FRIEDLANDER, Judge.
Michael A. Lane appeals his convictions for Murder,
We affirm.
On January 5, 2010, Jason Derrington arranged a drug deal between Michael Hooper and David Clark, in which Clark was to purchase $5000 worth of Oxycontin from Hooper. Hooper was Derrington's friend, and Derrington had facilitated a number of drug deals between Hooper and Clark in the past. At some point that day, Clark informed Derrington that he was unavailable and would be sending money for the transaction with Lane, whom Derrington knew as "Little Mike". Derrington had met Lane several times before through Clark and felt comfortable with the last-minute change. Clark instructed Derrington to meet Lane in the back parking
Derrington went to Hooper's residence that evening and informed him of the change in plans. Hooper did not know Lane, so he decided to stop first at the home of Frank Hurst, Hooper's cousin. Hooper asked Hurst to give them a ride, and Hurst agreed. Hurst had one handgun on his person and one in the glove box of his car. He had permits for both weapons. Hurst apparently did not know Derrington or Lane and was allegedly unaware that he was driving Derrington and Hooper to a drug deal. Hooper sat in the front passenger seat of Hurst's vehicle, and Derrington sat directly behind Hurst.
The group arrived at the parking lot before 8:00 that evening and sat in the car while Derrington texted and made phone calls. After several minutes, Hooper asked Derrington, "where's he at", and Derrington responded, "he's coming". Transcript at 425, 426. At some point after 8:00, Lane got into the vehicle and sat in the back seat next to Derrington and behind Hooper. Hooper passed a bottle of Oxycontin to Lane, and Lane handed a Crown Royal bag filled with money to Derrington. Hooper directed Derrington to count the money. As Derrington began counting some of the money from the bag, he heard Lane's door open and saw the bag of remaining money move. Derrington grabbed the bag back but then realized that Lane had a gun. Lane started shooting as he exited the car. He first shot Derrington in the leg and then shot Hooper in the back near his right armpit as Hooper had his hands in the air. Lane shot Hooper at close range, with the shot coming from inside the car likely between the front passenger seat and the door frame.
After the first two shots, Derrington fled from the car and Hurst retrieved his.38 caliber revolver from the glove box and fired four shots. At that point, Lane was standing outside and firing into the car. Lane shot Hurst in the chest during the crossfire. Lane also went around the back of the vehicle and shot at Derrington as he fled. Derrington was struck in the back by one of Lane's shots, which caused immediate and permanent paralysis. Lane then fled the scene. At some point, Hooper and Hurst also exited the car, but Hurst reentered and placed his revolver back in the glove box.
Evansville police received the first dispatch call at 8:24. Upon arriving at the scene, officers found Hooper dead or near death behind Hurst's car, Derrington seriously injured on the ground near the driver's door, and Hurst injured in the driver's seat. There was also $4000 in cash strewn in the backseat and floorboard, along with a Crown Royal bag. Hurst immediately informed officers that he was armed. Both Hurst and Derrington identified the shooter as "Little Mike". Derrington also indicated that he had Little Mike's phone number in his cell phone. After securing the scene, officers discovered that this number was 812-454-7192, which was Lane's number. Within an hour of the shooting, Derrington was presented with three photo arrays. Derrington, without
Lane evaded capture until October 2011, when he was arrested in Chicago on the outstanding warrant. Detective Brent Melton traveled with two other officers to pick up Lane in Chicago. Melton read Lane his Miranda rights before transporting him back to Evansville. While talking with Melton on the drive back to Evansville, Lane adamantly stated that the money he brought to the scene was his own money, not David Clark's.
Lane's first jury trial commenced on August 7, 2012 but ended in a mistrial because only eleven jurors were selected following voir dire. The second trial commenced on October 8, 2012 and lasted five days. Among many other witnesses, Hurst and Derrington testified against Lane. The jury found Lane guilty of murder, two counts of criminal recklessness as a lesser-included offense of attempted murder, and conspiracy to commit murder.
Lane argues that the trial court abused its discretion by refusing to instruct the jury on reckless homicide as a lesser-included offense of murder. He claims a serious evidentiary dispute existed regarding his state of mind at the time of the shooting. Specifically, Lane argues that the evidence supported a reasonable inference that Hooper, Hurst, and Derrington ambushed Lane and that "Lane fired wildly in retreat to scare [them] away." Appellant's Brief at 9.
When considering instructions on lesser-included offenses, a court must first determine whether the lesser offense is either inherently or factually included within the crime charged. Young v. State, 699 N.E.2d 252 (Ind.1998). It is well established
When an instruction is refused on grounds that a serious evidentiary dispute does not exist, as in the instant case, we reverse only upon an abuse of discretion. Young v. State, 699 N.E.2d 252. "An abuse of discretion occurs when a decision is clearly against the logic and effect of the facts and circumstances before the court." Turner v. State, 751 N.E.2d 726, 731 (Ind. Ct.App.2001), trans. denied.
