Darianna Hamblin v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 02 2019, 10:26 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott King Curtis T. Hill, Jr.
Russell Brown Attorney General of Indiana
King, Brown & Murdaugh, LLC
Matthew B. MacKenzie
Merrillville, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Darianna Hamblin, April 2, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1132
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Plaintiff. Judge
Trial Court Cause No.
45G01-1512-MR-7
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial, Darianna Hamblin was convicted of murder while
committing robbery, a felony, and attempted armed robbery, a Level 3 felony.
Hamblin appeals her convictions raising two issues for our review: (1) whether
the trial court abused its discretion in admitting evidence of a photo array and
the victims’ subsequent testimony; and (2) whether the State presented
sufficient evidence to sustain her conviction of attempted armed robbery under
a theory of accomplice liability. Concluding the trial court did not abuse its
discretion and the State presented sufficient evidence to sustain Hamblin’s
conviction, we affirm.
Facts and Procedural History
[2] On December 20, 2015, Cailin Scott was searching Craigslist for a vehicle to fix
up and sell when he located a 2008 Chevy Impala listed for $4,000. The seller
told Scott that he could see the vehicle at an address in Gary that, unbeknownst
to Scott, was currently vacant. Scott contacted his friend, Talion “Chase”
McNeil, to ride with him to Gary, help assess the vehicle, and to drive the
vehicle back home should he decide to purchase it. Both Scott and McNeil
possessed valid handgun permits and they brought firearms along with them.
[3] Scott and McNeil arrived at the address shortly before 7:00 p.m. that evening.
The house was dark, but they noticed several individuals standing by a vehicle
matching the description of the Impala about a block away. Scott called the
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seller thinking they had the wrong address, but she told Scott that she would be
out soon. A few minutes later, the seller called Scott and told him that she was
standing in front of his car.1 Scott and McNeil exited their vehicle, shook the
female’s hand, and once she asked if Scott had “the cash[,]” she informed them
that the “car was around back[,]” apparently referring to the back of the house.
Transcript, Volume 1 at 105. At that point, the Impala turned down the street
and Scott noted to McNeil, “that looks like the car there, but they just drove
past us.” Id. Scott described the female as “about five, one, five feet tall. She
had twisties or dreadlocks hanging around the length of her shoulders, had on a
sweat suit, sweat pants, sweatshirt.” Id. at 107. Scott later added that the sweat
suit was “[g]ray.” Id.
[4] As the female showed Scott and McNeil around to the side of the house, a
“male figure . . . came from behind the house [with] a firearm.” Id. at 113. The
male, later identified as Brandon Johnson, pointed his handgun at Scott and
demanded their money while the female drew a handgun and pointed it at
McNeil. McNeil threw his wallet, placed his hands on the ground, and said
“do not shoot.” Id. at 120. As Johnson’s focus was on McNeil, Scott charged 2
his handgun behind his back. Johnson then turned to Scott and placed his gun
on Scott’s stomach. Scott told Johnson to “calm down, just stop.” Id. Johnson
1
It is not clear from the record where the female came from or why Scott and McNeil failed to see her
approach their car.
2
“Charging” a handgun refers to the act of manually pulling back the slide until a round is chambered.
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continued to press his handgun into Scott’s stomach so Scott grabbed Johnson’s
handgun with his left hand, drew his own handgun, and shot Johnson. Id.
Johnson “staggered back” with his handgun still pointed forward and Scott
continued to fire until Johnson fell.3 Id. at 121. At that point, McNeil drew his
handgun and fired at the female, who turned and ran “towards the back of the
house into the woods area . . . .” Id. at 123. As she ran, the female swung her
arm behind her and, as McNeil later explained:
My reaction was if she were to start shooting, we could possibly
be shot or someone across the street could possibly be shot, so I
made the decision to start firing at her.
Tr., Vol. 2 at 32-33.
[5] McNeil and Scott returned to Scott’s car, called 911, and waited for the police
in a nearby parking lot. Police were dispatched to a report of a gunshot wound
at approximately 7:00 p.m. During the ensuing investigation, police learned
that Hamblin had checked herself into the emergency room at a nearby hospital
at 7:10 p.m. with multiple gunshot wounds and had stated that “she was
involved” in an incident at the same address. Id. at 128. Hamblin told
investigators that she saw Johnson, her cousin, with an unknown male, she ran
over when she heard gun shots, she was then shot herself, and was driven to the
hospital by a friend.
