Following a jury trial, Michael L. Yates was convicted of Aiding, Inducing, or Causing Murder,
We affirm.
On April 4, 2008, Yates (a/k/a "Fool" or "Foolish") and Launden "L-Stone" Luckett attempted to rob Keith "Evil" Taylor at Taylor's apartment in the Gateway Gardens housing complex in Kokomo.
Around 1:30 a.m. on April 5, 2008, Mark "PeeWee" Matthews called his friend, nineteen-year-old Abby Rethlake, and asked her to come pick him up. Abby agreed, and she and her friend, Morgan Vetter, drove in Abby's white, two-door Monte Carlo and picked up Matthews at Scotty's (another bar in Kokomo) and then took him to Little Daddy's. There, Matthews met up with his friends Keith Taylor and Tyrell "Stacks" Taylor.
Inside Little Daddy's tension between Matthews and his friends (the Taylor brothers) and Yates and his group of friends was high because it had become known that Luckett had been involved with the attempted robbery of Keith Taylor earlier that day (i.e., on the 4th). The rumor was that Matthews and the Taylor brothers were going to retaliate for the attempted robbery with a drive-by shooting targeting Yates and his friends at the intersection of Taylor and Purdum streets. Yates, Luckett, and Harris decided to kill Matthews and the Taylor brothers before Matthews and the Taylor brothers could take action against them.
At the 3:00 a.m. closing time, Yates, Luckett, Harris, and Allen left Little Daddy's and got into a four-door Mazda 6 that Allen had rented that day. Allen got into the driver's seat, Yates got in the front passenger seat, and Luckett and Harris got in the back seat of the car. When Allen started the car and turned on the vehicle's lights, Yates told her to "hold up" because they wanted to wait for Matthews and the Taylor brothers to leave the club so they could follow them. Id. at 925. Eventually, Matthews and the Taylor brothers exited the club and got into the back seat of Abby's vehicle as she had agreed to take all three of them home. Abby drove and Morgan was seated in the front passenger seat.
Yates told Allen to follow the white Monte Carlo. Allen became uncomfortable as they drove through town, but no one would tell her what was going on. At the intersection of Ohio and Jefferson Streets, Allen pulled over, got out of the car, and started walking to her friend's house where her daughter was staying. Yates got into the driver's seat and Harris moved up to the front passenger seat while Luckett remained in the back seat of the Mazda. In the time it took for Yates and Harris to change seats, they had lost sight of the Monte Carlo. The three men started driving around in search of the vehicle. A few minutes later, they spotted the Monte Carlo as the Taylor brothers were walking up to a house near the intersection of Monroe and Purdum streets. Yates, Harris, and Luckett decided that the distance between the two vehicles was too far to shoot at them. Luckett noted that Matthews was still in the back seat of the Monte Carlo, so they decided to continue with their plan to kill Matthews. When Yates and/or Luckett asked about the fate of the two girls in the Monte Carlo, Harris said that they needed to kill them as well because they would be witnesses. The plan thus became to follow the Monte Carlo and kill all three occupants, those being Matthews, Abby, and Morgan.
After dropping off the Taylor brothers, Abby drove to the Meadowlawn Apartments where Matthews lived, but she drove past the entrance into the adjacent parking lot. As Abby continued ahead to turn around, Yates pulled into the parking lot and waited for the Monte Carlo to return. Abby was attempting to correct her position in a parking spot when Yates pulled behind her car and blocked her car in. Luckett put on a black ski mask, jumped out of the Mazda, and approached the passenger window of the Monte Carlo. Morgan saw Luckett approaching and could see that there were two other men in the car that had blocked them in. Morgan screamed as she rolled up her window and yelled at Abby to go. Luckett opened fire with his .45 caliber handgun, shooting a total of eleven to twelve shots through the passenger window. Harris stood up out of the Mazda and began shooting his .40 caliber handgun into the rear of the Monte Carlo until his handgun was empty. Yates remained in the driver's seat. When the shooting began, Matthews dove to the floor of the car while Abby and Morgan ducked down. When Luckett and Harris were done shooting, the screaming had stopped. Believing he had shot and killed everyone in the car, Luckett returned to the Mazda and jumped in the back seat as Yates quickly drove away. The passenger side of the Mazda struck the back of the Monte Carlo, causing damage to both vehicles.
