Appeal from the Marion Superior Court. The Honorable Kurt Eisgruber, Judge. Case No. 49G01-1306-MR-41201.
ATTORNEY FOR APPELLANT: Patricia Caress McMath, Marion County Public Defender Agency, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; James B. Martin, Deputy Attorney General, Indianapolis, Indiana.
Crone, Judge. Brown, J., and Pyle, J., concur.
[¶1] Jamar Minor appeals his convictions for murder and class A felony attempted murder, following a jury trial. On appeal he asserts that the trial court abused its discretion in excluding certain hearsay evidence. Because the evidence does not conform to any exception to the hearsay rule, we find no abuse of discretion. Minor also contends that the trial court erred in instructing the jury regarding accomplice liability such that he may have been convicted of attempted murder absent the specific intent to kill. Although we find that the jury was indeed erroneously instructed, we conclude that the error did not impact the jury's verdict and was therefore harmless. Finally, Minor argues that the trial court abused its discretion in refusing his tendered jury instruction on criminal recklessness as an inherently lesser included offense of attempted murder. Indiana case law is clear that criminal recklessness is not an inherently lesser included offense of attempted murder, and thus the trial court did not abuse its discretion in refusing the instruction. We affirm Minor's convictions.
Facts and Procedural History
[¶2] The facts most favorable to the verdicts indicate that in the afternoon on June 11, 2013, nineteen-year-old Bryisha Dickerson, twenty-two-year-old Taria Tate, Tia Tate, and Minor's half-sister, Kabrea Slatter, were all hanging out together in Indianapolis. The Tate sisters received a call from their ten-year-old cousin, " Bam," who told them that another boy in the neighborhood, eleven-year-old " Punney" Williams, had stolen his iPod. Tr. at 432. The group of females walked to Punney's grandmother's house on Guilford Avenue to see if they could help retrieve the iPod. Punney's older brother, Leo Williams, his cousin Damien Williams, another cousin, Dazion Dulin, and another relative, Tron Harris, were all present at the house. The groups began to argue. The argument escalated into a physical altercation between the male and female members of each group, and eventually thirty-five to forty people gathered in the street. Damien was not involved and instead tried to break up the fight. Police came and the crowd dispersed. No arrests were made.
[¶3] The group of girls went to the Tate sisters' grandmother's house on 24th Street. A blue SUV driven by Jordan Gray pulled up across the street. Minor was in the passenger seat. Minor's half-sister, Slatter, had called Minor to come pick her up and informed him that she had been involved in a fight with some males. Minor and Gray parked the SUV in front of a white van and sat in the SUV between five and twenty minutes before driving off. The two men returned about five minutes later, parked in the same spot, and got out of the SUV to speak to the females. Minor and Gray then returned into the SUV but did not leave.
[¶4] Approximately ten minutes later, Damien, Leo, Dulin, Harris, and a friend named Eric Taylor came walking up a nearby alley toward 24th Street. They had heard that someone might be planning to come " shoot up" the Williamses' grandmother's house, so they wanted to talk to the girls to " make sure everything's squashed cause [they] all grew up together." Id. at 115, 237. Since the fight was about " nothin important," they just wanted to make sure that " everything was cool." Id. at 511. Taylor noticed the blue SUV parked in the street but he could not see the individuals inside because they were " ducked down or something." Id. at 223. Damien and his companions spoke to the females, and the females assured them that everything was fine.
[¶5] As the five young men were leaving, they walked past the blue SUV. A voice that appeared to be coming from inside the SUV said something to the group. One of the females at the scene, Dickerson, immediately ran from the street onto the porch of a house because she felt a " bad vibe" and knew that something was about to happen. Id. at 117. The group of young men stopped walking and turned around so they were facing the SUV. Minor and Gray, both armed with weapons, jumped out of the SUV and started shooting at the group. Damien was hit immediately with multiple shots and fell into the street. The other young men ran from the gunfire. Taylor was hit in the leg as he was running away. Taylor fell, and Minor and Gray continued to fire at him. Taylor crawled toward the house of an acquaintance who eventually pulled him inside and called for an ambulance. Minor and Gray fled in the SUV.
[¶6] Damien died as a result of two fatal gunshot wounds, one to his abdomen and one to his upper back. The two bullets recovered from his body were each fired by a different weapon. Taylor was hospitalized for three days. His leg was badly injured, and doctors placed a metal rod in his leg from his kneecap to his ankle. Investigators recovered sixteen spent shell casings at the crime scene fired from two different nine-millimeter weapons. Police also found a .40 caliber automatic pistol under the white van that was parked in the street. There was no physical evidence to indicate that the pistol had been fired.
[¶7] The State charged Minor and Gray with murder, class A felony attempted murder, and class A misdemeanor carrying a handgun without a license. Minor and Gray were also each charged with a firearm sentence enhancement pursuant to Indiana Code Section 35-50-2-11. Minor and Gray were tried together as codefendants in a three-day jury trial. Minor testified at trial and claimed that Damien pointed a gun at him and that he shot at Damien and Taylor in self-defense. No other witnesses testified that they saw a gun on Damien. The jury found both Minor and Gray guilty of murder, attempted murder, and carrying a handgun without a license. Minor waived his right to a jury trial on the firearm sentence enhancement. Following a hearing, the trial court found Minor guilty of use of a firearm during the commission of the murder. The ...