MEMORANDUM DECISION
May 13 2015, 9:46 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Darin Jackson, May 13, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1404-CR-230
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Lisa F. Borges,
Appellee-Plaintiff. Judge
Cause No. 49G04-1304-FA-23630
Brown, Judge.
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[1] Darin Jackson appeals his conviction for conspiracy to commit criminal
confinement as a class B felony. Jackson raises four issues which we
consolidate and restate as:
I. Whether the trial court abused its discretion in replacing one of the
original jurors with an alternate;
II. Whether the trial court abused its discretion in admitting certain
testimony; and
III. Whether the evidence is sufficient to sustain Jackson’s conviction for
conspiracy to commit criminal confinement as a class B felony.
We affirm.
Facts and Procedural History
[2] Jackson and Carlton Hart were good friends, and Jackson knew Hart since
Jackson was seven years old. Hart owned a music studio located at 46th Street
and Evanston in Indianapolis. Shortly before November 15, 2012, Hart’s
cousin, who was a local rapper known as Bango, was shot and killed. Jackson
knew Bango’s mother “back in the day” and also knew Dwayne McDuffy
(“Dwayne”), the father of James McDuffy (“McDuffy”), since Jackson was a
teenager. Transcript at 408.
[3] On November 15, 2012, Jackson, Dwayne, and Hart went to the residence of
Bango’s mother. Hart and Jackson then dropped off Dwayne and picked up
McDuffy. At approximately 3:00 p.m., Jackson, McDuffy, and Hart entered
the Lowe’s at 62nd Street and Keystone in Indianapolis. One of the men
picked up a box cutter. McDuffy picked up a package of zip ties, and Jackson
held his arms together in front of him crossed at the wrist and placed a package
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of zip ties in the cart. At 3:18 p.m., McDuffy purchased a 2x4 stud of lumber,
cable zip ties, washers, a coax cable connector, a box cutter, lip balm, duct tape,
and zinc open bar holders. The men then drove to Hart’s studio, and Hart later
drove Jackson to a Wendy’s restaurant where Jackson began work at 5:58 p.m.
and worked until 2:53 a.m.
[4] Meanwhile, also on November 15, 2012, Marvin Finney, II, spoke with his
cousin, Thomas Keys, a DJ, around 4:00 p.m. Finney drove his mother’s
minivan, picked up Keys, and drove to the music studio owned by Hart to work
on a project honoring Bango. Finney was expecting to pick up music, probably
listen to a couple of songs, accept money, and go home and work on the
project. Dontee Robinson, known to Finney as D-Rob, let Finney and Keys
into the studio. Finney knew Robinson from seeing rap videos on YouTube.
McDuffy, whom Finney had met a week earlier at a concert, was also in the
studio. Finney observed that they had a piece of wood across the door to block
it.
[5] Robinson was “kind of tense” and asked Keys who killed Bango and what he
knew about it, and Keys said that he knew just as much as Robinson and
McDuffy knew. Id. at 127. Robinson and McDuffy kept insisting that Keys
knew who did it and that he needed to tell them. Finney was on his phone
texting one of his friends, and McDuffy asked him who he was texting. Finney
said: “Why would I call anybody over to the studio?” Id. at 128. McDuffy
responded: “We don’t need nobody else coming over here and you all are not
leaving until we find out what we need to know.” Id. McDuffy asked Finney
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for his phone, and Finney gave it to him. McDuffy said: “Thomas needs to tell
us what we need to know or you are not going home.” Id.
[6] At some point, McDuffy pulled a gun out and sat it on his lap “like he was not
happy about Bango getting killed and he needed to know what was going on.”
Id. at 129. Robinson had an assault rifle. Keys said: “Who was telling you all
this so I can confront them?” Id. at 131. McDuffy asked Keys and Finney if
they had any weapons and started going through Finney’s pockets and told him
to empty his pockets. Finney gave McDuffy his phone, keys, and cash. There
was a third person with McDuffy and Robinson, but the third person was
hanging more toward the back so Finney could not identify him other than
being black with a light-skinned complexion, braids, and “Asian-style eyes.” Id.
at 132. Finney said: “You all called us to work on a project and that is what we
are here to do. We are not here to talk about no murders or none of that.” Id.
at 133. McDuffy said: “You all going to die here tonight if you don’t tell us
what we need to know.” Id. McDuffy then called the third person and had him
put a gun on Finney. The third person pointed a revolver at Finney and told
him that he needed to back up and go back to his seat.
[7] McDuffy told Finney and Keys that they needed to strip, and Finney kicked off
his shoes to let them know that he did not have a gun in his shoes. At some
point, the third person let Dominique Hamler, known to Finney as Scooter,
into the studio. Hamler was mad, pulled an assault rifle out of his pants,
pointed it at Finney and Keys, and said: “Who killed Bango?” Id. at 137.
Finney said that he was Keys’s cousin and that they came over to work on
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some music, and Hamler said: “You all need to tell us who killed Bango.” Id.
at 138. Keys said that they were questioning the wrong people. McDuffy said:
“You all supposed to be tied up anyway,” and “Why ain’t they tied up yet?” Id.
[8] Hamler told Finney to “get on the ground,” and the third person “kind of
pushed [him] and kicked [him] to the ground.” Id. Finney and Keys were
eventually tied up with zip ties around their wrists and legs. At some point,
Nathaniel Armstrong, also known as Little Nate, entered the studio “really
amped up, hyped up,” and asked who killed Bango and said he was ready to
kill somebody. Id. at 141. Armstrong said: “You all better be glad they won’t
let me get a gun or you all would have been dead.” Id. Armstrong grabbed a
knife that looked like a box cutter and cut Keys on the leg. Armstrong said:
“We doing this for Bango. He was about to blow. He was about to make it.
Somebody took his life now and you all got to die.” Id. at 142.
[9] At some point, someone placed duct tape on Keys’s mouth. Someone
suggested “somebody go get some gloves” to “finish off” Keys and Finney. Id.
at 143. An older bald man entered through the back door, and said: “Is that
him? Is that him?” Id. at 144. Robinson, Hamler, Armstrong, and the bald
man left the studio. Finney, Keys, McDuffy, “and the guy with the Asian-style
eyes” remained in the studio. Id. at 145. McDuffy told Finney: “Tell your
cousin to tell us what we need to know.” Id. at 146. McDuffy also told Finney:
“Tell us something or you are not going home.” Id.
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[10] After probably twenty minutes, Hamler, Robinson, Armstrong, and the bald
man returned. McDuffy told Robinson to clean the guns, and everyone except
Keys and Finney started putting on gloves. McDuffy, Armstrong, and Hamler
were still interrogating Finney and Keys and said: “You about to die.” Id. at
147. The bald man suggested that they drown Keys and Finney, electrocute
them, burn them alive, shoot them, and dump their bodies. The men turned off
the lights and huddled together. McDuffy said: “This ain’t getting nowhere.
We should just let them go because they don’t know nothing.” Id. at 149.
Armstrong then said: “How you going to just let somebody kill your cousin and
get away with it? We got to do something about this.” Id.
[11] The men huddled up a couple more times and returned, and Armstrong said:
“We can strangle them. Put the zip ties around their neck.” Id. Duct tape was
placed around the wrists and faces of Keys and Finney. Finney resisted, and
they kicked and punched him. The men placed a zip tie around Finney’s neck
and the tie was “real tight.” Id. at 150. The men then played one of Bango’s
songs and were “dancing around like pumping themselves up.” Id. Hamler
said: “They was doing this for Bango.” Id. The men left the room, and
someone with dreadlocks returned and fired a gun multiple times. Finney was
shot near the right wrist and “played dead.” Id. at 151.
[12] Finney eventually found a screwdriver and freed himself from the tape and
some of the zip ties and told Keys, “Let’s go, let’s go,” but Keys did not
respond. Id. at 152. Finney exited the studio and went to 46th Street to seek
help. Finney ended up at CVS and screamed: “I am going to die. I am going to
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die. I am going to die.” Id. at 34. Gayle Young, Jr., attempted to remove the
tie but it was so tight on Finney’s neck that Young “probably couldn’t get [his]
index finger between the wire tie and his neck . . . .” Id. at 35.
