Thomas King v. State of Indiana , 2016 Ind. App. LEXIS 369 ( 2016 )

FILED
Oct 13 2016, 6:04 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas King, October 13, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1510-CR-1712
v. Appeal from Marion Superior Court.
The Honorable Kurt M. Eisgruber,
Judge.
State of Indiana, Cause No. 49G01-1506-MR-21083
Appellee-Plaintiff.
Barteau, Senior Judge
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Statement of the Case
1
[1] Thomas King appeals his convictions of murder, a felony, and possessing a
2
handgun without a license, a Class A misdemeanor. We affirm.
Issues
[2] King raises four issues, which we restate as:
I. Whether the trial court violated King’s right to a speedy
trial.
II. Whether the trial court abused its discretion in the course
of admitting evidence.
III. Whether the State submitted sufficient evidence to rebut
King’s claim of self-defense.
IV. Whether the sentencing order contains errors in need of
correction on remand.
Facts and Procedural History
[3] Thomas King and Michael Mason were acquaintances and had socialized in
the past. Mason’s brother and King lived in the same apartment complex in
Marion County. Mason had a back condition and carried prescription pain
medication with him. He usually lived with his mother, but on June 12, 2015,
1
Ind. Code § 35-42-1-1 (2014).
2
Ind. Code § 35-47-2-1 (2014).
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he went to stay at his brother’s apartment. On the afternoon of June 13, 2015,
King, Mason, and Mason’s brother were seen together at King’s apartment.
[4] Luis Corrales and his family lived in an apartment across the hall from King’s
apartment. Corrales knew King and considered him a friend. Earlier in the day
on June 13, 2015, King had knocked on the door to Corrales’ apartment several
times and demanded money and pills. He repeatedly said people in Corrales’
apartment owed him sixty dollars. King’s speech was slurred and his eyes
“were barely open.” Tr. p. 107. Corrales felt threatened. Corrales’ fiancée,
Donna Greggs, perceived King to be drunk and had seen him consume a pill,
Klonopin, earlier that day. To her, King appeared “angry and aggressive.” Id.
at 138.
[5] Later that day, Mason and his brother left the apartment complex to drink
alcohol with friends, and then they returned. Mason was drunk. He went to
King’s apartment while his brother went to his own apartment to call their
mother and to see his girlfriend. After finishing the call, Mason’s brother
walked toward the building where King lived. As he opened the door to the
building, Mason’s brother heard a gunshot, followed by a thud, coming from
King’s apartment. He ran back to his girlfriend, and they called his mother and
the police.
[6] Meanwhile, Corrales was resting in his apartment when he heard a gunshot.
Next, he heard a knock at his front door. Corrales opened the door and saw
King standing there with a handgun tucked into his pants. Corrales recognized
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the gun, having fired it before. King told Corrales that he had “just shot a man
and he wanted us to say it was self defense and – and to hide the gun for him.”
Id. at 96. King elaborated that he wanted Corrales to say “the guy tried to rob
him.” Id. Corrales did not see any signs of injury on King, and King’s clothes
were not disheveled.
[7] Greggs and Dorothy Wininger were also at the door, standing behind Corrales.
Greggs heard King say he had just shot someone in the head and wanted
Corrales to hold his gun. Wininger saw the gun and also heard King ask
Corrales to hold it for him. King seemed calm to Greggs and Wininger.
Wininger told Corrales not to take the gun, so he closed the door. Corrales,
Greggs, and Wininger heard King leave the apartment building.
[8] After King left, Corrales went into the apartment across the hall. There were
no signs of a struggle. He saw what was later identified as Mason’s corpse,
checked for a pulse and, finding none, went back to his apartment. As he stood
on his apartment’s balcony, Corrales saw King returning to the building from
across the street. King did not have the gun and was on the phone, talking with
a 911 dispatcher. To Corrales, King appeared “calm and collected.” Id. at 102.
[9] Meanwhile, Officer David Miedema of the Indianapolis Metropolitan Police
Department (the IMPD) and several other officers were dispatched to the
apartment building to investigate a reported shooting. Miedema encountered
King, who was on the phone with a 911 dispatcher but hung up when he saw
Miedema. King appeared “very calm, easy to understand.” Id. at 155.
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Miedema did not see any signs of injury on King, and King’s clothes were not
disheveled. King stated that two men had tried to rob him, so he shot one of
them and the other ran off. He led the officer to his apartment and gestured
inside, where Miedema saw Mason’s corpse on the floor. King did not say
anything, which struck Miedema as “very odd.” Id. at 158. There were no
signs of forced entry into the apartment, and inside there were no signs of a
struggle.