The only difference between murder and reckless homicide is the mens rea the State must prove to obtain a conviction. Young v. State, 699 N.E.2d 252. Reckless homicide requires proof that he defendant acted recklessly, while murder requires knowing or intentional conduct. See I.C. § 35-42-1-5; I.C. § 35-42-1-1. Thus, the issue here is whether the evidence presented at trial by both parties created a serious evidentiary dispute about whether Lane knowingly or recklessly killed Hooper when he shot him in the back.
Transcript at 773.
"A person engages in conduct `knowingly' if, when he engages in the conduct, he is aware of a high probability that he is doing so." I.C. § 35-41-2-2(b) (West, Westlaw current with all 2013 legislation). On the other hand, conduct is reckless if the actor engaged in said conduct "in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct." I.C. § 35-41-2-2(c).
After a thorough review of the record, we conclude that the trial court did not abuse its discretion when it found no serious evidentiary dispute regarding whether Lane knowingly or recklessly shot Hooper. The evidence presented at trial reveals that Lane shot Derrington and then Hooper (both unarmed) while exiting the car after a botched drug transaction. Lane shot Hooper in the back as Hooper sat in the front passenger seat with his hands up. The location of the wound on Hooper's body and the pathologist's description of the bullet's trajectory are consistent with Derrington's testimony of how and where Hooper was shot. After Derrington and Hooper were shot, Hurst returned fire and was then shot by Lane. The fact that Lane shot wildly in retreat once he was out of the vehicle and realized Hurst was firing back does not change the fact that he shot Hooper at close range in the back as he exited the car.
Further, although not dispositive, we observe that the theory of Lane's defense was that he was not present on the night in question. In fact, defense counsel indicated
We agree with the trial court that the facts presented at trial do not create a serious evidentiary dispute as to whether Lane killed Hooper knowingly or recklessly. In other words, there is not a serious evidentiary dispute that Lane shot Hooper with anything less than an awareness of a high probability that he was engaged in killing.
The cases cited by Lane are distinguishable from the instant case. In Turner v. State, the defendant fired shots from a second-floor balcony after being challenged to a fight by a crowd below and seeing someone throw a bottle at his vehicle. There was contradictory evidence presented as to whether Turner was shooting at individuals or whether he was simply firing in the air and toward the ground to scare the crowd away. Turner himself testified that his intent was only to scare them away and that he was not trying to hit anyone. In light of the defendant's testimony denying an intent to kill, our Supreme Court determined that a serious evidentiary dispute existed regarding his intent. Turner v. State, 751 N.E.2d 726. In the instant case, Lane did not testify or present other evidence of a contrary intent.
Young v. State, 699 N.E.2d 252, is similarly distinguishable. In that case, a crowd was outside a residence at dark watching two individuals wrestle, when a car went by with Young hanging out the passenger-side window with a gun. The car abruptly stopped and Young shouted several times to the crowd. He then told the driver to pull off as he fired two shots. One of the shots struck Korey Roney in the back of the head. Shortly thereafter, the car turned around and came back quickly. Everyone ran inside except Roney, who was on the ground. Young was seated on the passenger-side door with his arms extended over the car. He fired four more shots as the car passed. No one else was injured and several bullets struck a house immediately south of the house where Roney was shot.
Several of the witnesses at the scene testified that there had been no problems between Young and those in the front yard that night and some even indicated that he was a friend. No witness stated that Young appeared to be aiming his gun at any specific person, and one witness testified, "he was just shootin' ... dude was pullin' off, you know." Id. at 256. In determining that a serious evidentiary dispute existed as to whether Young knowingly or recklessly killed Roney, our Supreme Court noted the lack of evidence regarding motive or intent to target a certain person. Further, the Court stated:
Id. at 256-57 (citations omitted).
Contrary to Lane's assertion on appeal, the facts of the instant case are not on par with those in Young. Here, the evidence established a clear motive for the shooting. Further, unlike in Young, the eyewitness testimony does not indicate that Lane was firing wildly and not targeting Hooper when he shot him in the back. On the contrary, the evidence indicates that Lane shot Hooper at close range as Lane was exiting the car. Lane also shot the other two individuals who were with Hooper that night. Although Lane's shots apparently became dispersed after he shot Hooper, the evidence indicates this is because Hurst returned fire. On the specific facts of this case, a jury could not reasonably conclude that Lane acted recklessly but not knowingly when he fired the shot that killed Hooper. An instruction on reckless homicide was, therefore, not warranted.
Lane contends that certain evidence was admitted in violation of his right to confront witnesses against him. He claims the trial court erroneously determined that he had opened the door to this evidence during cross-examination of the lead detective, Brent Melton.
During trial, evidence was admitted indicating that Derrington had made four calls with his cellphone to 678-372-6455 at 6:51, 8:10, 8:13, and 8:18 on the night of the shooting. The State did not initially seek to introduce evidence linking this phone number to a particular person, and the trial court denied a jury question seeking this information.
