Donnell D. Wilson v. State of Indiana ( 2015 )

Apr 30 2015, 10:51 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger Gregory F. Zoeller
Mark A. Bates Attorney General of Indiana
Appellate Public Defender
Monika Prekopa Talbot
Crown Point, Indiana
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Donnell D. Wilson, April 30, 2015
Appellant-Defendant, Court of Appeals Case No.
45A03-1409-CR-317
v. Appeal from the Lake Superior Court
The Honorable Salvador Vasquez,
Judge
State of Indiana, Cause No. 45G01-1303-MR-4
Appellee-Plaintiff,
Bradford, Judge.
Case Summary
[1] On March of 2013, Jonte Crawford and Appellant-Defendant Donnell Wilson
shot and killed two rival gang members. During Wilson’s trial, the trial court
allowed Appellee-Plaintiff the State of Indiana to enter into evidence several
Twitter posts allegedly authored by Wilson which indicated that he was
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involved in gang activity and was in possession of handguns similar to those
used in the murders. A jury convicted Wilson of two counts of murder, Class B
felony armed robbery, and Class D felony conspiracy to commit criminal gang
activity. Following the convictions, the court proceeded to the second phase of
the trial to determine whether Wilson’s sentence would be enhanced for
criminal gang activity. Immediately after closing arguments were heard,
Wilson erupted into an argument with individuals in the gallery, struggled with
the bailiffs, and was removed from the court and excluded from trial until the
sentencing hearing. The jury found that Wilson’s murder and robbery
convictions should be enhanced for criminal gang activity.
[2] Wilson raises three issues on appeal: (1) whether the trial court properly
admitted the Twitter messages into evidence; (2) whether Wilson’s conviction
for conspiracy to commit criminal gang activity should be vacated as being in
conflict with his criminal gang activity enhancements; and (3) whether the trial
court properly excluded Wilson from a portion of trial. We affirm in part,
reverse in part, and remand to the trial court with instructions.
Facts and Procedural History
[3] In March 17, 2013, fifteen-year-old Pecolla Crawford was walking home with
her brother Jonte Crawford, their cousin Jordan Hendrix, and Wilson, who was
dating Pecolla at the time. (Tr. 62-3) Hendrix was in town visiting and staying
with Pecolla and Jonte. (Tr. 144) While the group was walking, they
encountered fifteen-year-old Derrick Thompson, at which point Jonte and
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Wilson began harassing and intimidating Thompson, flashing the guns they
were carrying, and asking Thompson what part of town he was from. (Tr. 37,
148) Wilson was carrying a silver .357 revolver and Jonte had a black handgun.
(Tr. 37, 149) Jonte then told Thompson to give him his phone and Wilson
made a reference to Tre 7, a local gang, and grabbed Thompson’s Dre Beats
headphones off of his head. (Tr. 37-40, 69) The two then left Thompson and
continued walking with Pecolla and Jordan.
[4] The group then encountered brothers Shaqwone Ham and Charles Wood. (Tr.
72) Jordan, who was friends with the brothers, exchanged greetings and
continued walking with Pecolla. (Tr. 73) Pecolla then heard Jonte and Wilson
begin to argue with the brothers. (Tr. 73) Wilson said, “Y’all looking for me?
I’m in your hood.” Tr. p. 153. A couple seconds later, Wilson shot Wood in
the head. (Tr. 74, 153) As Ham attempted to run, Jonte shot him several times.
(Tr. 153) Both Ham and Wood died as a result of their injuries. Shortly after
the incident, police received calls from Thompson and a nearby resident who
witnessed the shooting. (Tr. 57, 206-7) Jonte and Wilson were subsequently
arrested and Thompson’s phone and headphones were recovered from Jonte at
the police station. (Tr. 471-72)
[5] Ham and Wood were members of the Dolla Boys gang, which was a subset of
the larger Bottom Side gang. (Tr. 80, 161, 191-2) Wilson was part of several
interrelated gangs including the Get Fresh Boys, Tre 7, and Glen Park
Affiliated, all of which were at odds with the Bottom Side gangs. (Tr. 82, 151,
516) Wilson had posted several gang related comments on his Twitter account
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including, “up for da bottom,” referring to people from Bottom Side, “Tre 7 got
da mac[1],” “Yea ima freshboy but im riding thru da bottom,” and “Claim da
bottom u get whacked.” State’s Exs. 13, 30, 31, 48. On March 12, 2013,
Wilson tweeted “[If I] see a dolla he betta duck,” state’s ex. 25., and on the day
of the murders, he tweeted, “GlenPark or get shot!!!” State’s Ex. 20.
