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Walters v. State

Court of Appeals of Indiana

March 22, 2019

Jaqueline B. Walters, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal from the Morgan Superior Court The Honorable Brian Williams, Judge Trial Court Cause No. 55D02-1511-F3-1653

          ATTORNEY FOR APPELLANT Ryan P. Dillon Dillon Legal Group, P.C. Franklin, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Evan M. Comer Deputy Attorney General Indianapolis, Indiana

          MAY, JUDGE.

         [¶1] Jaqueline B. Walters appeals her conviction for Level 3 felony aiding, inducing, or causing armed robbery.[1] She presents two issues for our review that we restate as:

1. Whether the trial court abused its discretion in admitting phone records from Verizon; and
2. Whether the State presented sufficient evidence Walters aided, induced, or caused an armed robbery.

         We reverse.

         Facts and Procedural History[2]

         [¶2] Walters started working at the deli in the Morgantown IGA in June 2015. On August 30, 2015, Walters and store manager Wilma Floyd were scheduled to open the store. This required both to be at the store an hour before the store opened to customers. Floyd had the keys to get into the building and to access the safe.

         [¶3] Walters' long-term boyfriend, Randall Shane Slaten, dropped her off at the store. As Walters approached the door, Floyd unlocked and opened the door for her, disarming the alarm in the process. However, as Walters proceeded through the door, a male with a gun (hereinafter, "the Robber") pushed Walters and entered the store. Floyd attempted to push the Robber back through the door but was unsuccessful. Floyd and the Robber scuffled. Eventually, the Robber's gun went off. No one was shot, but Floyd then stopped resisting.

         [¶4] The Robber instructed Floyd and Walters to take him to the safe. The store surveillance system was able to record much of the interaction. Floyd led the Robber to the room in which the safe was. However, during the scuffle, she had dropped her keys and could not enter the room. The Robber instructed Walters to retrieve the keys. Walters complied.

         [¶5] Floyd opened the room to the safe and, subsequently, the safe and cabinets in that room. The Robber stole approximately $6, 000.00. Before he left, the Robber had Walters put zip ties around Floyd's wrists. The Robber tightened Floyd's zip ties and then put zip ties around Walters' wrists, too. The Robber patted Floyd down for a cell phone and ripped the land line phone from the wall. The Robber then left.

         [¶6] Floyd had Walters cut her zip ties from her wrists and then Floyd freed Walters. Floyd had secreted a small flip phone in her pocket that the Robber did not find. Floyd called 911 and officers quickly arrived. She also called the owner of the store, Randy Wood.

         [¶7] Morgantown Police Officer Jeffrey Jackson arrived at the scene first. He found a hat worn by the Robber and a magazine for a gun. Morgan County Sheriff's Department Detective Mark Anderson arrived and interviewed the women separately.

         [¶8] On September 1, 2015, Detective Anderson requested Walters give a more detailed interview. When she did not arrive at the station on time, both Morgantown Police Marshal Marvin McGregor and Detective Anderson called to verify she was still planning to attend. Walters explained she was running late but would be there soon.

         [¶9] After Walters gave the detailed interview, Detective Anderson believed Walters' account of the events was inconsistent with what she had previously reported and with the video surveillance. He noted the video showed Walters was frequently not under direct control of the Robber. In the second interview, Walters said she "saw the robber cock the gun as they were going down the hallway[, ]" (Tr. Vol. 3 at 122), but she had not indicated she had seen that in the first interview.

         [¶10] When the interview was complete, Detective Anderson asked Walters for her phone and whether he could look through it. Walters told Detective Anderson that Slaten had lost it. Slaten indicated Walters still had it. The phone was never produced. Detective Anderson "sent a preservation letter[, ]" (Tr. Vol. 3 at 129), to put a hold on the Verizon phone records for the number Walters said she shared with her boyfriend (hereinafter, "6065 Phone"). Detective Anderson explained this action preserves "all of the phone records that they have up to that point, text messages, and everything[.]" (Id.)

         [¶11] Detective Anderson sought and received a search warrant for the Verizon records for the phone. Because he had requested Verizon preserve the account, Detective Anderson also received the text message records for the time frame surrounding the robbery date.[3] Therein, one number was repeatedly texted. The text of the messages between 6065 Phone and that number discussed a plan to rob the IGA. Officer Jackson determined the phone number belonged to John Nocito. Nocito was the long-term boyfriend of Slaten's sister. Detective Anderson obtained a DNA swab from Nocito, and his DNA matched the DNA found on the cap dropped by the Robber at the store.

         [¶12] The State charged Walters with aiding, inducing, or causing an armed robbery. A jury trial held in July 2016 resulted in a hung jury. A second jury trial was scheduled for March 6-8, 2018. Prior to the second jury trial, the State filed a motion for an evidentiary hearing as they planned on advancing a theory of conspiracy between Walters, Slaten, and Nocito. The State wished the text messages to be deemed statements of coconspirators so the statements would not be hearsay.

          [¶13] On July 13, 2017, at the evidentiary hearing, the State requested the trial court take judicial notice of the evidence presented during Slaten and Nocito's trials i.e., the cell phone records from Verizon. Walters objected because she had not been present during those trials to "make any objections of her own[.]" (Tr. Vol. 2 at 4.) She conceded the trial court could "take judicial notice that that trial occurred and certain evidence was presented" but not as to whether it was admissible against her. (Id.) The trial court agreed regarding the admissibility but said, "I think we're talking about whether or not and how evidence is presented here to me today regarding the existence or nonexistence of conspiracy." (Id. at 5.) The trial court took judicial notice of the Verizon cell phone records containing the text messages.

         [¶14] When Detective Anderson started to testify regarding the contents of the text messages, Walters objected as no foundation had been laid regarding the inception of the text message records. The trial court, reading from the evidence rules, indicated the "rules are inapplicable to other than respect to privileges[, ]" (id. at 7), and do not apply to "preliminary, questions of fact, the determination of questions of fact preliminary to the admissibility of evidence and the issues to be determined by the Court under rule 104 A [sic]." (Id.) Walters withdrew her objection.

         [¶15] In support of its conspiracy theory, the State presented evidence the text messages referenced stealing a sum of money that was "consistent with the amount of money taken[.]" (Id. at 8.) The text messages indicate Nocito would be "working with my girl named Jackie." (Id.) The messages indicate the days Walters worked and that the robbery needed to occur on a day she was working. The messages indicate the writer of the messages would need to get more information from Walters about the best day to rob the store. Additionally, the State presented evidence Walters' statements to the police had been inconsistent with what was shown on the video and Walters had been complicit in hiding the 6065 Phone from the police. Finally, the State argued Walters' insistence that Slaten ...


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