[13] Meanwhile, around 8:00 p.m., Adam Root was helping a friend, Alan Alas,
carry groceries into a house on the corner of 46th Street and Caroline in
Indianapolis. Root and Alas heard four of five gunshots coming from the west.
Root then saw five, six, or seven panicked black males run out of the alley just
north of where the house was located and into three separate cars.
[14] Shortly after 8:00 p.m. on November 15, 2012, Indianapolis Metropolitan
Police Officer James Trythall was dispatched to the CVS store located at 4602
North Keystone for a person who had been shot. Officer Trythall found Finney
shot in both arms with a zip tie around his neck and duct tape in his hair.
Finney was very excited and “a little bit hysterical.” Id. at 15. Finney told
Officer Trythall that he and a friend were at a studio on 46th Street and that
there was a blue minivan behind the studio, and Officer Trythall broadcast the
information on the radio.
[15] Keys suffered six gunshot wounds, a cut, and “binding and ligature
strangulation,” and he died. Id. at 83. The autopsy later revealed that his death
was a result of multiple gunshot wounds to the chest.
[16] At the studio, Indianapolis Metropolitan Police Detective Brian Schemenaur
observed some packages of zip ties opened and unopened and determined via
the UPC code on the packaging that the zip ties were a unique product sold by
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Lowe’s Hardware Stores. Detective Schemenaur went to the nearest Lowe’s
and asked Braden Pothier, the loss prevention safety manager at Lowe’s, if he
had happened to see some people recently purchase that particular kind of zip
ties, duct tape, and those kinds of items. Detective Schemenaur then prepared a
search warrant to obtain the records and video from the store. Detective
Schemenaur watched the surveillance video and saw that Jackson was on the
video.
[17] Detective Schemenaur later interviewed Jackson while Jackson was working,
and did not say that he had watched the Lowe’s video. Jackson discussed his
actions on the date of the murder including going to Value Village to purchase
pants with Hart, driving around with Hart, going to see Hart’s cousin, having
lunch with Hart, and Hart dropping him off at work, but did not mention that
he went to Lowe’s, Hart’s studio, or the residence of Bango’s mother.
[18] On April 11, 2013, the State charged Jackson with conspiracy to commit
kidnapping as a class A felony and conspiracy to commit criminal confinement
as a class B felony. The State also alleged that Jackson was an habitual
offender. The State later filed an amended information which charged Jackson
with the same offenses as the earlier charging information. The information
relating to the conspiracy charge alleged that Armstrong, Hamler, McDuffy,
Robinson, Hart, and Jackson agreed to commit criminal confinement.
[19] On December 16, 2013, Jackson filed a motion in limine and argued that
Pothier should not be allowed to testify as to the actions or speculations of the
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actions of the individuals in the video, that Pothier had made the statement in a
previous trial that he believed Jackson’s physical actions in the video depicted
Jackson as if he was showing someone else how to tie someone up or handcuff
someone, and that this was pure speculation on Pothier’s part.
[20] On December 20, 2013, the court held a hearing on the motion in limine. The
prosecutor stated that during Pothier’s deposition there were questions by
defense counsel that could suggest Pothier’s actions of following the defendants
was because Jackson and the other men were African-American. The
prosecutor also asserted that he would object to that and that the State would
offer an opinion from Pothier as to why he followed them around the store if
the defense presented such evidence. Defense counsel stated that it was not her
intent to discuss that issue. The court granted the motion in limine and said
that “[t]here are some things that could open the door to it, in my opinion” and
that it would not allow Pothier to speculate as to what somebody was doing at
all unless it became relevant. Id. at 590.
[21] On February 24, 25, and 26, 2014, the court held a jury trial. Finney, Officer
Trythall, Root, Young, Detective Schemenaur, and others testified to the
foregoing. During the testimony of Finney, the prosecutor asked what, if
anything, Robinson or McDuffy said while they were in the studio. Jackson’s
counsel objected on hearsay grounds. The prosecutor argued that Robinson
and McDuffy were coconspirators under Ind. Evidence Rule 801(D)(2)(E) and
that statements of coconspirators made in furtherance of the conspiracy were
not hearsay. The court held a hearing outside the presence of the jury. Defense
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counsel argued that a conspiracy had to be shown to exist between the declarant
and party against whom the statement is offered, that the statement was made
during the course of the conspiracy, and that before that can be shown there has
to be independent evidence that a conspiracy existed. Defense counsel further
argued that there had been no presentation of any evidence of any kind of
conspiracy between anyone. Defense counsel also asserted that he could not
confront McDuffy or any of the other co-defendants because of their right to
not testify, and that any statements were not only hearsay but violated
Jackson’s Sixth Amendment right to confrontation and Article 1, Section 15. 1
[22] The prosecutor argued that “the witnesses that the State will present will
certainly show and demonstrate that a conspiracy existed and in this particular
case the State would ask that these statements be admitted conditioned upon
them being tied up to the conspiracy that the State has alleged.” Id. at 121. The
prosecutor stated: “[Defense] [c]ounsel is correct that at this point we have not
put on the video from [Lowe’s] or any of that information to tie it up or
anything subsequent with Detective Schemenaur, but we will and as I said, the
Court is aware of that testimony from the last time we tried this case.” Id. at
122. The court stated:
I am going to allow this, subject to being tied up, because I believe
from reviewing 801(D)(2) and, of course, I can take some more time to
1
Jackson contends on appeal that “[a]lthough the record clearly establishes Jackson challenged the
admission of the alleged co-conspirators’ statements on . . . state confrontation grounds, the transcript reflects
Jackson erroneously referred to the state confrontation clause as ‘Article One, Section 15.’” Appellant’s Brief
at 38 n.2 (citing Transcript at 120).
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read through all your cases and I am glad to do that, but what I am
reading here in the courtroom Handbook on Indiana Evidence in
Section 14, it references that the Court should make a preliminary
ruling subject to reconsideration at the conclusion of the proffer’s case
in chief before allowing the jury to hear the evidence.[] I am not
exactly sure how I can do that unless I hear the entire case and then
allow them to present the entire case again to the jury, so that doesn’t
make a lot of sense to me. I think what I believe it to mean is that I
can defer ruling on the admissibility until I get to the conclusion of the
State’s case. That means that I would have to go back and make a
ruling, telling the jurors to disregard any of that testimony with regard
to what any of the co-conspirators said, if there is not a showing of a
conspiracy. Having sat through the evidence once before, it seems to
me that it is likely the State may be able to present that evidence
because I am pretty familiar with what has been presented previously
in that there was a conspiracy, now an agreement by people, at least
evidence from which a jury could find that there is a conspiracy. And
they may be able by the State’s evidence to find that the defendant is
part of that conspiracy. I don’t know that. That is a question of fact
for the jury to determine. For now, I am going to allow this subject to
being . . . to use the vernacular, tied up with proof of the evidence of
the conspiracy, the agreement.
Id. at 122-123. Defense counsel clarified her objection and asserted that her
objection was based upon hearsay, that “it does not fit into the exception of
802(D)(2)(e) because there has not been a showing yet that there is separate
proof of a conspiracy or separate proof of a conspiracy,” and “this violates my
client’s right to confrontation . . . .” Id. at 124. Defense counsel asked to show
a continuing objection “to anything that any of the other people charged in this
case will say.” Id. at 125. The court indicated that the rules allowed for a
continuing objection.
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[23] Finney testified that he did not know who Jackson was. On cross-examination,
Finney testified that he had never seen Jackson before the trial and that the men
at the studio did not mention Jackson’s name.
