Bryant Johnson v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Nov 22 2016, 9:32 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing 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
Marielena Duerring Gregory F. Zoeller
South Bend, Indiana Attorney General of Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bryant Johnson, November 22, 2016
Appellant-Defendant, Court of Appeals Case No.
71A03-1603-CR-672
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Elizabeth C.
Appellee-Plaintiff. Hurley, Judge
Trial Court Cause No.
71D08-1508-MR-10
Robb, Judge.
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Case Summary and Issue
[1] Following a jury trial, Bryant Johnson was convicted of murder, attempted
murder, and battery. Johnson appeals his convictions, raising the sole issue of
whether the trial court abused its discretion in admitting certain evidence.
Concluding the trial court did not abuse its discretion, we affirm.
Facts and Procedural History
[2] In the early morning hours of August 1, 2015, Justin Sharpe and Marcus Harris
were passengers in a green SUV driven by Stephen Johnson (“Stephen”).
Around 2:30 a.m., Stephen pulled out of a gas station and proceeded toward an
intersection near 301 North Lafayette Street in South Bend, Indiana. While
stopped at the intersection, a champagne-colored Chevrolet Tahoe pulled up to
right of the green SUV and a white vehicle pulled up behind the green SUV.
Stephen recognized the driver of the Tahoe as Johnson. Johnson then pulled
out a revolver and fired four bullets in the direction of the green SUV. One of
the bullets struck Stephen in the shoulder and at least one bullet struck Sharpe.
As Stephen attempted to drive away, an individual in the white vehicle also
fired at least three bullets in the direction of the green SUV.
[3] South Bend Police Officer John Cox heard the gunshots, but did not know
where the sound was coming from until he received a ShotSpotter alert
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notifying him the shots were fired near 301 North Lafayette Street.1 Upon
arrival at that address, police officers observed multiple bullet holes in the green
SUV’s front passenger-side window and door; Sharpe was pronounced dead at
the scene from multiple gunshot wounds. Police officers then collected
fragments of ammunition from the street and the green SUV indicating at least
one of the guns used was either a .38 caliber special or a 357 magnum revolver.
Some of these fragments recovered from the scene matched the fragments
removed from Sharpe’s body during an autopsy. On August 5, 2015, the State
charged Johnson with murder, a felony; attempted murder as a Level 1 felony;
and battery as a Level 5 felony.
[4] At trial, the State elicited testimony pertaining to ShotSpotter technology from
Paul Greene, the lead forensic analyst and lead customer service support
engineer for SST Inc., the manufacturer of ShotSpotter. Greene testified
ShotSpotter is an acoustic gunshot detection and location system and its
purpose is to provide law enforcement with rapid notification of when and
where local gunfire occurs. The system uses microphone sensors with GPS
antennas to detect gunshots by recording nearly twenty acoustic measurements
and a location server that measures the latitude and longitude of the gunshots
recorded. The system then plots the location of gunshots on a map and reports
the location of gunshots to police departments. SST Inc. guarantees
1
Evidence pertaining to ShotSpotter is the sole issue on appeal, which we discuss in detail below.
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ShotSpotter will detect and locate at least 80 percent of all
outdoor detectable gunfire and will locate that gunfire to within
25 meters of where the weapon was actually fired. So you take
where the weapon is fired, draw a 25 meter line out, draw a big
single [sic] and we guarantee that at least 80 percent of the time
that gunfire will have originated within that 25 meter or 50 meter
diameter circle, actually, which actually comes out to about 150
feet diameter, 160 feet diameter or so.
Transcript at 267. Greene explained the more sensors that record a gunshot,
the more precise the system can be. For example, if at least five sensors record
a gunshot, then it is likely the system will pinpoint a location on the map within
ten meters of the gunshot’s location. Id. at 267-69.
[5] The State then moved to admit State’s Exhibit 180, a detailed ShotSpotter
forensic report of the August 1 incident. Specifically, the report includes a map
showing the location of the shooting; a map showing the number of
microphone sensors that recorded the shooting; and a table showing the exact
time the gunshots were recorded and the strength and sharpness of the
recordings. Johnson objected on the ground the report was cumulative.
Specifically, Johnson expressed concern that one page of the report merely gave
“a description about ShotSpotter . . . .” Id. at 271. The trial court agreed the
one page was cumulative of Greene’s previous testimony, but noted the
remaining pages, which include the maps and tables, would assist the jurors in
understanding Greene’s testimony. Johnson objected again, this time arguing
the remainder of the report was scientific evidence lacking proper foundation
pursuant to Indiana Evidence Rule 702. Specifically, he expressed concern as
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to how much ShotSpotter has been tested and whether it has been subjected to
peer review. The trial court disagreed and overruled the objection as to the
remainder of the report, noting, “I would find it to be . . . more of a weight issue
than an admissible evidence issue and [an] argument that you could make,
[Defense Counsel], should you choose to do so.” Id. at 274.