[10] Later, Sergeant Bradley Millikan of the IMPD questioned King at the scene.
When asked what happened to the gun, King stated the second assailant took
the gun and fled with it. Sergeant Millikan noted King’s demeanor was “eerily
calm” and “almost emotionless.” Id. at 191. After questioning King and
examining the apartment where Mason’s body was found, Millikan placed
King under arrest.
[11] Meanwhile, officers searched King’s apartment and the area around the
building for the gun but did not find it. They found a spent cartridge near
Mason’s body. They also found a box of ammunition in the apartment, and the
spent cartridge was the same brand and caliber as the ammunition contained in
the box. Later, a forensic examiner investigated King’s phone and found a
photograph of the gun that Corrales saw King carrying after the shooting.
[12] When Mason’s body arrived at the coroner’s office, the staff inventoried his
clothes and personal items. He did not have his pain pills. An autopsy of
Mason’s body revealed he died from a single gunshot wound to the head. He
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had been shot in the left temple, above the ear. The bullet passed from the left
to the right side of Mason’s head at a downward angle. Mason was five feet,
eight inches tall, and King is six foot, three inches tall. There was no stippling
around the wound, which indicated that Mason had been shot by someone
standing more than three feet away. In addition, Mason’s body did not show
any signs that he had been in a fight before his death.
[13] On June 16, 2015, the State charged King with murder, a felony, and carrying a
handgun without a license, a Class A misdemeanor. The State separately
alleged the misdemeanor charge should be enhanced to a Level 5 felony
because King had been convicted of a felony within the past fifteen years. In
addition, the State filed a habitual offender enhancement.
[14] An initial hearing was held on June 19, 2015. King requested a speedy trial
pursuant to Indiana Criminal Rule 4(B). The court granted his request,
scheduling trial for August 10, 2015.
[15] At a July 23, 2015 pretrial conference, the State moved to continue the trial
under Indiana Criminal Rule 4(D), asserting more time was needed to gather
evidence. King objected. The court declined to address the State’s 4(D)
motion, choosing instead to reschedule the trial from August 10, 2015 to
August 31, 2015 due to calendar congestion. The State later withdrew its
request for a continuance under Criminal Rule 4(D), stating that it believed it
could have all of the necessary evidence by the August 31 trial date.
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[16] Trial was held on August 31 and September 1, 2015. The jury determined King
was guilty of murder and carrying a handgun without a license as a
misdemeanor. King waived his right to a jury trial for the felony handgun
enhancement and the habitual offender enhancement. At a subsequent bench
trial, the State dismissed the felony enhancement for the handgun charge, and
the trial court determined King was a habitual offender. The court sentenced
King to fifty-five years for murder, enhanced by ten years for the habitual
offender determination. The court further sentenced King to one year on the
handgun charge, to be served concurrently with the murder sentence. Finally,
the court directed that King would serve the final three years of his sixty-five-
year sentence on community corrections. This appeal followed.
Discussion and Decision
I. Speedy Trial
[17] King claims the trial court erred by scheduling his trial beyond the deadline set
forth in Indiana Criminal Rule 4(B), thereby violating his federal and state
constitutional rights to a speedy trial. The State responds that the court’s
3
decision was appropriate due to calendar congestion.
3
The State further claims King waived his speedy trial claim by failing to move for discharge. We disagree.
When a court schedules trial beyond the time limitations of Criminal Rule 4, the defendant must object at the
earliest opportunity. Hampton v. State, 754 N.E.2d 1037, 1038 (Ind. Ct. App. 2001), trans. denied. In the
current case, King objected twice to having the trial rescheduled beyond the deadlines of Criminal Rule 4.
Tr. pp. 13, 19-20. Thus, King presented the issue to the trial court, thereby preserving the claim for appellate
review.
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[18] The Sixth Amendment to the United States Constitution and Article 1, section
12 of the Indiana Constitution guarantee an accused’s right to a speedy trial.
Dean v. State, 901 N.E.2d 648, 652 (Ind. Ct. App. 2009), trans. denied. The
provisions of Indiana Criminal Rule 4 implement the defendant’s speedy trial
right by establishing deadlines by which trials must be held. Id. Subsection
(B)(1) of Criminal Rule 4 provides:
If any defendant held in jail on an indictment or an affidavit shall
move for an early trial, he shall be discharged if not brought to
trial within seventy (70) calendar days from the date of such
motion, except where a continuance within said period is had on
his motion, or the delay is otherwise caused by his act, or where
there was not sufficient time to try him during such seventy (70)
calendar days because of the congestion of the court calendar.
