Joshua Sage v. State of Indiana , 114 N.E.3d 923 ( 2018 )

FILED
Dec 05 2018, 7:38 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark F. James Curtis T. Hill, Jr.
Anderson Agostino & Keller, PC Attorney General of Indiana
South Bend, Indiana Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua Sage, December 5, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1557
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff. Judge
Trial Court Cause No.
71D03-1708-MR-11
Riley, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-1557 | December 5, 2018 Page 1 of 15
STATEMENT OF THE CASE
[1] Appellant-Defendant, Joshua Sage (Sage), appeals his conviction for two
Counts of felony murder, Ind. Code §§ 35-42-1-1(3)(B); 35-48-4-1.1.
[2] We affirm.
ISSUES
[3] Sage presents two issues on appeal, which we restate as:
(1) Whether the trial court abused its discretion when it admitted
his statement made to police while he was hospitalized for
injuries sustained during the offenses; and
(2) Whether the State produced sufficient evidence to prove the
offenses beyond a reasonable doubt.
FACTS AND PROCEDURAL HISTORY
[4] In the days preceding August 2, 2017, Jermon Gavin (JG) contacted Ron
Snyder (Snyder) to arrange the purchase of a large amount of
methamphetamine. Snyder, in turn, contacted Sage, who agreed to supply
approximately one and one-half pounds of methamphetamine to sell to JG.
Sage was to deliver the drugs to Snyder’s home located in the 2100 block of
Frederickson Street in South Bend, Indiana. Sage did not feel at ease about the
deal with JG from the beginning, and he knew that it was necessary for his
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personal safety to be armed when dealing in such a large quantity of
methamphetamine. Sage carried a Sig Sauer handgun. He also arranged for
his brother, Robert Brady (Brady), to accompany him to Snyder’s home to
“have [his] back.” (Exhibit 135, Exh. Vol. I, Clip 3 at 10:30-:33). Sage
provided his brother with a Smith and Wesson handgun.
[5] During the evening of August 2, 2017, Sage and Brady brought the
methamphetamine to Snyder’s home. There were at least nine other people
present at Snyder’s home that evening, including Alyssa Sanchez (Izzy). Sage
transported the methamphetamine in a plastic grocery bag in which he also
stowed his own “bowl” used for smoking meth. (Transcript Vol. 3, p. 76).
Upon arriving, Sage and Brady went to the basement of Snyder’s home, where
they consumed methamphetamine. Either Brady or Sage armed Snyder with a
handgun.
[6] Unbeknownst to them, JG and his associates, Jesus Pedraza (Jesse) and Benito
Pedraza (Benny), had decided to steal the methamphetamine, so they armed
themselves with handguns prior to going to Snyder’s home. As part of their
plan, they dropped off Damon Bethel (Bethel), who was also carrying a
handgun, in an alley near Snyder’s home. JG and the Pedraza brothers arrived
at Snyder’s home shortly before midnight. While Benny remained in their car
parked across the street from Snyder’s home, JG, Jesse, Sage, Brady and Snyder
convened in the attached garage of Snyder’s home, leaving the garage door
open looking out onto Frederickson Street. Sage produced the
methamphetamine for JG and Jesse to sample, inspect, and weigh. As the
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methamphetamine deal unfolded, Anton James (James), pulled up in a white
SUV in front of Snyder’s home. James had come to the home to sell Izzy
marijuana. Although James was known to Snyder and others at Snyder’s
home, he was not a participant in the methamphetamine deal. Sage saw the
SUV pull up outside, and it made him nervous.
[7] Jesse eventually left the garage and telephoned JG’s cell phone to inform JG
that he intended to go through with the theft of the methamphetamine. As JG
withdrew from the garage, Bethel ran in with his gun drawn, demanding the
methamphetamine. According to Sage, Bethel did not await a response before
firing on Sage. A fusillade of gunfire ensued as Sage and Brady exchanged
shots with JG and Bethel. In addition, when the firing started, Benny emerged
from their parked car and paused to fire into the white SUV before directing
additional shots into the garage. James sped away with Izzy in the SUV but
crashed the SUV two blocks away. James perished in his SUV from a bullet
which struck his aorta. Back in the garage, Sage and Brady had both shot
Bethel, who died lying face down in the garage. Sage was shot four times. Law
enforcement arrived quickly. A total of fifty-one shell casings were recovered
from the scene. Sage had fired his handgun at least fourteen times.