[24] After Finney testified, the court took a break, reconvened, brought Juror No. 3
into the courtroom, and had a discussion with her. The judge indicated that the
chief bailiff had told her that Juror No. 3 might know one of the individuals
whose name was mentioned. Juror No. 3 indicated that was correct and that
her husband may do business with the individual and was involved in the same
industry. Upon questioning by the prosecutor and defense counsel, Juror No. 3
stated that she was referring to Carlton Hart, the person identified as the studio
owner by Detective Schemenaur, that she did not know anything from her
relationship with Hart about the case, and that she kept that to herself. Upon
questioning by defense counsel, Juror No. 3 indicated that she did not believe
that her relationship was going to have a bearing on being able to listen to the
evidence and fairly decide the outcome, that she did not know Hart personally,
and that she had met him once. Upon questioning by the court, Juror No. 3
stated that her husband was in the same industry as far as making music and
had actually done recordings in Hart’s studio.
[25] The following exchange then occurred:
THE COURT: . . . Here is my concern. Given that your husband
works with Mr. Hart in the same business and has had dealings with
him, and that Mr. Hart is alleged to be a co-conspirator of the
defendant, your verdict in this case, depending on what it was . . .
supposed it were to be a guilty verdict? Were it a guilty verdict, do you
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have concerns whatsoever that that might be uncomfortable for your
husband?
JUROR #3: The whole situation makes me kind of nervous, actually.
Just because I don’t know him but I know of him and (inaudible).
Id. at 169-170. The court then held a sidebar conference, and defense counsel
objected to the removal of Juror No. 3 because she was unbiased and “she
doesn’t really know what is going on.” Id. at 170. The court stated:
I think the fact that Mr. Hart has previously been charged with murder
and his previous charge of murder resulted in . . . I think it was a
dismissal. Then a suit against the city which was pretty public and
many of his colleagues in the business would have been aware of that,
meaning that her husband would have been aware of that – might have
been aware of that. She has already stated that she is uncomfortable
because of the situation and because of knowing her husband’s
knowledge of Mr. Hart and of her own visits to the studio that is
allegedly owned by Mr. Hart. I think it is way too close to put her in
the situation of having to return an unbiased verdict. My concern for
that and the integrity of the jury is part of my reasoning here.
Id. at 171.
[26] After a recess, the court stated:
My big concern here is that this juror might . . . somehow or another .
. . she has already said she feels uncomfortable and the fact that she
knows someone who is an alleged co-conspirator and the Court is
aware of that person, Mr. Hart’s, fairly public suit against the City
with regard to the murder case that was dismissed against him and
then, you know, it’s been pretty public that he was then charged in this
case. I think it puts this juror in an untenable position, regardless of
her verdict. Whether it is a guilty verdict or a not guilty verdict, I
think either way she becomes subject later to questions about the
evidence and why she did what she did, maybe by anyone who was
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involved in her community, especially since her husband is actively
involved in the music industry that Mr. Hart is a part of and has been
historically a part of, as well as some of the other folks that have been
mentioned. For those reasons, over your objection, I am going to
release her from her service. We are not in deliberations at this point.
I don’t believe that this places your client in grave peril in any way,
and I am going to replace her with Alternate Juror #1.
Id. at 174-175.
[27] The court then brought Juror No. 3 into the courtroom, released her from her
service, and asked her: “Do you feel some relief at that?” Id. at 175. Juror No.
3 stated: “Yes.” Id.
[28] During Pothier’s testimony and without objection, the court admitted the video
from Lowe’s which was saved at a few frames slower than live video. At a
sidebar conference before playing the video, the judge stated: “What I
remember about the Motion in Limine was that there not be an on-going
description of all the movement and what he is seeing, what the witness
observed in the video. I am going to allow the witness to place in context the
location.” Id. at 277-278. The court also stated: “But so far as interpreting
what their actions are and what they are doing, that is something that I am not
going to allow. I think we had a long discussion about it before and I just
wanted to make sure that was your plan.” Id. at 278. Without objection, the
prosecutor informed the jury that Hart, McDuffy, and Jackson were in the
video. Defense counsel later identified Jackson in the video.
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[29] Pothier testified that the individual that picked up the box cutter drew his
attention because it was not uncommon for customers who want to steal from
the store to come in and grab scissors, a knife, or a box cutter and use it to cut
something open. On cross-examination, Pothier testified that he focused on
McDuffy initially because he stopped at one of the display items at the front of
the store and picked up a box cutter, but that “about halfway through” he did
not think that they were stealing anything. Id. at 306. Upon questioning by
defense counsel, Pothier testified that he continued to watch them when they
were in the parking lot when there wasn’t anything to steal and followed them
all the way out and continued to watch them as their car drove away even
though he did not think they had stolen anything and he was not watching
them for that reason. The following exchange then occurred between Pothier
and defense counsel:
Q . . . Who is this white guy right here who popped up in this video
right here at the bottom?
A I do not know.
Q Did you follow him in the store?
A At that point, no.
Q You didn’t follow him at all, did you?
A No, I didn’t.
Q But he was in your high theft area?
A Yes, he was.
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Id. at 311. The defense counsel later stated: “Again, there is that other guy. We
don’t know who he is, do we?” Id. at 312. Pothier answered: “No, we don’t.”
Id.
[30] After cross-examination, the following exchange occurred at a sidebar
conference:
[Prosecutor]: She just kicked the door so wide open for me to ask not
only why he was following these individuals throughout the store but
what he saw them doing while he was in that store that drew his
attention because she is suggesting that race is the reason he was
following them around. Absolutely she did. She pointed out the white
gentleman in the aisle.
THE COURT: You did do that.
[Defense Counsel]: I did point (inaudible).
THE COURT: The inference is that . . . there is a reason that is race-
related and (inaudible) I think they have a right to rebut that.
[Prosecutor]: I specifically brought that up at the hearing on the
Motion in Limine that if they were going to go into the racial area then
absolutely the State should be able to get into why he is holding them
up because of the extreme (inaudible) these individuals inside the
store.
[Defense Counsel]: He cannot speculate as to what he is doing in the
video.
[Prosecutor]: He saw it live, Judge. He can testify what he saw.
[Defense Counsel]: He can’t speculate as to what he saw.
THE COURT: They didn’t say anything about what it meant. They
have no idea what it meant.
[Defense Counsel]: They opened it for me on the direct that he was
followed because they were (inaudible) and I had to clarify that they
didn’t steal anything.
THE COURT: That’s fine but you didn’t (inaudible) repeatedly that
he didn’t follow the white person (inaudible) other white people.
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[Defense Counsel]: I don’t know if he did or if he didn’t.
[Prosecutor]: (inaudible)
THE COURT: The inference has been that he (inaudible).
[Defense Counsel]: (inaudible)
THE COURT: I am not going to let him speculate but he can testify
to what he physical [sic] observed.
[Defense Counsel]: I still don’t see how that has anything to do with
(inaudible).
THE COURT: She made it very clear that, “You continued to follow
them after you did not believe they were going to steal anything.”
[Defense Counsel]: (inaudible)
[Prosecutor]: (inaudible)
THE COURT: What other reason was there to follow them? You
opened the door. Why did he? He has a right to ask that question.
Id. at 317-319.
[31] On redirect examination, Pothier testified that the acts of McDuffy picking up a
box cutter, duct tape, and zip ties caught his attention because he was “trying to
figure out what kind of job they were using it for.” Id. at 320. He testified that
he “saw them put their hands together” and that this caused him concern. Id. at
321. The following exchange then occurred:
[Defense Counsel]: At this time I am going to object. The video
speaks for itself as well as the still photographs that you have already
let be admitted.
THE COURT: Your response?
[Prosecutor]: Judge, as we said, the door has been wide open to this.
THE COURT: Okay. It is clear to me that there have been sort of
staggered views as we watched the video. The testimony is that the
witness observed it live. He can testify as to what he observed.
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Id. Pothier testified that he “observed them putting their hands up” and that
they crossed their hands and that they put their wrists together in front of them
while they were looking at zip ties. Id. The prosecutor asked: “[I]s that the
reason that you were following these individuals around the store at that time?
Because of the nature of what they were buying and the actions that you saw
them taking as you watched them live?” Id. at 322. Pothier answered: “At this
point I did not believe they were going to steal. At this point I was watching
because of the way they were acting.” Id.
