[Copyrighted Material Omitted]
Appeal from the Marion Superior Court. The Honorable Kurt M. Eisgruber, Judge. Cause No. 49G01-1210-MR-67595.
ATTORNEY FOR APPELLANT: Michael R. Fisher, Marion County Public Defender Agency, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Michael Gene Worden, Deputy Attorney General, Indianapolis, Indiana.
Brown, Judge. Bailey, J., and Robb, J., concur.
[¶1] James Beasley appeals his convictions for murder and attempted murder, a class A felony. Beasley raises two issues, which we revise and restate as:
I. Whether the trial court abused its discretion in admitting certain statements; and
II. Whether the trial court erred in denying his motion for mistrial.
Facts and Procedural History
[¶2] At around eleven a.m. on August 3, 2012, James Allen drove with his girlfriend, Shantell Williams, to the home of his cousin, Gerald Beamon. Williams waited in the car while Allen went inside to speak with Beamon. Allen told Beamon that he had been involved in an altercation the night before with a man known as " Little Rock," who was later identified as Leandrew Beasley (" Leandrew" ). Transcript at 129. According to Allen, also present during the altercation were men known as Levi, Little Billy, and Little Rock's brother, known as " J Rock" and later identified as James Beasley. Id. at 130. Allen stated that they were in a garage when he noticed Leandrew reach for a gun in his waist band, and Allen reached for the gun, punched Leandrew, and struggled for control of the gun. Allen also told Beamon that during the struggle, the gun went off and Leandrew was shot in the face. Then, Allen said, the gun would not fire anymore, and he pushed Leandrew and ran away.
[¶3] Allen asked Beamon to help him move some of his belongings from his home to Williams's apartment. Williams drove them to the home of a friend of hers where they changed cars, and afterwards they drove to Allen's house to pick up his belongings. Beamon saw that Allen's home had been ransacked. They then returned to the friend's house to switch back to the original car. While Williams was inside the friend's house, Allen showed Beamon some photographs that had been taken of people at a club a few weeks earlier. Allen identified the people " he got into it with" the night before in the pictures by pointing to them in a photograph
later admitted into evidence at trial as State's Exhibit 6. Id. at 149. Beamon looked at the pictures for " [a]bout ten minutes" and handed them back to Allen. Id. at 151.
[¶4] Williams then drove the three of them to her apartment on Emerson Avenue near 39th Street on the east side of Indianapolis, parked near a common entrance to the building, and Williams went inside. Allen removed his belongings from the car and set them on the sidewalk while Beamon sat in the rear seat on the driver's side with the door open. As Beamon was about to exit the car, he heard at first a sound like firecrackers coming from behind the car, heard the sound of loud gunfire, and saw three men walking toward the front of the car and shooting at them. Beamon recognized two of the men from the pictures that Allen had recently shown him as J Rock and Little Rock.
[¶5] Before exiting the vehicle, Beamon was shot in the stomach and leg. Despite the gunshots, he managed to run south on Emerson and conceal himself near some bushes in front of one of the apartment buildings. He took off his belt to use as a tourniquet on his arm and then called 911 on his cell phone. When police cars arrived, Beamon walked into Emerson Avenue, flagged down a squad car, and told the police officer that Little Rock and J Rock shot him. Allen was killed by the gunfire.
[¶6] At the hospital the next day, Beamon gave a statement to Detective Leslie VanBuskirk and identified Beasley as J Rock and Leandrew as Little Rock as participants in the shooting from photo arrays. After the interview, Detective VanBuskirk retrieved the photographs that the coroner had recovered from the right front pocket of Allen's pants, made blowups of them, and returned to the hospital to show them to Beamon, and Beamon identified J Rock and Little Rock in one of the blowups later admitted as State's Exhibit 178, which was a blowup of State's Exhibit 6. Detective VanBuskirk also conferred with Detective John Green, who had interviewed Leandrew on August 2, 2012, after Leandrew went to Methodist Hospital to receive treatment for a graze gunshot wound to his face.
[¶7] On October 17, 2012, the State filed initial informations against Beasley and Leandrew, which, as subsequently amended, charged Beasley and Leandrew with Count I, murder; Count II, attempted murder as a class A felony; and Count III, battery as a class C felony. Beasley was later arrested out of state and was extradited to Indiana. On October 30, 2013, Beasley filed a motion in limine which, in relevant part, sought to exclude as hearsay the statements made by Allen to Beamon, along with a memorandum in support of the motion. Leandrew, who was tried jointly with Beasley, filed a similar motion the same day. On November 20, 2013, the State filed its response to the motions in limine, and, following a hearing on the motions, filed a second response on January 10, 2014. The court held another hearing on the motions on February 6, 2014, and on February 21, 2014, it issued an order denying them. In the order, the court found that the statements were admissible under Ind. Evidence Rule 804(b)(3) as statements against interest.
[¶8] A jury trial commenced on April 14, 2014, in which evidence consistent with the foregoing was presented. At the outset of trial, the court denied a defense motion to
reconsider the denial of the motions in limine. The court also overruled at trial defense counsel's objections to the admission of the evidence which was the subject of the motions in limine. Beamon testified regarding what Allen had told him about the altercation of August 2, 2012, and he identified, based on his perceptions at the scene, Beasley and Leandrew as two of the shooters on August 3, 2012. When asked to describe the moment when he witnessed the shooters approaching the vehicle, Beamon testified that " [i]t was messed up because after lookin at the pictures and then you look up and you see the people right before your eyes that was in the picture you like wow and it . . . messed me up . . . it was surreal." Id. at 351. He also indicated that his identification of the shooters was not " just a particular feature of the picture" and instead " was body type and face and hair and the way they were shaped . . . ." Id. at 352. Also, regarding the August 2, 2012 altercation, Officer Jeremy Lee testified that he interviewed Leandrew that evening at Methodist Hospital, where he was being treated for a graze wound to the face, and that Leandrew told Officer Lee he was shot by an unknown assailant as he was walking on the sidewalk near 25th and Hillside. Detective Green testified that he interviewed Leandrew later that night at police headquarters in which Leandrew repeated a similar version of events.
[¶9] On April 17, 2014, the court granted a defense motion for a directed verdict on Count III, which pertained to both defendants. During deliberations, the jury submitted the following question to the court: " One of the jurors is concerned for their safety and well-being because they recognize someone in the gallery and that is influencing their decision, is there any assurance of safety we can give this juror?" Appellant's Appendix at 145. The court ordered the jury to stop deliberations and proceeded to interview each juror, beginning with the juror having the issue, Juror No. 9. Juror No. 9 told the court that she " interacted with" the person " awhile back and  knew their face," and she believed she would " see them again or interact with them again." Transcript at 728. She stated she saw the person that day after lunch, during deliberations she could not decide on a verdict, and that when she was asked why she " expressed [her] opinion" she stated that she was concerned for her safety. Id. at 729. She also said that there was " [v]ery little" discussion about the issue and that she did not believe that her discussions had an influence on the jury. Id. She said that she " thought ...