[8] On August 7, 2017, investigators attempted to interview Sage, but he invoked
his right to counsel and did not consent to be interviewed. On August 8, 2017,
while Sage was still hospitalized, the State filed an Information, charging Sage
with two Counts of felony murder, one Count of dealing in methamphetamine,
and one Count of attempted dealing in methamphetamine. On August 12,
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2017, Sage communicated to the officer guarding him that he wished to speak
to investigators. While being treated for his injuries, Sage had received pain
medications, including fentanyl and morphine. Sage last received fentanyl on
August 5, 2017. Although fentanyl is a strong medication, its effects dissipate
rapidly. On August 13, 2017, Sage received a final, low dose of morphine at
2:58 a.m. Sage also received a dose of Narco, which is a blend of Tylenol,
acetaminophen, and hydrocodone, at 9:07 a.m. Sage was being administered
Narco to transition him from morphine in preparation for his discharge from
the hospital. Narco is a medication that is prescribed for outpatient use that
may be taken without hindrance to daily function. The registered nurse
charged with administering Sage his medication found him to be lucid,
cognizant, and alert on August 13, 2017. The medication nurse did not note
that Sage was experiencing any cognitive or memory issues that day.
[9] On August 13, 2017, Detectives Timothy Wiley (Detective Wiley) and Gery
Mullins (Detective Mullins) went to the hospital to interview Sage, as per
Sage’s request. Before interviewing him and according to their usual practice,
the officers contacted Sage’s medication nurse who informed them that she had
no concerns about Sage’s ability to speak with them. The interview, which was
videotaped, began at 12:50 p.m. Detective Wiley read Sage a waiver of
attorney rights form that provided that Sage had previously requested an
attorney, now wished to waive his right to an attorney, had initiated the
interview, and had requested to make a statement. Sage confirmed that those
provisions were true and signed the waiver of attorney form. Detective Mullins
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then provided Sage with his Miranda advisements and asked Sage if he had any
questions, to which Sage responded, “No, I understand.” (Exhibit 135, Exh.
Vol. I, Clip 1 at 2:57-3:01). Detective Mullins read Sage a waiver of his
Miranda rights, and Sage confirmed to Detective Mullins that the provisions of
the waiver were true before signing the form.
[10] At the beginning of the interview, Detective Mullins asked Sage to explain to
them what happened, and Sage spoke largely uninterrupted about the drug deal
and shootings for approximately five minutes. Sage provided detailed physical
descriptions of JG, Jesse, and Bethel, and their movements during the offenses.
Sage admitted that he shot at Bethel with the Sig Sauer handgun and that he
was probably the person who killed him. Sage also thought it was possible that
he had fired in the direction of the open garage door. Throughout the
interview, Sage responded to the detectives’ questions, and he asked the
detectives questions of his own. Sage provided the detectives with his address
and his cell phone number. The interview concluded at 1:42 p.m. On August
14, 2017, Sage was discharged from the hospital into police custody.
[11] On January 22, 2018, Sage filed a motion to suppress his August 13, 2017,
statement, arguing that his injuries and the medications he received could
“affect a person’s ability to give a free, voluntary and knowing statement.”
(Appellant’s App. Vol. II, p. 13). On May 4, 2018, the trial court held a hearing
on Sage’s motion to suppress. The trial court denied Sage’s motion the same
day, finding that Sage had signed valid waivers of his right to an attorney and to
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his Miranda rights, that he was lucid during the interview, and that he
understood what was being asked of him.
