MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Nov 24 2015, 9:30 am
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
Victoria L. Bailey Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daniel Hoskin, November 24, 2015
Appellant-Defendant, Court of Appeals Case No.
49A04-1405-CR-192
v. Appeal from the Marion County
Superior Court
State of Indiana, The Honorable Marc Rothenberg
Appellee-Plaintiff Trial Court Cause No.
49G02-1211-MR-078411
Bailey, Judge.
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Case Summary
[1] Daniel Hoskin (“Hoskin”) was convicted of Murder, a felony,1 and sentenced to
fifty years imprisonment. He now appeals.
[2] We affirm.
Issues
[3] Hoskin raises two issues for our review. We restate these as:
I. Whether the State withheld material evidence in violation
of Brady v. Maryland, 373 U.S. 83 (1963), so that Hoskin is
entitled to a new trial; and
II. Whether there was sufficient evidence presented at trial to
sustain Hoskin’s conviction.
Facts and Procedural History
[4] On September 24, 2012, Charles Ray (“Ray”; Ray was sometimes called
“Cosmo”), who was wheelchair-bound, and John Byrd (“Byrd”) were both at
home in an apartment on the bottom floor of a house on North Illinois Street in
Indianapolis; they shared the apartment as roommates. Ray and Byrd had been
drinking that day, and at some point Byrd had gone to a nearby liquor store to
purchase some beer.
1
Ind. Code § 35-42-1-1.
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[5] At around 8:30 p.m., three men, whom Byrd knew as “Lil Will,” “Nitra,” and
“Bill Bill” (the name by which Byrd knew Hoskin) walked up to the front door
of the residence and knocked on the door. Byrd opened the door, and the three
said they were there to talk to Ray. Byrd decided to take the beer he was
drinking outside, and sat down on the back porch of the home; Lil Will
followed Byrd to the back of the home. As Byrd walked out of the apartment,
he heard one of the men saying something about shooting Ray.
[6] Byrd and Lil Will were near a porch behind the apartment for a few minutes,
when Byrd heard a gunshot. At that moment, Lil Will began to walk back
toward the front of the home. A few moments later, Byrd saw Hoskin and
Nitra run from the front of the home toward the back alley; the two then ran
north up the alley. Byrd returned to the front of the home, entered, and found
Ray on the floor of his room with a gunshot wound to his head. Byrd called 9-
1-1. Police and medical personnel arrived, but Ray could not be revived.
[7] Subsequent investigation by police, including a court-ordered statement from
Byrd and interviews with Byrd’s neighbors, led to the arrest of Hoskin and an
individual whom Byrd identified as Nitra, Rodmitrell Jackson (“Jackson”). On
November 16, 2012, the State charged Hoskin and Jackson with Murder.
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[8] A joint jury trial was conducted on February 24, 25, and 26, 2014. At the
conclusion of the trial, the jury found Hoskin guilty of Murder, as charged.2
Hoskin initiated an appeal.
[9] On September 4, 2014, Hoskin filed a motion under Appellate Rule 37 and
Post-Conviction Rule 2(2),3 whereby he requested a stay of his appeal pending
the filing with the trial court of a belated motion to correct error with respect to
alleged violations of Brady v. Maryland. This Court granted that motion.
[10] On October 23, 2014, Hoskin filed with the trial court his verified belated
motion to correct error. In his motion, Hoskin designated as exhibits probable
cause affidavits from a number of cases in which Ray, the victim in the instant
case, had assisted police by serving as a confidential informant (“CI”) in
numerous controlled buys of narcotics. Hoskin argued that the State’s failure to
disclose this information was a violation of Brady, and that this information was
material to his case such that, had it been known, a different result was
reasonably probable. The trial court disagreed, and denied the motion to
correct error.
[11] This appeal proceeded.
2
The jury found Jackson not guilty.
3
This procedure, the Davis/Hatton procedure, is authorized by Ind. App. R. 37 “‘to develop an evidentiary
record for issues that with reasonable diligence could not have been discovered before the time for filing a
motion to correct error or a notice of appeal has passed.’” Peaver v. State, 937 N.E.2d 896, 899 (Ind. Ct. App.
