Opinion
23A-CR-2506
10-16-2024
Marcus Jermaine Rozier, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Kay A. Beehler Terre Haute, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the LaGrange Circuit Court The Honorable William R. Walz IV, Judge Trial Court Cause No. 44C01-2201-F3-1
ATTORNEY FOR APPELLANT
Kay A. Beehler
Terre Haute, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Mathias, Judge.
[¶1] Marcus Jermaine Rozier appeals his convictions for Level 3 felony resisting law enforcement, Level 4 felony causing death when operating a vehicle with a schedule I or II controlled substance in the blood, Level 5 felony resisting law enforcement, and Level 5 felony causing serious bodily injury when operating a vehicle with a schedule I or II substance in the blood. Rozier also appeals his resulting thirty-five-year sentence and the trial court's order that he pay a total of $2,000 in fines.
[¶2] Rozier raises four issues for our review, which we restate as follows:
1. Whether Rozier's convictions are contrary to Indiana's substantive protections against double jeopardy.
2. Whether the trial court committed fundamental error when it did not sua sponte exclude certain statements during Rozier's trial.
3. Whether the trial court abused its discretion when it sentenced Rozier.
4. Whether the trial court improperly imposed fines against Rozier without first holding an indigency hearing.
[¶3] We affirm Rozier's convictions and sentence, but we reverse the trial court's imposition of the fines and remand with instructions.
Facts and Procedural History
[¶4] On January 14, 2022, LaGrange Police Department Officer Eric Patterson observed Paul Bennet, Jr. get into the back of a minivan being operated by Rozier. Rozier then pulled out onto a street in front of several vehicles in disregard of their right of way. Officer Patterson then observed Rozier operate the vehicle through a stop sign without coming to a stop.
[¶5] Officer Patterson turned on his emergency lights to initiate a traffic stop, but Rozier instead accelerated away. Rozier drove left of center on U.S. Highway 20, causing numerous vehicles to pull off the road to avoid a collision. The pursuit continued for approximately ten miles and approached speeds of about 115 miles per hour.
[¶6] After about ten miles, Rozier's vehicle veered off the side of the road and appeared to hit a ditch or culvert. This caused the vehicle "to go airborne," flip, and roll. Tr. Vol. 2, p. 244. Officer Patterson approached the vehicle on foot and observed Rozier exit the vehicle through a "missing side door" and attempt to flee the scene. Id. However, another officer on the scene released his canine, Dax, with the command for Dax to apprehend Rozier. Rozier, in turn, "laid down" and was detained. Tr. Vol. 3, p. 79. A later blood test revealed that Rozier had amphetamine in his system at the time of the crash.
[¶7] Meanwhile, Bennett had been ejected from the vehicle. He was found deceased about twenty-five feet from where the vehicle came to a rest. In a passenger seat, officers observed April McBride, who confirmed for Officer Patterson that Rozier had operated the vehicle. McBride was severely injured and sustained "eight broken ribs, three shattered ribs," a broken leg, a severe concussion, and internal bleeding. Tr. Vol. 3, p. 116. She later stated that she "died on the operating table" for "three minute[s]," and that she does not know "what a good night's sleep is anymore." Id.
[¶8] The State charged Rozier with Level 3 felony resisting law enforcement (causing death), Level 4 felony causing death when operating a vehicle with a schedule I or II controlled substance in the blood, Level 5 felony resisting law enforcement (causing serious bodily injury), and Level 5 felony causing serious bodily injury when operating a vehicle with a schedule I or II substance in the blood. At Rozier's ensuing jury trial, the State called Detective Nicholas Martin to testify. Detective Martin testified that, after Rozier had been released from the hospital and transported to the LaGrange County Jail, Detective Martin advised Rozier of his Miranda rights and then asked Rozier "how this all unfolded." Id. at 213. Detective Martin testified that Rozier responded that "he was from Atlanta, . . . but any further questioning . . . would need to . . . go through" Rozier's lawyer. Id. Rozier's trial counsel did not object to Detective Martin's testimony.