Matthews, who was wounded on his face and leg, was able to crawl from the Monte Carlo and yell for help. Morgan, who was shot in the chest, abdomen, and leg, regained consciousness and stumbled from the car, crying for help. Some of Morgan's injuries were deemed life threatening and she spent over a week in the hospital. Abby sustained several gunshot wounds, the primary two of which entered her back. One of the bullets entered Abby's mid-back, perforated her lung, struck her collarbone, fractured her jaw, and entered her brain. Abby was revived at the local hospital and transported to Methodist Hospital in Indianapolis where she died.
After the shooting, Yates dropped Luckett off at the Gateway Gardens housing complex and then he met up with Allen at Allen's friend's house where Allen was getting her daughter ready to go home. Yates did not have the Mazda, so Allen, her daughter, and Yates got a ride to Allen's home. The following day Allen rented another vehicle so she could go to work. Yates, Luckett, and Harris went to Chicago to dispose of their handguns. Arrangements were also made for the damage to the Mazda to be repaired before it was returned to the rental company.
On November 4, 2009, Yates was charged by grand jury indictment with Count I, aiding, inducing, or causing murder, a felony; Count II, conspiracy to commit murder, a class A felony; Count III, aiding, inducing, or causing attempted murder, a class A felony; Count IV, aggravated battery, a class B felony; and Count V, aiding, inducing, or causing attempted murder, a class A felony. An initial hearing was held on November 20, 2009, at which time Yates was appointed a public defender and an omnibus date was set for January 22, 2010. On December 7, 2009, Yates filed a motion for change of venue, which was denied following a hearing. On July 21, 2010, the State filed an amended information for Count II and Count IV.
On July 23, 2010, the trial court received a letter from Yates citing issues between him and his trial counsel and requesting a continuance of his jury trial so he could gather additional evidence. Three days later, on July 26, 2010, Yates's appointed counsel filed a motion in limine, a motion to suppress, and a motion for continuance based upon the State's late amendment to the charging informations. That same day, the trial court received another letter from Yates in which he indicated that he planned to hire private counsel. On July 28, 2010, the trial court held a hearing on all pending motions and ultimately denied Yates's motions for continuance,
On July 29, 2010, the day before trial, Yates's appointed counsel filed a motion for change of venue. That same day, the trial court received a letter by fax from attorney Caroline Briggs regarding Yates's intention to hire her as private counsel. Attorney Briggs explained that she was out of the country, but would review Yates's case when she returned. Because Attorney Briggs was out of the country, Yates made an oral motion for continuance on the morning of trial. On the first morning of the trial, prior to the start of the trial, the trial court held a hearing on Yates's motion to suppress, motion for change of venue filed by Yates's appointed attorney, and Yates's oral motion for continuance, all of which the trial court ultimately denied.
A jury trial commenced on July 30, 2010. During voir dire, Yates objected to the State's use of cartoons to illustrate certain legal concepts, which objection was overruled. The evidentiary portion of the trial began on August 2, 2010. On the second day evidence was presented, i.e., August 3, 2010, the trial resumed and the jury was moved to a remote location where Abby's Monte Carlo was kept and where evidence was presented. At the conclusion of the evidence, the jury returned guilty verdicts on all counts.
The trial court held a sentencing hearing on September 1, 2010. The trial court merged Count II with Count III and vacated Count IV. The trial court then sentenced Yates to sixty-five years on Count I, fifty years on Count III, and fifty years on Count V. Each sentence was ordered served consecutively for a total aggregate sentence of one hundred sixty-five years.
