VAIDIK, Chief Judge.
Daniel Jaffke was working as a pizza-delivery driver when he was shot to death and his black Jeep was stolen from an apartment complex on the south side of Indianapolis. Jaffke's Jeep was soon discovered in a laundromat parking lot located
Wilson now appeals his convictions and sentence, contending first that the trial court abused its discretion in preventing Wilson from cross-examining a witness on prior inconsistent statements he had made during a deposition. Specifically, Wilson argues that the witness's deposition testimony that he had been arrested once before when, in fact, he had been arrested four times should have been admitted under Indiana Evidence Rules 607, 616, and 608(b). We find that these rules do not support the admission of the witness's prior inconsistent statements. Wilson also contends that several statements made by another witness during her deposition—that she had heard someone say that he and Wilson had committed the offense; and had heard another person say that she had been asked to dispose of the weapon and had done so—should have been admitted as hearsay-exception "statements against penal interests" under Indiana Evidence Rule 804, but for the trial court's determination that Wilson had not shown those individuals were "unavailable" as required by that rule. We agree that Wilson did not make the requisite showing of unavailability and the hearsay statements were, therefore, inadmissible. Wilson additionally argues that the evidence is insufficient to sustain his convictions. Finally, Wilson challenges several aspects of his sentence. Finding no error, we affirm Wilson's convictions and sentence.
On the evening of January 31, 2014, Daniel Jaffke, who supplemented his income as a machinist by working as a pizza-delivery driver for Papa John's Pizza in Indianapolis, was shot and killed by a single gunshot wound to the chest. Jaffke had left Papa John's at 6:42 p.m. in his black Jeep Grand Cherokee to deliver two separate pizza orders to Capital Place Apartments, an apartment complex located on the south side of Indianapolis approximately five minutes away from Papa John's Pizza. He delivered the first order to Anthony Landrum. Approximately one-half hour later, as Landrum was carrying the now-empty pizza boxes to the dumpster, he saw Jaffke "on his knees and his elbows" in the apartment-complex parking lot, his Papa John's visor and empty pizza delivery bag on the ground nearby. Tr. p. 60. Landrum approached and asked Jaffke if he was alright, but Jaffke was unresponsive; Landrum then went back into his apartment to get his brother, who called 911. Jaffke was transported by ambulance to Eskenazi Hospital, where he was declared dead. An autopsy revealed that the single gunshot wound in the middle of his chest was from a .32 caliber "slug," which had remained inside the body. State's Ex. 13; Tr. p. 312-13.
Sometime between 8:00 and 8:15 p.m. that evening, Shawn Wilson arrived at the home of his stepmother, Betty Booher, who lived at 1609 South East Street with three other adults: William Sullivan, Barbara Cooper, and James Workman. Workman came out of his bedroom when he heard people talking, and he heard Wilson say that he had done "somethin' real bad"—that he had "just shot a man on the southside." Id. at 131. Wilson was crying and appeared "scared to death." Id. at 176, 167. Wilson went on to say "I got him with this right here" while patting his stomach or waistband area. Id. at 132-33, 156-57. Booher saw the butt of a handgun. Id. at 179. Wilson did not have a valid license to carry a handgun. See id. at 309-10 ("[The State]: ... Detective Vaughn, ... are you able to determine by checking records whether or not the Defendant has a license to carry a handgun? [Detective Vaughn]: Yes. [The State]: And does he have such a license? [Detective Vaughn]: No.").
Theresa McCool worked at a laundromat at 1601 South East Street, very near Booher's house. When McCool left the laundromat at 8:15 p.m. the night of Jaffke's murder, she saw a "dark color" Jeep parked near the laundromat. Id. at 188. The Jeep had not been there when she took the garbage out at 6:00 p.m. that evening. But it was still there when she came in for her shift at 7:50 a.m. the next morning. After hearing a news story giving a description of Jaffke's vehicle, McCool called the police to report the Jeep. The Indianapolis Metropolitan Police Department (IMPD) confiscated the Jeep and had it processed for fingerprints by a crime-scene specialist. Wilson's left thumbprint was found on an automobile-insurance identification card inside Jaffke's Jeep. Id. at 262; State's Ex. 86, 87.