[¶9] Rozier's theory in defense was that the State could not prove that he was the driver of the vehicle instead of Bennett. Thus, during the State's closing argument, the prosecutor mentioned Rozier's interaction with an officer at the hospital. That interaction occurred prior to officers advising Rozier of his Miranda rights and involved the officer who informed Rozier of Indiana's implied consent law. In particular, the prosecutor stated as follows:
But what about his words to Trooper Goehring? You heard Trooper Goehring read the implied consent. You learned a little bit about what that is, and what it means, and why it has to be read. And [the trooper] said I have reason to believe that you have operated a vehicle that was involved in a fatal or serious bodily injury crash. I must now . . . offer you the opportunity to submit to a chemical test. Will you take a chemical test? And [Rozier] said yes. Why not set the record straight there? Listen, you got the wrong guy. I don't know why you're coming and trying to take a blood draw for me. I wasn't driving. Why did you come and talk to me? He didn't, he said yes. And Trooper Goehring made it a point . . . to ask him . . . multiple times, Are you sure you want to do this? Are you sure you want to go through with this blood test? I want to make sure I've heard you correctly. Multiple opportunities where [Rozier] . . . could have set the record straight at that very point and say look, you got the wrong person here. This is not me. But he didn't do that. He said, yeah, I'll take a test.Tr. Vol. 4, pp. 48-49. Rozier's counsel did not object to those statements.
[¶10] The jury found Rozier guilty as charged. After a sentencing hearing, the court found the following aggravating circumstances: the harm, injury, loss, and damages sustained by McBride were significant and greater than the elements necessary to prove the commission of the offenses; Rozier was in a position of authority over the passengers of the vehicle; Rozier's criminal history, including a history of "extremely dangerous [and] erratic driving behavior"; Rozier's lack of remorse; and Rozier's high risk to reoffend. Appellant's App. Vol. 2, p. 210. The court found that Rozier's imprisonment would result in an undue hardship to Rozier's minor child to be the only mitigating circumstance. The court further ordered Rozier to pay $2,000 in fines, although the court did so without determining Rozier's ability to pay those fees. The court then ordered Rozier to serve an aggregate term of thirty-five years in the Department of Correction.
[¶11] This appeal ensued.
1. Rozier's convictions are not contrary to Indiana's protections against substantive double jeopardy.
[¶12] On appeal, Rozier first asserts that his two convictions for resisting law enforcement are contrary to Indiana's substantive double jeopardy protections. In particular, Rozier argues that our Supreme Court "has been clear that a single act of resisting law enforcement while using a vehicle that causes death or injury to more than one person" can result in "only one . . . conviction." Appellant's Br. at 12 (cleaned up).
[¶13] Rozier's argument relies exclusively on our Supreme Court's opinions in Edmonds v. State, 100 N.E.3d 258, 262-63 (Ind. 2018) and Paquette v. State, 131 N.E.3d 166, 167 (Ind. 2019) (per curiam). But both of those opinions discussed the version of the resisting-law-enforcement statute in effect in 2014 and 2015. See Ind. Code § 35-44.1-3-1 (2014). Following our Supreme Court's opinions, our General Assembly amended the statute to expressly state that felony-level resisting-law-enforcement convictions are "a separate offense for each person whose bodily injury, serious bodily injury, catastrophic injury, or death is caused ...." Ind. Code § 35-44.1-3-1(i) (2021). Rozier's argument disregards the relevant version of the statute at issue and is thus not supported by cogent reasoning. And, insofar as Rozier does at least reference our Supreme Court's opinion on substantive double jeopardy as announced in Wadle v. State, 151 N.E.3d 227, 248 (Ind. 2020), the statute for resisting law enforcement underlying Rozier's convictions "clearly permits multiple punishment." Thus, there is no violation of substantive double jeopardy in Rozier's two resisting-law-enforcement convictions. Id.
Rozier's citation to Paquette refers to a subsequent appeal based on the exact remand instructions from a prior appeal. It is the prior appeal that describes the law on which Rozier relies. See Paquette v. State, 101 N.E.3d 234, 241 (Ind. 2018).