[32] The State presented the audio recording of jail calls in which Jackson’s father
asked Jackson whether he bought any of the stuff and was “in there when they
checked it out,” and Jackson said:
When he bought the stuff, I wasn’t on the camera at all, but when he
went down the aisle and was looking at the shit and when he looked at
the shit he turned around and picked up some shit and I said ‘What
the fuck is this shit? What you doing?’ like that and I turned around
and walked away from his ass.
State’s Exhibit 198 at 0:07-0:27. Jackson’s father asked Jackson if he went in
Lowe’s with them, and Jackson stated that he grabbed a bag at the door and
“that’s it.” Id. at 1:10-1:20. Jackson also stated during the call that he “ain’t
even in there,” that he “went in there and got me a m------------ bag, walked
down the aisle to see him, was like ‘what you doing’ and turned around and
walked the f--- out and went to the door goddamn it grabbed my bag and put
my pants in my bag and went to go change clothes for work.” Id. at 1:43-2:09.
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During cross-examination of Detective Schemenaur, defense counsel asked
what Hart said, and Detective Schemenaur testified that Hart said that they had
gone back to the studio at one point and that they were when the victims
arrived.
[33] After the State rested, Jackson moved for a directed verdict on both counts, and
the court denied the motion. Jackson testified that he was supposed to be at
Wendy’s at 6:00 p.m. and work until closing. He testified that he needed to buy
work pants before he went to work and that Hart, who had helped him acquire
the job, picked him up “around 11:00-ish” and “[t]owards the afternoon.”
Transcript at 402. He testified that Hart took him to Goodwill and then Value
Village, and he bought a pair of pants. According to his testimony, the bag for
the pants broke, Hart took Jackson to McDonald’s and bought him some food,
the two then went to pick up Dwayne who was Hart’s cousin and the father of
McDuffy. The men then went down Raymond Street to a video place where
Dwayne went in and returned. They went to the house of another of Dwayne’s
sons and then to a pawn shop. Jackson, Dwayne, and Hart then went to the
residence of Bango’s mother. Jackson and Hart then dropped off Dwayne at
his son’s house and were headed up Keystone toward the studio when McDuffy
called Hart. Hart and Jackson then picked up McDuffy at 66th and Keystone.
Jackson testified that he was “just going along for the ride.” Id. at 409. Hart
said that he had to stop at Lowe’s “because he said he was going to close up his
shop for a couple of days because there was too much drama going on about
this killing and all that.” Id. Hart said that he “was getting a board to close up
Court of Appeals of Indiana | Memorandum Decision 49A02-1404-CR-230 |May 13, 2015 Page 19 of 45
the back door because he didn’t want nobody to kick in the door and steal all
his equipment because it’s on an alley.” Id. Hart, Jackson, and McDuffy then
went to Lowe’s. When asked whether he went into Lowe’s with Hart, Jackson
stated: “Yeah. Initially, I hadn’t started to get out but then I said it was cold
out there and no telling how long they was going to be in the store. I was like,
‘I got to go get some bags anyway[],’ because my bag had broke – the handle.”
Id. at 409-410. He testified that he was looking for items for Hart’s studio and
explained where a camera would sit at the studio, and that he told McDuffy to
purchase black zip ties instead of white zip ties because the white zip ties could
be seen against the black trim of Hart’s studio.
[34] On cross-examination, the prosecutor asked: “You are inside the [Lowe’s],
wandering around, doing things, but in that May 9 jail call, you didn’t mention
that. Correct?” Id. at 438. Jackson said: “Why? Why would I?” Id. The
prosecutor also said: “When you talked to Detective Schemenaur on November
28, you said that at most you had spent was maybe forty-five minutes to an
hour with [Hart]?” Id. at 449. Jackson said: “Well, I was really trying to brush
him off because he was making me lose my job, actually.” Id. Jackson later
indicated that the time he was with McDuffy and Hart was well over forty-five
minutes. The prosecutor also asked Jackson about Hart’s statement that he was
at the studio when Finney and Keys arrived, and defense counsel objected on
hearsay grounds. The prosecutor argued that he was just repeating what
Detective Schemenaur testified, and the court overruled the objection.
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[35] On rebuttal, Detective Schemenaur testified that he went through the studio on
November 15, evaluated which items were to be collected for evidence, was
familiar with the contents of the studio, and did not see anything relating to a
security system or security equipment. Detective Schemenaur later indicated
that at one point in the video from the studio, there is a small box that says
“Security Camera” on it. Id. at 483.
[36] After the parties rested, Jackson’s counsel renewed her objection made during
Finney’s testimony, argued that nothing had been presented to the jury, and
requested a final ruling. The following exchange then occurred:
THE COURT: Okay. All right. First of all, the statements made by
alleged co-conspirators were admissible when proffered by the State.
Those statements did not refer to Mr. Jackson, they referred only to
what was taking place at the time Mr. Finney . . . Those statements
referred to what Mr. Finney believed was taking place in the studio.
Those same statements made by co-conspirators or alleged co-
conspirators are not admissible, according to what my understanding
of the law is, when offered by the defendant, only when offered by the
State. Then as to the portion of your argument which went to . . .
[Defense Counsel]: Confrontation.
THE COURT: Confrontation. Right. That is the Bruton issue you
are raising, if I understand you correctly. Sadly, he is charged with his
co-conspirators and in that situation the State can present that
evidence, even though you cannot necessarily cross examine it. Your
client is being tried separately, not for Bruton reasons, but for other
reasons that we have gone over at other hearings. As to when that
testimony with regard to agreement and what happened, etc., and the
statements of the other folks, when that becomes admissible . . .
statements of co-conspirators become admissible when there is some
showing that there is a conspiracy. You know, the State offered to tie
it up and there has been evidence presented from which the jurors
could find that there was an agreement based on circumstantial
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evidence. The two things specific that I would point to would be
whatever their interpretation is of the defendant’s actions on the video
at [Lowe’s]. There is certainly one interpretation that could be made:
that the defendant was assisting Mr. Hart and Mr. McDuffy in
determining what size of zip ties were necessary in order to bind
someone’s wrists. There is also his own interpretation of that, and
explanation, which the jurors could find credible, as well. So it is up
to the jurors as to that, but there is evidence there. Then the fact that
there is evidence that there is conflicting statements that the defendant
has made, not just to Detective Schemenaur but during his own
testimony, as well. He contradicted himself which might make it
something the jurors could use, as well. I think there is enough
evidence to send it to the jury.
Id. at 476-478.
[37] The jury found Jackson not guilty of conspiracy to commit kidnapping as a
class A felony and guilty of conspiracy to commit criminal confinement as a
class B felony. The jury later found Jackson was an habitual offender, but the
court granted a dismissal of that charge and vacated the jury’s verdict with
respect to the habitual offender allegation. The court sentenced Jackson to
eighteen years in the Department of Correction for his conviction of conspiracy
to commit criminal confinement as a class B felony.
Analysis
I.
[38] The first issue is whether the trial court abused its discretion in replacing Juror
No. 3 with an alternate. Jackson argues that the court abused its discretion in
excusing Juror No. 3 in the midst of the trial and failed to comply with Indiana
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Jury Rule 24 because the court did not place Juror No. 3 under oath.2 Jackson
argues that Jury Rule 24 authorized removal of Juror No. 3 only if she had
personal knowledge of a material fact which Juror No. 3 did not. He points out
that Juror No. 3 never indicated she was struggling with her duty to remain
impartial. He asserts that the trial court’s suggestion that Juror No. 3 could
have suffered retaliation if she entered a guilty verdict as to Jackson is troubling,
and the court’s suggestion that a guilty verdict for Jackson would result in Juror
No. 3 undergoing post-trial inquiry from her community is speculative and
reflects an inappropriate bias and prejudice. Jackson also asserts that Ind. Code
§ 35-37-1-5, which lists good causes for challenge to any person called as a juror
in any criminal trial, does not authorize the trial court’s excusal of Juror No. 3.