[12] Sage’s jury trial took place May 14, 2018, through May 17, 2018. Sage’s
counsel objected to the admission of Sage’s August 13, 2017, statement on the
same grounds raised in the previously-denied motion to suppress. The jury
found Sage guilty of the four charged offenses. On June 20, 2018, the trial court
entered judgment of conviction on the two felony murder convictions only and
sentenced Sage to two concurrent terms of fifty-five years.
[13] Sage now appeals. Additional facts will be added as necessary.
DISCUSSION AND DECISION
I. Voluntariness of Statement
[14] Sage contends that the trial court erred when it denied his motion to suppress.
We note that, because this appeal follows the admission of Sage’s statement at
trial, the issue on appeal is better framed as whether the trial court erred when it
admitted the challenged statement at trial. Guilmette v. State, 14 N.E.3d 38, 40
(Ind. 2014). As a general rule, the trial court has broad discretion to rule on the
admissibility of evidence. Id. We review for an abuse of the trial court’s
discretion and reverse only when the admission of the challenged evidence is
clearly against the logic and effect of the facts and circumstances and the error
affects a party’s substantial rights. Id.[15] Sage argues that his “rights to due process were violated because the officers did
not verify that his statements were knowing and voluntary because they did not
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ascertain if he was under the influence or otherwise thinking clearly.” 1
(Appellant’s Br. p. 7). We take this to be a challenge to the voluntariness of his
August 13, 2017, statement. Sage argued in his motion to suppress, which
formed the basis for his objection to the admission of the statement at trial, that
his statement was involuntary under Article 1, Section 14, of the Indiana
Constitution. Under Indiana law, the State is required to prove beyond a
reasonable doubt that a statement is voluntary. Weisheit v. State, 26 N.E.3d 3,
18 (Ind. 2015), cert. denied. When evaluating the voluntariness of a statement,
the trial court considers the “totality of the circumstances, including any
element of police coercion; the length, location, and continuity of the
interrogation; and the maturity, education, physical condition, and mental
health of the defendant.” Id. (quoting Wilkes v. State, 917 N.E.2d 675, 680 (Ind.
2009)) (internal citations omitted). We review the trial court’s determination of
voluntariness as a sufficiency of the evidence issue. Id. We do not reweigh the
evidence, and we will affirm if the trial court’s finding of voluntariness is
supported by substantial evidence. Id.[16] Here, as was noted by his medication nurse, Sage was lucid, cognizant, and
alert the day he made his statement. He was not experiencing any memory or
1
Inasmuch as Sage attempts to argue that he did not validly waive his right to counsel or that the procedural
safeguards required for a valid guilty plea should be applied to the giving of a statement to police, we note
that Sage did not raise these arguments in his motion to suppress or at trial. Arguments raised for the first
time on appeal are waived. See Leatherman v. State, 101 N.E.3d 879, 885 (Ind. Ct. App. 2018) (“[A] party
may not present an argument or issue on appeal unless the party raised that argument or issue before the trial
court. In such circumstances the argument is waived.”). As such, we decline to address those arguments.
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cognitive issues. Detectives Wiley and Mullins spoke with the medication
nurse before interviewing Sage to confirm that he was able to speak with them.
Detective Mullins read to Sage a waiver of his right to an attorney and a waiver
of his Miranda rights which Sage indicated he understood before signing. The
interview itself was conducted informally in a conversational tone and lasted
approximately one hour. Under the totality of these circumstances, we
conclude, as did the trial court, that Sage’s statement was voluntary.
[17] Sage contends that his statement was not voluntary because of his injuries, the
medication he was receiving, and what he characterizes as his “poor”
recollection. (Appellant’s Br. p. 7). However, Sage’s conclusory statements
that these factors affected his ability to give a voluntary statement enjoy little
evidentiary support in the record. By August 13, 2017, when he gave his
statement, Sage had recuperated sufficiently that he was to be discharged from
the hospital the following day. Sage had received a low dose of morphine at
2:58 a.m. that day and a low dose of Narco at 9:07 a.m, but there is simply no
indication in the record that these medications affected Sage’s awareness,
ability to understand his rights, or his ability to recollect events. As pointed out
by the State, in order for intoxication to render a statement involuntary, a
defendant must be unaware of what he is saying. Wilkes, 917 N.E.2d at 680.