[¶14] Rozier also states that the "facts do not support four separate crimes or four separate sentences." Appellant's Br. at 14. As between his convictions for Level 4 felony causing death when operating a vehicle with a schedule I or II controlled substance in the blood and Level 5 felony causing serious bodily injury when operating a vehicle with a schedule I or II substance in the blood, those two offenses required the State to prove different harms to different victims. Appellant's App. Vol. 2, pp. 203, 206. Accordingly, on the face of the State's information, there is no substantive double jeopardy violation between those two offenses. See A.W. v. State, 229 N.E.3d 1060, 1067 (Ind. 2024).
[¶15] Similarly, there is no double jeopardy violation between the two convictions alleging harm to Bennett (Level 3 felony resisting law enforcement and Level 4 felony causing death when operating a vehicle with a schedule I or II controlled substance in the blood) or between the two convictions alleging harm to McBride (Level 5 felony resisting law enforcement and Level 5 felony causing serious bodily injury when operating a vehicle with a schedule I or II substance in the blood). Again, the face of the information for those offenses plainly identified independent material elements. See id.
[¶16] Accordingly, we conclude that Rozier's double-jeopardy challenges fail.
2. The trial court did not commit fundamental error.
[¶17] Rozier next asserts that the State violated his fundamental right to remain silent during its examination of Detective Martin and during its closing argument. As Rozier did not object to the now-challenged statements, on appeal he must demonstrate that fundamental error occurred.
[¶18] As our Supreme Court has made clear, "[a]n error is fundamental, and thus reviewable on appeal, if it made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm." Durden v. State, 99 N.E.3d 645, 652 (Ind. 2004). Thus, fundamental error
is extremely narrow and encompasses only errors so blatant that the trial judge should have acted independently to correct the situation. At the same time, if the judge could recognize a viable reason why an effective attorney might not object, the error is not blatant enough to constitute fundamental error.Id. (quotation marks and citations omitted).
[¶19] Rozier first asserts that the trial court committed fundamental error when it permitted Detective Martin to testify that, after he had read Rozier his Miranda rights, Rozier stated that "he was from Atlanta, . . . but any further questioning . . . would need to . . . go through" Rozier's lawyer. Tr. Vol. 3, p. 213. This comment did not make a fair trial impossible, and the trial court had no obligation to interject itself into the proceedings because of it.
[¶20] Rozier also appears to argue that the trial court committed fundamental error when it did not stop the State from commenting, during the State's closing argument, on Rozier's silence to Trooper Goehring when Trooper Goehring read Rozier Indiana's implied consent law. According to Rozier, the State's comments violated his right to "post-arrest . . . post-Miranda" silence. Appellant's Br. at 17.
[¶21] But the silence on which the State commented was not post-Miranda silence. The only evidence in the record regarding when officers administered Miranda warnings to Rozier shows that they did so after his discharge from the hospital. Rozier's silence to Trooper Goehring occurred at the hospital, not afterward.
[¶22] While we do not endorse the State's use of a defendant's silence in any circumstances, we cannot say that the State's use of it here made a fair trial impossible. See Durden, 99 N.E.3d at 652. The Supreme Court of the United States has expressly stated that "the Constitution does not prohibit the use for impeachment purposes of a defendant's silence . . . after arrest if no Miranda warnings are given ...." Brecht v. Abrahamson, 507 U.S. 619, 628 (1993) (emphasis added). Thus, in at least some circumstances, due process does not preclude the State's use of post-arrest, pre-Miranda silence. And, here, all of the trial evidence pointed to Rozier and not Bennett as being the operator of the vehicle; Rozier's argument to the contrary at trial was not based in evidence but rather simply sought to challenge the credibility of the State's evidence on that point. Left for another time and clearer circumstances is the question of how long an officer can wait before providing a person in custody with a Miranda warning. Accordingly, we conclude that Rozier has not met his burden to demonstrate fundamental error.