[39] The State argues that the court acted within its discretion in dismissing Juror
No. 3 because the local music scene was at the heart of the case. The State
asserts that the court’s authority to dismiss a juror is not limited to only those
statutory reasons that disqualify a person from jury service or that would have
supported a challenge for cause during voir dire, nor is it limited only to cases
where the juror has personal knowledge of a material fact about the case. The
State maintains that Jackson’s argument that the trial court failed to follow the
procedure in Indiana Jury Rule 24 is waived because he failed to object on the
2
Ind. Jury Rule 24 provides: “If the court receives information that a juror has personal knowledge about the
case, the court shall examine the juror under oath in the presence of the parties and outside the presence of
the other jurors concerning that knowledge. If the court finds that the juror has personal knowledge of a
material fact, the juror shall be excused, and the court shall replace that juror with an alternate. If there is no
alternate juror, then the court shall discharge the jury without prejudice, unless the parties agree to submit the
cause to the remaining jurors.”
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basis of Rule 24 and never objected on the basis that the court needed to put the
juror under oath. Lastly, the State asserts that Jackson cannot show any
prejudice as a result of the ruling.
[40] “The claim here turns on the critical role of firsthand observation in
determining whether any juror–irrespective of relationships with expected
witnesses–may be unable to reach a decision free from extraneous
considerations.” Barnes v. State, 693 N.E.2d 520, 523 (Ind. 1998). “Trial judges
have ‘significant leeway’ in making this determination because ‘they see jurors
firsthand and are in a much better position to assess a juror’s ability to serve
without bias or intimidation and decide the case according to law.’” Id.
(quoting Jervis v. State, 679 N.E.2d 875, 881-882 (Ind. 1997)). The decision to
replace a juror with an alternate is reviewed for an abuse of discretion. Id.
[41] As pointed out by the State, Jury Rule 24 provides that the court shall replace a
juror with an alternate if the court finds that the juror has personal knowledge
of a material fact, but Rule 24 does not provide that this is the only time a court
may excuse a juror. Ind. Code § 35-37-1-5 lists good causes for challenge to any
person called as a juror in any criminal trial, and Ind. Code § 35-37-1-6 provides
that all challenges for cause shall be made before the jury is sworn to try the
cause. We cannot say that Ind. Code § 35-37-1-5 requires reversal.
[42] On appeal, Jackson does not argue that the replacement or alternate juror was
biased. The record reveals that Juror No. 3 indicated at one point that she did
not believe her relationship was going to have a bearing on being able to listen
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to the evidence and decide fairly the outcome. However, Juror No. 3 also
indicated that her husband may do business with Hart, was involved in the
same industry, and had actually done recordings in Hart’s studio. She also
stated that the “whole situation” made her “kind of nervous.” Transcript at
170. After the court released her, Juror No. 3 indicated she was relieved.
Under the circumstances, we cannot say that the trial court abused its
discretion. See Barnes, 693 N.E.2d at 523 (holding that the trial court did not
abuse its discretion by releasing a juror where the juror asserted he believed he
could render a verdict based on the evidence, but where the trial court expressed
concerns about the juror’s demeanor).
II.
[43] The next issue is whether the trial court abused its discretion in admitting
certain testimony. Generally, we review the trial court’s ruling on the
admission of evidence for an abuse of discretion. Noojin v. State, 730 N.E.2d
672, 676 (Ind. 2000). We reverse only where the decision is clearly against the
logic and effect of the facts and circumstances. Joyner v. State, 678 N.E.2d 386,
390 (Ind. 1997), reh’g denied. We may affirm a trial court’s decision regarding
the admission of evidence if it is sustainable on any basis in the record. Barker v.
State, 695 N.E.2d 925, 930 (Ind. 1998), reh’g denied. Even if the trial court’s
decision was an abuse of discretion, we will not reverse if the admission
constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind. Ct. App.
1999), reh’g denied, trans. denied.
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[44] Jackson challenges the admission of portions of: (A) Pothier’s testimony; (B)
Finney’s testimony; and (C) Detective Schemenaur’s testimony.
A. Pothier’s Testimony
[45] Jackson argues that the court abused its discretion in admitting the testimony of
Pothier interpreting the events on the security videotape, and that his testimony
violated Ind. Evidence Rule 701 “given that it amounted to a lay opinion which
did not meet the requirements of that rule.” Appellant’s Brief at 22. Jackson
asserts that Pothier’s testimony was not helpful to a clear understanding of his
testimony or the determination of a fact in issue, contrary to the requirements of
Rule 701, that the jury could see and interpret the very actions about which
Pothier was testifying, and that under the silent witness theory, videotapes and
photographs must stand on their own without additional commentary or
interpretation. Jackson argues that his counsel’s reference to the other shopper
as white was for descriptive purposes only, not to suggest some sort of racial
profiling or discrimination. He contends that the State relied on Pothier’s
speculative testimony regarding the crossed hands as its primary evidence of an
agreement between Jackson and the alleged coconspirators. Lastly, Jackson
alleges that, even if Pothier’s speculative testimony was relevant to refute an
inference of racial profiling, the prejudicial impact of such evidence far
outweighed its probative value, which, at best, was minimal.
[46] The State argues that the trial court properly allowed the loss prevention officer
to testify as to the conduct he personally observed, and that Jackson’s reliance
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on “silent witness” case law is misplaced because Pothier was not testifying as
to his interpretation of what the video footage on State’s Exhibit 149 depicted
but rather to his own personal observations as he watched the men live on
November 15th. Appellee’s Brief at 21. The State also notes that the recorded
video is not a “continuous live stream image” so it is possible for things to be
observed live that are not completely captured on the recording. Id. The State
argues that Ind. Evidence Rule 701 is inapplicable because Pothier was not
testifying as to his opinion regarding the meaning of the conduct he observed
but testified only as to the fact of the conduct he observed. The State further
argues that even if Pothier had testified as to his opinion or his interpretation of
the meaning of what he observed, that testimony would have been admissible
under Evidence Rule 701 because it would have been rationally based on his
perception and it would have been helpful to a jury’s determination of a fact at
issue, namely, whether Jackson knew about and was acting in agreement with
the plan to confine someone. The State contends that, even if the testimony
was otherwise inadmissible, the court’s ruling was still proper because Jackson
opened the door to its admission. It asserts that the “crystal-clear suggestion
from the cross-examination was that Pothier was engaging in racial profiling
and that the only reason he had continued to watch the men was because they
were African-American.” Id. at 20. The State maintains that Jackson cannot
simultaneously try to use this as both shield and sword, preventing the jury
from hearing the witness’s true explanation while being allowed to suggest false
explanations that the witness is not allowed to correct. Lastly, the State asserts
that any error in the admission of this evidence was harmless because the jury
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had the opportunity to view the surveillance video several times and view the
still shots from the video.
[47] At the time of the trial, Ind. Evidence Rule 701 provided:
If a witness is not testifying as an expert, testimony in the form of an
opinion is limited to one that is:
(a) rationally based on the witness’s perception; and
(b) helpful to a clear understanding of the witness’s testimony or to a
determination of a fact in issue.
[48] Pothier testified that the video from the security cameras is saved at a few
frames slower than live video to save space and that when he was watching the
video on November 15th he would see a live feed as if he was watching
television. On redirect examination, the prosecutor asked Pothier: “Did
anything happen after this that you saw as you were watching live, not at a
staggered or slower rate of frames in the video? Did you see anything as you
watched live that caused you concern?” Transcript at 320. Pothier answered
affirmatively. Our review of the surveillance video indicates that the video was
somewhat choppy because it was saved with fewer frames. Under the
circumstances, we conclude that Pothier’s testimony was rationally based on
the witness’s perception and helpful to a clear understanding of the witness’s
testimony or to a determination of a fact in issue.
[49] Even assuming that the testimony was not admissible under Rule 701,
otherwise inadmissible evidence may be admitted where the defendant opens
the door to questioning on that evidence. Clark v. State, 915 N.E.2d 126, 130
Court of Appeals of Indiana | Memorandum Decision 49A02-1404-CR-230 |May 13, 2015 Page 28 of 45
(Ind. 2009) (citing Jackson v. State, 728 N.E.2d 147 (Ind. 2000)), reh’g denied.
