Malcolm Levell Adams v. State of Indiana (mem. dec.) ( 2021 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 22 2021, 8:43 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Sean C. Mullins Theodore E. Rokita
Appellate Public Defender Attorney General
Crown Point, Indiana J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Malcolm Levell Adams, January 22, 2021
Appellant-Defendant, Court of Appeals Case No.
20A-CR-814
v. Appeal from the
Lake Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff Samuel L. Cappas, Judge
Trial Court Cause No.
45G04-1608-F5-75
Vaidik, Judge.
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Case Summary
[1] Malcolm Levell Adams appeals his involuntary-manslaughter conviction,
arguing the trial court erred in allowing the State to amend the charging
information right before trial started and the evidence is insufficient to support
his conviction because the jury acquitted him of strangulation, the predicate
offense for involuntary manslaughter. We affirm.
Facts and Procedural History
[2] In 2016, Adams and his friends James Robinson, Alfred McGhee, Reuben
Espinoza, Reginald Wells, and James Boykin, Jr., played cards for money
several times a week. It was not uncommon for a player to owe another player
money or to be in debt and play anyway, and the friends inevitably paid one
another back.
[3] But June 14 was different. On this date, the group played cards at Espinoza’s
house in Gary. At some point during the evening, Boykin borrowed $5 from
Adams. When Adams later asked for his $5, Boykin said he would repay him
when he won more money. Adams, however, was in no mood to wait. When
Boykin repeated he would repay Adams later, Adams “copped an attitude”
with Boykin and threatened to reach across the table and take $5 from his pile
of money. Tr. Vol. III p. 16. Boykin responded Adams could try if he wanted.
Adams, who was acting “aggressive,” stood up, reached across the table, and
took money from Boykin’s pile. Tr. Vol. II p. 201. Upset, Boykin stood up and
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walked around the table to Adams. After Adams threw a punch, Adams and
Boykin started “swinging at each other.” Tr. Vol. III p. 21. Adams then grabbed
Boykin “around” the “neck” and put him in a “chokehold” or “headlock.” Id.
at 21, 31, 50, 62; Tr. Vol. II p. 205. Adams wrestled Boykin to the ground, with
Boykin lying “[f]lat on his back” and Adams on top of him “in a dominant
position.” Tr. Vol. II p. 206; Tr. Vol. III p. 22. While on top of Boykin, Adams
continued throwing punches at him. The other men pulled Adams off Boykin
and ordered Adams, who by this point was “raged,” to leave. Tr. Vol. II p. 209.
As soon as Adams left, the men turned their attention to Boykin, who was still
lying on his back with his eyes closed. He was having “a hard time breathing”
and “making a snoring sound as if he were sleeping.” Id. at 210; Tr. Vol. III p.
77. When Boykin did not respond to commands and wet himself, they called
911. About twenty minutes later, EMS still had not arrived, so they called 911
again. By this point, Boykin was no longer making any sounds. EMS
transported Boykin to the hospital, where he was pronounced dead.
[4] Forensic pathologist Dr. Zhuo Wang conducted an autopsy. According to Dr.
Wang, Boykin’s cause of death was blunt-force trauma to the head complicated
by asphyxia due to neck injury. Ex. 15, p. 18; Tr. Vol. III p. 167. Dr. Wang
identified three major areas of injury to Boykin’s head: (1) contusion to the
forehead; (2) extensive subgaleal hematoma (bleeding between the
subcutaneous tissue of the scalp and the surface of the scalp); and (3)
intramuscular hematoma to the left temporal muscle. In addition, Dr. Wang
identified the following neck-related injuries: (1) petechial hemorrhage of the
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bilateral conjunctivae (mucosal surface of the inner plate of the eyelid and top
of the eye) and (2) multiple hemorrhagic areas involving the neck muscles, deep
soft tissue, root of the tongue, and pharynx. Dr. Wang explained the petechial
hemorrhages were greater to the right eye because greater pressure was applied
to the right side of the neck. Tr. Vol. III pp. 138, 152. In addition, Dr. Wang
explained the hemorrhages to the root of the tongue were caused by
“compression to the deep of the neck tissue.” Id. at 156; see also id. at 177-78.
Dr. Wang “rule[d] out” ligature strangulation (e.g., with a belt or rope), but he
could not rule out manual strangulation. Id. at 164. Although Dr. Wang could
not identify the “form of strangulation,” he said the neck injuries were
“compression injuries.” Id. at 178.
[5] In August 2016, a Lake County grand jury filed an indictment charging Adams
with Level 5 felony involuntary manslaughter and Level 6 felony strangulation.