2010) (quoting Schlabach v. State, 842 N.E.2d 411, 418 (Ind. Ct. App. 2006), trans. denied), trans. denied.
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Discussion and Decision
Motion to Correct Error
[12] For his first contention on appeal, Hoskin argues that the trial court abused its
discretion when it denied his belated motion to correct error. “A trial court has
discretion to grant or deny a motion to correct error and we reverse its decision
only for an abuse of that discretion.” Hayden v. State, 830 N.E.2d 923, 930 (Ind.
Ct. App. 2005), trans. denied. An abuse of discretion occurs when the trial
court’s decision is against the logic and effect of the facts and circumstances
before it, or when the court has misinterpreted the law. Id.
[13] Hoskin’s motion to correct error, and his argument on appeal, rely on the U.S.
Supreme Court’s ruling in Brady v. Maryland, and upon Brady’s progeny. In
Brady, the Supreme Court held that “suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.” 373 U.S. at 87. To prevail in a Brady claim, the
defendant must establish (1) that the prosecution suppressed evidence; (2) that
the evidence was favorable to the defense; and (3) that the evidence was
material to an issue at trial. Bunch v. State, 964 N.E.2d 274, 297 (Ind. Ct. App.
2012), trans. denied.
[14] Evidence is material within the meaning of Brady “only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A ‘reasonable probability’ is a
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probability sufficient to undermine confidence in the outcome.” United States v.
Bagley, 473 U.S. 667, 682 (1985). Evidence relevant to impeachment is within
the scope of evidence that may fall within the Brady rule. Banks v. Dretke, 540
U.S. 668, 675-76 (2004) (“When police or prosecutors conceal significant
exculpatory or impeaching material in the State’s possession, it is ordinarily
incumbent on the State to set the record straight.”).
[15] In support of his argument that Ray’s role as a CI could have been used to
impeach Byrd, Hoskin contends that the trial court abused its discretion when it
found that information concerning the work performed by Ray as a CI on
behalf of Indianapolis police was not material to Hoskin’s defense. The State
argues that Hoskin waived this issue because, despite Hoskin’s arguments
concerning the purported materiality of the information concerning Ray’s work
as a CI, “impeachment was not mentioned at all.” State’s Br. at 14.
[16] We first address the State’s contention that Hoskin waived this argument.
Hoskin’s verified motion to correct error states, in part, “knowledge that Mr.
Ray was a CI … creates a huge pool of potential, alternative suspects. It also
would have given Mr. Hoskin arguments as to why Mr. Byrd would have lied to
police and falsely accused Mr. Hoskin of this crime.” App’x at 240 (emphasis
added). The motion to correct error addressed issues related to impeachment of
Byrd, and we accordingly find no waiver.
[17] Turning to the question of materiality, the evidence presented by Hoskin in
support of the motion to correct error showed Ray’s involvement as a CI in a
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large number of criminal investigations, and the State does not dispute that this
information was not provided to Hoskin in advance of trial. That does not
settle the question of materiality, however. The question on that point is
whether there was a reasonable probability that, had the State disclosed
information regarding Ray’s activity as a CI, a different result would likely have
obtained at trial if Hoskin could have made effective use of the information
regarding Ray’s activities to impeach Byrd.
[18] Our review of the record reveals that, even without the information concerning
Ray’s work as a CI, Byrd’s testimony was not given significant weight by the
jury. Hoskin was tried together with a co-defendant, Jackson. Hoskin was
placed at the scene not only by Byrd’s testimony, but also by testimony from a
neighbor, Harry Nunn, and by means of cellular phone records. The sole
source of evidence connecting Jackson to the commission of the murder of Ray
was Byrd’s testimony; the jury found Jackson not guilty. The jury seems to
have given relatively little weight to Byrd’s testimony; it is unclear how further
impeachment of Byrd would have aided Hoskin’s defense.
[19] Further, Hoskin does not explain how Ray’s work as a CI would have aided in
efforts to impeach Byrd. Hoskin directs us to no information indicating that
Byrd was aware of Ray’s work as a CI, let alone how Byrd’s knowledge of that
information would have tended to make less plausible his testimony concerning
Hoskin’s role in Ray’s murder.
