Jun 10 2015, 8:47 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Patricia Caress McMath Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jamar Minor, June 10, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1409-CR-628
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt Eisgruber, Judge
Appellee-Plaintiff Case No. 49G01-1306-MR-41201
Crone, Judge.
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Case Summary
[1] Jamar Minor appeals his convictions for murder and class A felony attempted
murder, following a jury trial.1 On appeal he asserts that the trial court abused
its discretion in excluding certain hearsay evidence. Because the evidence does
not conform to any exception to the hearsay rule, we find no abuse of
discretion. Minor also contends that the trial court erred in instructing the jury
regarding accomplice liability such that he may have been convicted of
attempted murder absent the specific intent to kill. Although we find that the
jury was indeed erroneously instructed, we conclude that the error did not
impact the jury’s verdict and was therefore harmless. Finally, Minor argues
that the trial court abused its discretion in refusing his tendered jury instruction
on criminal recklessness as an inherently lesser included offense of attempted
murder. Indiana case law is clear that criminal recklessness is not an inherently
lesser included offense of attempted murder, and thus the trial court did not
abuse its discretion in refusing the instruction. We affirm Minor’s convictions.
Facts and Procedural History
[2] The facts most favorable to the verdicts indicate that in the afternoon on June
11, 2013, nineteen-year-old Bryisha Dickerson, twenty-two-year-old Taria Tate,
Tia Tate, and Minor’s half-sister, Kabrea Slatter, were all hanging out together
in Indianapolis. The Tate sisters received a call from their ten-year-old cousin,
1
Minor was also convicted of class A misdemeanor carrying a handgun without a license. He does not
appeal that conviction.
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“Bam,” who told them that another boy in the neighborhood, eleven-year-old
“Punney” Williams, had stolen his iPod. Tr. at 432. The group of females
walked to Punney’s grandmother’s house on Guilford Avenue to see if they
could help retrieve the iPod. Punney’s older brother, Leo Williams, his cousin
Damien Williams, another cousin, Dazion Dulin, and another relative, Tron
Harris, were all present at the house. The groups began to argue. The
argument escalated into a physical altercation between the male and female
members of each group, and eventually thirty-five to forty people gathered in
the street. Damien was not involved and instead tried to break up the fight.
Police came and the crowd dispersed. No arrests were made.
[3] The group of girls went to the Tate sisters’ grandmother’s house on 24th Street.
A blue SUV driven by Jordan Gray pulled up across the street. Minor was in
the passenger seat. Minor’s half-sister, Slatter, had called Minor to come pick
her up and informed him that she had been involved in a fight with some males.
Minor and Gray parked the SUV in front of a white van and sat in the SUV
between five and twenty minutes before driving off. The two men returned
about five minutes later, parked in the same spot, and got out of the SUV to
speak to the females. Minor and Gray then returned into the SUV but did not
leave.
[4] Approximately ten minutes later, Damien, Leo, Dulin, Harris, and a friend
named Eric Taylor came walking up a nearby alley toward 24th Street. They
had heard that someone might be planning to come “shoot up” the Williamses’
grandmother’s house, so they wanted to talk to the girls to “make sure
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everything’s squashed cause [they] all grew up together.” Id. at 115, 237.
Since the fight was about “nothin important,” they just wanted to make sure
that “everything was cool.” Id. at 511. Taylor noticed the blue SUV parked in
the street but he could not see the individuals inside because they were “ducked
down or something.” Id. at 223. Damien and his companions spoke to the
females, and the females assured them that everything was fine.
[5] As the five young men were leaving, they walked past the blue SUV. A voice
that appeared to be coming from inside the SUV said something to the group.
One of the females at the scene, Dickerson, immediately ran from the street
onto the porch of a house because she felt a “bad vibe” and knew that
something was about to happen. Id. at 117. The group of young men stopped
walking and turned around so they were facing the SUV. Minor and Gray,
both armed with weapons, jumped out of the SUV and started shooting at the
group. Damien was hit immediately with multiple shots and fell into the street.
The other young men ran from the gunfire. Taylor was hit in the leg as he was
running away. Taylor fell, and Minor and Gray continued to fire at him.
Taylor crawled toward the house of an acquaintance who eventually pulled him
inside and called for an ambulance. Minor and Gray fled in the SUV.