The involuntary-manslaughter indictment alleged Adams knowingly or
intentionally killed Boykin “while committing or attempting to commit a Level
5 or 6 Felony that inherently poses a risk of serious bodily injury, contrary to
I.C. 35-42-1-4(b)(1).” Appellant’s App. Vol. II p. 19; see also Ind. Code § 35-42-
1-4(b)(1) (“A person who kills another human being while committing or
attempting to commit . . . a Level 5 or Level 6 felony that inherently poses a
risk of serious bodily injury . . . commits involuntary manslaughter, a Level 5
felony.”). The strangulation indictment alleged Adams knowingly or
intentionally applied pressure to Boykin’s throat or neck in a rude, angry, or
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insolent manner “that impede[d] the normal breathing or the blood
circulation.” Appellant’s App. Vol. II p. 20.
[6] A jury trial was held over three years later in October 2019. Right before trial
started, the State moved to amend the involuntary-manslaughter indictment to
remove “knowingly or intentionally” “to more accurately reflect the statutory
language” for involuntary manslaughter. Id. at 73-75. After a short hearing, the
trial court allowed the amendment over Adams’s objection.
[7] During closing argument, defense counsel argued that in order for the jury to
find Adams guilty of involuntary manslaughter, it had to find he committed
Level 6 felony strangulation. Tr. Vol. IV p. 101. The State objected, arguing the
jury did not have to find Adams committed Level 6 felony strangulation; rather,
it could find he committed another Level 5 or 6 felony. Defense counsel
responded the State never identified another Level 5 or 6 felony and therefore
“[t]he only felony for this jury’s consideration by the choice of the State [wa]s
strangulation.” Id. at 102. The trial court agreed with defense counsel, finding
the State was “bootstrapped” into proving Adams committed Level 6 felony
strangulation as the predicate offense for involuntary manslaughter. Id. at 104.
[8] After deliberations began, the jury sent the following question to the trial court,
“If the jury votes not guilty to strangulation, does the law automatically support
a not guilty verdict for involuntary manslaughter?” Id. at 122. The court
consulted with the prosecutor and defense counsel, and they agreed the court
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could only tell the jury to re-read the instructions.1 Id. at 124. The court told the
parties if the jury came back with a guilty verdict on involuntary manslaughter
but a not-guilty verdict on strangulation, it would give them time to brief the
issue. Thereafter, the jury found Adams guilty of involuntary manslaughter but
not guilty of strangulation.
[9] The trial court did not immediately enter judgment of conviction for
involuntary manslaughter. Adams filed a motion for judgment on the evidence
asking the court to enter a judgment of acquittal on involuntary manslaughter
on grounds the evidence was insufficient to support a conviction. Appellant’s
App. Vol. II p. 117. Following a hearing, the trial court denied the motion,
stating “[e]ven though the jury found [Adams] not guilty of [strangulation], I —
you know, as the State points out, I have no idea why, but there is sufficient
evidence[.]” Tr. Vol. IV p. 141. Accordingly, the court entered judgment of
conviction for involuntary manslaughter.
[10] In March 2020, the trial court sentenced Adams to three years, with eighteen
months executed in the Department of Correction and eighteen months on
community corrections.
[11] Adams now appeals.
1
In his opening brief, Adams argued the trial court committed fundamental error by not properly answering
the jury’s question. In its brief, the State argued Adams invited any error by agreeing to the answer given. In
his reply brief, Adams withdrew this issue. See Appellant’s Reply Br. p. 11.
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Discussion and Decision
I. Amendment to Charging Information
[12] Adams first contends the trial court erred in allowing the State to substantively
amend the involuntary-manslaughter indictment right before trial started.2 We
review a trial court’s decision on whether to permit an amendment to a
charging document for an abuse of discretion. Howard v. State, 122 N.E.3d 1007,
1013 (Ind. Ct. App. 2019), trans. denied.
[13] Indiana Code section 35-34-1-5(b), which governs substantive amendments to
charging documents, provides:
The indictment or information may be amended in matters of
substance and the names of material witnesses may be added, by
the prosecuting attorney, upon giving written notice to the
defendant at any time:
(1) up to:
(A) thirty (30) days if the defendant is charged with a
felony; or
(B) fifteen (15) days if the defendant is charged only with
one (1) or more misdemeanors;
2
The State says even if we treat the amendment as one of substance, it wins.
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before the omnibus date; or
(2) before the commencement of trial;
if the amendment does not prejudice the substantial rights of the
defendant. When the information or indictment is amended, it
shall be signed by the prosecuting attorney or a deputy
prosecuting attorney.
This provision contemplates that an amendment will be made thirty days before
the omnibus date, but it “permits late deviations when they do not prejudice the
substantial rights of the defendant.” Howard, 122 N.E.3d at 1017. A defendant’s
substantial rights “include a right to sufficient notice and an opportunity to be
heard regarding the charge; and, if the amendment does not affect any
particular defense or change the positions of either of the parties, it does not
violate these rights.” Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014) (quotation
omitted), reh’g denied. “Ultimately, the question is whether the defendant had a
reasonable opportunity to prepare for and defend against the charges.” Id. at
405-06 (quotation omitted).
