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Tavake v. State

Court of Appeals of Indiana

August 19, 2019

Lisiate Tavake, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Montgomery Circuit Court Cause No. 54C01-1802-F4-238 The Honorable Harry A. Siamas, Judge

          Attorney for Appellant Mark Small Indianapolis, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

          MATHIAS, JUDGE.

         [¶1] Following a jury trial in Montgomery Circuit Court, Lisiate Tavake ("Tavake") was convicted of Level 4 felony unlawful possession of a firearm by a serious violent felon and sentenced to eight years of incarceration. Tavake appeals and presents four issues, which we consolidate and restate as the following three:

I. Whether the trial court erred in concluding that Tavake's conviction in California for robbery is substantially similar to the crime of robbery in Indiana;
II. Whether the trial court abused its discretion when it denied Tavake's request to prevent the lead investigating officer from testifying after he sat at the prosecuting attorney's table during the trial even after the court granted Tavake's motion for separation of witnesses;
III. Whether the trial court abused its discretion by admitting into evidence Tavake's booking records from the local jail and correctional records from California.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] On the night of January 30, 2018, Montgomery County emergency dispatch received a 911 call from a man who stated that someone might be shooting a firearm in his apartment complex. Officers from the Crawfordsville Police Department went to the apartment complex, knocked on the door of the apartment mentioned in the call, and spoke with the occupant thereof. The officers detected no smell of gunpowder, and they did not see any shell casings that would indicate that a firearm had recently been discharged. The occupant permitted the officers to enter his apartment to investigate. When they discovered no indications of the use of a firearm, they determined that someone had most likely called in a false report.

         [¶4] The officers then gathered in the lobby of the apartment complex. As they did so, Tavake cracked open the door to his apartment and stared at the officers. One of the officers asked Tavake if everything was okay, and Tavake gave a short answer indicating that he was fine. When the officers left the apartment building, Tavake followed them and spoke with them from the top of the stairs that led from the street to the front door of the building. An unusual conversation then took place.

         [¶5] Tavake asked the officers if they were looking to arrest someone. The officers indicated that they were not. Tavake then informed the officers that he had an active arrest warrant based on a parole violation in California. Tavake told the officers that he was on parole for a robbery conviction. Tavake gave the police an Indiana learner's permit, and one of the officers ran his information through the police computer system. However, no arrest warrant appeared in their system. Tavake insisted that he needed to be extradited to California, and one of the officers informed him that such a decision was up to the authorities in California, who had apparently not entered a warrant for Tavake's arrest in the interstate database. Another officer informed Tavake that he should speak with his parole officer in California.

         [¶6] Still apparently unsatisfied with these answers, Tavake asked the officers what would happen if he committed a crime in Indiana. The police informed him that this would only guarantee that he would get in trouble in Indiana and that California still might not choose to extradite him. Tavake joked that he had never had so much trouble trying to get arrested. He then told the officers that he had two handguns in his apartment that he was not supposed to have due to his robbery conviction. The officers informed him that he would need to be handcuffed and that they would need to search his apartment for the weapons. Tavake readily agreed. The officers placed Tavake in custody and read him his Miranda rights.

         [¶7] The police searched Tavake's apartment and found two handguns: a Glock 9 mm pistol and a Taurus .40 caliber pistol. Both weapons were, as Tavake indicated, loaded and had a bullet in the chamber. The police then confirmed that Tavake had been convicted of second-degree robbery in California on June 20, 2009.

         [¶8] On February 1, 2018, the State charged Tavake with Level 4 felony unlawful possession of a firearm by a serious violent felon ("SVF") and Class A misdemeanor false informing. The State subsequently amended the information to specify the offense underlying the SVF charge. A two-day jury trial commenced on September 25, 2018. After both sides made their opening statements, Tavake made a motion for separation of the witnesses. The trial court granted Tavake's motion. The court told counsel for both parties to advise their witnesses of the separation order and then adjourned for lunch.

