Nix v. State

158 N.E.3d 795

Hayden J. NIX, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 20A-CR-521

Court of Appeals of Indiana.

FILED October 26, 2020

Attorneys for Appellant: Susan D. Rayl, Michael Ray Smith, Hand Ponist Horvath Smith & Rayl, Indianapolis, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, Indiana

Najam, Judge.

Statement of the Case

[1] Hayden J. Nix appeals his conviction for rape, as a Level 3 felony, following a jury trial. Nix raises four issues for our review, which we restate as the following three issues:

1. Whether Nix preserved for appellate review his arguments that he was denied an impartial jury and that the trial court erred when it denied his motion for a change of venue.

2. Whether the trial court committed fundamental error when it did not sua sponte prohibit the State from asking certain questions of witnesses, which Nix asserts amounted to a drumbeat repetition of the victim's testimony.

3. Whether the trial court abused its discretion when it denied Nix's motion for funds to hire a mitigation specialist to aid his defense at sentencing.

[2] We affirm.

Facts and Procedural History

[3] In October of 2017, when they were freshmen at New Palestine High School and on fall break, fourteen-year-old R. and her friend B. went to a party together. As R. and B. could not drive, they enlisted the assistance of a male acquaintance from the high school, E., who drove the two girls to the party. After a few hours, the girls wanted to leave, but E. was "unable to drive." Tr. Vol. II at 109. E. then asked his friend, Nix, whom the girls did not know, to drive all three of them home.

[4] Around 3:00 a.m., Nix drove the three of them to E.'s house first. There, E. got out of the car, and B. also got out of the car to use the restroom. Nix then moved from the driver's seat to the backseat with R. He began touching R.'s legs and ignored her requests for him to stop. Nix then forced himself on top of R., removed both of their pants, held her down, and raped her. During the attack, R. was "yelling." Id. at 120. She was able to open the nearest car door "[t]wice," but Nix "was able to pull it shut before [R.] could get it open all the way." Id. at 139-40.

[5] Meanwhile, E. told B. that they had to enter his house through the back door. When the two arrived at the back door, it was locked, and E. told B. that she should "just hang out with me in the woods." Id. at 183. B. thought E.'s request was "weird," but she went with him. Id. After several minutes, B. wanted to go back home, and she went back to the car and knocked on the back window, which B. could not see through. Nix opened the door, told her to go away, and then shut the door again. B. then went back to the woods with E. and, after some more time, again knocked on the window of the car, only to have Nix again open the door, tell her to go away, and close it again. B. thought this was "weird," and she was "uncomfortable." Id. at 187-88. She also heard R. and Nix "arguing," "yelling," and "being loud," but she could not make out what was being said. Id. at 188. After B. tried to enter the car a third time and failed, she began walking home.

[6] At that point, E. intervened and picked up B. in the car. Nix and R. were in the backseat when E. picked up B. B. recalled that, at that time, "[n]o one was talking" inside the car. Id. at 190. After getting to R.'s house, R. and B. both exited the car. Some time in the next day or two, R. told B. that Nix had raped her in the back of the car. At R.'s insistence, B. promised not to tell anyone. Later, R. told another of her school friends, J., of the attack.

[7] Following the attack, R. quit cheerleading and softball. Her attendance at the high school faltered, and her grades dropped. She began to "isolate[ ]" herself from her friends and family. Id. at 130. In February of 2018, R.'s grandmother engaged her about what had happened. R. then told her grandmother about the attack, and R.'s grandmother promised not to tell anyone, a promise which R.'s grandmother kept for about six months. Then R.'s grandmother informed R.'s father, who reported it to the Hancock County Sheriff's Department.

[8] In January of 2019, the State charged Nix in relevant part with rape, as a Level 3 felony. In October, Nix moved for a change of venue because, in the six months prior to his motion, he had been sentenced in three other, similar cases that had been reported in the local media. At a hearing on that motion, the State argued that there was no evidence of actual prejudice at the moment, but if that evidence came up during the voir dire of prospective jurors the court could reconsider the motion. The court then denied Nix's motion.

