Darius Montel Bushrod v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 21 2019, 6:53 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
Matthew J. McGovern Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Darius Montel Bushrod, June 21, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2769
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Michael J. Cox,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
82C01-1708-MR-5266
Friedlander, Senior Judge.
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1
[1] Darius Bushrod appeals his conviction of murder, a felony, and the jury’s
2
determination that he was eligible for a firearm sentencing enhancement. He
also appeals his seventy-five-year sentence. We affirm.
Issues
[2] Bushrod raises four issues, which we consolidate and restate as:
1. Whether the trial court erred in the admission and
exclusion of evidence.
2. Whether Bushrod’s sentence is inappropriate in light of the
nature of the offense and the character of the offender.
Facts and Procedural History
[3] On Sunday, August 27, 2017, at 2:14 a.m., Sergeant Wayne Hunt of the
Evansville Police Department was on patrol. He heard multiple gunshots and
identified American Legion Post 354 (“the Post”), which was one block from
his location, as the source of the shots.
[4] When he arrived at the Post, Sergeant Hunt saw several people running away
from the building. Other people directed him to a man slumped on the ground
1
Ind. Code § 35-42-1-1 (2017).
2
Ind. Code § 35-50-2-11 (2016).
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in the Post’s parking lot. Sergeant Hunt requested an ambulance and additional
officers to help him deal with the crowd outside the Post.
[5] Hunt determined the man was alive but unconscious. A security guard told
Sergeant Hunt that the man had a handgun in his pocket. Sergeant Hunt
retrieved the gun and secured it. Sergeant Hunt identified the unconscious man
as Anthony Blaylock after finding an identification card on him.
[6] Emergency medical personnel and other officers arrived on the scene. They
determined Blaylock had been shot. After Blaylock was taken away by
ambulance, officers searched the scene and found several bullet casings.
Several rounds had struck vehicles in the parking lot, and one round had gone
through the Post’s wall. Three people other than Blaylock had also been shot,
but their wounds were minor.
[7] Detective Peter DeYoung attempted to interview members of the crowd. He
spoke to ten to twelve people, but they were uncooperative.
[8] The Post’s management had placed numerous security cameras outside the
Post, and surveillance recordings were stored on a digital video recorder
(“DVR”) system with a date and time stamp. Sergeant Hunt and Detective
DeYoung met with William VanHooks, Jr., the Post’s commander, to review
recordings of the shooting. The video, which is somewhat blurry, showed a
person both officers recognized as Bushrod arguing with Blaylock. Bushrod
walked out of the camera’s field of view before returning to Blaylock,
brandishing a handgun. Bushrod shot Blaylock several times and fled. A third
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person produced a handgun and shot at Bushrod as he fled, inadvertently
striking the other three victims and several vehicles. Blaylock never drew his
own handgun.
[9] Blaylock died in an ambulance on the way to the hospital. A forensic
pathologist performed an autopsy and determined Blaylock’s cause of death
was multiple gunshot wounds. One round had entered the base of his neck and
traveled through the right side of his body before exiting. The examiner found
soot on Blaylock’s skin near the entrance wound for that round, which
indicated the gun was less than six inches from Blaylock when Bushrod fired.
A second round had entered Blaylock’s upper back, passing through his left
lung, the sac around the heart, and his liver before coming to rest in his torso.
The injuries caused by that gunshot were “quickly fatal,” and Blaylock “would
have been beyond being saved after a few seconds to a minute.” Tr. Vol. III,
pp. 10, 13. The third round entered Blaylock’s torso from left to right and
passed through his stomach and right kidney before coming to rest in his torso.
[10] The officers submitted the collected ballistics evidence for analysis. A ballistics
examiner determined none of the bullets that were fired on that night came
from Blaylock’s handgun.
[11] On August 30, 2017, the State charged Bushrod with murder and further
claimed he was eligible for a sentence enhancement because he used a firearm
in the course of committing the murder. The case was tried before a jury, and
Bushrod presented a claim of self-defense. The jury determined Bushrod was
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guilty of murder and, after a separate proceeding, further determined he was
eligible for a firearm sentencing enhancement. The trial court imposed a
sentence of sixty years for the murder conviction plus fifteen years for the
sentencing enhancement. This appeal followed.
Discussion and Decision
I. Admission and Exclusion of Evidence
[12] Bushrod claims the trial court committed several errors in the admission and
exclusion of evidence. A trial court is vested with broad discretion in ruling on
the admissibility of evidence. Sudberry v. State, 982 N.E.2d 475 (Ind. Ct. App.