3. The trial court did not abuse its discretion when it sentenced Rozier.
[¶23] We next consider Rozier's argument that the trial court abused its discretion when it sentenced him after finding allegedly improper aggravating factors. We review a trial court's consideration of aggravating factors in imposing the defendant's sentence for an abuse of discretion. See Crouse v. State, 158 N.E.3d 388, 393 (Ind.Ct.App. 2020). "An abuse occurs only if the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom." Schuler v. State, 132 N.E.3d 903, 904 (Ind. 2019) (citing Rice v. State, 6 N.E.3d 940, 943 (Ind. 2014)).
[¶24] A trial court abuses its discretion during sentencing by:
(1) "failing to enter a sentencing statement at all"; (2) entering a sentencing statement in which the aggravating and mitigating
factors are not supported by the record; (3) entering a sentencing statement that does not include reasons that are clearly supported by the record and advanced for consideration; or (4) entering a sentencing statement in which the reasons provided in the statement are "improper as a matter of law."Ackerman v. State, 51 N.E.3d 171, 193 (Ind. 2016) (quoting Anglemyer v. State, 868 N.E.2d 482, 490-91) (Ind.), clarified on reh'g 875 N.E.2d 218 (Ind. 2007)).
[¶25] Rozier first asserts that the trial court abused its discretion when it found his lack of remorse to be an aggravating factor. According to Rozier, "[w]hen a defendant maintains innocence throughout the proceedings, a trial court may not conclude that he was unremorseful or failed to accept responsibility for his actions." Appellant's Br. at 21.
[¶26] In support of that assertion, Rozier cites Cox v. State, 780 N.E.2d 1150 (Ind.Ct.App. 2002). But Cox does not support Rozier's assertion. Rather, in Cox, a panel of our Court held:
A court may not enhance a sentence for a defendant consistently maintaining his innocence if the defendant does so in good faith. However, a trial court may consider as an aggravator the defendant's lack of remorse. A lack of remorse is displayed by a defendant when he displays disdain or recalcitrance, the equivalent of "I don't care." This is distinguished from the right to maintain one's innocence, i.e., "I didn't do it."Id. at 1158 (emphasis added; citations omitted). Thus, and contrary to Rozier's argument, lack of remorse may be a proper aggravator even where a defendant does maintain his innocence. There is therefore no abuse of discretion as to this factor.
[¶27] Rozier next argues that the trial court abused its discretion when it found him to have erratic driving behavior and when it found the impact of Rozier's offenses on the victims to be greater than necessary to prove the commission of the offenses. According to Rozier, those concerns were already accounted for as elements of the offenses. In particular, he asserts that of course his operation of the vehicle was unlawful and of course McBride suffered serious bodily injury.
[¶28] The trial court did not abuse its discretion. That Rozier operated the vehicle unlawfully does not fully account for the ten-mile chase that hit speeds of 115 miles per hour on a U.S. Highway where he crossed the center line multiple times before hitting a ditch and getting airborne. And that McBride suffered serious bodily injury does not fully account for her eight broken ribs, three shattered ribs, broken leg, severe concussion, internal bleeding, near-death experience, and perpetually sleepless nights. We affirm the trial court's use of this aggravator.
[¶29] Last, Rozier asserts that comments made by the trial court during its oral sentencing pronouncement, in which the court noted the heavy emotional impact of Rozier's offenses, was improper. But the trial court did not find the emotional impact of Rozier's offenses to be an aggravating factor. There is therefore no error here.
[¶30] The trial court did not abuse its discretion when it sentenced Rozier.
4. The trial court erred when it ordered Rozier to pay $2,000 in fines without first determining Rozier's ability to pay.
[¶31] Finally, Rozier asserts that the trial court erred when it ordered him to pay $2,000 in fines without first determining his ability to pay. The State concedes that this was erroneous, and we agree. We reverse the trial court's imposition of the fines against Rozier and remand with instructions for the court to determine his ability to pay before it assesses any fines against him.
Conclusion
[¶32] For all of these reasons, we affirm Rozier's convictions and his thirty-five-year aggregate sentence. However, we reverse the trial court's imposition of the $2,000 in fines against Rozier, and we remand with instructions for the court to determine Rozier's ability to pay before it imposes any fines against him.
[¶33] Affirmed in part, reversed in part, and remanded with instructions.
Brown, J., and Kenworthy, J., concur.