Brent Lavon Thomas v. State of Indiana (mem. dec.) ( 2017 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                      FILED
    regarded as precedent or cited before any                             Aug 08 2017, 9:24 am
    court except for the purpose of establishing
    CLERK
    the defense of res judicata, collateral                                Indiana Supreme Court
    Court of Appeals
    estoppel, or the law of the case.                                           and Tax Court
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Ellen M. O’Connor                                        Curtis T. Hill, Jr.
    Indianapolis, Indiana                                    Attorney General of Indiana
    Ian McLean
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Brent Lavon Thomas,                                      August 8, 2017
    Appellant-Defendant,                                     Court of Appeals Case No.
    49A04-1612-CR-2763
    v.                                               Appeal from the Marion Superior
    Court
    State of Indiana,                                        The Honorable Sheila A. Carlisle,
    Appellee-Plaintiff                                       Judge
    The Honorable Stanley Kroh,
    Magistrate
    Trial Court Cause No.
    49G03-1511-MR-42385
    Altice, Judge.
    Case Summary
    Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2763 | August 8, 2017          Page 1 of 10
    [1]   Following a jury trial, Brent Thomas was convicted of murder, a felony, and
    sentenced to sixty years imprisonment. On appeal, Thomas argues that the trial
    court abused its discretion in allowing evidence of a witness’s out-of-court
    identification of him as the shooter.
    [2]   We affirm.
    Facts & Procedural History
    [3]   John Clemons, known to many as “Uncle Johnny,” lived at the corner of 33rd
    Street and North Butler Avenue in Indianapolis. Clemons had known Ronald
    Munn for six to seven years and had worked on Munn’s cars. Clemons also
    knew Thomas and his brother, Bryant (a.k.a., “Tubby”), for six to seven years
    because their grandmother, known to many as “Granny,” lived in the cul-de-
    sac, three houses down from Clemons. Transcript Vol. 2 at 50.
    [4]   Around 11:00 a.m. on November 25, 2016, Clemons went outside and saw
    Munn, who had parked his car in front of Granny’s house and was talking to
    Tubby and Lamar McNary. Munn yelled to Clemons that he needed to retrieve
    some phone numbers from the phone he had previously given to Clemons.
    Clemons walked over to Munn and gave him the cell phone. As Clemons
    returned to his home, Antonio Kinnebrew pulled up in his white Impala.
    [5]   Clemons and Kinnebrew were standing beside Kinnebrew’s car when Munn
    pulled his car up beside the Impala. At that same time, Thomas and two other
    Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2763 | August 8, 2017   Page 2 of 10
    individuals, Tyre Sherman and Dominique,1 came out of a blue house located
    in the cul-de-sac.2 Of the three men, Thomas was the shortest. A verbal
    confrontation ensued, with “fighting words” being exchanged between Munn
    and Sherman. Id. at 56. Munn then backed up and got out of his car. Clemons
    and Kinnebrew watched as Sherman took off his white t-shirt and laid it on the
    ground and Munn removed his jacket. Sherman and Munn then started
    fighting in the middle of the street—throwing punches and kicking at each
    other. Munn eventually overpowered Sherman and “beat him up real bad”
    such that Sherman fell to the ground and could not get up. Id. at 60.
    Dominique, who was recording the fight with his cell phone, said something as
    he approached Munn, and Munn stopped the assault on Sherman. As Munn
    started to get up off of Sherman, Thomas, who was seen holding a gun
    sideways in his hand, fired shots at Munn. Munn looked at Clemons, who was
    still standing next to the white Impala and said, “Uncle Johnny, I’m hit.... Call
    911.” Id. at 62. Thomas then fired additional shots, hitting Munn again. In
    total, Munn suffered three gunshot wounds—one to his hip, one to his
    shoulder, and one to his chest that proved to be fatal.
    [6]   As Munn stumbled toward his car, Thomas headed back toward the house from
    which he came and other bystanders ran for cover. Munn managed to get into
    his car and then drove north toward 34th Street. Kinnebrew got into his car and
    1
    Neither party provides a last name for Dominique.
    2
    Sherman lived in the blue house.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2763 | August 8, 2017   Page 3 of 10
    called 911. Shortly thereafter, Clemons also got into Kinnebrew’s car and they
    followed Munn, ultimately locating Munn’s car at a gas station at 34th Street
    and Emerson Avenue. Clemons found Munn curled up beside his car.
    Believing that Munn was dead, Clemons and Kinnebrew returned to Clemons’s
    home, where they encountered police responding to the 911 call reporting the
    shooting. Clemons told the police what had happened and identified Thomas
    as the shooter. Clemons later identified Thomas from a photo array.
    Kinnebrew likewise told police that “the shorter” of the individuals (i.e.,
    Thomas) was the shooter and later identified Thomas from a photo array.
    Transcript Vol. 3 at 14.
    [7]   Kyle Ellis was a civil engineer employed by a company doing work for the
    Department of Public Works for the City of Indianapolis. On the day of the
    shooting, Ellis and his co-worker were driving on 33rd Street, surveying the
    streets for needed services. Ellis was driving a full-sized pick-up truck and came
    to a stop at the intersection of 33rd Street and North Butler Avenue. Ellis’s path
    was hindered by Munn’s car and the men in the area. Ellis saw Munn exit his
    vehicle and take off his jacket and Sherman take off his shirt and then watched
    as the two men engaged in a physical confrontation in the street. Ellis tried to
    turn the truck around and retreat from the situation, but was blocked from
    doing so by a fence. Ellis then turned the truck back toward the intersection
    and saw Munn knock Sherman to the ground. He then heard gunfire and saw a
    man holding a semi-automatic gun sideways, firing at Munn. Munn collapsed
    to the ground as Ellis drove away from the intersection. Ellis observed the
    Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2763 | August 8, 2017   Page 4 of 10
    shooter run from the intersection. Ellis called 911, but did not remember if he
    provided his name.
    [8]   About a week after the shooting, Ellis and his co-worker came across a news
    article about the shooting that included a photograph of Thomas. Ellis’s “first
    thought” was that the picture “looked like . . . [t]he shooter.” Transcript Vol. 2
    at 129. Ellis contacted police and was interviewed on December 3, 2016.
    About six months after he had spoken with the police, Ellis was shown a photo