On cross-examination, defense counsel asked Detective Melton about inconsistencies in the testimonies of the victims and the lack of physical evidence from the scene linking Lane to the crime. Counsel also reviewed with the witness the evidence police had against Lane including the identifications by both surviving victims and the contact phone number listed for "Little Mike" in Derrington's cellphone, with police tying both the nickname and the number (812-454-7192) to Lane. The cross-examination continued in part as follows:
Transcript at 629.
During a subsequent sidebar, the State argued that Lane had opened the door to hearsay evidence linking the 678-372-6455 number to Lane. The State claimed the door was opened when the defense asked Detective Melton if there was nothing else that tied Lane to the crime. In fact, police had learned during an interview with Obie Davis (Lane's cousin) that the 678 number was affiliated with Lane.
Following a brief recess, the trial court ruled in favor of the State as follows:
Id. at 643-44.
On re-direct examination, the State elicited the following testimony:
Id. at 645-46.
We initially determine whether the admission of this hearsay evidence violated the Confrontation Clause, which is embodied
To determine whether a statement such as this is testimonial, we look at the primary purpose of the conversation between police and the declarant. Id. If the circumstances indicate that the primary purpose of the conversation was to gather evidence of past events potentially relevant to later criminal prosecution, then the statements are testimonial and protected by the Confrontation Clause.
The State argues that the statement given by Davis during police questioning was not testimonial because its "original purpose" was not to create a record for trial but to "assist police in identifying the person who committed the crimes against Hooper, Derrington, and Hurst." Appellee's Brief at 24. We cannot agree. The record indicates that Lane was the primary suspect within an hour or two of the shooting and well before Detective Melton interviewed Davis. The purpose of the interview was to gather evidence and to locate Lane. Further, there was no ongoing emergency when Davis was formally questioned several days after the shooting. The statement was clearly testimonial.
Despite the nature of this hearsay statement, the trial court found it admissible because Lane had opened the door. As a matter of modern evidence law, the trial court may well have been correct in determining that Lane opened the door to admission of this evidence. See Kubsch v. State, 784 N.E.2d 905 (Ind.2003). We must be mindful, however, that we are faced with a constitutional challenge to the admission of Davis's testimonial statement rather than a challenge based on evidentiary rules.
Several other jurisdictions that have decided cases after Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), have applied the "open the door" rule in holding testimonial hearsay admissible where the defendant has opened the door to such evidence. See, e.g., United States v. Holmes, 620 F.3d 836 (8th Cir.2010); United States v. Lopez-Medina, 596 F.3d 716 (10th Cir.2010); People v. Rogers, ___ P.3d ___, 2012 WL 5457358 (Col.Ct.App.2012); State v. Birth, 37 Kan.App.2d 753, 158 P.3d 345 (2007). At least one jurisdiction has concluded otherwise:
United States v. Cromer, 389 F.3d 662, 679 (6th Cir.2004).
We agree with the majority of jurisdictions that have found that a defendant can open the door to the admission of evidence otherwise barred by the Confrontation Clause. This waiver of rights, however, is not as broadly applied as in non-constitutional contexts due to the presumption against the waiver of constitutional rights. See United States v. Holmes, 620 F.3d 836. We hold that for a waiver of the fundamental constitutional right of confrontation to be effective, such waiver must be "clear and intentional." Id. at 843 ("decision to waive ... must be done intentionally and for valid, tactical purposes"). See also United States v. Lopez-Medina, 596 F.3d at 731 ("[w]here, as here, defense counsel purposefully and explicitly opens the door on a particular (and otherwise inadmissible) line of questioning, such conduct operates as a limited waiver"). The standard is not met here, as there is no indication in the record that the alleged waiver was done intentionally. Accordingly, the trial court erred in concluding that Lane opened the door to admission of this testimonial statement.
Violations of the Confrontation Clause do not require reversal if the State can show beyond a reasonable doubt that the error was harmless and did not affect the verdict. Koenig v. State, 933 N.E.2d 1271 (Ind.2010). In other words, "an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." Id. at 1273. When considering whether a constitutional error was harmless, we may consider, among other things:
Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674, (1986)). If the State presented other overwhelming evidence of the defendant's guilt, then an erroneously admitted statement may be deemed harmless. See Rawley v. State, 724 N.E.2d 1087 (Ind.2000); Finney v. State, 786 N.E.2d 764 (Ind.Ct. App.2003).
We are confident that the brief testimonial hearsay evidence admitted through Detective Melton was harmless beyond a reasonable doubt. Although the evidence regarding the phone number tended to establish some link between Lane and the crime, this link had already been shown by other overwhelming evidence establishing that Lane came to the scene to transact a drug deal that ended badly. Derrington, who knew Lane prior to the shooting, identified Lane as the shooter while laying paralyzed at the scene, in a photo array at the hospital
In light of this overwhelming evidence placing Lane at the scene to complete a drug buy, the admission of additional evidence that, before the shooting, Derrington made calls to a phone number associated with Lane did not affect the verdict. The error was harmless beyond a reasonable doubt.
Judgment affirmed.
BAKER, J., and VAIDIK, J., concur.
Id. at 758 (quoting State v. Martin, 885 N.E.2d 18, 20 (Ind.Ct.App.2008)).
