Demajio J. Ellis v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 25 2019, 9:47 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott H. Duerring Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Demajio J. Ellis, April 25, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1646
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff Judge
Trial Court Cause No.
71D03-1011-FA-44
Baker, Judge.
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[1] Demajio Ellis appeals his convictions for two counts of Class A Felony
Attempted Murder1 and two counts of Class C Felony Attempted Robbery. 2
Ellis argues that the trial court committed fundamental error when it allowed
the State to call his accomplice as a witness and that the evidence is insufficient
to support the attempted murder convictions. Finding no fundamental error
and sufficient evidence, we affirm.
Facts
[2] In November 2010, Chad Nickerson, Jerry Atwood, and Jason Kleinrichert
went to a McDonald’s in South Bend one afternoon. At that time, Atwood and
Kleinrichert were both fifteen or sixteen years old. Ellis and Shawn Alexander
entered the restaurant, approached the group, and asked them to buy a can of
spray paint from Family Dollar; the group refused. Ellis and Alexander also
asked Atwood if he could obtain a gun for them; Atwood replied that he could
not. The group then left McDonald’s, spent some more time together at
different places, and split up around 7:30 p.m., when Atwood and Kleinrichert
began walking to Kleinrichert’s house together.
[3] As Atwood and Kleinrichert were walking, Ellis and Alexander approached
them, asking for a cigarette or money for a cigarette. Ellis and Alexander then
wanted to see Atwood’s hoodie, so he took it off so that Alexander could try it
1
Ind. Code §§ 35-42-1-1 (2010), 35-41-5-1 (2010).
2
I.C. §§ 35-42-5-1 (2010), 35-41-5-1 (2010).
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on. Alexander reached into the pocket of the hoodie and found a knife, asking
Atwood, “Oh, you gonna pull a knife on us?” Tr. Vol. II p. 101. Atwood said
no.
[4] Ellis and Alexander then forced Atwood and Kleinrichert to go with them to an
abandoned house. Inside, Ellis and Alexander told the two teenagers to kneel
and take their shirts off. Then, they took them to a nearby alley. Alexander
walked behind Atwood, grabbed him by the throat, and choked him to the
point of unconsciousness. Atwood later regained consciousness and saw Ellis
and Alexander fighting Kleinrichert. Atwood started swinging his fists and
mistakenly hit Kleinrichert, who fell face first into a metal electric box. Atwood
was then choked to the point of losing consciousness again; when he regained
consciousness, he began kicking Ellis. Someone kicked Atwood in the face,
and Ellis stomped on Atwood’s face, causing him to lose consciousness yet
again. While Atwood was unconscious, someone cut his throat and
Kleinrichert’s throat. When Atwood woke up, he saw Kleinrichert and no one
else. Kleinrichert told Atwood that Alexander had slashed Kleinrichert’s throat
and that Ellis had cut Atwood. Kleinrichert and Atwood were both bleeding
and surprised to be alive. Their hoodies and their knives were gone.
[5] Kleinrichert and Atwood then ran to Nickerson’s house. Nickerson opened the
door and saw that the necks of both teenagers were cut and bleeding and their
shirts were covered in blood. Atwood told Nickerson that the two men the
group had encountered at McDonald’s were the attackers. Nickerson called
911. Police responded, finding Atwood and Kleinrichert terrified,
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hyperventilating, and bleeding. They were immediately transported to the
hospital because of the life-threatening injuries.
[6] On November 9, 2010, the State charged Ellis with two counts of attempted
murder and two counts of attempted robbery, all as Class A felonies. On May
11, 2011, Ellis pleaded guilty. Eventually, in 2017, our Supreme Court found
that Ellis was entitled to post-conviction relief because he had maintained his
innocence at the same time he pleaded guilty. Ellis v. State, 67 N.E.3d 643, 645
(Ind. 2017). Therefore, the cause was remanded to the trial court for further
proceedings.
[7] A jury trial took place on June 4-5, 2018.3 By that time, Alexander had pleaded
guilty to the attempted murder and attempted robbery of both victims. The
State subpoenaed him to testify at Ellis’s trial, but Alexander indicated that he
did not want to testify. He told the trial court that he intended to exercise his
Fifth Amendment rights. The trial court informed Alexander that because he
had pleaded guilty, he did not have any Fifth Amendment rights in this case,
and that if he refused to testify, he would be held in contempt of court. The
State called Alexander as a witness and, in front of the jury, Alexander invoked
his Fifth Amendment rights. The trial court excused the jury and, after giving
Alexander several opportunities to change his mind, found Alexander in
contempt of court.
3
Ellis represented himself at his jury trial. Atwood testified reluctantly at trial; Kleinrichert did not testify.
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[8] The State proceeded against Ellis under two separate theories: Ellis as the
principal and Ellis as an accomplice to Alexander. The trial court instructed the
jury on attempted murder under both theories. The jury found Ellis guilty as
charged. On July 5, 2018, the trial court sentenced Ellis to an aggregate term of
forty years imprisonment. Ellis now appeals.
Discussion and Decision
I. Alexander
[9] First, Ellis argues that the trial court committed fundamental error when it
permitted the State to call Alexander to testify, knowing that Alexander
intended to invoke the Fifth Amendment. Because Ellis did not object at the
time of trial, he must show fundamental error to be entitled to relief. An error
is fundamental if it made a fair trial impossible or constituted a blatant violation
of basic and elementary principles of due process presenting an undeniable and
substantial potential for harm. Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018).
