on his failure to testify at trial. He specifically asserts that the statement, “You
have no evidence from this stand” “could reasonably have been an invitation to
draw an adverse inference from his failure to testify.” Appellant’s Br. at 11.
Hudson contends that the State’s remarks were an attempt to impeach his lack
of testimony and invited the jury to infer guilt from his silence at trial. He
further contends that the statements were not harmless.
[14] During closing argument, defense counsel argued that there were innocent
explanations as to why Hudson’s fingerprints were found in Dunaway’s
apartment, specifically that his fingerprints were on trash bags because “[i]t is
entirely reasonable that [Hudson] was helping her with [moving].” Tr. Vol. III
at 80. In rebuttal argument, the State responded to this argument by remarking
on the lack of evidence to support it and specifically stated,
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Your verdict and your decision is [sic] not to be based on
speculation. And I want to talk about some things that were
talked about in the defense closing that I have evidence that
disproves, and . . . your job as a juror is to put all of this together,
and I want to talk about some specifics here. The Defendant was
helping her move, and that’s an innocent explanation for why his
fingerprints are on there? You have no evidence from this stand.
You have . . . no evidence here . . . That’s speculation.
Id. at 89.
[15] Hudson specifically takes issue with the State’s remark, “You have no evidence
from this stand” and argues that it was an improper comment on his failure to
testify at trial. However, the statement by the prosecutor did not make any
specific mention of Hudson and his failure to testify. Instead, it was a remark
on the lack of any evidence presented to support the defense theory to explain
why Hudson’s fingerprints were present in Dunaway’s apartment, that Hudson
was helping Dunaway pack her things to move. The prosecutor may comment
on the uncontradicted nature of the State’s evidence without violating the Fifth
Amendment. Owens v. State, 937 N.E.2d 880, 893 (Ind. Ct. App. 2010), trans.
denied. The evidence presented by the State showed that Hudson had been
inside of Dunaway’s apartment and had lied to the police about it. State’s Exs.
77, 108. No evidence was presented by Hudson to contradict that he had been
present in Dunaway’s apartment, only the defense counsel’s argument in
closing that there could have been a reasonable, innocent explanation why his
fingerprints were on the trash bags. The State’s comment did not focus on
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Hudson’s failure to testify; it was merely a remark on the lack of any evidence
to support the defense theory presented in closing argument.
[16] Defense counsel also proffered an explanation as to why Hudson lied to the
police about being inside of Dunaway’s apartment. Counsel stated, “We talked
in voir dire about reasons that people might not be truthful with the police, . . .
and one suggestion was being afraid, because who wouldn’t [be] if you’re being
investigated for [murder]?” Tr. Vol. III at 86. In response, the State commented
in rebuttal,
You can look to the lack of evidence. You can look at things that
might not be there, but you can’t speculate intent. The defense
said an awful lot he was afraid when he talked to the police. You
have no evidence of that . . . . The Defendant didn’t say “I’m
scared” in that statement. You have absolutely no evidence that
that man was scared. It sounds good, but you have no evidence
of it, and that’s the speculation that I am talking about.
Id. at 90-91. This comment by the State again was a statement concerning the
lack of evidence presented to support the defense theory. When looking at the
State’s comments in their totality, we conclude that the State’s remarks were
focused on the lack of any evidence to support the defense theory and to
contradict the State’s evidence, and, thus, the statements were not an
inappropriate comment on Hudson’s failure to testify.
[17] Affirmed.
Baker, J., and Crone, J., concur.
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