Sage does not argue on appeal that he was unaware of what he was saying
when he spoke with the detectives. Indeed, Sage spoke coherently and
extemporaneously throughout the interview, responded appropriately to the
detective’s questions, and accurately recollected many details of the offenses.
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Because we conclude that Sage provided a voluntary statement, we find no
abuse of the trial court’s discretion in admitting his statement at trial.
II. Sufficiency of the Evidence
[18] Sage challenges the evidence supporting his two convictions for felony murder.
When we review the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is not our role as an
appellate court to assess witness credibility or to weigh the evidence. Id. We
will affirm the conviction unless no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt. Id.[19] Felony murder occurs when a person kills another human being while
committing or attempting to commit dealing in methamphetamine. Ind. Code
§§ 35-42-1-1(3)(B); 35-48-4-1.1. Here, the evidence showed that Sage brought
one and one-half pounds of methamphetamine to Snyder’s home on August 2,
2017, in order to sell it to JG, a gun battle ensued when one of JG’s
confederates, Bethel, attempted to rob Sage, and that Bethel and James died of
gunshot wounds sustained in the exchange of gunfire between the would-be
sellers and the would-be buyers. Nevertheless, Sage challenges the evidence
supporting his convictions for killing both Bethel and James.
[20] Sage contends that the evidence does not support his conviction for killing
Bethel because Sage was acting in self-defense when he shot Bethel. However,
we agree with the State that self-defense was not available to Sage. Under
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Indiana law, a person is not justified in using force in the defense of self if that
person is committing a crime. Ind. Code § 35-41-3-2(g)(1). However, the mere
fact that a defendant is committing a crime at the time he is allegedly defending
himself does not, standing alone, deprive the defendant of the defense of self-
defense. Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001). “Rather, there must
be an immediate causal connection between the crime and the confrontation.”
Id.[21] Here, Sage’s act of dealing methamphetamine, the underlying felony of the
felony murder charge, drew Bethel and his confederates to Snyder’s garage to
attempt to rob Sage, and a gun battle ensued in which Sage shot and killed
Bethel. Thus, there was a direct and immediate causal connection between the
crime Sage was committing and the ensuing confrontation. Sage, who does not
address the statutory limitation on self-defense in his Appellant’s Brief, cannot
feasibly argue otherwise. Because Sage’s only challenge to the sufficiency of the
evidence supporting his conviction for murdering Bethel was that he acted in
self-defense, which was not available to him as a defense, we conclude that the
State proved Sage’s conviction for Bethel’s death beyond a reasonable doubt.
[22] Sage’s challenge to the sufficiency of the evidence supporting his conviction for
murdering James is that it “was not reasonably foreseeable that Anton James
would be killed.” (Appellant’s Br. p. 8). Our supreme court has recognized
that the language of the murder statute “does not restrict the felony murder
provision only to instances in which the felon is the killer, but may also apply
equally when, in committing any of the designated felonies, the felon
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contributes to the death of any person.” Palmer v. State, 704 N.E.2d 124, 126
(Ind. 1999) (emphasis added). For purposes of felony murder liability, “it
matters not whether the death caused is that of the intended victim, a passerby[,]
or even a co-perpetrator.” Forney v. State, 742 N.E.2d 934, 938-39 (Ind. 2001)
(emphasis added). A person who commits or attempts to commit one of the
felonies designated in the murder statute is criminally liable for a death of
another during the commission of the crime if the defendant reasonably should
have “foreseen that the commission of or attempt to commit the contemplated
felony would likely create a situation which would expose another to the
danger of death.” Palmer, 704 N.E.2d at 126. On review, we must determine
whether the defendant’s conduct caused or contributed to the victim’s death or
set in motion a series of events that could have reasonably be expected and did
result in death. Dalton v. State, 56 N.E.3d 644, 648 (Ind. Ct. App. 2016), trans.
denied.