On appeal Yates contends that the trial court abused its discretion when it denied his request for a continuance of his jury trial so he could retain private counsel. Yates orally made his request on this basis on the morning of trial. It is well-established that the determination of whether to grant a defendant's request for a continuance for the purpose of hiring private counsel immediately before trial is a matter within the sound discretion of the trial court. Washington v. State, 902 N.E.2d 280 (Ind. Ct. App. 2009), trans. denied. The decision of the trial court will be reversed only for an abuse of that discretion. Id. An abuse of discretion occurs only where the decision is clearly against the logic and effect of the facts and circumstances. Id. We will not conclude that the trial court abused its discretion unless the defendant can demonstrate prejudice as a result of the trial court's denial of the motion for a continuance. Id. We further note that "'[m]otions for continuance to hire a new lawyer made on the morning of trial are particularly disfavored because granting them causes substantial loss of time for jurors, witnesses, lawyers, and the court.'" Gilliam v. State, 650 N.E.2d 45, 51 (quoting Roberts v. State, 500 N.E.2d 197, 199 (Ind. 1986), trans. denied.
One week before his scheduled jury trial, Yates sent a letter to the trial court citing issues he was having with his appointed counsel, but did not indicate his desire to hire new counsel. In his letter, Yates stated that he would not allow his appointed attorney to continue to represent him unless his appointed attorney requested a continuance so he could obtain additional evidence. Three days later, Yates's appointed counsel continued to act on his behalf and likewise filed a motion for continuance asserting prejudice from the amendment of the charging information as the basis therefore. The trial court denied the request for a continuance. It was not until the morning of trial that Yates made his oral request to the court for a continuance of the trial so he could retain private counsel.
We agree with the trial court's assessment of the circumstances. In denying Yates's request, the court noted that it was the morning of trial, that there were approximately 120 potential jurors waiting, and that arrangements had already been made to transport the jury to the remote courtroom. The court further noted that the case had been pending since November 4, 2009, and that the jury trial date had been set since February 4, 2010. Further, the court refused to grant a continuance on speculation that Yates would retain private counsel, noting that the attorney who Yates contacted indicated only that she would review the case when she returned from her trip out of the country. Based on the foregoing, we cannot say that the trial court abused its discretion in denying Yates's morning-of-trial request for a continuance. See Lewis v. State, 730 N.E.2d 686 (Ind. 2000); Washington v. State, 902 N.E.2d 280.
Yates contends that the trial court erred in the manner in which it conducted the jury's off-site view of the Monte Carlo. On the second day of the State's case-in-chief, the courtroom equipment and personnel, the parties, and the jury were transported to a remote place where the Monte Carlo was located. The Monte Carlo was not in the same condition as the night of the shooting because it had been modified with rods showing the trajectory of the bullets. While at the remote location, the jury received testimonial evidence from Officer Sean Kinney about the trajectory of the bullets that struck the vehicle. The Monte Carlo was admitted into evidence without objection from Yates. The court then recessed and reconvened back in the regular courtroom, where the trial continued. At no time did Yates object to the procedure used for the off-site viewing of the Monte Carlo and the testimony related thereto.
Yates's argument on appeal is based upon his mischaracterization of the procedure used here as a jury view pursuant to Ind. Code Ann. § 35-37-2-5 (West, Westlaw current through 2011 Pub. Laws approved & effective through 6/28/2011). That statute provides:
A jury's view of a place is not intended as evidence, but is simply to aid the jury in understanding the evidence. Johnson v. State, 472 N.E.2d 892 (Ind. 1985). By its own terms, the statute refers to the procedure to be used when a jury views a "place." Here, the jury was not taken to view a place, but rather the entire trial, including court equipment, personnel, and the parties, was relocated to a remote location for the purpose of receiving actual evidence too big to be presented in the regular courtroom. I.C. § 35-37-2-5, therefore, does not dictate the procedure to be followed.
We likewise reject Yates's analogy to receiving evidence by close circuit television pursuant to the protected person statute. See Ind. Code Ann. § 35-37-4-8 (West, Westlaw current through 2011 Pub. Laws approved & effective through 6/28/2011). Here, the judge, all parties, including Yates, and the jury were present during Officer Kinney's testimony, albeit that the testimony was presented at a remote location.
The situation presented is one relating to the manner in which the trial court accommodated the admission of an oversized item of evidence, i.e., the car Abby was driving on the night in question. The trial court did so by moving the entire trial to a remote courtroom that allowed for the admission of the car under normal trial circumstances. The courtroom equipment was transported to the remote location and the setup at the remote location was similar to a regular courtroom setup. The judge, courtroom personnel, the parties (including Yates), and the jury were all present at the remote location where the evidence was admitted and testimony was given as if in a regular courtroom.
