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Merritt v. State

Court of Appeals of Indiana

April 12, 2018

Antonio M. Merritt, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Marion Superior Court The Honorable Lisa F. Borges, Judge Trial Court Cause No. 49G04-1510-MR-38159

          Attorney for Appellant Valerie K. Boots Marion County Public Defender Agency Indianapolis, Indiana.

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana.

          Tyler G. Banks Deputy Attorney General Indianapolis, Indiana.

          Najam, Judge.

         Statement of the Case

         [¶1] Antonio M. Merritt appeals his convictions for murder, a felony, following a jury trial, and his adjudication as a habitual offender. Merritt's conviction followed his second jury trial. At his first trial, one witness testified that she witnessed Merritt murder the victim, and another witness testified that he observed Merritt shortly after the murder with the murder weapon, but the jury resulted in a hung verdict. At his second trial, those two witnesses could not be located and did not appear to testify. As a result, the trial court permitted, without objection, their statements from the first trial to be submitted to the second jury.

         [¶2] On appeal, Merritt alleges that the trial court committed fundamental error when it did not sua sponte admonish the second jury to not speculate about the reasons those two witnesses might have been unavailable to testify while their prior statements were being read into evidence. We hold that the trial court had no obligation to make such an admonishment without a request by one of the parties. Thus, we affirm Merritt's convictions.

         Facts and Procedural History

         [¶3] In October of 2015, Merritt ran a "drug house" out of his residence in Indianapolis. Tr. Vol. II at 241. Jordan White and Elizie Wombles frequented Merritt's residence and were friends. In the evening hours of October 21 and into the early morning hours of October 22, White, Wombles, and Merritt were at Merritt's residence. Wombles was smoking synthetic marijuana while White sold cocaine to visitors. White brought a revolver to the house, but he left it in the kitchen.

         [¶4] About twenty minutes after White had made his last sale of cocaine, Merritt "told [White] to give him some" cocaine. Id. at 128. White refused, and Merritt became "angry." Id. Merritt went into the kitchen, picked up the revolver, and went into the living room. Merritt began to argue with White, and Wombles left the room and went into the kitchen. Wombles then "heard a gunshot" and "ran out the back door." Id. at 133. Later, another visitor to the house found White dead on the living room floor.

         [¶5] As Wombles fled the scene, Merritt "intercepted" her on the sidewalk. Id. at 134. Merritt had the revolver with him and was "threatening to kill" Wombles and "her kids." Id. at 163, 183. Merritt then had Wombles call her stepson, Connor Hendricks, to give them a ride to Merritt's mother's apartment. In the car, Wombles told Connor that Merritt had just shot White. And, at the apartment, Wombles called her sister, and her sister told her that White had been found dead. Wombles then confronted Merritt and told him, "You killed that boy." Id. at 140.

         [¶6] Wombles' friend, Rusell Church, later picked Wombles and Merritt up from the apartment. Merritt wanted Church to give him and Wombles a ride to Fountain Square in Indianapolis to buy more drugs, and Church agreed. Church observed Merritt with "a larger revolver." Tr. Vol. III at 48. Church further observed that two of the revolver's chambers were empty. On the way out of the apartment building, Church observed Merritt sell the revolver to another person. En route to Fountain Square, Wombles ran out of the vehicle as it was stopped for traffic. Merritt did not pursue her.

         [¶7] On October 27, 2015, the State charged Merritt with White's murder. At his ensuing jury trial, Wombles and Church both testified against ...


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