L.C. Strong v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 15 2016, 5:39 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE P. Jeffrey Schlesinger Gregory F. Zoeller Appellate Public Defender Attorney General Crown Point, Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

L.C. Strong, December 15, 2016 Appellant-Defendant, Court of Appeals Case No. 45A03-1512-CR-2315 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Samuel L. Cappas, Appellee-Plaintiff Judge Trial Court Cause No. 45G04-1401-MR-1

Crone, Judge. Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CR-2315 | December 15, 2016 Page 1 of 12

Case Summary [1] L.C. Strong appeals his conviction for murder. He argues that the evidence is

insufficient to support his conviction and that the prosecutor committed

misconduct during closing argument. Concluding that the evidence is sufficient

and that the prosecutor did not commit misconduct, we affirm.

Facts and Procedural History [2] In February 1979, Strong lived with his family at 2355 Roosevelt Street in Gary.

He owned an Oldsmobile and had a mustache. Twenty-eight-year-old Linda

Martin lived with her family in a Gary apartment building approximately two

miles from Strong’s residence. On the evening of February 20, 1979, Martin

was wearing her wig when she left her apartment to work as a bartender at the

Blue Room Lounge. She had to walk to work because she had given her last

quarter to her daughter and did not have enough money for the bus fare. When

Martin got off work, she went to the Playboy Lounge (“the Lounge”), where

she was a “regular.” Tr. at 59. Martin frequently walked to the Lounge

because she did not have a car, and it was within walking distance of her

apartment. [3] Martin left the Lounge just after midnight. Felton Walls, Jr., whom Martin had

lived with and previously dated, came to the Lounge so that he could give

Martin a ride home, but the owner of the Lounge told Walls that Martin had

left ten minutes earlier. Martin never returned home after leaving the Lounge.

Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CR-2315 | December 15, 2016 Page 2 of 12 [4] On February 21, 1979, at 6:35 a.m., Martin’s dead body was found in the

snowy road in the 2300 block of Rutledge Street, about one mile from the

Lounge and three blocks from Strong’s residence. Police saw boot impressions

in the snow by Martin’s body, and it looked like someone had placed her body

there. The coroner certified that Martin was dead at the scene but noted that

rigor mortis had not yet set in. According to the coroner, “Rigor mortis is when

the body becomes very stiff and it has usually been dead for a number of

hours.” Id. at 153. Martin had bruising on her face and neck and slight nail

impressions on her throat. She was wearing a brown jacket with a button

missing, an unbuckled belt, partially-zipped pants, and a black one-piece body

suit that was inside out. Martin’s wig was gone. [5] The autopsy indicated that Martin’s cause of death was external violence to the

neck “consistent with strangulation.” Id. at 195. Martin had scratches

“consistent with fingernail marks” on her neck and hemorrhages in her larynx

and vocal cords. State’s Ex. 57A. The coroner collected a hair found on her

left breast that appeared to be from a mustache. Investigators sent evidence to

the toxicology laboratory for testing, which confirmed that the rape kit

contained semen, that blood and semen were present on the crotch of Martin’s

pants, and that blood was present on her fingernail clippings. Microscopic

examination showed that the pubic hair combings taken from her body

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contained hair that was “dissimilar” to Martin’s. 1 Id. at 314. In 1979, DNA

testing had not yet been implemented. Police were unable to identify any

suspects at that time. [6] In May 2012, Commander Matthew Eaton of the Lake County Sheriff

Department’s Criminal Investigations Division began investigating Martin’s

murder. He conducted multiple interviews and sent the previously collected

evidence to the Indiana State Police Laboratory for DNA testing. A sample

from the crotch of Martin’s bodysuit contained a major DNA profile. This

preliminary investigation enabled Commander Eaton to identify Strong as a

possible suspect. Commander Eaton interviewed Strong, who was incarcerated

in Michigan for second-degree murder, and took a DNA sample from Strong

pursuant to a warrant. [7] Commander Eaton’s interview with Strong was recorded. During the

interview, Strong denied that he lived at 2355 Roosevelt Street in 1979. He

claimed that he did not know where Rutledge Street was, even though he was

able to name the other streets in the area and Rutledge Street is only three

blocks from Roosevelt Street. He stated that he once tried to go into the

Lounge but was turned away at the door due to improper attire. He repeatedly

1 Microscopic examination of hairs found on her left breast and forearm showed that they had “Negroid type characteristics.” Tr. at 313-14. Strong and Martin are both African-American. The State claims that the hairs were dissimilar to Martin’s hair. Appellee’s Br. at 8. However, Larry Huys, the former supervisor of the Northwest Indiana Toxicology Laboratory, where the initial examination of the hairs was completed, testified that “no conclusion could be reached [relative to Martin’s hair].” Tr. at 313-14. Huys testified that the hairs in a brown hat found near Martin’s body were “dissimilar” to Martin’s hair. Id. at 311.