[14] The parties agree the original indictment erroneously alleged Adams
“knowingly or intentionally” killed Boykin because the involuntary-
manslaughter statute does not require the killing to be knowing or intentional.
Adams argues his substantial rights were prejudiced by the amendment because
he planned to take advantage of the State’s drafting error and argue to the jury
the State failed to prove the killing was knowing or intentional. But this is not
what Adams argued at the hearing. See Tr. Vol. II pp. 5-6 (“If the Court were to
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grant what they’re asking and that is to strike the language ‘did knowingly or
intentionally,’ then there would not be a crime charged because mens rea is a
requirement.”). Regardless, Adams knew, beginning in August 2016, he was
being charged with involuntary manslaughter under Indiana Code section 35-
42-1-4(b)(1). The amendment did not change the statute under which Adams
was being charged. He was still being charged with the same crime, with
causing death, and with doing so while committing or attempting to commit a
Level 5 or 6 felony that inherently poses a risk of serious bodily injury. The
amendment aligned the indictment with the statute—the statute Adams long
knew defined his charge—by removing language not contained in the statute.
Adams’s substantial rights were not prejudiced.
II. Sufficiency of the Evidence
[15] Adams next contends the evidence is insufficient to support his involuntary-
manslaughter conviction because the jury acquitted him of Level 6 felony
strangulation, the predicate offense for involuntary manslaughter. The State
admits the jury returned a “peculiar combination of verdicts.” Appellee’s Br. p.
16. However, it claims we can affirm Adams’s involuntary-manslaughter
conviction on two grounds: (1) the jury found Adams committed a different
Level 5 or 6 felony or (2) the jury arrived at inconsistent verdicts on account of
lenity. We easily reject the first ground. At trial, the State did not argue, and the
jury was not instructed on, any felony offense other than strangulation. As the
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trial court found, the State was “bootstrapped” into proving strangulation as the
predicate offense for involuntary manslaughter.3
[16] As for the second ground, Adams’s argument that “an acquittal on a predicate
offense necessitates a finding of insufficient evidence on a compound felony
count simply misunderstands the nature of the inconsistent verdict problem.”
United States v. Powell, 469 U.S. 57, 68 (1984). Jury verdicts in criminal cases are
not subject to appellate review on grounds they are inconsistent, contradictory,
or irreconcilable. Beattie v. State, 924 N.E.2d 643, 649 (Ind. 2010). This is
because a jury may reach inconsistent verdicts for a variety of reasons,
including “due to a compromise among disagreeing jurors, or to expeditiously
conclude a lengthy deliberation, or to avoid an all-or-nothing verdict,” or to
exercise the jury’s well-established right to exercise lenity. Id. at 648-49. A
criminal defendant “is afforded protection against jury irrationality or error by
the independent review of the sufficiency of the evidence[.]” Powell, 469 U.S. at
67. So long as a conviction is supported by sufficient evidence, a defendant
cannot obtain relief on grounds the jury’s verdicts are inconsistent. Beattie, 924
N.E.2d at 649. Where, as here, the jury returns a guilty verdict on an offense
requiring proof of a predicate offense for which the jury acquits the defendant,
3
Adams argues his due-process rights were violated because he did not receive adequate notice that the
involuntary-manslaughter charge was based on a felony other than strangulation. However, because we agree
with Adams the involuntary-manslaughter charge was based on strangulation, we need not address this
argument.
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“[t]his review should be independent of the jury’s determination that evidence
on another count was insufficient.” Powell, 469 U.S. at 67.
[17] The State argues Adams is not entitled to any relief because the evidence is
sufficient to prove he killed Boykin while committing or attempting to commit
Level 6 felony strangulation. We agree. The Level 6 felony strangulation count
alleged Adams knowingly or intentionally applied pressure to Boykin’s throat
or neck in a rude, insolent, or angry manner that impeded normal breathing or
blood circulation. Robinson, Espinoza, and McGhee testified Adams grabbed
Boykin around the “neck” and put him in a “chokehold” or “headlock.” Tr.
Vol. II p. 205; Tr. Vol. III pp. 21, 31, 50, 62. Boykin had a hard time breathing.
Dr. Wang determined Boykin’s cause of death was blunt-force trauma to the
head complicated by asphyxia due to neck injury. Ex. 15, p. 18; Tr. Vol. III p.
167. Dr. Wang identified the following neck-related injuries: (1) petechial
hemorrhages in the eyes and (2) multiple hemorrhagic areas involving the neck
muscles, deep soft tissue, root of the tongue, and pharynx. Dr. Wang found
there were compression injuries to Boykin’s neck and the injuries were greater
on the right side because more pressure was applied to that side. This evidence
is sufficient to prove Adams committed Level 6 felony strangulation. We
therefore affirm Adams’s involuntary-manslaughter conviction.4
4
Adams also argues the trial court erred in denying his motion for judgment on the evidence. For the reasons
just discussed, the trial court properly denied this motion.
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[18] Affirmed.
Bailey, J., and Weissmann, J., concur.
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