[6] On March 20, 2013, the State charged Wilson with two counts of murder, Class
B felony armed robbery, and later amended the charging information to include
Class D felony conspiracy to commit criminal gang activity. (App. 14, 20)
Additionally, the State sought criminal gang sentencing enhancements for the
murder and robbery charges. (App. 22)
[7] After Wilson’s arrest and prior to trial, Wilson shared a cell with Israel Wiggins
at the Lake County Jail. (Tr. 401) Wilson told Wiggins that he shot Ham and
Wood because they were from Bottom Side. (Tr. 405) Wilson also told
Wiggins that he belonged to the Get Fresh Boys gang and that he had had
disputes on Twitter with people from the Bottom Side area of Gary. (Tr. 406-
07) Wilson also told Wiggins that he had used a “.38 Special” in the shooting.
Tr. p. 408. Wilson and some fellow inmates later jumped Wiggins because he
was from the opposite side of Gary. (Tr. 409-10) After this, Wiggins was
moved to the fourth floor of the jail where he met Jonte. (Tr. 404, 411) Jonte
1
Pecolla testified that “mac” meant a gun.
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showed Wiggins a picture of Wood lying on the ground and said, “We got
good aim. You don’t want to end up like him.” (Tr. 412)
[8] Wilson’s jury trial began on June 30, 2014. (App. 7) During Pecolla’s
testimony, the State sought to introduce Wilson’s Twitter posts and Wilson
objected, arguing that the State had not laid the proper foundation to identify
the Twitter account as belonging to Wilson. (Tr. 85) The State argued that
Pecolla’s testimony that the Twitter account belonged to Wilson provided
sufficient foundation. (Tr. 85) The trial court overruled Wilson’s objection and
permitted the Twitter messages to be introduced. (Tr. 88)
[9] After a four-day trial, the jury found Wilson guilty of the four charged offenses.
(App. 7-8) Upon announcing the jury’s verdict, the court immediately began
the criminal gang activity enhancement phase of the trial. (Tr. 680) As the trial
court was giving final instructions to the jury, there was an outburst from an
individual in the gallery, Wilson began yelling profanities at the individual,
struggled with the bailiffs, and was ultimately removed from the courtroom.
(App. 707-08) The trial court found that Wilson’s outburst constituted a waiver
of his right to be present for the second phase of the trial. (Tr. 708) The jury
found Wilson guilty on the criminal gang activity enhancements with regards to
his convictions for murder and armed robbery. (App. 7) The trial court
sentenced Wilson to consecutive terms of sixty years for the first murder
conviction, fifty-five years for the second murder conviction, six years for
armed robbery, and two years for criminal gang activity, with an additional
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sixty years pursuant to the criminal gang activity enhancement for an aggregate
sentence of 183 years. (App. 7)
Discussion and Decision
[10] Wilson raises three issues on appeal: (1) whether the State provided sufficient
foundation to authenticate the Twitter messages; (2) whether Wilson’s
conviction for conspiracy to commit criminal gang activity should be vacated as
being in conflict with his criminal gang activity enhancements; and (3) whether
the trial court properly excluded Wilson from a portion of trial.
I. Authentication of Twitter Account
[11] Admission or exclusion of evidence is within the sound discretion of the trial
court and we will reverse such a decision only if the trial court abused that
discretion. Kindred v. State, 973 N.E.2d 1245, 1252 (Ind. Ct. App. 2012). An
abuse of discretion occurs when the trial court’s decision is clearly against the
logic, facts, and circumstances presented. Id. We do not reweigh evidence or
judge the credibility of witnesses, and we consider conflicting evidence most
favorable to the trial court’s ruling. Id.[12] Wilson contends that the Twitter messages were not properly authenticated as
having been authored by him. Indiana Rules of Evidence Rule 901(a) provides
that “To satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding
that the item is what the proponent claims it is.” “Once this reasonable
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probability is shown, any inconclusiveness regarding the exhibit’s connection
with the events at issue goes to the exhibit’s weight, not its admissibility.
Additionally, authentication of an exhibit can be established by either direct or
circumstantial evidence.” Pavlovich v. State, 6 N.E.3d 969 (Ind. Ct. App. 2014)
trans. denied, (citing Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans.
denied)). Letters and words set down by electronic recording and other forms of
data compilation are included within Rule 901(a). Hape v. State, 903 N.E.2d
977, 989 (Ind. Ct. App. 2009). “Absolute proof of authenticity is not required.”
