Appeal from the Marion Superior Court. The Honorable Kurt M. Eisgruber, Judge. Case No. 49G01-1402-MR-007060.
ATTORNEY FOR APPELLANT: Kimberly A. Jackson, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Michael Gene Worden, Deputy Attorney general, Indianapolis, Indiana.
Vaidik, Chief Judge. May, J., and Mathias, J., concur.
Vaidik, Chief Judge.
[¶1] 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 very near Shawn Wilson's stepmother's house, where Wilson appeared the night of Jaffke's murder saying that he had just shot a man on the south side and had used the handgun that was--at that point--sticking out of his waistband. One of Wilson's fingerprints was found inside Jaffke's Jeep. 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. The State also sought a sentencing enhancement for use of a firearm in the commission of the offense. A jury found Wilson guilty of all charges. At sentencing, the trial court merged felony murder into murder, and reduced the robbery from a Class A felony to a Class C felony to avoid double-jeopardy concerns. The trial court also imposed the five-year use-of-a-firearm sentencing enhancement, for a total sentence of sixty-five years to be executed in the Indiana Department of Correction.
[¶2] 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.
Facts and Procedural History
[¶3] 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.
[¶4] On the evening of the murder, another resident of Continental Court, Vicky Penrod, was in her bedroom, which overlooked the parking lot, with the window cracked open. At approximately 6:45 p.m., Penrod heard a male voice say, " [O]h God, oh God no" in a " begging and desperate tone." Tr. p. 68. She then heard a single gunshot and a vehicle door close. Penrod looked out her window and saw the taillights of the vehicle exiting the apartment complex. 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. See id. at 251-52.
[¶5] 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." ).
[¶6] 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.
[¶7] 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.
[¶8] 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.
[¶9] According to Lisa Davis, a friend of Wilson's, Wilson had told her sometime around February 12--the day before he was arrested--that the shooting was an accident and that he did not mean for it to happen. See id. at 278.
[¶10] 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. See Appellant's App. p. 27-32, 97-99. The State also sought a sentencing enhancement for use of a firearm in the commission of the offense. See Ind. Code Ann. § 35-50-2-11 (West 2012).
[¶11] 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.
[¶12] 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:
[Wilson]: My understanding is that night [Brown] was the one that's really doing most of the talking?
[Wilson]: [Wilson]'s not saying too much?
[Wilson]: But [Brown] indicates to you that he and [Wilson] were involved in that incident; is that right?
[Wilson]: But he didn't specifically say what their involvement was?
[Wilson]: Now, I understand you also overheard another woman at the club named Amanda Ball, you overheard her talking?
[Wilson]: And you heard her indicate --
[The State]: Judge, at this point I'm going to object to [Wilson's counsel] stating hearsay to the witness.
[Trial court]: It is. I don't know how we get around that.
[Wilson]: Well, Judge, it's a statement against interest. Both of these witnesses are admitting that they committed criminal offenses.
[Trial court]: No, I view it as ...