As noted above, Yates failed to object to the procedure used, the testimony given, or the admission into evidence of the Monte Carlo. Failure to object at trial normally results in waiver. Konopasek v. State, 946 N.E.2d 23 (Ind. 2011). To avoid waiver, Yates must show that the error was fundamental. See id. "The `fundamental error' exception is extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process." Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). In other words, fundamental error is defined as an error so prejudicial to the rights of a defendant that a fair trial is rendered impossible. Mathews v. State, 849 N.E.2d 578.
Yates cannot establish error, let alone fundamental error in the manner in which the trial court arranged for the admission of the oversized evidence. A trial court must be given wide latitude to run the courtroom and maintain discipline and control of the trial. Morgan v. State, 934 N.E.2d 1246 (Ind. Ct. App. 2010). Furthermore, "'[a] trial judge has the responsibility to direct the trial in a manner that facilitates the ascertainment of truth, ensures fairness, and obtains economy of time and effort commensurate with the rights of society and the criminal defendant.'" Lindsey v. State, 877 N.E.2d 190, 195 (Ind. Ct. App. 2007) (quoting Fosha v. State, 747 N.E.2d 549, 553-54 (Ind. 2001)) (discussing discovery issues), trans. denied.
Here, the trial court was meticulous in taking precautions so as not to taint the jury. For instance, the trial court took precautions by, among other things, considering timing and transportation of the defendant and the jury to and from the remote location so they would not cross paths. The remote location was set up in the same manner as a regular courtroom. Further, we find that allowing the jury to view the car with the dowel rods indicating bullet trajectory did not serve to "inflame the passions of the jurors" as Yates claims. Appellant's Brief at 9. Yates has failed to establish error, let alone fundamental error, in the procedure employed by the trial court to accommodate the admission of oversized evidence.
Yates argues that the prosecutor engaged in misconduct during voir dire and during rebuttal closing arguments. In reviewing a claim of prosecutorial misconduct, we determine whether the prosecutor engaged in misconduct, and if so, whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he should not have been subjected. Cooper v. State, 854 N.E.2d 831 (Ind. 2006). The gravity of peril turns on the probable persuasive effect of the misconduct on the jury's decision rather than the degree of impropriety of the conduct. Id. Absent clear error and resulting prejudice, a trial court's determination of violations and sanctions will be affirmed. Overstreet v. State, 783 N.E.2d 1140 (Ind. 2003). See also Donnegan v. State, 809 N.E.2d 966, 972 (Ind. Ct. App. 2004) ("[w]e accord great deference to the trial court's decision, as it is in the best position to gauge the circumstances and the probable impact on the jury"), trans. denied.
To preserve a claim of prosecutorial misconduct, a defendant must object and request an appropriate remedy, such as an admonishment. Delarosa v. State, 938 N.E.2d 690 (Ind. 2010). If the defendant is not satisfied with the admonishment, the defendant must request a new trial. Id. Failure to comply waives the claim of prosecutorial misconduct. Id. To avoid waiver, a defendant must establish that the conduct of the prosecutor rose to the level of fundamental error. Etienne v. State, 716 N.E.2d 457 (Ind. 1999). Fundamental error is an extremely narrow exception to the general rule that the failure to properly preserve a claim results in waiver. Sobolewski v. State, 889 N.E.2d 849 (Ind. Ct. App. 2008), trans. denied. Under the fundamental error standard, we will not reverse an instance of prosecutorial misconduct unless we are convinced that the error made a fair trial impossible or constituted a blatant violation of basic and elementary principles of due process. Id.