    array, but could not identify Thomas. Over Thomas’s objection, Ellis testified
    at trial about identifying Thomas through the picture contained in the news
    article. He also testified regarding the physical characteristics of the other
    individuals he saw in the area of the shooting, and described the shooter as “the
    shortest” one.3 Id. at 123.
    [9]   On November 30, 2015, the State charged Thomas with murder. A jury trial
    commenced on September 29, 2016, but ended in a mistrial when the jury failed
    to reach a verdict. A second jury trial was held on October 24-25, 2016, at the
    conclusion of which the jury found Thomas guilty as charged. Thomas was
    subsequently sentenced to sixty years imprisonment. He now appeals.
    Discussion & Decision
    3
    Ellis described Sherman as “stocky,” Dominique as “fairly tall” and “wearing a white track type suit,” and
    Thomas as “the shorter . . . probably about six inches or more shorter than the tall black male.” Transcript at
    119, 121, 122.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2763 | August 8, 2017              Page 5 of 10
    [10]   Thomas argues that the trial court abused its discretion in allowing the State to
    introduce evidence of Ellis’s out-of-court identification of him as the shooter.
    [11]   A trial court’s decision regarding the admission of evidence is squarely within
    that court’s discretion, and we afford it great deference on appeal. VanPatten v.
    State, 
    986 N.E.2d 255
    , 260 (Ind. 2013). We will not reverse such a decision
    unless it is clearly contrary to the logic and effect of the facts and circumstances
    of the case or misinterprets the law. 
    Id.
    [12]   “The Due Process Clause of the United States Constitution and the Due Course
    of Law Clause of the Indiana Constitution prohibit state action which deprives
    a person of life, liberty, or property without the ‘process' or ‘course of law’ that
    is due, that is, a fair proceeding.”4 Gingerich v. State, 
    979 N.E.2d 694
    , 710 (Ind.
    Ct. App. 2012), trans. denied. The identification of a defendant must comport
    with the standards of due process. Lewis v. State, 
    898 N.E.2d 429
    , 432 (Ind. Ct.
    App. 2008), trans. denied. Thus, if an out-of-court identification was obtained by
    law enforcement in an impermissibly suggestive manner, then the testimony
    relating to it is inadmissible. Rasnick v. State, 
    2 N.E.3d 17
    , 23 (Ind. Ct. App.
    2013), trans. denied. If, “under the totality of the circumstances, the
    identification was reliable even though the procedure was suggestive,” such
    identification is admissible. Hubbell v. State, 
    754 N.E.2d 884
    , 892 (Ind. 2001).
    4
    Thomas does not present a separate and independent argument under the Indiana Constitution. We
    therefore confine our review to consideration of federal due process protections.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2763 | August 8, 2017      Page 6 of 10
    [13]   Underlying the due process requirement is state action via the use of suggestive
    identification procedures by law-enforcement officials. “[I]n order to present a
    valid constitutional argument that a pretrial identification was impermissibly
    suggestive [because the witness had viewed defendant’s photograph in a news
    article prior to a pretrial lineup], one must first show that the law enforcement
    personnel or the prosecution were responsible for the circumstances giving rise
    to the claim.” Harris v. State, 
    619 N.E.2d 577
    , 581 (Ind. 1993). In other words,
    when an identification is attended only by private action such as publication of
    a photograph or other material by print or electronic media, the required
    element of state action is missing and due process concerns do not limit
    admission of the identifying testimony. 
    Id.
    [14]   Here, Ellis’s pre-trial identification resulted from his viewing of Thomas’s
    picture in a news article. Thomas even acknowledges that there was no state
    action as the police were not involved in Ellis’ pretrial identification. Due
    process protections are therefore not implicated. See 
    id.
    [15]   Notwithstanding the lack of state action, Thomas argues that the circumstances
    of Ellis’s pre-trial identification—that he identified Thomas upon viewing
    Thomas’s picture in a news article—were such that his pre-trial identification
    was unreliable and therefore inadmissible. Our Supreme Court has rejected this
    very argument. In Broadus v. State, 
    487 N.E.2d 1298
    , 1300-01 (Ind. 1986),
    witnesses to a robbery provided descriptions of the suspects immediately after
    the crime. After the witnesses viewed the pictures of the suspects in the
    newspaper, they changed their descriptions to conform more closely with the
    Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2763 | August 8, 2017   Page 7 of 10
    characteristics of the suspects. The defendants challenged the admissibility of
    the in-court identification of them by the victims as being tainted by suggestive
    identification procedures. The Court held that “any suggestion implanted in
    the witness’ mind by seeing a suspect’s photograph in the newspaper should go
    to the weight, and not the admissibility, of the in-court identification.” See also
    Norris v. State, 
    265 Ind. 508
    , 512, 
    356 N.E.2d 204
    , 206 (1976) (holding the
    viewing by a witness of a newspaper article containing a photograph of the
    accused and identifying him as the suspect does not constitute an impermissibly
    suggestive identification procedure). Here, Thomas did not make an in-court
    identification of Thomas. Further, Thomas’s arguments as to why Ellis’s pre-
    trial identification of him is unreliable are matters that go to the weight to be
    afforded his testimony, not its admissibility. The trial court did not abuse its
    discretion in allowing the State to present Ellis’s identification testimony.
    [16]   Even if the admission of such evidence was error, any error would be harmless.5
    An error in the admission of evidence is harmless “when the conviction is
    supported by such substantial independent evidence of guilt as to satisfy the
    reviewing court that there is no substantial likelihood that the questioned
    evidence contributed to the conviction.” Granger v. State, 
    946 N.E.2d 1209
    ,
    1213 (Ind. Ct. App. 2011) (quoting Lafayette v. State, 
    917 N.E.2d 660
    , 666 (Ind.
    2009)). In other words, we will reverse “only if the record as a whole discloses
    5
    For the reasons stated herein, we need not delve into Thomas’s arguments that Ellis’s testimony was not
    relevant and unduly prejudicial. See Ind. Evidence Rules 401 and 403.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2763 | August 8, 2017           Page 8 of 10
    that the erroneously admitted evidence was likely to have had a prejudicial
    impact upon the mind of the average juror, thereby contributing to the verdict.”
    