The fundamental error doctrine is extremely narrow and applies only if the
error was so blatant that the trial judge should have acted independently to
correct the situation. Id.
[10] As a general rule, “it is improper for the prosecutor to call as a witness a
codefendant when the prosecutor knows in advance that the witness will invoke
the Fifth Amendment and refuse to testify.” Borders v. State, 688 N.E.2d 874,
879 (Ind. 1997). But when an individual has already been convicted of the
crime at issue, any question asked by the State merely serves to identify the
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individual as the perpetrator of that crime; therefore, the individual is not
entitled to any Fifth Amendment rights. State v. Cass, 635 N.E.2d 225, 227 (Ind.
Ct. App. 1994).
[11] Here, Alexander had already been convicted of attempted murder and
attempted robbery when he was subpoenaed as a witness. The trial court told
him that he was not entitled to invoke the Fifth Amendment to avoid testifying
and that if he refused to testify, he would be found in contempt of court. Under
these circumstances, it was not erroneous to permit Alexander to be called as a
witness. Furthermore, Ellis did not ask that the trial court admonish the jury to
disregard the testimony, nor did he ask that the jury be given an instruction
regarding Alexander’s invocation of the Fifth Amendment. Therefore, even if
an error occurred, it was not fundamental. Ellis is not entitled to relief on this
basis.
II. Sufficiency
[12] Ellis also argues that the evidence is insufficient to support his convictions for
two counts of attempted murder. When reviewing the sufficiency of the
evidence to support a conviction, we must consider only the probative evidence
and reasonable inferences supporting the conviction and will neither assess
witness credibility nor reweigh the evidence. Drane v. State, 867 N.E.2d 144,
146 (Ind. 2007). We will affirm unless no reasonable factfinder could find the
elements of the crime proved beyond a reasonable doubt. Id.
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[13] To convict Ellis of Class A felony attempted murder, the State was required to
prove beyond a reasonable doubt that he engaged in conduct that constituted a
substantial step toward intentionally killing Atwood and Kleinrichert. I.C. §§
35-42-1-1 (2010), 35-41-5-1 (2010). The State must prove that Ellis acted with
specific intent to kill. Rosales v. State, 23 N.E.3d 8, 12 (Ind. 2015).
[14] As noted above, the State proceeded against Ellis under two theories—Ellis as
the principal and Ellis as an accomplice to Alexander—and the jury was
instructed on both theories. Indiana’s accomplice liability statute provides, in
relevant part, that “[a] person who knowingly or intentionally aids, induces, or
causes another person to commit an offense commits that offense[.]” I.C. § 35-
41-2-4. Pursuant to this statute, an individual who aids another person in
committing a crime is as guilty as the actual perpetrator. Specht v. State, 838
N.E.2d 1081, 1093 (Ind. Ct. App. 2005). An accused’s mere presence at the
scene of the crime, or mere acquiescence in the commission of a crime, is
insufficient to convict the accused as an accomplice. Bethel v. State, 110 N.E.3d
444, 450 (Ind. Ct. App. 2018), trans. denied. Instead, we consider the following
factors: (1) presence at the scene of the crime; (2) companionship with another
person engaged in criminal activity; (3) failure to oppose the crime; and (4) the
defendant’s conduct before, during, and after the occurrence of the crime.
Woods v. State, 963 N.E.2d 632, 634 (Ind. Ct. App. 2012).
[15] Here, there is evidence that Ellis himself attempted to kill Atwood. While
Atwood was unconscious at the time his throat was slit, he testified that
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Kleinrichert told him that Ellis had cut him. Atwood also testified that
Kleinrichert stated that Ellis had been walking around with a knife in his hand.4
[16] Even if Atwood’s testimony were discounted, there is a wealth of other
evidence to show that Ellis acted as an accomplice to the attempted murders. It
is undisputed that Ellis was present at the scene of the crimes and it is clear
from the record that Ellis had companionship with Alexander, given that Ellis
and Alexander were together when they approached the group in McDonald’s
and were still together later when they encountered Atwood and Kleinrichert.
Ellis was an active participant in taking Atwood and Kleinrichert to the
abandoned house and in the subsequent fight, during which he stomped on
Atwood’s face. There is no evidence that Ellis ever opposed the crime. Instead,
Ellis’s conduct before, during, and after the crimes plainly shows that he was an
active participant and that he acted with specific intent to kill the teenagers. In
addition to Ellis’s conduct during the fight, he fled with Alexander afterwards,
leaving Atwood and Kleinrichert unconscious and bleeding with their necks
sliced. We find that even if the evidence is questionable with respect to Ellis’s
direct commission of the attempted murders, it readily supports his guilt as an
accomplice to the crimes. In other words, the evidence is sufficient.
4
While Ellis states in a footnote of his brief that Atwood’s statements constituted hearsay, he did not object
to those statements at trial and may not now raise the argument on appeal. We note that even if an objection
had been made, it would have been overruled because the statements would have qualified as excited
utterances. Ind. Evidence Rule 803(2).
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[17] The judgment of the trial court is affirmed.
Najam, J., and Robb, J., concur.
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