Yates's first claim of prosecutorial misconduct stems from the prosecutor's use of cartoons during voir dire. We begin by noting that a trial court has broad discretionary power to regulate the form and substance of voir dire. Von Almen v. State, 496 N.E.2d 55 (Ind. 1986). But the function of voir dire examination is not to educate jurors. Rather, it is to ascertain whether jurors can render a fair and impartial verdict in accordance with the law and the evidence. Id. Jurors are to be examined to eliminate bias but not to condition them to be receptive to the questioner's position. Questions that seek to shape a favorable jury by deliberate exposure to the substantive issues in the case are therefore improper. Id. Indeed, our Supreme Court has found it "repugnant to the cause of justice" to use voir dire to "cultivate[] and condition[], both consciously and unconsciously, [prospective jurors] to be more receptive to the cause of the examiner." Robinson v. State, 260 Ind. 517, 520-21, 297 N.E.2d 409, 411-12 (1973). See also Perryman v. State, 830 N.E.2d 1005 (Ind. Ct. App. 2005).
During voir dire and over Yates's objection, the prosecutor used cartoons to illustrate key legal concepts at issue in the case: accomplice liability and the agreement necessary for conspiracy. In one cartoon (State's Exhibit 1-B), illustrating accomplice liability, three men are depicted burglarizing a house. Two of the men are exiting the house, while the third is waiting in the getaway car. In a second cartoon (State's Exhibit 1-C), Peyton Manning is depicted calling out plays to the offensive line. This cartoon was used by the prosecutor to illustrate an agreement for purposes of establishing a conspiracy.
Waiver notwithstanding, we note that the prosecutor explained the legal concepts of accomplice liability and what it takes to establish an agreement for purposes of conspiracy. The prosecutor briefly referred to cartoons in making sure the potential jurors understood these concepts. Aside from the prosecutor's explanation of the legal concepts at issue, there seems to have been little, if any, additional value provided by the visual aids the State used in this case to illustrate those legal concepts. To be sure, it does not appear from the record that the potential jurors did not understand the legal concepts when those concepts were explained by the prosecutor. No juror expressed confusion about the concepts or indicated that they did not understand when explicitly asked. Having reviewed the record, we cannot say that the prosecutor improperly indoctrinated the potential jurors by briefly directing the jury to consider the cartoons so as to gauge potential jurors' understanding of accomplice liability and conspiracy. Although of dubious utility, the prosecutor's use of cartoons as visual aids depicting certain legal concepts did not rise to the level of fundamental error.
Yates also argues the prosecutor engaged in misconduct during rebuttal closing arguments when the prosecutor stated:
Transcript at 1133. Yates maintains that the prosecutor's comment in this regard heightened the role of the prosecutor while implicitly undermining the role of defense counsel. Yates also argues that the prosecutor's statement essentially asked the jury to find Yates guilty on something other than the evidence, i.e., "[t]he Prosecutor asked [the jury] to determine guilt based upon prejudice toward Chicago as a murder haven and their own individual desires to protect their community from such behavior." Appellant's Brief at 13.
Yates did not object to the prosecutor's statement during closing argument. Yates has therefore waived review of his allegation that the prosecutor committed misconduct during rebuttal closing argument by failing to object and request an appropriate remedy.
Yates argues that the trial court erred in admitting into evidence statements made by Yates during a suppression hearing. The admission of evidence is within the sound discretion of the trial court whose decision thereon will not be reversed absent a showing of manifest abuse of discretion resulting in the denial of a fair trial. Johnson v. State, 831 N.E.2d 163 (Ind. Ct. App. 2005). A decision is an abuse of discretion if it is clearly against the logic and effect of the facts and circumstances before the court. Id. We consider the evidence in favor of the trial court's ruling and any unrefuted evidence in the defendant's favor. Id
Here, Yates filed a motion to suppress prior to trial seeking to exercise his constitutional rights and have statements he made to law enforcement personnel suppressed. Following a hearing at which Yates testified, the trial court denied Yates's motion to suppress. At trial, the State admitted into evidence a video that showed both the inside and outside of Little Daddy's on the morning of the offenses. On direct examination, Detective Banush testified about what could be seen on the video and specifically identified Yates inside Little Daddy's and then again as one of the four individuals seen in the parking lot of Little Daddy's getting into Allen's vehicle. On cross-examination, Yates questioned Detective Banush about the poor quality of the video taken from Little Daddy's and about how he identified Yates as one of the individuals who got into Allen's car. Detective Banush testified that he could see Allen on the video, but admitted that he could not identify the others. Detective Banush explained that Allen had told him Yates got into her vehicle. Outside of the presence of the jury, the State sought permission to introduce into evidence during its redirect of Detective Banush Yates's statement during the suppression hearing in which he admitted getting into Allen's vehicle. The State argued that Yates opened the door for admission of his prior statement by leaving the jury with the impression that Detective Banush could not himself identify Yates as one of the individuals that got into Allen's car. The trial court permitted the State to elicit such testimony from Detective Banush.
