[Copyrighted Material Omitted]
APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Lisa F. Borges, Judge. Cause No. 49G04-1211-MR-80840.
ATTORNEY FOR APPELLANT: MICHAEL R. FISHER, Marion County Public Defender Agency, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; RYAN D. JOHANNINGSMEIER, Deputy Attorney General, Indianapolis, Indiana.
BROWN, Judge. BARNES, J., and BRADFORD, J., concur.
Nathaniel Armstrong appeals his criminal gang enhancement and his sentence for murder, attempted murder, and kidnapping as a class A felony. Armstrong raises four issues which we revise and restate as:
I. Whether Ind. Code § 35-50-2-15, the criminal gang enhancement statute, is unconstitutionally vague, and whether the enhancement is disproportionate to the offense;
II. Whether the trial court abused its discretion in admitting testimony to support the criminal gang enhancement;
III. Whether the evidence was sufficient to support the criminal gang enhancement; and
IV. Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender.
FACTS AND PROCEDURAL HISTORY
On November 15, 2012, Dominique Hamler, a local rapper who was also known as Scooter, was at his father's house having his hair braided by Alonda Wilson. Armstrong, James McDuffy, and another individual arrived and were " talking about they was going to go get whoever did something to somebody." Transcript at 308. Wilson told them that " they didn't need to do whatever they was going to do." Id. Armstrong and Hamler had a discussion about one of their friends that had been murdered. All of the men were armed and left together in a vehicle.
That same day, Thomas Keys, also known as DJ Keys, called his cousin, Marvin Finney, II, and told him that he had a project for them to work on and that someone had called him and said they wanted him to do a " tribute-type mixed tape" for a rapper named Bango, also known as Brandon McMitchell, who was killed two days earlier. Id. at 107. Around 5:00 p.m., Finney and Keys entered a studio at 46th Street and Evanston in Indianapolis.
Finney saw a person he knew as D Rob from videos on Youtube, who was later identified as Dontee Robinson. McDuffy was also present, and McDuffy and Robinson spoke with Keys about McMitchell's death. McDuffy asked Keys: " What do you know about who killed Bango?" Id. at 123. Robinson then said: " I think you know something. You need to tell us who killed Bango." Id.
At some point, McDuffy asked Finney who he was texting and asked to see his phone. Finney showed McDuffy his phone and told him it was just his lady friend. At some point, McDuffy pulled a gun out and set it on his lap to let Finney and Keys know that he had a gun. Robinson " kind of showed that he had a gun, too" and displayed a rifle. Id. at 131.
McDuffy asked, " You all got any guns on you all?" Id. at 126. Finney said that he did not, and McDuffy asked to see his jacket, patted him down, and checked his book bag. McDuffy and Robinson also searched Keys. Finney noticed a third individual in the studio.
Finney asked: " What's going on?" Id. at 128. McDuffy said: " Thomas, we keep hearing that he got something to do with Bango being killed and we trying to get to the bottom of it." Id. McDuffy again said: " You're not going home until we figure out what is going on." Id. at 128. Finney said: " I don't know about no murder and stuff. We are DJ's [sic] and we do music, you know. Fighting and killing people, that ain't us. We do music. Let's get on with that." Id. at 128-129. McDuffy said: " You're not going anywhere. You're not leaving." Id. at 129. Keys told Finney that he did not know why they were questioning him because " he didn't have nothing to do with it and if he did he would just tell them 'cause they was cool and they had like a friendship." Id.
Finney became nervous or concerned because the meeting had shifted from the original purpose, and Robinson was " getting kind of aggressive." Id. at 125. Finney attempted to make his way toward the door, and McDuffy talked to the third individual and said: " [H]ey, stop him right there." Id. at 132. The third individual came over with a revolver and pointed it at Finney. McDuffy told the third individual that Finney and Keys needed to be tied up. McDuffy told Finney and Keys that they needed to strip, and Finney said that he could not do that and kicked off his shoes to show that he did not have a gun or something in his shoes. McDuffy then said: " No, you need to get naked." Id. at 135.
At that point, Hamler entered the room, was " [r]eal angry," pulled a rifle out of his pants, pointed it at Finney and Keys, and said: " Who killed Bango?" Id. at 136, 138. Hamler also said: " You all need . . . to tell us what happened. You are not making it out of here." Id. at 139. Hamler and the third individual forced Finney to the floor, punched and kicked him, tied his legs together with a zip tie, and tied his wrists together. Someone kicked Keys and tied his wrists and feet together with zip ties. The questioning of Keys and Finney continued. At some point, one of the men placed toilet paper in Keys's mouth and placed duct tape over his mouth.
Hamler and the others let Armstrong in the back door of the studio, and Armstrong " came in like kind of real hyped up or amped up, like crazy." Id. at 145. Armstrong referred to himself as " Little Nate," and asked: " Where they at?" Id. Armstrong said: " You all about to die tonight. You better be glad they won't let me touch the gun. You all would have been dead." Id. at 146. Armstrong " was just pacing back and forth just like real crazy." Id. Finney told him that he was DJ Freeze and that he was just there to do music, and Armstrong told him to shut up and that he did not want to hear it. Armstrong talked to Keys about who killed Bango and then grabbed a knife and cut Keys's leg, and Keys screamed.