The door may be opened when the trier of fact has been left with a false or
misleading impression of the facts. Id.
[50] The record reveals that the prosecutor expressed a concern at the hearing on the
motion in limine that questions by defense counsel during the deposition of
Pothier could suggest that Pothier observed the actions of Jackson and the
others in Lowe’s because they were African-American. The court granted the
motion in limine and said that “[t]here are some things that could open the
door to it, in my opinion” and that it would not allow Pothier to speculate as to
what somebody was doing at all unless it became relevant. Transcript at 590.
During the cross-examination of Pothier, defense counsel asked Pothier who
the “white guy” was, twice asked whether Pothier followed him in the store,
and confirmed with Pothier that the white person was in the high theft area.
[51] Following the prosecutor’s argument that defense counsel opened the door to
ask why Pothier followed Jackson and the others and what he saw them doing,
the court stated that “[t]he inference . . . that has been made is that there is a
reason that is race-related and (inaudible) I think they have a right to rebut
that.” Id. at 317. Based on the record, we conclude that the trier of fact was left
with a false or misleading impression as to the fact or reason Pothier was
focusing on Jackson and the other men with him.
[52] Under these circumstances, we cannot say that the trial court abused its
discretion by admitting Pothier’s testimony as to his reason for following
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Jackson and the men with him. See Turner v. State, 953 N.E.2d 1039, 1056 (Ind.
2011) (holding that the defendant injected into the trial a certain issue and that
having opened the door during cross-examination of a supposed disagreement,
the defendant was in no position to complain of contrary evidence elicited by
the State on redirect examination).
B. Finney’s Testimony
[53] Jackson argues that the trial court abused its discretion in admitting the
testimony of Finney as to statements made by the perpetrators during the
confinement and shooting based on: (1) hearsay grounds; and (2) Article 1,
Section 13 of the Indiana Constitution.
1. Hearsay
[54] Jackson asserts that the State had presented no evidence of any conspiracy at
the time it first attempted to introduce the out-of-court statements by the alleged
coconspirators. He asserts that a witness such as Finney may testify about the
statements of one of the conspirators only where independent evidence exists
that there was a conspiracy and that the defendant was part of it. He also
asserts that evidence establishing a conspiracy in which the defendant was
involved is a prerequisite to admission of statements of coconspirators under
Ind. Evidence Rule 801(d)(2)(E).
[55] The State concedes that the trial court recognized that the necessary evidence
had not yet been adduced. However, the State notes that Jackson does not
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argue that, during the trial as a whole, the State failed to present sufficient
evidence of a conspiracy rendering these statements admissible under Rule
801(d)(2)(E). The State points out that “this same judge had previously
presided over a trial of several of the other co-conspirators; thus, the judge was
very familiar with the evidence in this case.” Appellee’s Brief at 31.
[56] We observe that Finney testified generally that the individuals holding him and
Keys repeatedly asked who killed Bango and ordered them to provide the
identity of the person who killed Bango. The Indiana Supreme Court has noted
that “[o]nly statements which are capable of being proven true or false can
constitute hearsay.” Pierce v. State, 705 N.E.2d 173, 176 n.3 (Ind. 1998) (citing
13 ROBERT LOWELL MILLER, JR., INDIANA PRACTICE, INDIANA EVIDENCE §
801.304, at 505 (2nd ed. 1995)). “Accordingly, the hearsay rule does not bar
commands, requests, or questions.” Id. (citing Bustamante v. State, 557 N.E.2d
1313, 1316 (Ind. 1990)). The repeated questions and commands to Finney and
Keys are not hearsay because they are incapable of being proven true or false.
See id. (holding that portions of letters requesting forgiveness were not hearsay
because they were incapable of being proven true or false).
[57] To the extent that some of Finney’s testimony with respect to what others said
could be proven true or false, we cannot say that reversal is warranted. Ind.
Evidence Rule 801(d)(2)(E) provides that “a statement is not hearsay if . . . [t]he
statement is offered against an opposing party and . . . was made by the party’s
coconspirator during and in furtherance of the conspiracy.” “The existence of
the conspiracy may be shown by direct or circumstantial evidence, and the
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evidence need not be strong.” Wright v. State, 690 N.E.2d 1098, 1105 (Ind.
1997), reh’g denied.
[58] With respect to Jackson’s argument that the State failed to present evidence of a
conspiracy prior to introducing the statements of the coconspirators, we note
that generally, before the statements of one conspirator are admissible into
evidence, the trial court must determine, by a preponderance of the evidence,
whether the declarant and the defendant were involved in a conspiracy and that
the statement was made during and in furtherance of that conspiracy. See Lott v.
State, 690 N.E.2d 204, 209 (Ind. 1997); Wright, 690 N.E.2d at 1105 (Ind. 1997).
However, “the trial court has broad discretion in determining the order of proof
and in controlling trial proceedings.” Wray v. State, 547 N.E.2d 1062, 1066
(Ind. 1989); see also Ind. Evidence Rules 611(a) and 104(b).3
[59] In Miller v. State, the Indiana Supreme Court addressed a similar situation and
held:
Appellant complains of the admission of the testimony of a witness,
concerning acts and declarations of one of the alleged coconspirators,
at a point in the trial at which he says a prima facie case of conspiracy
against those charged had not been established. The state relied upon
circumstantial evidence. If, in such cases, evidence of the
circumstances upon which the state relies to establish the conspiracy is
3
Ind. Evidence Rule 611(a) provides that “[t]he court should exercise reasonable control over the mode and
order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for
determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue
embarrassment.” Ind. Evidence Rule 104(b) provides: “When the relevance of evidence depends on whether
a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may
admit the proposed evidence on the condition that the proof be introduced later.”
Court of Appeals of Indiana | Memorandum Decision 49A02-1404-CR-230 |May 13, 2015 Page 32 of 45
all excluded until the conspiracy is established, it may become
impossible for the state to proceed. It is well settled that the order of
proof is a matter largely within the discretion of the court. It is true
that, unless there is evidence connecting an alleged coconspirator with
the defendant in a conspiracy, acts and statements of the alleged
coconspirator should not be permitted to go to the jury, and if proof of
such acts and statements has been admitted, it should under such
circumstances be withdrawn from the jury by proper instruction. But
acts and statements of one of the parties to an alleged conspiracy, in
the presence of the others, may of themselves, under some
circumstances, be evidence of the conspiracy. If there was sufficient
evidence from which the jury could find that there was a conspiracy,
the admission of the evidence was not error. Cook v. State (1907) 169
Ind. 430, 82 N.E. 1047.
211 Ind. 317, 320-321, 6 N.E.2d 948, 949-950 (1937). We find Miller
instructive. See also 8 I.L.E. Criminal Law § 209 (2005) (“Ordinarily, proof of
the existence of the conspiracy should be introduced prior to proving any acts
or declarations of a coconspirator or codefendant. However, since the order in
which evidence is introduced is largely within the discretion of the court, acts or
declarations of a coconspirator or codefendant may be admitted in evidence
before sufficient proof of the conspiracy is given, where such acts and
declarations may, of themselves, be evidence of the conspiracy, or where the
prosecution gives assurance that it will undertake to produce such proof
subsequently. If proof of such acts or declarations is admitted without
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establishing the existence of the conspiracy, the jury should be instructed to
disregard it unless it is satisfied that one exists.”) (footnotes omitted). 4
[60] In this case, the trial court indicated that it would allow Finney to testify as to
what Robinson or McDuffy said “subject to being tied up.” Transcript at 122.
We also observe that the judge stated: “Having sat through the evidence once
before, it seems to me that it is likely the State may be able to present that
evidence because I am pretty familiar with what has been presented previously
in that there was a conspiracy, now an agreement by people, at least evidence
from which a jury could find that there is a conspiracy.” Id. at 123. The State
later presented evidence that: (1) Jackson spent part of the day with Hart, the
owner of the studio where the confinement and shooting occurred, and
McDuffy, one of the men that confined and interrogated Finney and Keys; (2)
Jackson and Hart visited the home of Bango’s mother on the day of the
confinement; (3) Jackson was with McDuffy in Lowe’s on the day of the
confinement; (4) the surveillance video from Lowe’s shows Jackson crossing his
arms and placing zip ties in the cart; and (5) McDuffy purchased zip ties while
at Lowe’s. The independent evidence demonstrates by a preponderance of the
evidence that a conspiracy between Jackson and the others existed. Under the
circumstances, we cannot say that the court abused its discretion.