As a general rule a defendant's pre-trial testimony can be used against him at trial. Thomas v. State, 734 N.E.2d 572 (Ind. 2000) (citing Johnston v. State, 517 N.E.2d 397 (Ind. 1988)). Exceptions to this general rule, however, have been established when a defendant raises questions involving his rights in pre-trial matters. Id. For example, testimony at a hearing on a motion to suppress is not admissible at trial as evidence of the defendant's guilt. Id. (citing Livingston v. State, 542 N.E.2d 192 (Ind. 1989)). A claim of error in the admission or exclusion of evidence will not prevail, however, "unless a substantial right of the party is affected." Ind. Evidence Rule 103(a). Whether an appellant's substantial rights are affected is determined by examining the "probable impact of that evidence upon the jury." Pruitt v. State, 834 N.E.2d 90, 117 (Ind. 2005).
Even if we assume, without deciding, that it was error to admit the statement Yates made during the suppression hearing, we conclude that Yates is not entitled to reversal because he has failed to establish that he was prejudiced. Several witnesses identified Yates as getting into Allen's vehicle with Allen, Luckett, and Harris. Luckett identified Yates on the video and testified that Yates got into Allen's vehicle in the parking lot of the strip club and that Yates assumed the driver's seat when Allen got out a few minutes later. Allen also identified Yates on the video from Little Daddy's and testified that he got into the car with her. Because the admission of Yates's statement from the suppression hearing was cumulative of other evidence before the jury, any error was harmless.
Yates argues that his aggregate sentence of one hundred sixty-five years is inappropriate.
As to the nature of the offense, Yates contends that we should take into account the fact that he considers his role in the crime, i.e., as the driver of the car, to be the least culpable. As did the trial court, we reject Yates's effort to downplay his participation in the crimes as being "not directly responsible" for Abby's death and Morgan's serious injuries. Appellant's Brief at 16. The evidence showed that it was Yates and Luckett's attempted armed robbery earlier in the day on the 4th that set in motion the chain of events in the early morning hours of April 5. Yates, Luckett, and Harris decided to kill Matthews and the Taylor brothers. While following Abby's Monte Carlo, the plan changed to kill Abby and Morgan as well because they would be witnesses. Yates followed Abby's car to the Meadowlawn apartments and used the car he was driving to block Abby's car so she could not drive away. As the trial court noted, Yates could have abandoned the plan and stopped following the car, putting an end to the events of the evening, but he did not.
Once in position, Luckett put on his ski mask and jumped out of the back seat of the car, quickly approached the passenger side of Abby's vehicle and began shooting. Harris got out of the front passenger seat and began shooting through the back of Abby's car. Luckett believed that all three (he, along with Yates and Harris) would be shooting their weapons at the occupants in the car per their agreement to kill all three individuals. As soon as the shooting was over, Harris and Luckett got back into the car and Yates quickly drove away from the scene. The following day Yates was actively involved in concealing his participation by making arrangements to have the car he was driving repaired and by traveling to Chicago to help dispose of the guns used in the shooting. The evidence clearly demonstrates that Yates was part of the planning and that he played a pivotal and instrumental role in these offenses. The nature of the offenses, in which Yates played a critical role in bringing about the death of an innocent young girl and serious injuries to another, warranted the maximum sentences.
With regard to the character of the offender, this court has twice before found Yates to be of "undeniably poor character".
Having considered the nature of the offense and the character of the offender, we conclude that Yates's one-hundred-sixty-five year sentence for murdering Abby Rethlake, attempting to murder Morgan Vetter, and attempting to murder Matthews is not inappropriate.
Judgment affirmed.
BAILEY, J., and BROWN, J., concur.