A bald man entered the studio, and McDuffy spoke to him. The bald man spoke with McDuffy, and asked: " Is this him? Is this Thomas?" Id. at 151. McDuffy said that it was him, and they engaged in a discussion about obtaining gloves. Robinson, Hamler, Armstrong, and the bald man left and returned with gloves. The questioning continued and the men then talked among themselves about what they were going to do with Keys and Finney. The bald man said: " Drown them, electrocute them. . . . Burn them alive." Id. at 156. McDuffy said that they should release Keys and Finney because they did not know anything, and someone said: " You going to let them kill your cousin and get away with it?" Id. at 157. The men then played one of Bango's songs and danced around " like amping themselves up." Id. Armstrong said: " Tie 'em up. We about to strangle 'em. Go get the zip ties and put it around they neck." Id. at 158. Armstrong, Hamler, and the bald man put a zip tie around Finney's neck, and Finney tried to resist and place his hands by his neck. Some of the men also put a zip tie around Keys's neck, and placed duct tape around Keys's face and Finney's face. The men then left Keys and Finney in the room alone. Someone with dreadlocks entered the room and shot multiple times at Keys and Finney. Keys was shot multiple times and died of a gunshot wound to the back of the chest. Finney was shot through his arms.
Finney waited probably about thirty seconds, picked his head up, did not see anyone, and attempted to free himself of the tape. Finney then told Keys that they had to leave, but Keys did not respond. Finney went out the front door to obtain help.
Gayle Young, Jr., had parked in the CVS at approximately 8:00 p.m. and observed that Finney had duct tape around his head, a zip tie around his neck, and several lacerations on both arms. Finney screamed for help and said: " I am going to die. I am going to die." Id. at 76. Finney said: " I was tied up in a house a couple of blocks down the street and they shot me and I kicked out a door or a window and ran." Id. at 76. Young told Finney to stay calm and that he would help him remove the zip tie from his neck. Young " couldn't even really get [his] finger inside [the zip tie], it was so tight around his neck." Id. at 78.
Armstrong and some of the others returned to the location where they had met earlier, and their mood was " [v]ery emotional" and happy. Id. at 340. Armstrong was " [b]ouncing around" and said: " We found the mother f__." Id. Armstrong also said that " they had duct taped them and zip tied them and worked them over" and that " they shut off the lights and let them have it." Id. at 348. Either Armstrong or Hamler said " they had got the n__." Id. at 311. Armstrong was " happy, vigilant, very emotional about it." Id. at 342.
On November 29, 2012, the State charged Armstrong with Count I, murder;
Count II, murder; Count III, kidnapping as a class A felony; Count IV, attempted murder as a class A felony; Count V, robbery as a class A felony; Count VI, criminal confinement as a class B felony; Count VII, conspiracy to commit kidnapping as a class A felony; and Count VIII, conspiracy to commit criminal confinement as a class B felony. That same day, the State also filed a criminal gang enhancement alleging that Armstrong, as a member of a criminal gang, the Luchiana Boyz, committed the offense of murder and/or kidnapping and/or criminal confinement and committed the felony offense(s) at the direction of or in affiliation with the criminal gang.
On October 21, 2013, a jury trial began. On October 24, 2013, the jury found Armstrong guilty of Counts I, II, III, IV, and VI, and not guilty of Count V. The jury did not reach a verdict for Counts VII and VIII, and the State dismissed those charges.
On October 25, 2013, Armstrong filed a verified waiver of trial by jury with respect to the criminal gang enhancement. On November 22, 2013, the court held a trial as to the criminal gang enhancement and sentencing hearing. The court incorporated the trial testimony and the jury verdict. The State introduced State's Exhibit 1 consisting of a charging information from a prior cause alleging that Armstrong actively participated in a criminal gang, a probable cause affidavit related to the charge, and a plea agreement in which Armstrong pled guilty. Armstrong's counsel objected on the basis that the prejudicial effect outweighed the probative value. The court admitted State's Exhibit 1 over the objection. Indianapolis Metropolitan Police Detectives Jose Torres and Steven Schafer testified regarding Armstrong's involvement in the Luchiana Boyz. Armstrong's counsel objected to the detectives' testimony regarding whether McMitchell was a member of the Luchiana Boyz, and the court overruled the objections. The court found that the evidence substantiated and met the burden required for the criminal gang enhancement, and found Armstrong's criminal history, substance abuse, and nature of the offense as aggravators. With respect to the latter, the court stated:
If you just look at the evidence that was presented, the victims were zip tied, duct taped, their whole head duct taped so possibly even been suffocating, they were basically tortured and not just a little bit of torture but for hours. So the nature of the offense is extremely aggravating, much greater than the elements that are necessary to prove. And I do think that [Armstrong's] actions in whipping up the crowd, which is basically what he's always done, may have contributed to the murder itself. He may have been, you know, what, what got everyone to that fever pitch. I don't know if [Armstrong's] the one that pulled the trigger, I don't know that. But I know that the goal was to see Thomas Keys and Marvin Finney pay for what [Armstrong] believed was the death of his friend, Bango.
Id. at 900-901. The court found Armstrong's youth and the fact that he had a son as mitigators. The court stated:
As to Count 1, it's hard for me not to, you know, the maximum sentences are reserved for people that are considered to be the worst of the worst. I haven't seen worse than this. I'm not saying that [Armstrong] can never be a valuable person, but I'm saying his history, the aggravators that are here and the crime that, that occurred was the worst of the worst.
Id. at 901.
The court sentenced Armstrong to sixty-five years for Count ...