Darius Montel Bushrod v. State of Indiana

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.

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[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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issue of whether Bushrod had a reasonable fear of him.3 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.

For the reasons stated above, we affirm the judgment of the trial court.