[9] During the ensuing voir dire, six prospective jurors¹ reported having read about Nix's other cases and suggested that they had already formed an opinion as to his guilt in the instant case. The court then permitted, without objection from Nix, to have those prospective jurors share a waiting room with other prospective jurors without instructing them not to discuss the matter and not to read media reports. The parties and the court then discussed which prospective jurors to strike. Following that discussion and additional voir dire, none of the six prospective jurors who had read about Nix in the media reports were selected to sit on his jury. Id. at 78.

[10] During Nix's jury trial, R. testified about Nix's attack on her. After R. testified, B. testified about her observations and recollections from that night. The State also called J., R.'s grandmother, and an investigating detective, who each testified that R. had told them of the attack. Nix did not object to this testimony.

[11] The jury found Nix guilty of rape, as a Level 3 felony, and the trial court set the matter for a sentencing hearing. Nix, who was represented by private counsel, then asked the court for public funds to aid in the costs of obtaining a "mitigation specialist" to assist Nix with his arguments at sentencing. Appellant's App. Vol. II at 179. The court denied Nix's request. Nonetheless, Nix was able to obtain a mitigation specialist, who filed a report with and then testified to the court, stating among other things that Nix suffered from "fetal alcohol spectrum disorder." Tr. Vol. III at 192.

[12] During its closing argument to the court at the sentencing hearing, the State argued in relevant part as follows:

I want to specifically comment with regard to [Nix being] asked [in the preparation of the pre-sentence investigation report] ... why he believed he was ... convicted in this case and ... [Nix] indicated ... that ... he feels the jury members knew about his prior ... convictions, which le[d] them to convict him [in] the [present] case. I want to be very clear that at no point in time during the trial did the [S]tate elicit any information with regard to [his prior convictions]. ... [N]ot at any point during voir dire ... was there discussion put forth by the [S]tate as to prior convictions.

Tr. Vol. III at 207. Nix's counsel responded to that part of the State's argument by asserting:

In terms of the [S]tate's argument about ... the jury, and I don't know why it was brought up because it's really kind of neither here nor there, but they brought it up so I'm going to comment on it. ... [N]o one talked about his prior cases during the trial. That is true. However, after the trial when the defense and the [S]tate spoke to the jury, the jury foreperson said[,] "I know about his prior cases. He's already proven himself to be a piece of sh[*]t." And there were other jurors back there [who] concurred and also said that they had read in the news about [Nix's] other cases. So, even though it wasn't brought up during the trial ...[,] based off of what we were told in the jury room that was something that was considered. And I relayed that information to [Nix]. And so, that's likely why he said that in the PSI ....

Id. at 209-10. After hearing the evidence and arguments, the court stated that it did not find Nix's evidence or arguments persuasive, and the court then sentenced him to sixteen years, with three years suspended to probation. This appeal ensued.

Discussion and Decision

Issue One: Nix's Impartial-Jury and Change-of-Venue Arguments

[13] We first address Nix's several arguments that he was denied an impartial jury and his related argument that he should have received a change of venue. As for his impartial-jury arguments, Nix recognizes that the right to an impartial jury is protected by the state and federal constitutions. Appellant's Br. at 41. He argues that he was denied that right for numerous reasons. But the premise of his argument is his counsel's statement to the court, at the close of the sentencing hearing, that he had been told by the jury foreperson after the trial that several jurors knew about Nix's prior cases. From that statement, Nix infers that some of the prospective jurors who acknowledged during voir dire that they had read about Nix in the local media must have exposed the other prospective jurors to those reports. According to Nix, that exposure reveals that the trial court erred in the manner in which it conducted the voir dire and in not instructing the prospective jurors not to discuss matters and not to research the defendant while they were not in the courtroom.

[14] There are a number of flaws with Nix's argument. First, the premise of his argument—his own counsel's statement to the court at the close of sentencing—is not evidence, and Nix cites no other portion of the record to demonstrate any apparent bias in a juror from his trial. Deen-Bacchus v. Bacchus , 71 N.E.3d 882, 886 (Ind. Ct. App. 2017). Indeed, Nix did not respond to the jury foreperson's purported disclosure after the trial by immediately informing the court and calling the jurors to question them and make a record....