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denied ever knowing anyone named Linda or any woman with the last name

Martin. Commander Eaton showed Strong a photograph of Martin, but he

denied ever having seen her. Strong also stated that he scrapped the

Oldsmobile in 1979, bought a new car in 1980, and moved to Michigan. [8] The DNA testing revealed that the DNA profile from the crotch of the bodysuit

matched Strong’s DNA with a statistical frequency of one in one billion

unrelated individuals. Id. at 546. In addition, the DNA testing was able to

exclude the DNA profiles of Martin, Walls, and all four of Strong’s brothers.

Id. at 547. The rape kit contained an insufficient quantity of DNA for a full

profile, but Y-STR analysis 2 indicated that the Y-STR DNA profile from the

rape kit was consistent with Strong’s Y-STR DNA with a statistical frequency

of one in 2732 Caucasian men, one in 1789 African-American men, and one in

1305 Hispanic men. Id. at 570. Y-STR analysis was also performed on

Martin’s fingernail clippings and revealed a Y-STR DNA profile that was

consistent with Strong’s Y-STR DNA with the same statistical frequency as

described above. Id. at 574-75. [9] On January 24, 2014, the State charged Strong with murder. A jury trial was

held from October 19 to 22, 2015. Strong testified in his defense. He admitted

that he lived at 2355 Roosevelt Street in 1979 at the time of the murder and

explained that he was confused when he was interviewed by Commander

Eaton. Id. at 639, 643. Strong testified that he never went to the Lounge, had

2 “Y-STR analysis is developing a DNA profile that is specific to the ‘Y’ chromosome.” Tr. at 567.

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not known Linda Martin, had not had sexual relations with her, and had not

murdered her. Id. at 638, 654, 655-56. The jury found Strong guilty as charged.

The trial court sentenced him to an executed term of fifty years. This appeal

ensued.

Discussion and Decision

Section 1 – Sufficient evidence supports Strong’s murder conviction. [10] Strong challenges the sufficiency of the evidence supporting his murder

conviction. In reviewing a claim of insufficient evidence, we do not reweigh

the evidence or judge the credibility of witnesses, and we consider only the

evidence that supports the judgment and the reasonable inferences arising

therefrom. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We will affirm

if there is substantial evidence of probative value such that a reasonable trier of

fact could have concluded the defendant was guilty beyond a reasonable

doubt.” Id. The evidence need not “overcome every reasonable hypothesis of

innocence.” Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007). “Elements of

offenses and identity may be established entirely by circumstantial evidence and

the logical inferences drawn therefrom.” Bustamante v. State, 557 N.E.2d 1313,

1317 (Ind. 1990). “Any testimony tending to show an accused’s attempt to

conceal implicating evidence or to manufacture exculpatory evidence may be

considered by the trier of fact as relevant because it reveals a consciousness of

guilt.” Hughes v. State, 546 N.E.2d 1203, 1208 (Ind. 1989).

Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CR-2315 | December 15, 2016 Page 6 of 12 [11] To convict Strong of murder, the State was required to prove beyond a

reasonable doubt that he knowingly or intentionally killed Linda Martin. Ind.

Code § 35-42-1-1(1). The evidence supporting the verdict shows that Martin left

the Lounge at midnight and was on foot. Strong owned a car, which he

scrapped after the murder. The Y-STR analysis from the rape kit strongly

supports that he had sexual contact with Martin. Even though the Y-STR

analysis could not rule out his brothers, the DNA profile on the crotch of

Martin’s bodysuit matched Strong’s DNA profile with a statistical frequency of

one in one billion and excluded Strong’s brothers as contributors. Tr. at 546-47.

Yet, Strong denied having any sexual contact with Martin and denied even

knowing her. He changed his stories regarding where he lived in 1979 and

whether he had ever gone to the Lounge. The autopsy revealed that Martin

was strangled to death. The Y-STR profile found on Martin’s fingernails was

consistent with Strong’s and supports a reasonable inference that she fought

him. Strong lived only three blocks from where Martin’s body was found. [12] Strong concedes that although he denied knowing Martin or having sexual

contact with her, the DNA evidence implies that he had sexual contact with

her. However, he asserts that after thirty-six years, he simply might not have

remembered Martin, the semen could have been deposited twenty-four to

seventy-two hours prior to the sample being taken, the DNA evidence does not

show that their sexual contact was involuntary, and the fingernail DNA could

have come from voluntary intercourse. Strong’s argument is an invitation to

reweigh the evidence, which we must decline. We conclude that there was

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sufficient evidence to support Strong’s murder conviction. See Drane, 867

N.E.2d at 147-48 (evidence that Drane, on the night of victim’s murder, talked

to victim multiple times, made arrangements to see her, and had sexual

intercourse with her, and that his van was seen parked for several hours in the

park near where victim’s body was later discovered was sufficient to support

convictions for rape and murder).