2013). We review a court’s evidentiary decisions for an abuse of discretion.
Griffith v. State, 31 N.E.3d 965 (Ind. 2015). An abuse of discretion occurs when
the decision “is clearly against the logic and effect of the facts and
circumstances.” Dunn v. State, 919 N.E.2d 609, 612 (Ind. Ct. App. 2010), trans.
denied.
[13] Bushrod first challenges the court’s decision to admit into evidence the Post’s
surveillance video recordings and photographs derived from the video, claiming
the State failed to establish an evidentiary foundation. When a party seeks to
authenticate an item and have it accepted as evidence at trial, the party must
“produce evidence sufficient to support a finding that the item is what the
proponent claims it is.” Ind. Evid. Rule 901(a).
[14] The Indiana Supreme Court has explained that the foundation required to
authenticate a video recording or a photograph “depends on its use at trial.”
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Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014). If such evidence is intended to
serve a demonstrative purpose, such as to illustrate testimony, then the
proponent need only demonstrate through other testimony that the video or
photo accurately depicts the scene or occurrence as it appeared at the time in
question. Id. (quotation omitted).
[15] On the other hand, if the proponent seeks to have the video or photograph
admitted as substantive evidence “‘as to what activity is being depicted,’” there
are different foundational requirements. Id. (quoting Smith v. State, 491 N.E.2d
193, 196 (Ind. 1986)). The proponent need not provide testimony stating that
the video or photograph accurately represents the scene as it appeared. Id.Instead, the proponent should provide identifying testimony of the scene as it
appears in the video or photograph to persuade the trial court of the video or
photograph’s “competency and authenticity to a relative certainty.” Id.(quotation omitted).
[16] In Knapp, the State sought to admit into evidence crime-scene photos depicting
a murder scene. A medical examiner testified he received three photographs
from the photographer, who was a state police crime technician. The examiner
further stated he verified when the photographs were taken based on the date
and time data that was encoded within the image files by the camera. The
Indiana Supreme Court determined that the examiner’s testimony was
sufficient to establish the photographs’ competency and authenticity as
substantive evidence. Id.Court of Appeals of Indiana | Memorandum Decision 18A-CR-2769 | June 21, 2019 Page 6 of 14
[17] In the current case, VanHooks testified that he checked the Post’s security
cameras on a weekly basis. On the day of Blaylock’s death, the surveillance
cameras and the DVR system were functional. VanHooks further stated that he
was the only person who had the password to look at live camera footage or to
review footage stored on the DVR. In addition, he had the only key to the
locked box in which the DVR was stored.
[18] Detective Lincoln testified that he downloaded a copy of the recording from the
DVR system to a USB drive in VanHooks’ presence. VanHooks stated that
neither he nor Detective Lincoln altered the recording. At that time, Detective
Lincoln determined the time stamp on the recording was twenty-six minutes
fast. He later copied the recording onto two DVDs, which he placed in the
Evansville Police Department’s property room. The State printed off
photographs from the video recording without altering the recording. Based on
the holding in Knapp, VanHooks’ and Detective Lincoln’s testimony was
sufficient to establish the authenticity of the video recording and photographs as
substantive evidence.
[19] Next, Bushrod claims the trial court should not have admitted the video
recording and photographs into evidence because they were “too blurry and
unclear” for the jury to determine what was being shown. Appellant’s Br. p.
14. He did not present this argument to the trial court, so it is waived for
appellate review. See Ferguson v. State, 40 N.E.3d 954 (Ind. Ct. App. 2015)
(defendant failed to object to trial court’s failure to inform the jury a witness’s
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statement had been struck from the record, and the matter was waived on
appeal), trans. denied.
[20] Bushrod attempts to avoid waiver by claiming that admission of the video
recording and photographs was fundamental error. A claim that has been
waived by a defendant’s failure to raise a contemporaneous objection can be
reviewed on appeal if the reviewing court determines that fundamental error
occurred. Brown v. State, 929 N.E.2d 204 (Ind. 2010). An error is fundamental
if it either makes a fair trial impossible or blatantly violates basic and
elementary principles of due process. Id. The fundamental error exception is
available only in “‘egregious circumstances.’” Id. at 207 (quoting Brown v. State,
799 N.E.2d 1064, 1068 (Ind. 2003)).
[21] A recording is admissible when, “taken as a whole, [it is] of such clarity that it
does not lead the jury to speculate about its contents.” Hall v. State, 897 N.E.2d
979, 981 (Ind. Ct. App. 2008). “Perfect clarity is not required.” Id. Although
the video recording and the photographs generated from the recording are
blurry in places, they are sufficiently clear that the jury can determine what
occurred. Further, during closing arguments both parties reviewed the
recording with the jury and explained what the recording showed. We cannot
conclude the video quality was so poor that admission of the video recording
and photographs amounted to fundamental error.