Fry, 885 N.E.2d at 748.
[13] Rule 901(b) provides examples of evidence that satisfies the authentication
requirement, including “(1) Testimony of a Witness with Knowledge. Testimony
that an item is what it is claimed to be, by a witness with knowledge,” and “(4)
Distinctive Characteristics and the Like. The appearance, contents, substance,
internal patterns, or other distinctive characteristics of the item, taken together
with all the circumstances.” We have previously acknowledged that federal
courts have recognized Federal Rule of Evidence 901(b)(4) as one of the most
frequently used means to authenticate electronic data, including text messages
and emails. Hape, 903 N.E.2d at 990 (citing Lorraine v. Markel Am. Ins. Co., 241
F.R.D. 534, 546 (D. Md. 2007)).2
2
The language of Federal Rule 901(b)(4) is identical to the language of Indiana’s Rule 901(b)(4).
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[14] We are unaware of any cases in which an Indiana court has addressed the issue
of authentication of social media posts. However, we addressed a similar fact
pattern in Pavlovich which concerned the authentication of text and email
messages where there was no direct evidence connecting the defendant to the
phone number or email address that sent the messages at issue. 6 N.E.3d at
976. Pavlovich had been using a “2662” phone number and an email address
to attempt to solicit sex from a minor. Id. Neither the email address nor the
2662 number were associated with Pavlovich’s name or address. Id. However,
a witness testified that she was familiar with Pavlovich and had previously
communicated with him at the 2662 number and email address, and the content
of the communication between her and Pavlovich corroborated her
identification of Pavlovich as the sender of the messages. Id. at 979.
Additionally, the user of the email address stated that he was staying at a
Marriott on the north side of Indianapolis and a detective confirmed that
Pavlovich was registered at a Marriott on the north side of Indianapolis where
he was subsequently apprehended. Id. at 978. The texts also indicated that the
user of the number did not live in central Indiana but traveled there frequently.
Id. at 979. We concluded that the circumstantial evidence was sufficient to
authenticate the text and email messages as being authored by Pavlovich. Id. at
978.
[15] In the instant case, Pecolla testified that she often communicated with Wilson
on Twitter and that he had posted pictures of the two online. (Tr. 83) She then
identified the Twitter account at issue as belonging to Wilson based on her
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general knowledge of the account by its name “@Nell_FearNoMan” and the
header of the account. Additionally, there were pictures posted from the
account which depict Wilson holding guns that match the description of those
used in the crimes. (State’s Ex. 15, 16) Pecolla testified that Wilson lived in
Glen Park and was a member of the Glen Park gang, that Wilson was affiliated
with the Get Fresh Boys and Tre 7 gangs, and that he would often use the terms
“GFB,” “Get Fresh Boys,” and “Tre 7” on the internet. Tr. p. 82. The
@Nell_FearNoMan Twitter account frequently used those same terms and
revealed a clear affiliation with those groups.
[16] Consequently, we think that taken together, the witness testimony identifying
the Twitter account as belonging to Wilson and the content posted on the
account, including pictures and gang references, are more than sufficient to
authenticate the Twitter posts as being authored by Wilson.
II. Criminal Gang Activity Enhancement
[17] Article I, Section 14 of the Indiana Constitution provides in part: “no person
shall be put in jeopardy twice for the same offense.” Wilson was convicted of
Class D felony conspiracy to commit criminal gang activity under Indiana
Code section 35-45-9-3 and received criminal gang enhancements under
Indiana Code section 35-50-2-15. However, Section 35-50-2-15(a) states that
“This section does not apply to an individual who is convicted of a felony
offense under IC 35-45-9-3.” Therefore, it was impermissible for Wilson to be
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convicted under Section 35-45-9-3 and simultaneously receive an enhanced
sentence under Section 35-50-2-15. The State concedes this point.
[18] The Indiana Supreme Court has held that when two convictions are found to
violate double jeopardy principles, it is appropriate for the reviewing court to
“vacate the conviction with the less severe penal consequences and leave
standing the [remaining] conviction.” Richardson v. State, 717 N.E.2d 32, 55
(Ind. 1999). Accordingly, we remand with instructions that the trial court
vacate Wilson’s conviction for Class D felony conspiracy to commit criminal
gang activity and leave standing the remaining enhanced sentences.