[6] Damien died as a result of two fatal gunshot wounds, one to his abdomen and
one to his upper back. The two bullets recovered from his body were each fired
by a different weapon. Taylor was hospitalized for three days. His leg was
badly injured, and doctors placed a metal rod in his leg from his kneecap to his
ankle. Investigators recovered sixteen spent shell casings at the crime scene
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fired from two different nine-millimeter weapons. Police also found a .40
caliber automatic pistol under the white van that was parked in the street.
There was no physical evidence to indicate that the pistol had been fired.
[7] The State charged Minor and Gray with murder, class A felony attempted
murder, and class A misdemeanor carrying a handgun without a license.
Minor and Gray were also each charged with a firearm sentence enhancement
pursuant to Indiana Code Section 35-50-2-11.2 Minor and Gray were tried
together as codefendants in a three-day jury trial. Minor testified at trial and
claimed that Damien pointed a gun at him and that he shot at Damien and
Taylor in self-defense. No other witnesses testified that they saw a gun on
Damien. The jury found both Minor and Gray guilty of murder, attempted
murder, and carrying a handgun without a license. Minor waived his right to a
jury trial on the firearm sentence enhancement. Following a hearing, the trial
court found Minor guilty of use of a firearm during the commission of the
murder. The court sentenced Minor to an aggregate term of seventy years’
imprisonment. Minor now appeals his convictions for murder and attempted
murder. We will provide additional facts in our discussion as necessary.
2
This section provides in relevant part that the court may sentence a defendant to an additional fixed term of
imprisonment between five and twenty years if the State has proven beyond a reasonable doubt that the
defendant knowingly or intentionally used a firearm in the commission of certain felony offenses.
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Discussion and Decision
Section 1 – The trial court did not abuse its discretion in
excluding certain hearsay evidence.
[8] Minor first asserts that the trial court abused its discretion in excluding certain
evidence that supported his self-defense claim. Specifically, Minor sought to
admit an unsworn out-of-court statement made by Dulin to police the morning
after the shooting that he knew that the murder victim, Damien, “had a gun on
him” because Damien “said it.” Def. Ex. AA at 9. The trial court excluded the
evidence as inadmissible hearsay. Minor concedes that the evidence was
hearsay but maintains that it was admissible pursuant to two exceptions to the
hearsay rule.
[9] “A trial court has broad discretion to admit or exclude evidence, including
purported hearsay.” Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014). We will
disturb the trial court’s ruling only if it amounts to an abuse of discretion,
“meaning the court’s decision is clearly against the logic and effect of the facts
and circumstances or it is a misinterpretation of the law.” Id.
[10] Hearsay is an out-of-court statement used to prove the truth of the matter
asserted. Ind. Evidence Rule 801(c). Hearsay is inadmissible unless it falls
under a hearsay exception. Teague v. State, 978 N.E.2d 1183, 1187 (Ind. Ct.
App. 2012). “If a statement involves hearsay within hearsay, also known as
multiple hearsay or double hearsay, the statement may still be admitted if ‘each
layer of hearsay’ qualifies ‘under an exception to the hearsay rule[.]’” Id.
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(quoting Palacios v. State, 926 N.E.2d 1026, 1030 (Ind. Ct. App. 2010)); see also
Ind. Evidence Rule 805 (“Hearsay included within hearsay is not excluded
under the hearsay rule if each part of the combined statements conforms within
an exception to the hearsay rule provided in these rules.”). The evidence at
issue here involves double hearsay because Dulin relayed to police a statement
made by Damien. Thus, pursuant to Rule 805, Damien’s statement to Dulin
and Dulin’s statement to police must both fall within a hearsay exception to be
admissible. See Palacios, 926 N.E.2d at 1030.
[11] As to the first layer of hearsay, Minor argues that Damien’s statement to Dulin
constituted a present sense impression and was therefore admissible as an
exception to the hearsay rule. A present sense impression is “[a] statement
describing or explaining an event, condition or transaction, made while or
immediately after the declarant perceived it.” Ind. Evidence Rule 803(1). In
order for a statement to fall under the present sense impression exception, three
requirements must be met: (1) it must describe or explain an event or condition;
(2) during or immediately after its occurrence; and (3) it must be based upon the
declarant’s perception of the event or condition. Amos v. State, 896 N.E.2d
1163, 1168 (Ind. Ct. App. 2008), trans. denied (2009).
