Shepherd v. State

157 N.E.3d 1209

Lavoyd D. SHEPHERD, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 20A-CR-179

Court of Appeals of Indiana.

FILED September 30, 2020

Attorneys for Appellant: Scott L. King, Lakeisha C. Murdaugh, Merrillville, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Caroline G. Templeton, Deputy Attorney General, Indianapolis, Indiana

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Defendant, Lavoyd Shepherd (Shepherd), appeals his conviction and sentence following the jury's guilty verdicts for voluntary manslaughter, a Level 2 felony, Ind. Code § 35-42-1-3 ; aggravated battery, a Level 1 felony, I.C. § 35-42-2-1.5 ; battery resulting in death to a person less than fourteen years old, a Level 2 felony, I.C. §§ 35-42-2-1(c)(1), - (k)(1) ; and battery resulting in bodily injury to a person less than fourteen years old, a Level 5 felony, I.C. §§ 35-42-2-1(c)(1), - (g)(5)(B).

[2] We affirm.

ISSUES

[3] Shepherd presents the court with six issues, which we restate as the following:

(1) Whether the State proved beyond a reasonable doubt that it was he who injured A.F.;

(2) Whether the trial court abused its discretion when it excluded the video-recorded police interview of a witness who testified at trial;

(3) Whether the trial court committed reversible error by instructing the jury on voluntary manslaughter;

(4) Whether the trial court abused its discretion by admitting photographic images seized from Shepherd's cell phone pursuant to a search warrant after the return of the warrant was delayed;

(5) Whether his sentence for aggravated battery violates Indiana's Proportionality Clause; and

(6) Whether his sentence is inappropriate given the nature of the aggravated battery offense and his character.

FACTS AND PROCEDURAL HISTORY

[4] Andre Ferguson (Ferguson) and Lena Harper (Harper) were formerly in a romantic relationship, and their daughter, A.F., was born on May 20, 2015. Harper subsequently began a relationship with Shepherd, and Ferguson exercised regular parenting-time with A.F. On February 20, 2017, Shepherd drove with Harper and Shepherd's ten-year-old son, J.S., to a gas station in South Holland, Illinois, to retrieve physical custody of A.F., who had spent the three-day holiday weekend with Ferguson and his family. Ferguson had given A.F. her favorite snack, pretzel sticks, prior to the drop-off at 9:30 p.m. and allowed her to take the bag of pretzels with her. A.F. continued to eat pretzels in Shepherd's SUV on the way back to his apartment in Merrillville, Indiana, where Shepherd lived with Harper, A.F., and J.S. They arrived at Shepherd's apartment at approximately 10:00 p.m. Shepherd consumed his favorite alcoholic beverage, tequila, while the rest of the household's occupants went to bed.

[5] A.F. and J.S. shared a bedroom in Shepherd's apartment. In the early morning hours of February 21, 2017, A.F. cried. Between 4:00 a.m. and 5:00 a.m., J.S. went to tell Shepherd, who was sleeping on the couch in the living room, that A.F. was crying. J.S. then went back to bed. Shepherd later awakened J.S. and told him that A.F. was not breathing. Shepherd attempted to perform CPR on A.F. in the living room, which awakened Harper. Shepherd and Harper drove A.F. to the hospital, and J.S. took the bus to school as he normally would. A.F. had no heartbeat and was essentially dead upon her arrival at the hospital. Despite the extensive efforts made to revive her, A.F. was pronounced dead at the hospital at 6:03 a.m. Shepherd subsequently left Harper at the hospital and was intercepted by police at J.S.'s school. While at school that morning, J.S. had written a short essay about the holiday weekend in which he stated that it had been good until that morning because that was when his little sister had died.

[6] An autopsy performed by Dr. Zhuo Wang (Dr. Wang) on February 22, 2017, revealed that A.F. had died of multiple blunt force traumas to her head and abdomen. The force of the trauma to A.F.'s head had caused the fibrous bands holding her skull together to separate and had injured her brain. The wounds to A.F.'s abdomen had caused massive internal bleeding. Either the injuries to A.F.'s head or to her abdomen would have been fatal.