3
Johnson later died as the result of his injuries.
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[6] On December 21, 2015, Scott and McNeil were brought to the police station to
view a photo array. Separately, Detective Minchuk took them into a room to
view six photographs of similar looking women arranged on a table and asked
them whether “any of [the] pictures look[ed] familiar[.]” Id., Vol. 3 at 113.
Scott quickly selected Hamblin, writing “I am drawn to this picture more than
the other inmates. Based on the hair and lips in the involvement of the
shooting.” Exhibits at 59-60. McNeil took two to three minutes to narrow his
selection down to two photographs, but he was unable to select one. One of the
two photographs that he selected was also Hamblin.
[7] On December 22, 2015, the State charged Hamblin with murder while
committing robbery, a felony, and two counts of attempted armed robbery, both
Level 3 felonies. The State eventually filed an amended information adding
two counts of attempted armed robbery, both Level 2 felonies. Hamblin filed a
motion to suppress on December 27, 2016, arguing the lineup used to identify
her was improper and unduly suggestive. The trial court denied Hamblin’s
motion on March 23, 2017.
[8] At trial, Scott and McNeil identified Hamblin as the female who participated in
the robbery, over Hamblin’s continuing objection. The jury found Hamblin
guilty on all counts and the trial court entered judgments of conviction for
felony murder and one count of attempted armed robbery. Hamblin was
sentenced to an aggregate term of 52 years in the Indiana Department of
Correction. Hamblin now appeals.
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Discussion and Decision
I. Identification Evidence
A. Standard of Review
[9] The admission of evidence is within the trial court’s discretion and the decision
is reviewable only for an abuse of discretion. Albee v. State, 71 N.E.3d 856, 860
(Ind. Ct. App. 2017). A trial court abuses its discretion when its decision is
clearly against the logic and effect of the facts and circumstances before it. Id.In order for identification procedures used by the police to be admissible, they
must comport with a defendant’s due process rights. Allen v. State, 813 N.E.2d
349, 360 (Ind. Ct. App. 2004), trans. denied. “The task of this Court is to
determine whether, under the totality of the circumstances, the identification
process was conducted in such a manner that it created a substantial likelihood
of irreparable misidentification.” Jackson v. State, 33 N.E.3d 1067, 1072 (Ind.
Ct. App. 2015), trans. denied. “If, under the totality of the circumstances, the
reviewing court finds the out-of-court procedures were not impermissibly and
unnecessarily suggestive, both the evidence of the pretrial lineup and the in-
court identification are considered to have been properly admitted by the trial
court, and there is no need to proceed further.” Harris v. State, 619 N.E.2d 577,
580 (Ind. 1993).
B. The Photo Array Was Not Impermissibly Suggestive
[10] Hamblin begins by arguing the trial court abused its discretion by admitting
evidence of the photo array and allowing Scott and McNeil, who were “tainted
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by the impermissibly suggestive procedure[,] to identify Hamblin in court.”
Amended Brief of Appellant at 8.
[11] In Parker v. State, our supreme court explained:
Factors to be considered in evaluating the likelihood of a
misidentification include (1) the opportunity of the witness to
view the criminal at the time of the crime, (2) the witness’s
degree of attention, (3) the accuracy of the witness’s prior
description of the criminal, and (4) the level of certainty
demonstrated by the witness. Among other factors the court may
consider are (1) the manner and form in which the police asked
the witness to identify the suspect and the witness’s interpretation
of their directives and (2) whether the police focused on the
defendant as the prime suspect, either by their attitude or the
makeup of the photo array.