On February 5, several days after hearing Wilson tell Booher that he had shot a man, Workman contacted IMPD and reported the incident, requesting that the police set up a meeting with all four of the adults living at Booher's house. On February 10, the police took each of their statements separately.
Shortly thereafter, a person identifying himself as Wilson called Detective Michael Condon, one of the IMPD detectives working on the case. Wilson, calling from telephone number 970-5xxx, asked Detective Condon why the police were looking for him, and the detective explained that "his name came up involved in a shooting and [the detective] asked him if [he] could meet him." Tr. p. 244. Wilson responded that "he would turn himself in the next morning." Id. But Wilson did not turn himself in the next day, and when Detective Condon tried calling Wilson at 970-5xxx, the call went straight to voicemail. Thereafter, the detective obtained a warrant to "go up on the phone," in order to use GPS tracking to track the location of Wilson's phone. Id. at 246. Tracking the phone in this manner led the police to a house on Byrkit Street, where Wilson eventually surrendered on February 13.
Wilson was charged with murder; felony murder; robbery as a Class A felony; and carrying a handgun without a license, a Class A misdemeanor enhanced to a Class C felony due to a prior conviction.
Before the jury trial, the trial court addressed the State's motion in limine, which requested that Wilson be instructed not to mention—among other things—"Any questions, testimony, or evidence of prior uncharged or charged criminal acts of any State's witness which is not admissible pursuant to Indiana Rule of Evidence 609." Appellant's App. p. 87. Wilson argued that he wished to cross-examine Workman on his deposition statements regarding his prior criminal history; in particular, Wilson alleged that Workman had stated he had only one prior arrest when, in fact, he had been arrested four times. Wilson aimed to show that Workman's testimony was not credible because "he lied ... in a sworn deposition and he's just as equally likely to lie under oath here in court." Tr. p. 10. The trial court granted the State's motion in limine on this issue, prohibiting Wilson from cross-examining Workman on the number of prior arrests but authorizing Wilson to make an offer of proof of this evidence.
Then, during the cross-examination of State's witness Lisa Davis, Wilson attempted to cross-examine Davis regarding statements that Amanda Ball and William "Tom Tom" Brown had made to Davis at the Cossack Club, a motorcycle clubhouse, a few days after the shooting. See id. at 279. As seen from the colloquy below, the State objected to this testimony as hearsay, and Wilson argued to the court that the testimony was admissible as statements against penal interests:
Id. at 279-89. Thereafter, in his offer of proof, Wilson stated as follows:
Id. at 289-90.
The jury found Wilson guilty on all counts. At the sentencing hearing, the trial court merged felony murder with murder, sentencing Wilson to fifty-five years, enhanced by five years for the use of a firearm. The trial court also reduced the Class A felony robbery conviction to a Class C felony and imposed a four-year sentence on that conviction. Finally, the trial court sentenced Wilson to one year for Class A misdemeanor carrying a handgun without a license. All three sentences were ordered to be served consecutively for an aggregate sentence of sixty-five years executed in the Indiana Department of Correction.
Wilson now appeals.
Wilson raises three issues on appeal. First, he contends that the trial court violated his Sixth Amendment rights and abused its discretion in its limitation of Wilson's cross-examination and presentation of evidence. Specifically, he argues that the trial court abused its discretion in (1) prohibiting Wilson from cross-examining Workman regarding his understatement during his deposition of the number
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 therefore disturb its 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. Even if the trial court's decision to admit or exclude evidence was an abuse of discretion, we will not reverse if the admission constituted harmless error. Leandrew Beasley v. State, 30 N.E.3d 56, 64 (Ind.Ct. App.2015). An error will be found harmless if its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties. Id. at 67. The Court of Appeals may affirm the trial court's ruling if it is sustainable on any legal basis in the record, even though it was not the reason enunciated by the trial court. Robey v. State, 7 N.E.3d 371, 379 (Ind.Ct.App.2014), trans. denied. We do not reweigh the evidence and consider the evidence most favorable to the trial court's ruling. Id.
Wilson contends first that the trial court abused its discretion and violated his Sixth Amendment right to cross-examine witnesses in refusing to allow him to cross-examine Workman regarding his deposition testimony, in particular his understatement as to the number of times he had been arrested. The right to cross-examine is "one of the fundamental rights of our criminal justice system." West v. State, 755 N.E.2d 173, 183 (Ind. 2001) (quoting Pigg v. State, 603 N.E.2d 154, 155 (Ind.1992)). However, "trial judges retain wide latitude ... to impose reasonable limits ... based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Id. at 183-84 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)).