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[20] We thus cannot conclude that the information concerning Ray’s work as a CI
was material to the question of effective impeachment of Byrd. In light of the
facts and circumstances before it, and based upon our review of the record at
trial, we cannot conclude that the trial court abused its discretion when it
denied Hoskin’s motion to correct error on the basis of a Brady violation.
Sufficiency of the Evidence
[21] We turn now to Hoskin’s second contention on appeal, that there was
insufficient evidence to support his conviction for Murder. Our standard of
review in such cases is well settled. We consider only the probative evidence
and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d
144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh
evidence. Id. We will affirm the conviction unless “no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable doubt.” Id.
(quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). “The evidence is
sufficient if an inference may reasonably be drawn from it to support the
verdict.” Id. (quoting Pickens v. State, 751 N.E.2d 331, 334 (Ind. Ct. App.
2001)).
[22] Here, Hoskin was charged with Murder. To convict Hoskin of Murder, as
charged, the State was required to prove beyond a reasonable doubt that Hoskin
knowingly killed Ray by shooting him with a gun, thereby inflicting mortal
injuries upon Ray such that he died. See I.C. § 35-42-1-1(1); App’x at 39.
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[23] Here, the evidence that favors the verdict is that on September 24, 2012, Hoskin
and two other men arrived at the apartment Ray and Byrd shared. Nunn, one
of Ray’s and Byrd’s neighbors, saw the three men arrive, and recognized one of
them as Hoskin. Byrd testified that the three men knocked on the door of the
apartment, and when Byrd answered the door they asked to see Ray. As Byrd
and one of the men stepped outside, Byrd heard either Hoskin or the other man
with him mention something about shooting Ray. Within a few minutes, Byrd
heard a gunshot come from inside the apartment; the man with Byrd walked
away, and Byrd saw Hoskin and another man running away from the home.
Byrd immediately reentered his apartment, where he found Ray lying
unresponsive on the floor with a gunshot wound to his head. A neighbor, Mark
Brownlow (“Brownlow”), testified to hearing the gunshot, and testified to
seeing fast-moving shadows running near his home, following the course Byrd
saw Hoskin take.
[24] Hoskin argues that this is insufficient evidence from which to conclude that he
was the shooter and thus committed Ray’s murder. Assuming arguendo that
Hoskin’s argument on that point is correct, nevertheless there is sufficient
evidence to establish the requirements of accomplice liability. The Indiana
Code provides that “[a] person who knowing or intentionally aids, induces, or
causes another person to commit an offense commits that offense, even if the
other person … (3) has been acquitted of the offense.” I.C. § 35-41-2-4. Mere
presence at the scene of a crime is insufficient to make one an accomplice.
Griffin v. State, 16 N.E.3d 997, 1004 (Ind. Ct. App. 2014). However, the
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presence of an individual at a crime scene may be considered in conjunction
with other factors that tend to show a defendant acted as an accomplice to a
crime. Id. These factors are: (1) presence at the scene; (2) companionship with
another at the scene; (3) failure to oppose commission of the crime; and (4)
course of conduct before, during, and after occurrence of the crime. Id.
[25] Here, Hoskin was present at a crime scene, in companionship with two other
men. Hoskin and the two other men arrived at the apartment specifically
looking for Ray, Byrd overheard either Hoskin or another individual saying
they would shoot Ray, and Hoskin and the other individual remained in the
apartment while Byrd and another man left the home. Finally, not only did
Hoskin arrive with the men looking for Ray, Hoskin remained in the apartment
with one other individual and Ray, and was seen fleeing the scene with that
individual after Ray’s murder.
[26] Taken together, this is sufficient evidence from which a jury could reasonably
conclude that Hoskin either shot Ray or was an accomplice to the murder and
thus equally liable for the offense as charged. We accordingly affirm Hoskin’s
conviction.
Conclusion
[27] The trial court did not abuse its discretion when it denied Hoskin’s motion to
correct error on Brady grounds. There was sufficient evidence to sustain
Hoskin’s conviction for Murder.
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[28] Affirmed.
Baker, J., and Mathias, J., concur.
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Daniel Hoskin v. State of Indiana (mem. dec.)
Combined Opinion