[12] At a minimum, Damien’s statement to Dulin fails to satisfy the first two
requirements. We agree with the State that Damien’s purported statement to
Dulin neither described nor explained an event or condition. Indeed, due to the
vagueness of Dulin’s account, we have no idea what Damien’s actual statement
to Dulin was; we just know that “he said it” and that “it” was a reference to
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Damien having a gun. Def. Ex. AA at 9. Assuming for the sake of argument
that Damien’s statement adequately described or explained the condition of
having a gun, there is no indication as to when Damien purportedly made the
statement to Dulin, so we have no idea whether Damien’s statement was made
in any temporal proximity to the condition of having a gun and his statement
describing or explaining that condition to Dulin. Under the circumstances,
Williams’s purported statement to Dulin does not qualify as a present sense
impression.
[13] In the alternative, Minor maintains that Damien’s statement was admissible as
a statement against interest because it “did tend to subject 19 year old Damien
to criminal liability for carrying a handgun without a license.” Appellant’s Br.
at 8. Indiana Evidence Rule 804(b)(3) provides an exception to the hearsay rule
when the declarant is unavailable as a witness and the statement is:
A statement that [] a reasonable person in the declarant’s position
would have made only if the person believed it to be true because,
when made, it was so contrary to the declarant’s propriety or
pecuniary interest or had so great a tendency to invalidate the
declarant’s claim against someone else or to expose the declarant to
civil or criminal liability.
[14] The requirement of reliability is embodied within this hearsay exception, as
reliability is the ultimate justification of statements against interest. Bryant v.
State, 794 N.E.2d 1135, 1142 (Ind. Ct. App. 2003), trans. denied. To qualify
under this hearsay exception, the statement against interest must be
incriminating on its face. Jervis v. State, 679 N.E.2d 875, 878 (Ind. 1997).
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[15] As noted above, we are not aware what Damien’s actual statement was, and
consequently, we can hardly say that it was incriminating on its face. Again,
even assuming that Damien’s statement to Dulin was something along the lines
of “I am carrying a gun on me,” we would still be without sufficient
information to determine anything about the legality of him carrying that gun
that would lend reliability to the statement. Moreover, we cannot say that
Damien’s statement to his cousin claiming that he was carrying a gun is the
type of statement that a reasonable person in his position would have made
only if he believed it to be true; it is highly unlikely that Damien would have
been concerned with potential criminal liability when he made that statement to
his cousin. We agree with the trial court that Damien’s statement was not
admissible as a statement against interest pursuant to Indiana Evidence Rule
804(b)(3).
[16] Because Minor has failed to establish that Damien’s statement to Dulin is an
exception to the hearsay rule, we need not reach the admissibility of the second
layer of hearsay, Dulin’s unsworn statement to police. The trial court did not
abuse its discretion when it excluded the evidence.
Section 2 – The trial court’s erroneous jury instruction
regarding accomplice liability as it applied to attempted
murder was harmless error.
[17] Minor next contends that the trial court abused its discretion in instructing the
jury regarding accomplice liability as it applied to attempted murder. Although
he acknowledges that the jury was properly instructed regarding attempted
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murder, including the specific intent to kill element, he claims that the
accomplice liability instruction given here was erroneous because it failed to
inform the jury that the State was required to prove that he acted with specific
intent to kill when he knowingly aided, induced, or caused another person to
attempt murder. See Hopkins v. State, 759 N.E.2d 633, 637 (Ind. 2001) (when
attempted murder is premised on accomplice liability, jury is required to be
instructed that State must prove beyond a reasonable doubt that defendant
acted with specific intent to kill). We agree, and the State concedes, that the
accomplice liability instruction given here was erroneous for the precise reason
argued by Minor. We are left only to determine whether such error is
reversible.