At trial, Wilson did not cite any specific rule of evidence in support of his argument that he should have been permitted to cross-examine Workman on his deposition testimony. On appeal, Wilson admits that this evidence was not admissible under Indiana Evidence Rules 404(b) and 609, conceding that "extrinsic evidence of the acts for which [Workman] was arrested and not convicted would not be admissible." Appellant's Br. p. 15. Instead, Wilson appears to argue that the evidence was admissible under Indiana Evidence Rules 607, 616, and, primarily, 608(b). Rule 607 provides that "Any party... may attack the witness's credibility." And Rule 616 provides as follows: "Evidence that a witness has a bias, prejudice, or interest for or against any party may be used to attack the credibility of the witness." Neither of these rules of evidence
Wilson's argument that "Workman's lies about his criminal history during the deposition established his interest in minimizing his own culpability in this prosecution[,]" Appellant's Br. p. 14, is a nonstarter, as Workman has no culpability in this case. We also fail to see how Workman's inconsistencies as to the number of times he was arrested is somehow relevant evidence of "bias, prejudice, or interest ... against" Wilson.
Also inapposite is Rule 608(b), which provides as follows:
The first sentence of subsection (b) is clearly irrelevant as it deals only with criminal convictions, and here Workman's understatement as to his number of arrests but not convictions was at issue. The second sentence, however, is also irrelevant insofar as it states that the court may allow "specific instances of conduct" to be inquired into if they are probative of the character for truthfulness of another witness about whom the witness being cross-examined has testified. In other words, this rule would apply only if Wilson wanted to cross-examine Workman with regard to the character for truthfulness or untruthfulness of another witness—and Workman had already testified on direct examination about that witness's character for truthfulness. We find that the trial court did not abuse its discretion or violate Wilson's Sixth Amendment right to cross-examination in prohibiting Wilson from cross-examining Workman regarding his deposition testimony.
Wilson also argues that the trial court abused its discretion in prohibiting him from eliciting testimony from Lisa Davis regarding statements made by Amanda Ball and William "Tom Tom" Brown. In his offer to prove, Wilson stated that if allowed to continue questioning Davis regarding what she had heard Ball and Brown say, Davis would testify that she overheard Ball state that Brown asked her to dispose of the weapon used in this incident, that Ball did dispose of the weapon, and that Brown told Davis that both he and Wilson were involved in Jaffke's murder.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is inadmissible unless it falls under a hearsay exception. Ind. Evidence Rule 801; see also Teague v. State, 978 N.E.2d 1183, 1187 (Ind.Ct.App. 2012). Under Indiana Evidence Rule 804, hearsay testimony may be admissible as evidence at trial as an exception to the hearsay rule. Jackson v. State, 735 N.E.2d 1146, 1150 (Ind.2000). Rule 804 ("Exceptions to the Rule Against Hearsay — When the Declarant is Unavailable as a Witness") provides in relevant part as follows:
Ind. Evidence Rule 804 (emphases added); see also Jervis v. State, 679 N.E.2d 875, 878 (Ind.1997) (in which the Indiana Supreme Court "put judicial flesh on the bones of Rule 804(b)(3)"); James Beasley v. State, 29 N.E.3d 802, 811 (Ind.Ct.App. 2015) ("[T]he rationale for allowing statements against interest into evidence is that the declarant would only make such a statement if it were true because the content of the statement goes against the declarant's interests...."). 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. See Teague, 978 N.E.2d at 1187; 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 with an exception to the hearsay rule provided in these rules.").