4
Jackson argues that the State could not admit the statements and establish a conspiracy later and cites to
Lott v. State, 690 N.E.2d 204 (Ind. 1997); Chinn v. State, 511 N.E.2d 1000 (Ind. 1987), reh’g denied; and Roush
v. State, 875 N.E.2d 801 (Ind. Ct. App. 2007). These cases did not address the scenario in which a trial court
admits evidence subject to the subsequent admission of evidence of a conspiracy.
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2. Article 1, Section 13
[61] Jackson argues that the admission of the statements of the alleged
coconspirators violated Article 1, Section 13 because he never had the
opportunity to cross-examine the declarants, whom the State did not produce at
trial, and he was unable to meet the declarants face to face. 5 The State argues
that Jackson waived this claim by failing to present a cogent argument. It
asserts that Jackson does not provide any argument or analysis to explain how
or why the Indiana confrontation provision should be interpreted differently
from the federal provision in this regard.
[62] Jackson does not argue that the admission of Finney’s testimony with respect to
the statements of Robinson, McDuffy, and the others at the studio violated the
Sixth Amendment.6 As noted by the State, this court has held that
coconspirator statements are not testimonial and do not implicate the Sixth
Amendment right of confrontation. See Hightower v. State, 866 N.E.2d 356, 366
(Ind. Ct. App. 2007) (holding that the defendant’s Confrontation Clause
argument was unavailing because coconspirator statements are nontestimonial),
trans. denied; Jones v. State, 834 N.E.2d 167, 168-169 (Ind. Ct. App. 2005)
(addressing a defendant’s Sixth Amendment argument and holding that a
5
Article 1, Section 13 of the Indiana Constitution provides: “In all criminal prosecutions, the accused shall
have the right . . . to meet the witnesses face to face, and to have compulsory process for obtaining witnesses
in his favor.”
6
Jackson does argue that the testimony by Detective Schemenaur regarding Hart’s statement violated the
Sixth Amendment. This argument is addressed in Part II.C.
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coconspirator’s statement is nontestimonial, that the decision to admit such a
statement is a determination that is governed by the Indiana Evidence Rules,
and that the statement clearly fell within the definition provided by Ind.
Evidence Rule 801(d)(2)(E)).
[63] While Jackson points out that Article 1, Section 13 of the Indiana Constitution
contains both the right to cross-examination and the right to meet witnesses
face-to-face in the courtroom during trial, he has not explained or offered an
argument as to why an analysis of the Indiana Constitution concerning the
testimonial character of a statement is or should be any different than the
federal analysis. Accordingly, we cannot say that Jackson’s rights under Article
1, Section 13 were violated. See Turner, 953 N.E.2d at 1055 n.8 (“Although
“[t]o a considerable degree, the federal right of confrontation and the state right
to a face-to-face meeting are co-extensive,” Brady v. State, 575 N.E.2d 981, 987
(Ind. 1991), the rights guaranteed by our state constitution are not necessarily
identical to those provided by the federal constitution. State v. Owings, 622
N.E.2d 948, 950 (Ind. 1993). However, Turner has not explained and offers no
argument as to why an analysis of the Indiana constitution concerning the
testimonial character of a statement is or should be any different than the
federal analysis. Our conclusion concerning Turner’s federal constitutional
claim applies equally to his state constitutional claim.”). Therefore, we cannot
say the trial court abused its discretion in admitting Finney’s testimony.
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C. Testimony of Detective Schemenaur
[64] Jackson argues that the trial court abused its discretion by admitting the
testimony of Detective Schemenaur that Hart told him that Jackson was at the
studio when Finney and Keys arrived. Jackson asserts that Hart’s statements as
to his whereabouts on the day of the shootings could not have been made in
furtherance of the conspiracy because the statement placed Hart and Jackson at
the scene of the shootings but Hart denied involvement. Thus, Jackson
concludes that Hart’s statement was not made in furtherance of the conspiracy
and it was not admissible under the express terms of Ind. Evidence Rule
801(d)(2)(E). Jackson argues Hart’s alleged statement to Detective Schemenaur
was testimonial, the State never established Hart was unavailable to testify, the
record reveals no opportunity by Jackson to cross-examine Hart as to his
statements to Detective Schemenaur, and thus the testimonial hearsay was
inadmissible under the Sixth Amendment.
[65] The State argues that any error in the admission of Hart’s statement to
Detective Schemenaur would constitute invited error because it was elicited by
Jackson. The State asserts that a defendant may not elicit evidence and then
object when the State questions the defendant about that evidence. The State
also contends that any error was at most harmless because Jackson admitted
that he and Hart went to the studio that afternoon after going to Lowe’s, and
Finney testified that he did not identify Jackson, did not know who Jackson
was, and had never seen Jackson prior to the day of the trial. The State also
points to the strength of the evidence in its case and asserts that “it made little
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appreciable difference to the strength of the State’s case whether Defendant left
the premises a minute before the victims arrived or a minute after.” Appellee’s
Brief at 28.
[66] In his reply brief, Jackson asserts that “it was only a matter of time before
Schemenaur’s testimony regarding Hart’s statement would have been offered by
the State” and the fact “[t]hat the testimony was introduced first during
Jackson’s cross-examination of Schemenaur was not invited error because it is
clear such testimony would have been offered by the State and admitted by the
trial court.” Appellant’s Reply Brief at 6.
[67] Jackson cites to pages 385 and 451 of the transcript. Page 385 contains the re-
cross examination of Detective Schemenaur by defense counsel and the
following exchange:
Q And Adam Root or any witnesses that you talked to at the scene
didn’t say he was at the studio. Is that correct?
A Well, at the scene?
Q At the scene.
A Yes, there was a person at the scene that eventually said that Mr.
Jackson was at the scene.
Q Mr. Hart did say that they had gone back to the studio at one point.
Is that correct?
A That is correct.
Q But not during this horrible kidnapping and shooting of Mr. Finney
and Thomas Keys?
A At the arrival of the victims, he said that they were there.
[Defense Counsel]: That’s all I have, Judge.
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Transcript at 385. During the cross-examination of Jackson, the following
exchange occurred:
Q You heard Detective Schemenaur testify that Carlton Hart said you
were at the studio with Carlton Hart when the victims arrived?
A No.
Q That’s wrong?
A That’s wrong. I wasn’t at the studio when they arrived. I was at
work already. Wasn’t nobody at the studio but Dwayne McDuffy
when I left. I mean James.
Q Carlton Hart said that you were there.
[Defense Counsel]: Objection, Your Honor. Hearsay. He is trying to
get in what Carlton Hart said.
[Prosecutor]: I am just repeating what Detective Schemenaur testified
to.
THE COURT: The State can ask those kind of questions, however,
the defendant does not have the ability, under the rules, to bring in
hearsay about alleged co-conspirators.
[Defense Counsel]: I will raise the same objection that I had raised
prior about other people testifying, based on Sixth Amendment right of
confrontation as well as (inaudible) in the rules.
THE COURT: Understood and overruled.
Q Carlton Hart said you were there when the victims arrived. And
you are saying you weren’t?
A I wasn’t.
Id. at 451-452.
[68] Given that Jackson’s counsel elicited the hearsay testimony and specifically
asked Detective Schemenaur what Hart had said, we cannot say that reversal is
warranted. See Szpunar v. State, 783 N.E.2d 1213, 1217 (Ind. Ct. App. 2003)
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(holding that no reversible error occurred because the defendant was the party
who elicited the evidence at issue); Taylor v. State, 687 N.E.2d 606, 611 (Ind. Ct.