    Id.
     (quoting Wales v. State, 
    768 N.E.2d 513
    , 521 (Ind. Ct. App. 2002), trans.
    denied). Further, any error in admitting evidence will be found harmless where
    evidence is merely cumulative. Kilpatrick v. State, 
    746 N.E.2d 52
    , 57 (Ind.
    2001).
    [17]   Here, we first note that the State did not elicit from Ellis an in-court
    identification of Thomas as the shooter. Further, Ellis unequivocally testified
    before and during trial that his recognition of Thomas’s photograph as a
    photograph of the man he saw shoot Munn was occasioned by the publication
    of the photograph by a news outlet. At trial, Ellis testified only as to what he
    had personally witnessed on the day of the incident and his conclusion that the
    photograph published by the news source was a photograph of the person he
    had seen shooting at Munn that day. Thomas thoroughly cross-examined Ellis,
    challenging the reliability of his conclusion that Thomas was the shooter. The
    jury was also made aware that when Ellis was presented with a photo array by
    police approximately six months after the shooting, Ellis was unable to identify
    Thomas.
    [18]   Moreover, we note that Ellis’s testimony was not the only evidence identifying
    Thomas as the shooter. Clemons, who had known Thomas for over six years,
    clearly and unequivocally testified that he “saw [Thomas] do the shooting” and
    also identified him from a photo array. Transcript Vol. 2 at 67. Kinnebrew also
    testified and confirmed that he identified Thomas as the shooter from a photo
    Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2763 | August 8, 2017   Page 9 of 10
    array. Ellis’s identification testimony was merely cumulative of other properly
    admitted evidence to the same effect.
    [19]   Judgment affirmed.
    Kirsch, J. and Mathias, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2763 | August 8, 2017   Page 10 of 10
    

Document Info

Docket Number: 49A04-1612-CR-2763

Filed Date: 8/8/2017

Precedential Status: Precedential

Modified Date: 8/8/2017