First, we find the statement that Davis heard Ball say that Brown asked her to dispose of the weapon is a clear instance of double hearsay; as such, each layer of hearsay must qualify under an exception to the hearsay rule. While there is perhaps an argument to be made
We agree with the trial court that the other two statements—Brown's statement that both he and Wilson were both involved in Jaffke's murder and Ball's statement that she did dispose of the weapon—were also inadmissible hearsay because Wilson failed to make the requisite showing that declarants Brown and Ball were unavailable. A declarant is unavailable for purposes of this exception if the declarant is absent from trial and the party "has not been able, by process or other reasonable means, to procure[] the declarant's attendance." See Davis v. State, 13 N.E.3d 939, 946 (Ind.Ct.App. 2014) (quoting Evid. R. 804), trans. denied; see also Garner v. State, 777 N.E.2d 721, 724 (Ind.2002) ("Even if there is only a remote possibility that an affirmative measure might produce the declarant at trial, the good faith may demand effectuation. Reasonableness is the test that limits the extent of alternatives the State must exhaust."). Wilson admitted at trial that he had not listed Brown or Ball as potential witnesses, and that he had not subpoenaed them, or made any effort whatsoever to summon them to trial to testify in person. He cannot, therefore, rely on Rule 804's "statement against interest" hearsay exception, which requires the statement's proponent to prove unavailability of the declarant. See Evid. R. 804.
But Wilson contends that "[e]ven if the requirements of Evid[ence] R[ule] 804 were not met, the exclusion of such evidence was reversible error." Appellant's Br. p. 18. This is so, Wilson continues, because defendants have a right—rooted "directly in the Due Process Clause of the Fourteenth Amendment and the Compulsory Process and Confrontation Clauses of the Sixth Amendment[]"—to present evidence tending to show that someone else committed the charged crime, and "[i]n essence, the evidence of the statements of Ball and Brown constituted evidence [th]at a third party—Brown—had committed the offense, not Wilson." Id. at 19 (citing Joyner v. State, 678 N.E.2d 386, 390 (Ind.1997), reh'g denied). We disagree with Wilson's interpretation of the import of the excluded statements, particularly the notion that the statements in some way exonerate Wilson. Whether Ball disposed of the weapon is simply irrelevant and says nothing about Wilson's culpability. But Brown's statement that "he and [Wilson] had done it" would appear to implicate—rather than exonerate—Wilson. And in any event, that statement was basically cumulative of testimony that was in fact before the jury: earlier in the cross-examination of Davis, when discussing what Davis heard at the Cossack Club, the following colloquy occurred:
Tr. p. 279-80. In light of the above, we find that the trial court did not abuse its discretion in excluding the hearsay statements
Next, Wilson contends that the evidence is insufficient to support his convictions. Specifically, Wilson argues that the State "failed to prove [he] knowingly killed Jaffke or that he knowingly engaged in a Robbery during which [Jaffke] was shot. The State also failed to establish Wilson was carrying a handgun that night." Appellant's Br. p. 21.
Our standard of reviewing claims of sufficiency of the evidence is well settled. When reviewing the sufficiency of the evidence, we consider only the probative evidence and reasonable inferences supporting the verdict. Boggs v. State, 928 N.E.2d 855, 864 (Ind.Ct.App.2010), trans. denied. We do not reweigh the evidence or assess witness credibility. Id. We consider conflicting evidence most favorably to the trial court's ruling. Id. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id. It is not necessary that the evidence overcome every reasonable hypothesis of innocence. Id. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. Id. A conviction may be based upon circumstantial evidence alone. Id.
In order to convict Wilson of murder, a felony, the State was required to prove beyond a reasonable doubt that Wilson knowingly or intentionally killed Jaffke. Ind.Code Ann. § 35-42-1-1 (West 2012). As to Wilson's robbery conviction, at the time these offenses were committed, Indiana Code section 35-42-5-1 provided as follows:
Ind.Code Ann. § 35-42-5-1 (West 2012).
Here, the evidence shows that Jaffke left Papa John's in his black Jeep with two pizza delivery orders at 6:42 p.m. Jaffke delivered the first order before he was shot and his Jeep was stolen; approximately one-half hour after that delivery, the recipient of this order found Jaffke unresponsive in the apartment-complex parking lot. At around 6:45 p.m. that same evening, Continental Court resident Penrod had heard a male voice through her open window saying, "[O]h God, oh God no" in a "begging and desperate tone." Tr. p. 68. Penrod then heard a single gunshot and a vehicle door close. When she looked out her window, she saw the taillights of the vehicle exiting the apartment complex. Police dispatch received a 911 call saying that there was a black Jeep with a Papa John's sign on it speeding westbound on Epler Avenue crossing Bluff Road.