III. Wilson’s Exclusion from Trial
[19] The Sixth Amendment to the United States Constitution and Article I, Section
13 of the Indiana Constitution grant a defendant in a criminal proceeding the
right to be present at his or her own trial. See Campbell v. State, 732 N.E.2d 197,
204 (Ind. Ct. App. 2000). However, this right, under either the United States or
Indiana Constitutions, may be waived if such waiver is made knowingly and
voluntarily. Id. Both this court and the United States Supreme Court have held
that significantly contemptuous conduct by a defendant can function as a
knowing and voluntary waiver of their right to be present. Id.; Illinois v. Allen,
397 U.S. 337, 343, 90 S.Ct. 1057, 1060, 25 L.Ed.2d 353 (1970).
[20] It is essential to the proper administration of criminal justice that
dignity, order, and decorum be the hallmarks of all court proceedings
in our country. The flagrant disregard in the courtroom of elementary
standards of proper conduct should not and cannot be tolerated. We
believe trial judges confronted with disruptive, contumacious, stubbornly
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defiant defendants must be given sufficient discretion to meet the circumstances
of each case.
***
The trial court in this case decided under the circumstances to remove
the defendant from the courtroom and to continue his trial in his
absence until and unless he promised to conduct himself in a manner
befitting an American courtroom. As we said earlier, we find nothing
unconstitutional about this procedure.
Allen, 397 U.S. at 343, 345-46 (emphasis added). We review the decision to
exclude Wilson for an abuse of discretion. Id.; see also Campbell v. State, 732
N.E.2d at 206. An abuse of discretion occurs when the trial court’s decision is
clearly against the logic, facts, and circumstances presented. Kindred, 973
N.E.2d at 1252. We do not reweigh evidence. Id.
[21] Following closing arguments during the enhancement phase of the trial, an
outburst occurred between Wilson and members of the gallery.
Court: For the record, we – during that small outburst starting with
those in the audience, Mr. Wilson also had an outburst, he struggled
with my bailiffs, he yelled out a few words of profanity, directed those
to members of the audience. He’s been escorted out. He is – I think
he at this point, he has waived his right, his opportunity to be here
during this phase of the trial. We will proceed without him given his
conduct at this point.
Tr. p. 708. After the outburst, the trial court held a hearing on whether Wilson
should be held contempt. Wilson then engaged in the following exchange with
the court:
Court: Mr. Wilson, you had quite an incredible outburst just
now….I’ll give you one opportunity to try to explain yourself before I
decide whether I should hold you in contempt of court.
***
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Wilson: Well, seeing they (inaudible.) Y’all don’t see that, though, do
y’all? Y’all don’t see that, though, right? I got nothing to say. Charge
me with what you want.
Court: All right. I hold you in contempt.
Wilson: That’s cool. Shake your hand for it?
Court: Pardon me?
Wilson: F*** a appeal.
Court: Oh, no, no, no. I hold you in contempt….I think you forfeited
your right to be a part of this case, for this last phase of the trial.
Wilson: That’s cool, too. Send me back. I’m tired. I need to sleep.
Tr. p. 711-12. The trial court allowed Wilson to return for the sentencing
hearing after he agreed to and did write a letter of apology.
[22] Wilson argues that the trial court’s decision to exclude him from trial was
erroneous because the trial court did not first warn Wilson that he could be
removed for being disruptive and instead removed him immediately following
his first and only outburst. Wilson cites to Perry and Allen where the defendants
were disruptive several times throughout trial and were first warned before they
were ultimately removed from the courtroom. Perry v. State, 471 N.E.2d 270,
275 (Ind. 1984); Allen, 397 U.S. at 340.
[23] We find that the trial court was within its discretion to remove Wilson from the
courtroom. Unlike the cases cited above, Wilson not only used profanity and
generally disrupted the proceedings, but also became physical with the bailiffs.
Furthermore, he continued to exhibit contumacious behavior in the contempt
hearing, used profanity directed at the court, and agreed with the trial court’s
decision to exclude him from the trial. These actions amount to a waiver of
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Wilson’s sixth amendment and Article I, Section 13 rights. Accordingly, the
trial court did not abuse its discretion by excluding Wilson from a portion of the
trial.
[24] The judgment of the trial court is affirmed in part, reversed in part, and
remanded to the trial court with instructions that Wilson’s conviction for Class
D felony conspiracy to commit criminal gang activity be vacated and the
remaining aggregate 181-year sentence be imposed as is.
Vaidik, C.J., and Kirsch, J., concur.
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