[22] For his final claim of evidentiary error, Bushrod argues the trial court erred in
excluding evidence that Blaylock was a serious violent felon (“SVF”). Bushrod
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further argues the SVF evidence would have tended to show that Blaylock was
the aggressor in their dispute, thus supporting his claim of self-defense.
[23] A valid claim of self-defense is legal justification for an otherwise criminal act.
Wallace v. State, 725 N.E.2d 837 (Ind. 2000). A defendant claiming self-defense
must allege, among other elements, “a reasonable fear of death or great bodily
harm.” Id. at 840. As a result, when self-defense is at issue, any fact which
reasonably would place a person in fear or apprehension of death or great
bodily injury is admissible. Russell v. State, 577 N.E.2d 567 (Ind. 1991). “[T]he
victim’s reputed character, propensity for violence, prior threats and acts, if
known by the defendant, may be relevant to the issue of whether a defendant had
fear of the victim prior to utilizing deadly force against him.” Brand v. State, 766
N.E.2d 772, 780 (Ind. Ct. App. 2002), trans. denied (emphasis added). Further,
a defendant may not present evidence of the victim’s reputed character for
violence unless the defendant “first introduce[s] appreciable evidence of the
victim’s aggression to substantiate the claim of self-defense.” Id.[24] In Brand, a panel of this Court determined Brand should have been allowed to
testify that he knew the victim sold drugs, was a member of a gang, and had
offered to sell him a handgun. The Court ruled that such evidence was relevant
to establish the reasonableness of Brand’s fear of the victim. Similarly, in
Russell, the Indiana Supreme Court determined that Russell should have been
allowed to testify that the victim had told him he had just been released from
prison. By contrast, in Bushrod’s case, there was no evidence that he knew that
Blaylock was a SVF. As a result, Blaylock’s SVF status was irrelevant to the
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3
issue of whether Bushrod had a reasonable fear of him. Further, in this case
Bushrod did not first provide evidence of Blaylock’s aggression sufficient to
substantiate the claim of self-defense. Blaylock never drew his firearm, and we
do not know what he and Bushrod said to each other.
[25] Bushrod cites Chapman v. State, 469 N.E.2d 50 (Ind. Ct. App. 1984), in support
of his claim that Blaylock’s SVF status should have been admitted into evidence
regardless of whether Bushrod was aware of it when he killed Blaylock. In
Chapman, a panel of this Court determined, “When evidence of the victim’s
violent character is offered for the purpose of showing that the victim was the
aggressor against the defendant in support of a claim of self-defense, there is no
requirement of a foundational showing of the defendant’s knowledge of the
victim’s character.” Id. at 54. The Court cautioned that only reputational
evidence may be offered for the purpose of showing the victim was the
aggressor, because other forms of evidence may run the risk of being unfairly
prejudicial, among other concerns. In Bushrod’s case, there is no evidence that
Blaylock’s SVF status was public knowledge or part of his reputation in the
community. In the absence of reputational evidence, the holding in Chapman
does not require the admission of Blaylock’s SVF status into evidence, and
Bushrod has failed to demonstrate the trial court abused its discretion.
3
On a related issue, Bushrod argues the trial court erred in excluding evidence that Blaylock’s handgun had
been used in an unsolved shooting. There is no evidence Bushrod was aware that Blaylock had a handgun,
much less that it had been used in a shooting. The handgun’s history was thus irrelevant to whether Bushrod
had a reasonable fear of Blaylock.
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II. Appropriateness of Sentence
[26] Bushrod argues his seventy-five-year sentence is inappropriately high and asks
the Court to reduce it to forty-five years, the minimum possible sentence.
Article seven, section six of the Indiana Constitution authorizes this Court to
“review and revis[e]” sentences. This constitutional authority is implemented
through Indiana Appellate Rule 7(B), which provides: “The Court may revise a
sentence authorized by statute if, after due consideration of the trial court’s
decision, the Court finds that the sentence is inappropriate in light of the nature
of the offense and the character of the offender.”