[18] The State claims that Minor has waived this issue for appeal because, although
he objected to the accomplice liability instruction when it was proposed by the
State, he failed to tender an alternative instruction. Thus, the State argues that
in order to obtain a reversal of his convictions, Minor must demonstrate that
the erroneous instruction constituted fundamental error. See Knapp v. State, 9
N.E.3d 1274, 1281 (Ind. 2014) (fundamental error is an extremely narrow
exception to waiver rule requiring defendant to demonstrate error that made a
fair trial impossible; it is a “daunting standard” that applies only in egregious
circumstances), cert. denied 2015. Contrary to the State’s assertion, a defendant
is not ordinarily required to tender alternative instructions to preserve a claim of
error. Fry v. State, 748 N.E.2d 369, 373 (Ind. 2001). Instead, to preserve the
error for appeal, the defendant must simply object to the proposed instruction,
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and such objection must be “sufficiently clear and specific to inform the trial
court of the claimed error and to prevent inadvertent error.” Id. (quoting Scisney
v. State, 701 N.E.2d 847, 848 (Ind. 1998)).
[19] Our review of the record reveals not only that Minor made a contemporaneous
objection to the proposed accomplice liability instruction, but also that it was
clear from his specific objection that Minor was claiming that the instruction
failed to inform the jury that an accomplice must have the specific intent to kill
when he or she knowingly or intentionally aids, induces, or causes another to
attempt to commit murder. Minor’s objection was timely, articulate, on point,
and sufficient to preserve his claim of error.
[20] Having concluded that Minor properly preserved this issue for appeal, we turn
to the merits. We afford trial courts broad discretion in the manner of
instructing the jury, and we review such decisions only for an abuse of that
discretion. Snell v. State, 866 N.E.2d 392, 395 (Ind. Ct. App. 2007).
Instructional errors are considered harmless where a conviction is clearly
sustained by the evidence, and the instruction would not likely have impacted
the jury’s verdict. Randolph v. State, 802 N.E.2d 1008, 1013 (Ind. Ct. App.
2004), trans. denied. Indeed, to obtain reversal on appeal based upon an
erroneous jury instruction, a defendant must affirmatively demonstrate that the
instructional error prejudiced his substantial rights. Schmid v. State, 804 N.E.2d
174, 182 (Ind. Ct. App. 2004), trans. denied.
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[21] Minor relies on our supreme court’s recent opinion in Rosales v. State, 23 N.E.3d
8 (Ind. 2015), in which the court considered the question of whether an
accomplice liability instruction was “fundamentally erroneous for not stating
that an accomplice to attempted murder must have the specific intent to kill
when he or she knowingly or intentionally aids, induces, or causes another to
attempt murder, where it is unknown if the defendant was convicted of
attempted murder on the basis of accomplice or direct liability.” Id. at 11. In
Rosales, the jury was not instructed that specific intent to kill was required to
properly convict Rosales under an accomplice liability theory, and, due to the
general verdict form used by the jury, it was not possible to discern whether
“the jury’s verdict may have rested exclusively on accomplice liability grounds
(including a finding of Rosales’s ‘knowing or intentional’ mens rea), solely on
direct liability grounds (including a finding of his ‘specific intent to kill’), or a
combination thereof.” Id. at 15. Moreover, during closing arguments, the State
“repeatedly told the jury that specific intent to kill was not required for
accomplice liability.” Id. Because of the State’s repeated insistence that
Rosales’s specific intent to kill did not matter, coupled with the inaccurate jury
instruction on accomplice liability, our supreme court concluded that Rosales
incurred actual prejudice; that is to say, a fair trial was impossible under the
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circumstances and fundamental error occurred. Id. at 16.3
[22] While we recognize that, unlike the defendant in Rosales, Minor need not meet
the high burden of establishing fundamental error, he must still affirmatively
demonstrate that the trial court’s instructional error prejudiced his substantial
rights. See Schmid, 804 N.E.2d at 182. Based upon the evidence presented, we
cannot say that Minor has established such prejudice.