698 N.E.2d 737, 740 (Ind. 1998) (citations and quotations omitted).
[12] Hamblin’s argument tracks these six factors in alleging the photo array resulted
in a high likelihood of misidentification. Beginning with the first and second
factors, Hamblin highlights the attempted robbery’s brief time frame, relative
darkness, and Scott and McNeil’s focus on Johnson as reasons “that neither
victim had a true opportunity to observe the female perpetrator at the time of
the crime.” Amended Br. of Appellant at 10. Although brief, this was “not a
crime like a mugging or purse snatching where the victim gets only a glance at
the attacker.” Williams v. State, 774 N.E.2d 889, 891 (Ind. 2002). The record
reflects Scott and McNeil’s meeting with Hamblin was initially hospitable and a
street light allowed Scott and McNeil to view Hamblin clearly when she shook
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their hands from approximately a foot away. Hamblin then continued in their
presence until the attempted robbery. For these reasons, we conclude Scott and
McNeil had a sufficient opportunity to view Hamblin. And, having had such
an opportunity and remaining in her continued presence, we further conclude
Scott and McNeal’s degree of attention during the crime itself was rather
immaterial for the purposes of her identification.
[13] Hamblin next argues Scott and McNeil’s description was “so lacking in detail . .
. as to be incapable of evaluation and/or so vague as to be inaccurate[,]” and
“neither witness displayed any certainty of the female perpetrator’s identity[,]”
when selecting the photographs from the array. Amended Br. of Appellant at
11. Scott described the female as “about five, one, five feet tall . . . [with]
twisties or dreadlocks hanging about the length of her shoulders, [and] had on a
[gray] sweat suit, sweat pants, sweatshirt.” Tr., Vol. 1 at 107. This description
identified the suspect’s height, clothing, and a specific hairstyle. Under such
circumstances, we cannot say the description was “so lacking in detail . . . as to
be incapable of evaluation[.]” Amended Br. of Appellant at 11. And, to the
extent Scott or McNeil demonstrated any uncertainty, this was placed in front
of the jury and we believe it goes to the evidence’s weight, not its competency.
[14] Neither of the additional factors outlined in Parker lead us to conclude the
photo array was constitutionally unsound. Hamblin makes much of the
absence of an express statement that the defendant may not appear in the photo
array. Although we agree that an express advisement would constitute a better
practice, the context of Detective Minchuk’s instruction, asking whether “any
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of [the] pictures look[ed] familiar[,]” tr., vol. 3 at 113, would suggest to a
reasonable person that they were free to answer in the negative. See Allen, 813
N.E.2d at 360 (holding similar language, asking whether the victim “recognized
anyone from the six photographs[,]” was not unduly suggestive).
[15] Nor do we find Hamblin’s photograph to be unduly suggestive. Detective
Minchuk testified that it typically takes him 15-20 minutes to assemble a photo
array but this one took him several hours because he had to use photographs
from the Indiana Bureau of Motor Vehicles to ensure similarity. All six
photographs were headshots with blue backgrounds taken from the same
distance, featuring similar looking African-American women with similar
hairstyles. To the extent Hamblin argues her photograph was the only one
“that had hair fitting the description of ‘dreads’ that were long enough to be
visible by one wearing a hoodie[,]” Amended Br. of Appellant at 12, we remind
Hamblin that police are not required to “perform the improbable if not
impossible task of finding four or five other people who are virtual twins to the
defendant.” Jackson, 33 N.E.3d at 1073 (quoting Pierce v. State, 267 Ind. 240,
246, 369 N.E.2d 617, 620 (1977)).
[16] Therefore, under the totality of the circumstances, we conclude the photo array
was not impermissibly suggestive. As such, both the evidence of the photo
array and the victims’ subsequent in-court identifications were properly
admitted. See Harris, 619 N.E.2d at 580.
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II. Sufficiency of the Evidence
A. Standard of Review
[17] When reviewing the sufficiency of the evidence required to support a criminal
conviction, we do not reweigh the evidence or judge the credibility of the
witnesses. Purvis v. State, 87 N.E.3d 1119, 1124 (Ind. Ct. App. 2017). Rather,
we only consider the evidence most favorable to the verdict and any reasonable
inferences drawn therefrom. Id. We will affirm “if there is substantial evidence
of probative value such that a reasonable trier of fact could have concluded the
defendant was guilty beyond a reasonable doubt.” Bailey v. State, 907 N.E.2d
1003, 1005 (Ind. 2009).