Provided, however, that in the last-mentioned circumstance, the
prosecuting attorney shall file a timely motion for continuance as
set forth in subdivision (A) of this rule. Provided further, that a
trial court may take note of congestion or an emergency without
the necessity of a motion, and upon so finding may order a
continuance. Any continuance granted due to a congested
calendar or emergency shall be reduced to an order, which order
shall also set the case for trial within a reasonable time.
[19] Thus, when a defendant files a motion for a speedy trial, the defendant must be
tried within seventy days unless the defendant caused the delay or the court’s
calendar is congested. Otte v. State, 967 N.E.2d 540, 545 (Ind. Ct. App. 2012),
trans. denied.
[20] In this case, King moved for a speedy trial on June 19, 2015. The seventieth
day would have been August 28, 2015, so the court initially scheduled a jury
trial for August 10, 2015. During the July 23, 2015 hearing, the court
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rescheduled the trial for August 31, 2015, shortly after the seventy-day deadline
set forth in Criminal Rule 4(B). The question is whether the court’s delay is
justifiable.
[21] Where, as here, the trial court makes a factual finding of congestion based on
disputed facts, appellate review is for clear error. Austin v. State, 997 N.E.2d
1027, 1040 (Ind. 2013). We neither reweigh the evidence nor determine the
credibility of witnesses. Id. Instead, we consider the probative evidence and
reasonable inferences supporting the judgment. Id. We reverse if we are left
with a definite and firm conviction that a mistake has been made. Id.[22] In this case, the State requested a continuance of the trial based on Criminal
Rule 4(D). That subsection allows the State to seek a continuance if it is having
difficulty obtaining evidence prior to the trial date. During the July 23, 2015
pretrial hearing, the court noted that it had other speedy trial requests for the
weeks of August 10 and August 17. For the week of August 24, the court told
the parties, “I’ve got Monte (sic) Ervin set. It’s a 2014 case, an old case with
out-of-town witnesses that I’ve prioritized as No. 1 for the 24th.” Tr. p. 16. As
a result, the court declined to rule upon the State’s request and instead cited
calendar congestion for the delay, as follows:
I’m looking at my calendar and I’m saying I am stacked chock
full, and I’ve got other early trial requests, and I’ve got on the
24th a very old murder that both parties have requested a No. 1
choice that I set way out, a long time ago, on the 24th. And
because of that, in reviewing my calendar, the only realistic day I
can give you is the 31st.
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So I’m not really doing what you’re saying. I am saying that I
cannot set it within the 70, I’m setting it on the 31st due to my
calendar just being stacked up so deep.
Tr. p. 19. In a docket entry dated July 23, 2015, the court stated, “Court resets
Jury Trial on first available/realistic date taking Early Trial request and the
courts [sic] calendar into account. Court views this as a congested date.”
Appellant’s App. p. 12.
[23] King claims the trial court should not have given the Ervin trial priority over his
trial because: (1) Ervin had not requested a speedy trial; (2) Ervin was
responsible for all of the delays in that case; and (3) Ervin’s case had not yet
reached the one-year deadline set forth in Indiana Criminal Rule 4(C). The
State does not dispute King’s characterizations of Ervin’s case. Even so, King’s
position is not supported by precedent. In Austin v. State, our Supreme Court
noted, “Rule 4(B) does not necessarily present a bright-line approach whereby
all other cases must yield to the defendant who files a speedy trial motion.” 997
N.E.2d at 1040. At the same time, speedy trial motions must receive priority
treatment. Id. at 1041. Thus, a defendant seeking a speedy trial should be given
a trial setting ahead of a defendant who had not requested a Rule 4 motion
“absent extenuating circumstances.” Id. at 1040-41. Extenuating
circumstances may include “major, complex trials that have long been
scheduled or that pose significant extenuating circumstances to litigants and
witnesses.” Clark v. State, 659 N.E.2d 548, 552 (Ind. 1995).
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[24] In this case, the trial court described the Ervin case as a murder trial, which is
frequently a complex matter, and the trial date had been scheduled for quite
some time. In addition, although Ervin may not have requested a speedy trial,
the parties in that case had jointly requested the trial setting the court had
scheduled. The Ervin case involved witnesses who were coming from out of
town. Finally, accommodating the Ervin trial delayed King’s trial by only a
few days beyond the seventy-day deadline. Based on this evidence, we cannot
conclude Rule 4(B) required the trial court to vacate the Ervin trial and
schedule King’s trial in its place. See Austin, 997 N.E.2d at 1043 (trial court did
not err by refusing to schedule defendant’s trial within the seventy-day limit; the
trial would have been held on relatively short notice and would have been a
hardship to out-of-state witnesses).