[23] Although the jury here was instructed regarding both direct and accomplice
theories of liability, this is a unique case where the erroneous accomplice
liability instruction was, in fact, “mere surplusage,” and accomplice liability
was not truly offered as a “distinct basis” for the jury to convict Minor for
attempted murder. Rosales, 23 N.E.2d at 15 (emphasis omitted). The evidence
indicates that Minor, and his codefendant Gray, each fired multiple shots at a
group of young men, seven shots coming from one of their guns and nine shots
coming from the other. Taylor testified that both Minor and Gray were firing
weapons at him when he was struck and fell to the ground. Unlike in Rosales,
the State made clear in its closing arguments that the specific intent to kill was
required for attempted murder and that both Minor and Gray were directly
3
It is noteworthy that the attempted murder victim in Rosales was struck from behind with a baseball bat, and
therefore he did not see his attacker. Although the victim placed the defendant, a Hispanic man, at the scene,
and another witness observed a Hispanic man holding a metal baseball bat, “considering that the getaway
driver was also a Hispanic man, Rosales was not necessarily the Hispanic man [the witness] observed
carrying the bat both before and after the attack….” Rosales, 23 N.E.3d at 16. Thus, while there was strong
evidence that the defendant was the principal in the attack, accomplice liability was a relevant and viable
theory for the jury to consider. As discussed more fully later, the same cannot be said regarding the current
case.
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liable as principals in the commission of the attempted murder of Taylor.
Indeed, the State emphasized in its initial and rebuttal closing arguments that
both Minor and Gray were firing at Taylor and that both possessed the specific
intent to kill him. While accomplice liability was briefly mentioned by the
State during closing, it is clear from our review of the record that the State was
relying exclusively on the ample evidence of Minor’s liability as a principal and
his specific intent to kill Taylor.4 Similarly, defense counsel’s closing arguments
made clear to the jury that specific intent to kill was required for an attempted
murder conviction and that accomplice liability was not at issue. Under the
circumstances, Minor has failed to affirmatively demonstrate that the trial
court’s erroneous jury instruction prejudiced his substantial rights, as we can
safely say that no jurors voted to convict Minor of attempted murder under an
accomplice liability theory absent the specific intent to kill. Therefore, we
conclude that the instruction constituted harmless error.
4
The evidence established that Damien, the murder victim, died of two fatal wounds, one wound inflicted
from each weapon. Taylor, the attempted murder victim, was struck by one bullet that remains in his leg that
could have come from either weapon. This appears to be the only reason that the jury was instructed on
accomplice liability and why it was briefly mentioned by the State during closing arguments. During closing
arguments the prosecutor stated,
[Y]ou’ll get a jury instruction on what it means to be an accomplice. Now in this case
basically what this means is if it is Jamar Minor’s bullet that is in Eric Taylor’s leg as
opposed to Jordan Gray’s bullet that doesn’t mean he gets to say well, we don’t know
whose bullet it was so I’m off the hook. Basically this is a long way to say you both did it.
Tr. at 730.
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Section 3 – The trial court did not abuse its discretion in
refusing Minor’s tendered jury instruction on criminal
recklessness.
[24] Finally, Minor argues that the trial court abused its discretion in refusing to give
his tendered jury instruction on the offense of criminal recklessness as an
inherently lesser-included offense of attempted murder.5 It is well established
by our supreme court that criminal recklessness is not an inherently included
offense of attempted murder. Ellis v. State, 736 N.E.2d 731, 734 (Ind. 2000).
Minor acknowledges the state of Indiana law on this point and merely lodges
his disagreement, opining that “criminal recklessness should be an inherently
included lesser offense of attempted murder.” Appellant’s Reply Br. at 5
(emphasis added). Be that as it may, “we are bound to follow the precedent of
our supreme court.” Smith v. State, 777 N.E.2d 32, 38 n. 2 (Ind. Ct. App. 2002),
trans. denied (2003). The trial court did not abuse its discretion in refusing the
instruction.
[25] In sum, the trial court did not abuse its discretion in excluding, as inadmissible
hearsay, Damien’s purported statement to Dulin. Although we conclude that
the trial court erroneously instructed the jury regarding accomplice liability as it
applied to attempted murder, Minor has failed to demonstrate that he suffered
prejudice as a result of the erroneous instruction. Therefore, the instructional
error was harmless. Finally, the trial court did not abuse its discretion in
5
Minor concedes that criminal recklessness was not a factually lesser-included offense of attempted murder
as charged by the State here.
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refusing Minor’s proffered jury instruction on criminal recklessness. We affirm
Minor’s convictions.
[26] Affirmed.
Brown, J., and Pyle, J., concur.
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Jamar Minor v. State of Indiana
Combined Opinion