[27] The principal role of appellate review under rule 7(B) is to attempt to leaven the
outliers, not to achieve a perceived correct result in each case. Threatt v. State,
105 N.E.3d 199 (Ind. Ct. App. 2018), trans. denied. As a result, the question is
not whether another sentence is more appropriate, but whether the sentence
imposed is inappropriate. King v. State, 894 N.E.2d 265 (Ind. Ct. App. 2008).
“[W]hether we regard a sentence as appropriate at the end of the day turns on
our sense of the culpability of the defendant, the severity of the crime, the
damage done to others, and myriad other factors that come to light in a given
case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Bushrod has the
burden of proving his sentence is inappropriate. Howell v. State, 97 N.E.3d 253(Ind. Ct. App. 2018), trans. denied.
[28] At the time Bushrod committed his offense, the maximum sentence for murder
was sixty-five years, the minimum sentence was forty-five years, and the
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advisory sentence was fifty-five years. Ind. Code § 35-50-2-3 (2015). In
addition, if a defendant such as Bushrod was found to have used a firearm in
the commission of a felony, the court could sentence the defendant to an
additional fixed term of between five and twenty years. Ind. Code § 35-50-2-11.
The trial court sentenced Bushrod to sixty years for murder, plus fifteen years
for the firearm sentencing enhancement. His seventy-five-year sentence is
lengthy but falls short of the maximum possible sentence of eighty-five years.
[29] “The nature of the offense is found in the details and circumstances of the
commission of the offense and the defendant’s participation.” Perry v. State, 78
N.E.3d 1, 13 (Ind. Ct. App. 2017). Bushrod argues the nature of the offense is
tragic but not “heinous” because Blaylock died quickly and apparently did not
suffer extensively. Appellee’s Br. p. 29. We disagree. After arguing with
Blaylock, Bushrod walked away and returned, thus escalating the dispute. He
could have refrained from lethal violence but chose to proceed. In addition,
Blaylock appeared to be unarmed, and there is no evidence Bushrod knew
Blaylock had a handgun in his pocket. Bushrod nonetheless shot Blaylock three
times, including once in the back. Finally, Bushrod’s violent act endangered
not only Blaylock but numerous people inside and outside of the Post. These
troubling circumstances outweigh Blaylock’s relatively quick death.
[30] Turning to the character of the offender, Bushrod was almost twenty-one when
he killed Blaylock, but he had already developed a lengthy criminal record. As
a juvenile, he was adjudicated a delinquent for acts that, if committed by an
adult, would have constituted robbery, a Class B felony; battery resulting in
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bodily injury, a class A misdemeanor; conversion, a Class B misdemeanor;
theft, a Class D felony; two counts of resisting law enforcement, both Class A
misdemeanors; and disorderly conduct, a Class A misdemeanor. The juvenile
courts imposed lesser but escalating sanctions on Bushrod, including a
suspended commitment to the Indiana Department of Correction (“IDOC”)
and serving a weekend in secure detention. These lesser sanctions did not deter
Bushrod from further misbehavior, and he was subsequently placed with the
DOC on two occasions. In addition, in one case Bushrod was waived to adult
court, where he pleaded guilty to theft, a Class D felony.
[31] After Bushrod became an adult, he was convicted of escape, a Class D felony,
and operating a motor vehicle without obtaining a license, a Class C
misdemeanor. Over the course of his life, he has accrued new delinquency
determinations and criminal convictions every few years. In an attempt to
minimize his lengthy and consistent record of misconduct, Bushrod argues his
current murder conviction is “only Bushrod’s third felony” as an adult.
Appellee’s Br. p. 26. We view his history differently, concluding that a twenty-
one-year old with three felony convictions, one of them for murder, has
demonstrated an absolute unwillingness to comply with the law despite being
provided with numerous opportunities to reform his behavior.
[32] Bushrod claims his relative youth renders his sentence inappropriate. A
defendant’s youthful age can, in some cases, constitute a significant mitigating
circumstance warranting a reduced sentence, but that is not automatically the
case. Coleman v. State, 952 N.E.2d 377 (Ind. Ct. App. 2011). As this Court has
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noted, “twenty-one is not especially young.” Id. at 385. Under the facts of this
case, we cannot conclude his age warrants a reduced sentence. Bushrod has
failed to demonstrate that his sentence is inappropriate.
Conclusion
[33] For the reasons stated above, we affirm the judgment of the trial court.
[34] Judgment affirmed.
Kirsch, J., and Crone, J., concur.
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