Section 2 – The prosecutor did not commit misconduct. [13] Strong argues that the prosecutor committed misconduct during closing

argument by remarking,

All the facts that have been presented to you throughout the course of the last couple of days lead to one and only one conclusion. And that conclusion is the defendant, L.C. Strong, murdered Linda Martin on February 21st of 1979. The State asks that you consider all the evidence and you render that verdict and tell Linda Martin that justice has finally been found.

Tr. at 670 (emphasis added). [14] Strong asked for an admonishment that would inform the jury “not to dwell on

the concerns of the victim or the sympathy,” but the trial court refused. Id. at

671. The trial court allowed Strong to address the prosecutor’s remark in his

closing argument, at the beginning of which he stated,

You’re going to get an instruction from the Judge that reads in part: As honest upright men and women charged with the … [r]esponsible duty of aiding the Court in the administration of justice, you will put aside all sympathy and sentiment and look

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only to the law and the evidence in the case and return into court such a verdict as is warranted thereby.

Id. at 673-74. The trial court instructed the jury accordingly. Id. at 688;

Appellant’s App. at 118. [15] Our standard of review is well established:

In reviewing a claim of prosecutorial misconduct properly raised in the trial court, we determine (1) whether misconduct occurred, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected otherwise. A prosecutor has the duty to present a persuasive final argument and thus placing a defendant in grave peril, by itself, is not misconduct. Whether a prosecutor’s argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct. The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury’s decision rather than the degree of impropriety of the conduct. To preserve a claim of prosecutorial misconduct, the defendant must–at the time the alleged misconduct occurs–request an admonishment to the jury, and if further relief is desired, move for a mistrial.

Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (citations and quotation marks

omitted). [16] Specifically, Strong contends that the prosecutor, by requesting that the jury

“tell Linda Martin that justice has finally been found,” Tr. at 670, implied that

“the jury should find Mr. Strong guilty in part due to the great lapse of time

between the crime and his trial.” Appellant’s Br. at 6. We observe that “[i]t is

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misconduct for a prosecutor to request the jury to convict a defendant for any

reason other than his guilt.” Cooper v. State, 854 N.E.2d 831, 837 (Ind. 2006)

(quoting Coleman v. State, 750 N.E.2d 370, 375 (Ind. 2001)). [17] In support of his argument that the prosecutor’s comment constitutes

misconduct, Strong relies on Neville v. State, 976 N.E.2d 1252 (Ind. Ct. App.

2012), trans. denied (2013). There, the defendant alleged multiple instances of

prosecutorial misconduct including that the prosecutor stated in closing

argument that “[o]nly you have the power to get justice for the family who had

to lose their son, their nephew.” Id. at 1263. The Neville court concluded that

the prosecutor’s comment “urging the jury to provide justice and find Neville

guilty for the sake of [the victim] and his family ‘[had] no bearing on the

defendant’s guilt or innocence’” and was improper. Id. at 1264 (quoting Limp v.

State, 431 N.E.2d 784, 788 (Ind. 1982)). [18] Considering the context of the prosecutor’s comment in Neville, we conclude

that case is easily distinguishable. The prosecutor stated,

But now is the point in this trial that you can find that for 3 days now you’ve been sitting 20 feet from a murderer. And–only thing about it, I can’t do a thing about it. As [the other prosecuting attorney] told you in opening, voir dire, folks all I can do is put this man in this chair. All Detective Tudor can do is put this man in this chair, beyond that I am powerless. Only you have the power to get justice for the family who had to lose their son, their nephew.

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Id. at 1263. Here, in contrast, the statements preceding the alleged improper

comment emphasized that the jury should consider the evidence that had been

presented throughout the course of the trial and base the verdict on that

evidence. [19] The challenged comment in this case is similar to one that we upheld in Hand v.

State, 863 N.E.2d 386 (Ind. Ct. App. 2007). There, the defendant challenged

the prosecutor’s comment urging the jury to convict for the victim, her children,

and the community as a whole. Id. at 396. We concluded that “the gravamen

of those comments was that the evidence presented at trial supported the State’s

charges and, therefore, Hand should be held accountable for his actions and

convicted.” Id. [20] We agree with the State that the prosecutor’s “remark that the verdict would

‘tell Linda Martin that justice has finally been found’ was nothing more than a

comment that the evidence presented at trial would support the State’s murder

charge, and, therefore, bring an end to this case.” Appellee’s Br. at 14 (citing

Tr. at 670). Accordingly, we conclude that the prosecutor’s comment was not

misconduct. Moreover, even if it was improper, it would not require reversal.

Strong began his closing argument by telling the jurors that they would be

instructed “to put aside sympathy and sentiment and look only to the law and

the evidence in the case,” and they were so instructed. Tr. at 673-74. As such,

the prosecutor’s isolated statement did not place Strong in a position of grave

peril to which he should not have been subjected. Therefore, we affirm his

murder conviction.

Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CR-2315 | December 15, 2016 Page 11 of 12 [21] Affirmed.

Kirsch, J., and May, J., concur.

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