[25] King cites Logan v. State, 16 N.E.3d 953 (Ind. 2014), in support of his claim, but
that case is distinguishable. Logan involved Indiana Criminal Rule 4(C), a
different subsection of the rule than the one at issue here. Furthermore, the
discussion in Logan does not support King’s claim. In Logan, our Supreme
Court expressly declined to hold that “a trial court must always prioritize a
Rule 4(B) deadline over a Rule 4(C) deadline should the two conflict” or that a
“trial court must only prioritize a Rule 4(B) case when a Rule 4(C) deadline is
not imminent.” Id. at 960. Instead, the Logan court reaffirmed the holding in
Austin that a trial court “may” have to reschedule other cases’ trial dates to
accommodate a Rule 4(B) speedy trial request. Id. We are not left with a
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definite and firm conviction that a mistake has been made, and as a result we
decline to reverse the trial court on this issue.
II. Admission of Evidence
[26] King argues the trial court should not have admitted portions of testimony by
Corrales and a police officer, claiming their testimony was hearsay and
amounted to improper vouching testimony. The State claims the testimony
was necessary and appropriate to respond to King’s attempts to impeach
Corrales by challenging his honesty.
[27] We review the admission of evidence only for an abuse of discretion. Kyle v.
State, 54 N.E.3d 439, 443 (Ind. Ct. App. 2016). An abuse of discretion occurs
when the trial court’s decision is clearly against the logic and effects of the facts
and circumstances before it. Id.[28] In general, hearsay evidence is not admissible. Ind. Evid. Rule 802. Hearsay is
an out of court statement offered in evidence “to prove the truth of the matter
asserted in the statement.” Ind. Evid. Rule 801(c). A statement by a witness is
not hearsay if: (1) the declarant testifies; (2) the declarant is subject to cross-
examination about a prior statement; (3) the prior statement is consistent with
the declarant’s testimony; and (4) the prior statement is offered to rebut an
express or implied charge that the declarant recently fabricated it or acted from
a recent improper influence or motive in so testifying. Ind. Evid. Rule
801(d)(1).
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[29] In this case, on direct examination Corrales testified that King had told him
that he was going to claim self-defense and asked Corrales to support his story.
On cross-examination, Corrales conceded that when he first gave a statement to
the police on the day of the murder, he may not have told them that after the
shooting, King told him he was going to say he shot Mason in self-defense.
Corrales also testified on cross-examination that he had to move out of the
apartment after the incident and was homeless for a period of time. He stated
that at the time of trial, he was staying in a hotel room for which the State was
paying.
[30] Later during the State’s case-in-chief, the prosecutor recalled Corrales to the
stand. Corrales testified that after the police arrived at the scene, he told an
officer that King had said he was going to claim self-defense. Next, the State
called Officer Richard Lavish, Jr., of the IMPD to the stand. Lavish testified
that he spoke with Corrales after the shooting. Corrales told Lavish that King
came to his door, asked him to take his gun, and to tell the police it was self-
defense.
[31] King argues the later testimony from Corrales and Lavish was inadmissible
hearsay. We disagree because the testimony meets the definition of a prior
consistent statement under Evidence Rule 801(d)(1), and the State properly
used it to rehabilitate Corrales on redirect examination. Corrales and Lavish
testified about a prior statement (that Corrales had said King told him he would
claim self-defense). Corrales and Lavish were subject to cross-examination
about the statement. In addition, their testimony on redirect was consistent
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with Corrales’ initial testimony on direct examination that King told him he
intended to claim self-defense. Finally, the State offered Corrales’ and Lavish’s
testimony to rebut King’s allegation that the State improperly influenced
Corrales’ testimony by paying for his hotel room. Their testimony was not
hearsay. See Bassett v. State, 895 N.E.2d 1201, 1213-14 (Ind. 2008) (witness’s
prior consistent statement was admissible to rehabilitate her testimony after the
defendant alleged on cross-examination that she had fabricated her testimony
on direct examination); Moreland v. State, 701 N.E.2d 288, 293 (Ind. Ct. App.
1998) (police officer allowed to testify about what victim had told her earlier;
officer’s testimony was a prior consistent statement and thus not hearsay).
[32] King claims that Corrales and Lavish’s testimony amounted to inappropriate
vouching for Corrales’ truthfulness on direct examination. We disagree.
Neither lay nor expert witnesses are competent to testify that another witness is
or is not telling the truth. Nordstrom v. State, 627 N.E.2d 1380, 1384 (Ind. Ct.