Around 8:00 p.m., Wilson arrived at his stepmother's house and announced that he had done "somethin' real bad"— that he "just shot a man on the southside."
Finally, in order to prove that Wilson was carrying a handgun without a license as a Class A misdemeanor, the State was required to prove that Wilson carried a handgun in a vehicle or on or about his body without being licensed to do so. See Ind.Code Ann. § 35-47-2-1 (West 2012). Once the State demonstrates that a defendant had possession of a handgun on his body or in a vehicle, it then becomes the defendant's burden to demonstrate that he had a valid license to carry the handgun. See Armstrong v. State, 742 N.E.2d 972, 977 (Ind.Ct.App.2001). Here, the evidence shows that when Wilson went to his stepmother's house the evening of the murder, he said, "I got him with this right here" while patting his stomach or waistband area. Tr. p. 132-33, 156-57. The butt of a handgun could be seen in his waistband. Id. at 179. Detective James Vaughn testified that Wilson did not have a valid license to carry a handgun. See id. at 309. Wilson made no evidentiary showing that he did have a valid license to carry a handgun. We therefore find the evidence is sufficient to support Wilson's conviction for Class A misdemeanor carrying a handgun without a license.
Finally, Wilson contends that the trial court issued defective sentencing orders. In particular, Wilson contends that the trial court erred by failing to vacate the conviction for felony murder, which it "merged" into the murder conviction. Moreover, he argues, the trial court's oral and written sentencing orders conflict as to whether the robbery conviction was a Class A or Class C felony and there is ambiguity as to whether the "use of a firearm" was merged into or was used as a sentencing enhancement of the murder conviction.
Wilson argues first that the trial court improperly merged felony murder into murder, rather than vacating felony murder, and that this resulted in a double-jeopardy violation. Our Supreme Court has addressed the issue of merger as follows:
Green v. State, 856 N.E.2d 703, 704 (Ind. 2006) (internal citations and quotations omitted).
Although the jury found Wilson guilty of murder and felony murder, the Abstract of Judgment and the written Sentencing Order clearly show that the trial court did not enter judgment of conviction for felony murder. See Appellant's App. p. 16-19 (Abstract of Judgment and Sentencing Order). Because the felony-murder count was merged, rather than reduced to judgment, and Wilson was never sentenced for felony murder, we find no double-jeopardy violation. There is, therefore, no need for the trial court to vacate the felony-murder count in this case.
Last, Wilson argues that there is a conflict between the oral and written sentencing orders as to whether Wilson's robbery conviction was a Class A or a Class C felony, and whether the "use of a firearm" enhancement was sentenced separately or as an enhancement to the murder conviction. As to the robbery conviction, the following exchange occurred at the sentencing hearing:
Tr. p. 374. The written Sentencing Order clearly shows that the jury found Wilson guilty of robbery as a Class A felony, but the trial court sentenced him on robbery as a lesser-included Class C felony. Indeed this information appears in two different sections of the Sentencing Order: first in the "confinement comments" and then again in the "additional sentencing information" box at the end of the order. See Appellant's App. p. 18-19 (Sentencing Order). Therefore, we find no issue as to the robbery count.
Wilson also contends that there is ambiguity as to whether the "use of a firearm" was merged into or was an enhancement to the murder conviction. And the State acknowledges that "it appears that there is a scrivener's error on the top of the sentencing order" because in "Part I, Charges" on the Order, the Disposition column corresponding to "Count IV, USE OF A FIREARM/SE" reads "Conviction Merged." See Appellee's Br. p. 28; Appellant's App. p. 18. But in Part II of the order, the "Confinement Comments" column next to Count I, murder, reads as follows: "55 years + 5 years use of fire arm enhancement." Appellant's App. p. 18. And in Part IV of the same order, under "Additional Sentencing Information," the following information appears: "[C]ount I: 55 enhanced by 5 years department of correction by sentencing enhancement use of a firearm[.]" Id. at 19.
The Abstract of Judgment clearly reads that Wilson is sentenced to sixty years on Count I, murder; in a separate section of Part II, below the three listed counts on which Wilson was sentenced, is a box that reads "Firearm used in commission of offense sentencing enhancement.
Affirmed.
MAY, J., and MATHIAS, J., concur.