         [¶9] When the trial resumed, Officer Cade Mills ("Officer Mills"), one of the responding officers, sat at the prosecutor's table. The State, however, did not formally designate Officer Mills as its assisting witness. Still, Tavake did not object to Officer Mills's presence at the prosecutor's table, even though Officer Mills was listed on the State's witness list. Tavake also did not object as the State called its first two witnesses. When the State called Officer Mills to testify, however, Tavake objected, noting the separation-of-witnesses order and that the State had failed to designate Officer Mills as its assisting witness. Tavake requested that Officer Mills be excluded from testifying. The prosecuting attorney acknowledged his failure but argued that Officer Mills should not be prevented from testifying. The trial court ruled as follows:

The record will show that Officer Mills has been in the courtroom sitting next to Prosecuting Attorney Buser throughout this case from the time evidence was begun. The court is going to overrule the motion. I understand why it's made, but I think it was pretty evident, it was evident to the court and should have been evident to the defense that the state intended to have Officer Mills as its designated witness. If Officer Mills were sitting in the back and not sitting at counsel table then I probably would grant the motion, but it appears to the court that it was evident that the state intended him to be their designated witness. So I don't see how the defense is harmed or prejudiced by Officer Mills['s] presence and his subsequent testimony since the state did have the right to designate one witness to remain in the courtroom to assist the state. So your objection is noted and overruled.

Tr. pp. 121-22.

         [¶10] Tavake also objected when the prosecuting attorney tendered as evidence, as State's Exhibit 11, a copy of Tavake's booking records from the Montgomery County Jail. Tavake based his objection on grounds that the booking records had not been listed on the State's pre-trial exhibits list. Tavake's counsel stated that he had received the booking records approximately one week before the trial began. The prosecuting attorney acknowledged this but informed the trial court that he himself had only received the records from the jail the week before trial and immediately provided a copy to defense counsel. The prosecuting attorney also stated that he had telephoned defense counsel about this addition to the State's exhibits list. The trial court overruled Tavake's objection, stating, "it appears that the information was submitted to defense as soon as the State received it." Tr. p. 147.

         [¶11] Tavake additionally objected when the prosecuting attorney proffered State's Exhibit 9, which consisted of certified copies of Tavake's correctional records from California, including the abstract of judgment from his robbery conviction, a booking photograph, an FBI card, and copies of his fingerprints. Tavake specifically objected to pages three, four, and five of these records. Page five listed other crimes Tavake had been convicted of (receiving stolen property and participation in a criminal street gang), and pages three and four listed Tavake's "external movements." Tr. p. 154. The State agreed to remove pages three and four from the records and agreed to redact the portions of the other pages referring to Tavake's other convictions. The trial court agreed to the removal of pages three and four and ordered that the remaining pages be redacted. Tavake then further objected to a reference to the enhancement of his robbery conviction, which the trial court also ordered to be redacted. Lastly, Tavake asked that the court redact from the records a reference to "186.22 (B)(1) PC," which was listed on the FBI record. Id. at 156-57. Tavake argued that this reference would confuse the jury, but the trial court disagreed and admitted the otherwise-redacted copy of the records into evidence.

         [¶12] At the conclusion of the trial, the jury found Tavake guilty of Level 4 felony unlawful possession of a firearm by an SVF, but not guilty of Class A misdemeanor false informing. On October 24, 2018, the trial court sentenced Tavake to eight years of incarceration. Tavake now appeals.

         I. The California Crime of Robbery is Substantially Similar to the Crime of Robbery in Indiana

         [¶13] Tavake first argues that the trial court erred by determining that his conviction in California for robbery counts as a conviction for a crime that is substantially similar to the crime of robbery in Indiana, thereby qualifying him as an SVF.[1]

         A. The SVF Statute

         [¶14] "A serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a serious violent felon, a Level 4 felony." Ind. Code § 35-47-4-5(c). A "serious violent felon" is defined as "a person who has been convicted of:

(1) committing a serious violent ...

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