App. 1994), trans. denied. In this case, neither Corrales nor Lavish testified as to
Corrales’ truthfulness. Instead, they simply reported the prior statements. The
trial court did not abuse its discretion in admitting their testimony. See id.(officer did not present improper vouching testimony when he discussed
statements he had made to defendant during the investigation).
III. Self-Defense
[33] King asserts the State failed to present sufficient evidence to disprove his claim
of self-defense. When a claim of self-defense is raised and finds support in the
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evidence, the State has the burden of negating at least one of the necessary
elements. Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). The State may
meet this burden by rebutting the defense directly, by affirmatively showing the
defendant did not act in self-defense, or by simply relying upon the sufficiency
of its evidence in chief. Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999).
[34] The standard of review for a challenge to the sufficiency of evidence to rebut a
claim of self-defense is the same as the standard for any sufficiency of the
evidence claim. Wilson, 770 N.E.2d at 801. We do not reweigh the evidence or
judge the credibility of the witnesses. Id. We consider only the probative
evidence and reasonable inferences drawn from the evidence that support the
verdict. Miller, 720 N.E. 2d at 699. If the defendant is convicted despite a
claim of self-defense, this Court will reverse only if no reasonable person could
say that self-defense was negated by the State beyond a reasonable doubt.
Wilson, 770 N.E.2d at 800-01.
[35] “A person is justified in using reasonable force against any other person to
protect the person or a third person from what the person reasonably believes to
be the imminent use of unlawful force.” Ind. Code § 35-41-3-2(c) (2013). “No
person in this state shall be placed in legal jeopardy of any kind whatsoever for
protecting the person or a third person by reasonable means necessary.” Id. To
prevail on a claim of self-defense under Indiana Code section 35-41-3-2, a
defendant must have: (1) acted without fault; (2) been in a place where he or
she had a right to be; and (3) been in reasonable fear or apprehension of bodily
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harm. Weedman v. State, 21 N.E.3d 873, 891-92 (Ind. Ct. App. 2014), trans.
denied.
[36] At trial, King claimed he should not be held responsible for murder and
carrying a handgun without a license because he shot Mason in self-defense
when Mason and another person attempted to rob him in his apartment. The
State presented sufficient evidence to rebut King’s claim. King’s apartment
showed no signs of a struggle or forced entry. In addition, King’s clothing was
not disheveled after the incident, and he was perfectly calm. Mason’s corpse
showed no signs of a fight. To the contrary, the autopsy showed Mason was
drunk and had been shot in the head from more than three feet away, which
undermines King’s claim of a fight.
[37] Immediately after the shooting, Corrales and one of his roommates saw King
carrying a gun. King said he shot someone, was going to claim self-defense,
and asked Corrales to substantiate his claim and hide the gun. When Corrales
declined, King left the apartment building but returned soon thereafter, without
the gun. This evidence contradicts King’s statement to the police that a second
assailant took the gun as he fled from King’s apartment. Corrales did not hear
anyone fleeing from King’s apartment after the gunshot.
[38] In addition, earlier in the day King appeared to witnesses to be high on alcohol
and drugs, and he had demanded money or pills from Corrales’ roommates.
Mason always carried pain medication with him, but after the murder the pills
were not found on Mason’s body. This is ample evidence from which a
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reasonable finder of fact could have concluded that King murdered a highly
intoxicated Mason to take his pills and thus failed to act without fault. See
McCullough v. State, 985 N.E.2d 1135, 1139 (Ind. Ct. App. 2013) (State
submitted sufficient evidence to rebut claim of self-defense where evidence from
the victim’s bodies undercut defendant’s claim of a struggle and the defendant
attempted to conceal evidence), trans. denied.
IV. Sentencing
[39] King claims the sentencing order is “confusing” and should be clarified. First,
he notes the sentencing order states the habitual offender enhancement is
“merged” with the murder conviction, which he claims is inappropriate
terminology. Appellant’s App. p. 21. We note the order also states the murder
sentence was “enhanced 10 years by habitual offender enhancement.” Id. at 22.
Reading the order as a whole, we cannot conclude a reasonable person would
be confused as to the relationship between the murder sentence and the habitual
offender enhancement.
[40] Next, King claims the trial court failed to state with sufficient clarity that he is
serving the final three years of his sentence on community corrections. We
disagree. Page two of the sentencing order clearly states King will serve “62
years DOC followed by 3 years of community corrections.” Id. The order
sufficiently explains the sentence, and we do not see a need for remand.
Conclusion
[41] For the reasons stated above, we affirm the judgment of the trial court.
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[42] Affirmed.
May, J., and Pyle, J., concur.
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