No constitutional violation when defendant ordered to smile for jury, COA rules

The Wells Circuit Court didn’t violate a methamphetamine dealer’s Fifth Amendment rights when it ordered him to show his teeth to a jury to demonstrate he was the same person that was in an incriminating video, according to the Court of Appeals of Indiana.

In February 2020, in exchange for a reduction in the length of his probation, Nathan Romine agreed to serve as a confidential informant and assist the Adams County/Wells County Drug Task Force with controlled buys. Romine learned through a mutual friend that Denver Lee Murray was willing to sell drugs and reached out to him over Facebook, where he eventually obtained Murray’s phone number.

After meeting with detectives from the Wells County Sheriff’s Department, Romine arranged to purchase 14 grams of meth for $300 in Bluffton, and the deal was executed. Romine later arranged a second purchase, and law enforcement installed audio and video equipment inside his vehicle to record the transaction.

During the second exchange, Murray got into Romine’s car in a gas station parking lot, and Romine gave him $300. Murray left with the money, but he never delivered the promised meth. Murray also never returned the cash to Romine, and he eventually stopped responding to Romine’s communications.

Five months later, the state charged Murray with Level 2 felony dealing in methamphetamine and Level 6 felony theft.

The trial court conducted a three-day trial in March 2021, and as a precaution against COVID-19, required everyone in the courtroom to wear face masks.

But during Romine’s testimony, the trial court instructed Murray to remove his mask, and Romine identified Murray as the individual who sold him the meth. Romine also testified that although Murray had a full beard at the time of trial, he did not have a beard when they met in February 2020.

Detectives similarly provided in-court identifications of Murray. The state entered the video of the second transaction into evidence, which showed the person who entered Romine’s car wore sunglasses, a hat and a hood. He also had crooked teeth.

Near the end of its case-in-chief, the state asked the trial court to direct Murray to show the jury his uncovered face and his teeth to demonstrate that he had the same distinctive set of teeth as the person in the video. Murray objected on the basis that being compelled to do so would constitute a violation of his Fifth Amendment right against self-incrimination.

The trial court initially ruled Murray would have to take off his face mask and face the jury, but it would not require Murray to show his teeth. Following a brief recess, the state approached the bench and stated Murray had “somethin’ in his mouth” that was “gonna change his facial appearance.”

Murray explained he had a “homemade” retainer in his mouth that he wore because he was embarrassed by the look of his teeth. The state renewed its motion for Murray to show the jury his teeth, and the court ruled he would be required to take the appliance out and smile for the jury.

The jury returned a verdict of guilty on the dealing count but not guilty on the theft count. But Murray had absconded by this point, so the trial court issued a bench warrant after the verdict was read.

In April 2021, Murray was arrested in Huntington County and charged with 12 crimes, including Level 2 felony dealing in meth, Level 5 felony dealing in cocaine and Level 5 felony battery on an officer. He was then transferred to Wells County pursuant to the bench warrant in the instant case.

Murray was later sentenced to 25 years in the Indiana Department of Correction.

On appeal, Murray argued his Fifth Amendment rights were violated and his 25-year sentence was inappropriate. The COA disagreed with both arguments.

“… We find the facts herein more like other cases in which we have held no constitution violation occurred,” Judge Melissa May wrote for the COA, pointing to Springer v. State, 372 N.E.2d 466, 472 (Ind. Ct. App. 1978), reh’g denied, and Flynn v. State 412 N.E.2d 284, 288 (Ind. Ct. App. 1980).  “… Moreover, even if requiring Murray to show his teeth to the jury amounted to a violation of the Fifth Amendment, any such error was harmless.”

Given Murray’s criminal history, his failures to abide by the terms of his probation and home detention, additional charges from a separate incident, and the episode with the retainer, among other issues, the Court of Appeals found his sentence was appropriate.

The case is Denver Lee Murray v. State of Indiana, 21A-CR-1495.

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