[7] On February 21, 2017, investigators procured a search warrant for Shepherd's apartment. Photographs of A.F.'s and J.S.'s bedroom revealed a large tear in the netting of A.F.'s pack-and-play which served as her bed. Shepherd's cell phone was collected from the living room couch. Shepherd provided statements to an investigator with the coroner's office, a Child Protective Services (CPS) assessor, and to the police. Although some of the details of his accounts varied among these statements, Shepherd consistently reported that he was the only one awake in the apartment. Although he had initially reported to Harper that he had stayed awake all night, according to Shepherd's later statements, he had stayed awake until around 4:00 a.m., and J.S. woke him around 5:00 a.m. to tell him that A.F. was making strange noises. Shepherd reported that he had found A.F. unresponsive and had shaken her in an attempt to revive her before performing CPR. Shepherd related in one of his police interviews that he felt that Harper told Ferguson too much about her relationship with Shepherd and that Harper had been on the phone with Ferguson for an hour on February 20, 2017. Because of the nature of A.F.'s injuries, investigators sought Harper's and Shepherd's consent to measure and photograph their hands. Harper immediately consented, but Shepherd refused. Shepherd's hands were later photographed and measured pursuant to a court order.

[8] On February 21, 2017, and again on February 23, 2017, J.S. was interviewed by police and provided statements which were video recorded.¹ J.S. appeared to be calm and relaxed as the interviewer built rapport with him by asking him questions unrelated to the investigation. When the subject of the interview turned to the events surrounding A.F.'s death, J.S. became more physically animated, shaking his leg and changing positions in his seat. At various times during the interview, J.S. reported that he had awakened Shepherd at 10:22 p.m., 5:00 a.m., and 5:22 a.m. J.S. claimed to have performed CPR on A.F. but later in the interview admitted that he had not. Contrary to what he had written in his school essay, during the interview J.S. stated that he did not know what had happened to A.F. but that he wanted to assume that she was alright.

[9] Based on Shepherd's statements that everyone else in the apartment had been asleep, the amount of force required to inflict A.F.'s injuries, and the fact that J.S. was five feet tall and weighed seventy pounds at the time, investigators ruled out Harper and J.S. as suspects in A.F.'s death. On February 24, 2017, the State filed an Information, charging Shepherd with murder, aggravated battery, battery resulting in death to a person less than fourteen years old, and battery resulting in bodily injury to a person less than fourteen years old. Investigators sought and received a search warrant to procure the contents of Shepherd's cell phone. The lead investigator, Detective James Bogner (Detective Bogner) of the Merrillville Police Department, transported Shepherd's cell phone to the Indiana State Police post on April 4, 2017, where the search warrant was executed by Detective Alva Whited (Detective Whited). Detective Whited extracted seven images from Shepherd's cell phone showing what appeared to be an adult male's hand positioning A.F.'s mouth so that a severe tongue injury was visible from different angles. Metadata extracted with the images indicated that they were taken from 3:42:02 a.m. to 3:43:54 a.m. on February 21, 2017, and that they were taken with Shepherd's cell phone camera, as opposed to being taken and sent to him by someone else. In his various statements to investigators, Shepherd had never mentioned discovering A.F.'s tongue injury or photographing it. On April 4, 2017, after Detective Whited finished his forensic examination, Detective Bogner retrieved Shepherd's cell phone and completed the return on the search warrant. However, the search warrant return was not immediately filed.

[10] On May 9, 2018, Shepherd filed a motion to suppress arguing that the seven images extracted from his cell phone should be excluded from the evidence because the State had failed to file the return on the search warrant. On August 16, 2018, and September 13, 2018, the trial court held hearings on Shepherd's motion to suppress. The State filed the search warrant return the day of the first hearing. In the return, Detective Bogner swore under penalties of perjury that he had taken Shepherd's cell phone to Detective Whited for examination on April 4, 2017; the cell phone was searched, and data was gathered; and that an inventory of the property taken under the search warrant was "[a]ll data collected from the phone via forensic means[.]" (Suppression Exh. Vol. p. 7). On November 16, 2018, the trial court denied Shepherd's motion to suppress.

[11] On August 12, 2019, the trial court convened Shepherd's five-day jury trial. Shepherd's theory of the case was that A.F. had sustained her fatal injuries either while she had been in the care of Ferguson and his family or at the hands of J.S. Ferguson and others who had cared for A.F. that weekend all testified that she had not had any falls or injuries and that she appeared to be normal and healthy. J.S. testified and denied ever having hit or kicked A.F. J.S. confirmed that the netting on A.F.'s pack-and-play had not been torn before that night. J.S. was cross-examined by Shepherd regarding inconsistencies in his police statements and his trial testimony. After J.S. testified as part of the State's case-in-chief and had also been called by Shepherd as part of his own case, Shepherd sought to have the video recordings of J.S.'s police...