B. Attempted Armed Robbery
[18] The State bears the burden of proving all elements of the charged crime beyond
a reasonable doubt. Taylor v. State, 587 N.E.2d 1293, 1301 (Ind. 1992); Ind.
Code § 35-41-4-1(a) (“A person may be convicted of an offense only if his guilt
is proved beyond a reasonable doubt.”). A person who “knowingly or
intentionally takes property from another person” by “using or threatening the
use of force on any person” commits robbery, a Level 5 felony. Ind. Code § 35-
42-5-1(a). However, the offense is a Level 3 felony if it is committed while
armed with a deadly weapon or results in bodily injury to any person other than
a defendant. Id. Indiana’s attempt statute states: “A person attempts to commit
a crime when, acting with the culpability required for commission of the crime,
the person engages in conduct that constitutes a substantial step toward
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commission of the crime. An attempt to commit a crime is a felony or
misdemeanor of the same level or class as the crime attempted.” Ind. Code §
35-41-5-1(a).
[19] Furthermore, “[a] person who knowingly or intentionally aids, induces, or
causes another person to commit an offense commits that offense . . . .” Ind.
Code § 35-41-2-4.
An accused’s mere presence at the scene of the crime is
insufficient to establish that he aided another person to commit
an offense. Similarly, mere acquiescence in the commission of
the offense is insufficient to convict a person as an accomplice.
Rather, in order to sustain a conviction as an accomplice, there
must be evidence of the defendant’s affirmative conduct, either in
the form of acts or words, from which an inference of a common
design or purpose to effect the commission of a crime may be
reasonably drawn.
Peterson v. State, 699 N.E.2d 701, 706 (Ind. Ct. App. 1998) (citations omitted).
[20] In determining whether a person aided another in the commission of a crime, a
reviewing court considers: (1) presence at the scene of the crime; (2)
companionship with another 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). Evidence must exist from which a jury can conclude that a defendant
was engaged in the actus reus or was engaging in behavior which would
facilitate the commission of the crime. Chappell v. State, 966 N.E.2d 124, 130
(Ind. Ct. App. 2012), trans. denied.
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[21] Hamblin argues she was “never in the same location as the perpetrator[,]” there
was no evidence that “she acquiesced in the commission of the crime or
actively assisted the perpetrator[,]” and there was no evidence that she “actually
wielded a weapon or made any demand for money[.]” Amended Br. of
Appellant at 17. However, as aptly noted by the State, Hamblin’s argument
“flatly ignores the evidence presented to the jury.” Brief of Appellee at 20.
[22] Viewed most favorably to the jury’s verdict, the evidence reveals that Hamblin
worked with her cousin, Johnson, to initiate a fraudulent sale of a vehicle with
the goal of robbing a potential buyer. After arranging for a meeting at a vacant
property, Hamblin asked Scott and McNeil if they had “the cash” before luring
them to the side of the house. Tr., Vol. 1 at 105. Johnson emerged wielding a
gun and demanded Scott and McNeil’s money while Hamblin pulled a
handgun of her own, aimed it at Scott and McNeil, and fled the scene only after
Johnson was shot by Scott and McNeil began shooting at her. Scott and
McNeil’s testimony was corroborated by the physical evidence recovered at the
scene and the fact that Hamblin checked herself into a nearby hospital minutes
after the shooting.
[23] This evidence supports a conclusion: (1) Hamblin was present at the scene of
the crime; (2) Hamblin was the companion of Johnson, her cousin, and worked
in concert with him; (3) Hamblin worked in furtherance of the crime and failed
to oppose it; and (4) Hamblin’s conduct before, during, and after the occurrence
of the crime supported a conclusion that she knowingly and intentionally aided
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Johnson in the commission of the crime. Woods, 963 N.E.2d at 634. Put
simply, this evidence is more than sufficient to support Hamblin’s conviction.
Conclusion
[24] For the reasons set out above, we conclude the trial court did not abuse its
discretion in admitting evidence of the photo array and the victims’ subsequent
in-court identification and the State presented sufficient evidence to support
Hamblin’s conviction of attempted armed robbery. We therefore affirm in all
respects.
[25] Affirmed.
Riley, J., and Kirsch, J., concur.
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