[23] We find the case of Sheckles v. State, 684 N.E.2d 201 (Ind. Ct. App. 1997), trans.
denied, to be instructive. Sheckles attempted to collect a loan by force inside a
bar where other patrons were present, thereby committing an attempted
robbery. Id. at 203. When his plan went awry, Sheckles engaged in a gun
battle with the bartender, and one of the bar’s patrons was shot and killed. Id.The court held that Sheckles had created a dangerous situation in which
intervention by a nonparticipant to the underlying felony, the bartender, was
reasonably foreseeable and that he had exposed the victim to circumstances
which posed a substantial likelihood of fatal injury. Id. at 205. The court held
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that Sheckles was criminally responsible for the death of the bystander,
regardless of who fired the shot. Id.[24] Here, Sage created a dangerous situation by arming himself, Brady, and Snyder
in order to deal a large quantity of methamphetamine. Sage went to Snyder’s
home, which was in an area of South Bend that Snyder characterized at trial as
rife with shootings and robberies, to deal the methamphetamine. The home
was also located in a residential neighborhood with other houses close by,
which increased the likelihood that cars would pass by the garage where the
methamphetamine deal was taking place. Indeed, in the moments immediately
preceding and following the offenses, three other cars apart from James’ SUV
passed in front of Snyder’s home. Sage’s act of dealing methamphetamine from
Snyder’s garage set in motion the robbery attempt which led to the gunfire that
killed James. Benny was in the act of returning fire in Sage’s direction when he
paused to shoot into James’ vehicle. The foreseeability of James’ death was
more overt than the Sheckles victim because Benny, who the State argued at trial
actually shot James, was an accomplice along with JG, Jesse, and Bethel in the
methamphetamine deal gone bad and not simply a nonparticipant.
[25] In addition, Sage was subjectively aware that the situation was dangerous; he
had asked his brother Brady to come along on the deal in order to “have [his]
back” because Sage knew it was necessary to protect yourself when dealing in
such large quantities of methamphetamine. (Exh. 135, Exh. Vol. I, Clip 3 at
10:30-:33). Contrary to his assertion on appeal, Sage was aware of the fact that
James’s SUV was stopped in front of the home before the gun battle broke out,
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which he related in his statement made him nervous. As a result, it was not
only reasonably foreseeable that gunfire might breakout at the drug deal, but it
was foreseeable to Sage that the driver of the SUV stopped out front might be
shot when Sage began firing. It made no difference that it was Benny who shot
James. Sheckles, 684 N.E.2d at 205.
[26] Sage likens his case to Layman v. State, 42 N.E.3d 972 (Ind. 2015), in which our
supreme court reversed Layman’s felony murder conviction based on evidence
that Layman, who was a juvenile at the time of the offense, had entered a home
intending to commit a theft but was unarmed and engaged in no violent or
threatening conduct before the homeowner shot one of Layman’s accomplices.
Id. at 979. The court held that, under those circumstances, nothing about
Layman’s conduct was the mediate or immediate cause of his accomplice’s
death. Id. at 979-80. This case is readily distinguishable in that Sage and his
cohorts were all armed, and, thus, violence was contemplated as part and parcel
of the methamphetamine deal.
[27] Although other facts may present a more difficult call on the foreseeability of a
bystander’s death, the instant case does not present us with the outer limits of
felony murder liability for the death of a bystander/nonparticipant in the
underlying felony. Because James’ death was the foreseeable result of Sage’s
methamphetamine dealing, we conclude that the State proved that Sage killed
James while committing the alleged felony.
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CONCLUSION
[28] Based on the foregoing, we conclude that the trial court acted within its
discretion when it admitted Sage’s voluntary confession into evidence. In
addition, we conclude that the State proved beyond a reasonable doubt that
Sage killed Bethel and James during the commission of the offense of dealing in
methamphetamine.
[29] Affirmed.
[30] Vaidik, C. J. and Kirsch, J. concur
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