[6] The jury found Johnson guilty as charged. At the sentencing hearing, the trial
court entered judgment of conviction and ordered Johnson to serve an
aggregate sentence of eighty-five years executed in the Indiana Department of
Correction. This appeal ensued.
Discussion and Decision
I. Standard of Review
[7] The trial court has broad discretion in ruling on the admissibility of
evidence. Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003). This
court will reverse the trial court’s ruling only if it abused that discretion. Id. An
abuse of discretion involves a decision that is clearly against the logic and effect
of the facts and circumstances before the court. Huffines v. State, 739 N.E.2d
1093, 1095 (Ind. Ct. App. 2000) (citation omitted), trans. denied.
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II. ShotSpotter Evidence
[8] Johnson argues the trial court abused its discretion in admitting State’s Exhibit
180.2 Specifically, he contends the trial court failed to assess the reliability of
the ShotSpotter technology pursuant to Rule 702(b). We disagree.
[9] Rule 702(b) states, “Expert scientific testimony is admissible only if the court is
satisfied that the expert testimony rests upon reliable scientific principles.”
Stated differently, “expert scientific testimony is admissible only if reliability is
demonstrated to the trial court.” Doolin v. State, 970 N.E.2d 785, 787 (Ind. Ct.
App. 2012), trans. denied.
The proponent of expert testimony bears the burden of
establishing the foundation and reliability of the scientific
principles. There is no specific test that must be considered in
order to satisfy Rule 702(b). Rather, reliability may be
established by judicial notice or, in its absence, by sufficient
foundation to convince the trial court that the relevant scientific
principles are reliable. In determining whether scientific
evidence is reliable, the trial court must determine whether the
evidence appears sufficiently valid, or, in other words,
trustworthy, to assist the trier of fact.
Id. at 787-88 (citations and internal quotation marks omitted).
[10] Prior to admission of Exhibit 180, the State elicited extensive testimony from
Greene. Our review of Greene’s testimony indicates he explained how the
2
Johnson does not challenge Greene’s testimony or any other exhibits the State admitted that contained
evidence pertaining to ShotSpotter.
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ShotSpotter system operates to inform local law enforcement of any shots fired
in their jurisdiction. Specifically, he explained how the system generates
reports pinpointing the location of gunshots within twenty-five meters. As
noted above, Exhibit 180 is a ShotSpotter report prepared by Greene with
regard to the August 1 incident and it is clear by the trial court’s own words it
determined Exhibit 180 would “help” and “assist” the jurors “in understanding
the testimony.” Tr. at 272. Therefore, contrary to Johnson’s assertion, the trial
court properly assessed the reliability of the ShotSpotter evidence prior to the
admission of Exhibit 180.
[11] In addition, we note “Rule 702 is not intended to interpose an unnecessarily
burdensome procedure or methodology for trial courts.” Turner v. State, 953
N.E.2d 1039, 1050 (Ind. 2011) (citation and internal quotation marks omitted).
Rather, the intent of Rule 702 is to liberalize the admission of reliable scientific
evidence and therefore the evidence need not be conclusive to be admissible.
Id. In the event shaky—but reliable—scientific evidence is admitted, the
appropriate means of attacking such evidence is by “[v]igorous cross-
examination, presentation of contrary evidence, and careful instruction on the
burden of proof . . . .” Id. (alteration in original) (citation omitted). For
example, by cross-examining the witness, the opposing party has the
opportunity to expose the differences between the actual evidence and the
scientific theory. Id. at 1051. “The dissimilarities go to the weight rather to the
admissibility of the evidence.” Id. To the extent Johnson argues the evidence
lacked reliability, the trial court concluded the evidence was reliable and would
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assist the jury in understanding Greene’s testimony. Even assuming the
evidence was “shaky,” the trial court correctly noted Johnson’s reliability
concerns went to the weight of the evidence, not its admissibility. Johnson had
a full opportunity to attack the credibility of the evidence in an attempt to
diminish any weight it carried with the jury. We conclude the trial court did
not err in admitting Exhibit 180.
[12] Further, and assuming the trial court erred, we conclude any error was
harmless. See Barnhart v. State, 15 N.E.3d 138, 143 (Ind. Ct. App. 2014)
(“Errors in the admission or exclusion of evidence are to be disregarded as
harmless error unless they affect the substantial rights of a party.”) (citation
omitted). Exhibit 180 merely shows a shooting occurred near 301 North
Lafayette Street, and at trial, the State admitted numerous other ShotSpotter
exhibits also showing a shooting occurred near 301 North Lafayette Street;
Johnson does not challenge the admission of these other exhibits on appeal. In
addition, many witnesses testified they heard a shooting occur, Stephen testified
Johnson shot him, the green SUV had numerous bullet holes, and Sharpe was
killed by a gunshot. This evidence undoubtedly indicates a shooting occurred.
Exhibit 180 is no different and its admission did not prejudice Johnson.
Conclusion
[13] The trial court did not abuse its discretion in admitting evidence. Accordingly,
we affirm Johnson’s convictions.
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[14] Affirmed.
Mathias, J., and Brown, J., concur.
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