App. 1997) (observing that defense counsel elicited the hearsay testimony
himself and holding that any error in admitting the testimony was therefore
invited by the defense), trans. denied.
III.
[69] The next issue is whether the evidence is sufficient to sustain Jackson’s
conviction for conspiracy to commit criminal confinement as a class B felony.
When reviewing claims of insufficiency of the evidence, we do not reweigh the
evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,
817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and the
reasonable inferences therefrom that support the verdict. Id. We will affirm the
conviction if there exists evidence of probative value from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt. Id.
[70] The offense of conspiracy is governed by Ind. Code § 35-41-5-2, which at the
time of the offense provided that “[a] person conspires to commit a felony
when, with intent to commit the felony, he agrees with another person to
commit the felony,” that “[a] conspiracy to commit a felony is a felony of the
same class as the underlying felony,” and that “[t]he state must allege and prove
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that either the person or the person with whom he agreed performed an overt
act in furtherance of the agreement.”7
[71] Here, the underlying felony is criminal confinement as a class B felony. The
offense of criminal confinement as a class B felony is governed by Ind. Code §
35-42-3-3, which at the time of the offense provided that “[a] person who
knowingly or intentionally: (1) confines another person without the other
person’s consent; or (2) removes another person, by fraud, enticement, force, or
threat of force, from one (1) place to another; commits criminal confinement.”
“The offense of criminal confinement . . . is . . . a Class B felony if it . . . (A) is
committed while armed with a deadly weapon; [or] (B) results in serious bodily
injury to a person other than the confining or removing person . . . .” Ind. Code
§ 35-42-3-3(b).8 The amended charging information alleged:
Nathaniel Armstrong, Dominique Hamler, James McDuffy, Dontee
Robinson, Carlton Hart and Darin Jackson, on or about November 15,
2012, did, with intent to commit the felony of Criminal Confinement,
agree by and with one another to commit said felony of Criminal
Confinement, which is to knowingly, while armed with a deadly
weapon, that is: a gun, confine another person without the other
person’s consent, and, further, that Nathaniel Armstrong, Dominique
Hamler, James McDuffy, Dontee Robinson, Carlton Hart, and/or
Darin Jackson performed the following overt act in furtherance of the
agreement, that is: purchased zip-ties, duct tape and a piece of wood to
be used in confining Keys and/or Finney and/or by holding Keys
and/or Finney in the music studio at gunpoint . . . .
7
Subsequently amended by Pub. L. No. 158-2013, § 409 (eff. July 1, 2014).
8
Subsequently amended by Pub. L. No. 158-2013, § 434 (eff. July 1, 2014).
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Appellant’s Appendix at 151-152.
[72] Jackson argues that the State failed to present any admissible evidence of any
conspiracy and no evidence at all of Jackson’s involvement in any conspiracy.
Jackson also argues that even if the State proved an agreement among Jackson’s
codefendants, the State failed to prove Jackson entered into that agreement. He
asserts that the State failed to present any evidence that he ever met Armstrong,
Hamler, and Robinson. He contends that the videotape showed him only
belatedly joining McDuffy in the electrical aisle at Lowe’s and that he replaced
one bag of zip ties in the shopping cart with another bag of zip ties. He argues
that the items purchased were consistent with supplies necessary to enhance
security at the studio.
[73] The State argues that the evidence that there was an agreement to confine Keys
and/or Finney in the music studio without their consent is overwhelming, and
that Jackson’s arguments are simply a request for this court to reweigh the
evidence. The State points out that Jackson and Hart had been close friends
since childhood, Bango was Hart’s cousin, Hart helped Jackson obtain the job
he held at the time, and Jackson and Hart went to visit Bango’s mother on the
same day of the confinement. The State also asserts that Jackson went to
Lowe’s with Hart and McDuffy when they purchased the zip ties and duct tape
used that afternoon to effectuate the confinement, that Jackson helped pick out
the zip ties, and Jackson demonstrated crossing his hands together at the wrist
in the same way that the victim’s hands were later bound. The State also points
out that Jackson demonstrated consciousness of guilt when he concealed the
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fact that he went to Lowe’s when he spoke with Detective Schemenaur, and did
not admit on the jail phone calls that he walked around Lowe’s with McDuffy
and Hart and helped them select zip ties.
[74] “In proving the agreement element, the State is not required to show an express
formal agreement, and proof of the conspiracy may rest entirely on
circumstantial evidence.” Fry v. State, 748 N.E.2d 369, 374 (Ind. 2001) (citing
Bailey v. State, 717 N.E.2d 1, 3 (Ind. 1999)). The requisite agreement can be
inferred from circumstantial evidence, including overt acts of the parties in
furtherance of the criminal act. Wallace v. State, 722 N.E.2d 910, 913 (Ind. Ct.
App. 2000). “[W]hile evidence of a mere relationship or association is not
sufficient, a conspiracy may be inferred from acts of the parties in pursuance of
an apparent criminal purpose they have in common.” Williams v. State, 274
Ind. 94, 96, 409 N.E.2d 571, 573 (1980). “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).
[75] The record reveals that Jackson had a relationship with Hart, the owner of the
studio where the confinement occurred and Bango’s cousin. Jackson spent part
of the day with Hart and McDuffy, one of the men that confined and
interrogated Finney and Keys. Jackson and Hart visited the home of Bango’s
mother on the day of the confinement. Jackson was with McDuffy in Lowe’s
on the day of the confinement and the surveillance video from Lowe’s shows
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Jackson crossed his arms while looking at zip ties and placed zip ties in the
shopping cart. On appeal, Jackson concedes that he “held a bag of zip ties and
spoke to McDuffy.” Appellant’s Brief at 9. Jackson did not mention to
Detective Schemenaur during his interview that he went to Lowe’s. During the
phone call from jail with his father, Jackson indicated that he “wasn’t in there
when they checked it out,” that he grabbed a bag at the door and “that’s it,”
and that he “went in there and got me a m------------ bag, walked down the aisle
to see him, was like ‘what you doing’ and turned around and walked the f--- out
and went to the door goddamn it grabbed my bag and put my pants in my bag
and went to go change clothes for work.” State’s Exhibit 198. The jury was
able to weigh these statements together with the surveillance video which
Jackson concedes on appeal shows him replacing one bag of zip ties in the
shopping cart with another bag of zip ties. The jury was free to not credit
Jackson’s testimony that he entered Lowe’s merely to obtain a bag for his pants
that he had purchased earlier in the day and planned to wear to work later in
the day.
[76] While the jury could have made different inferences from the evidence, we
cannot say that the inferences made by the jury were unreasonable. Thus, we
conclude that evidence of probative value exists from which the jury could have
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found Jackson guilty beyond a reasonable doubt of conspiracy to commit
criminal confinement as a class B felony.9
Conclusion
[77] For the foregoing reasons, we affirm Jackson’s conviction for conspiracy to
commit criminal confinement as a class B felony.
Bailey, J., and Robb, J., concur.
9
Jackson argues that this case in similar to Cockrell v. State, 743 N.E.2d 799 (Ind. Ct. App. 2011). In Cockrell,
we reversed a conviction for conspiracy to deal in cocaine where there was no evidence that the defendant
and an alleged coconspirator ever met or made contact with each other during the relevant time and there
was uncontradicted testimony from another alleged coconspirator that he never mentioned another
coconspirator to the defendant. 743 N.E.2d at 806-807. The Cockrell court relied upon Porter v. State, 715
N.E.2d 868 (Ind. 1999), where the Indiana Supreme Court reversed a conviction for conspiracy to commit
robbery where there was no evidence that the defendant and the alleged coconspirator were together at any
time before, during or after the incident, no evidence that they arrived at, or left, the scene together, no
evidence that the two spoke, gestured or communicated with one another at any point before, during, or after
the incident, and no evidence that the two were even aware of one another’s presence at the time the
incidents occurred. Id. at 807 (citing Porter, 715 N.E.2d at 872). Unlike in Cockrell and Porter, Jackson was
with Hart and McDuffy prior to the confinement and his actions constitute evidence from which a jury could
have found that he agreed to confine Keys and/or Finney.
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