Jimmie Jones v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Sep 23 2013, 5:35 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KURT A. YOUNG GREGORY F. ZOELLER
Nashville, Indiana Attorney General of Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JIMMIE JONES, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1303-CR-93
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Sheila A. Carlisle, Judge
The Honorable Stanley E. Kroh, Master Commissioner
Cause No. 49G03-1209-FB-67080
September 23, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Jimmie Jones appeals his convictions for one count each of robbery and criminal
confinement, as Class B felonies, following a jury trial. Jones presents a single issue for
review, namely, whether the trial court improperly admitted hearsay testimony through
the investigating officers.
We affirm.
FACTS AND PROCEDURAL HISTORY
On September 10, 2012, Zachary Ross1 was working alone at the Happy Tymz
smoking accessory shop in Indianapolis. Shortly before the store’s 8:00 p.m. closing
time, a regular customer, whom Ross knew only as “Country” but was later identified as
Jones, walked into the store and began talking with him. Approximately thirty seconds
later, a second man entered the store. The second man was wearing something covering
his face and gloves on his hands. The second man turned and held the door, and then
Jones produced a small silver handgun from his pocket. Pointing it at Ross’s face, he told
Ross not to “do anything stupid.” Transcript at 49.
Jones pulled Ross into the back room, no more than five feet from where Ross had
been standing. Jones then asked Ross where to find the cash register key, and Ross
replied that it was in the register. The masked man then took the money from the cash
register, a laptop, and other items from the store. Jones demanded Ross’ wallet, and Ross
complied. Jones and the masked man then left the store through the front door, and Ross
called 911.
1
At trial, Ross stated that he has since legally changed his name to “Dude Wanderlust.”
Transcript at 43. Because the parties and the record refer to him by his former name of Zachary Ross, we
do likewise to avoid confusion.
2
Officer Christopher Cooper of the Indianapolis Metropolitan Police Department
(“IMPD”) arrived at the store at 7:50 p.m. in response to Ross’ 911 call. He asked Ross
what had happened, and Ross recounted the details of the robbery. Officer Cooper then
summoned IMPD Detective John Green to the scene. Detective Green also interviewed
Ross, who related to the detective the events of the robbery. Ross also provided the
detective with a video of the robbery made from the store’s surveillance cameras.
Based on surveillance video images, Detective Green had a “be on the lookout”
flyer of “Country” created and distributed to the public. Amber Pierle, a Marion County
employee, saw the flyer, recognized “Country” as Jones, a former client of the probation
department where she worked, and contacted Detective Green. The detective then put
together a photo array that included a photo of Jones as well as other similar looking
individuals. When the detective showed the photo array to Ross, he identified Jones as
“Country,” one of the men who had robbed the store.
The State charged Jones with one count each of robbery and criminal confinement,
as Class B felonies. Ross was the first witness to testify at trial, where he identified Jones
as one of the robbers and described what had happened. Next, Officer Cooper testified,
and then Detective Green, regarding their investigations. At one point while Officer
Cooper was testifying about what Ross reported Jones had said to him, Jones objected on
the grounds of hearsay. The trial court initially sustained the objection. The State then
responded that the testimony was not being offered for the truth of the matter asserted
but, instead, to explain the progression of the investigation. Based on that explanation,
the court overruled the objection and admonished the jury accordingly. Jones made no
similar objection when Detective Green testified regarding his interview of Ross. The
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jury found Jones guilty as charged, and the trial court sentenced him accordingly. Jones
now appeals.
DISCUSSION AND DECISION
Jones contends that the trial court abused its discretion when it admitted the
testimony of Officer Cooper and Detective Green regarding their interviews with Ross.
Our standard of review of a trial court’s admission or exclusion of evidence is an abuse of
discretion. Troutner v. State, 951 N.E.2d 603, 611 (Ind. Ct. App. 2011) (citing
Speybroeck v. State, 875 N.E.2d 813, 818 (Ind. Ct. App. 2007)), trans. denied. A trial
court abuses its discretion only if its decision is clearly against the logic and effect of the
facts and circumstances before the court. Id. In reviewing the admissibility of evidence,
we consider only the evidence in favor of the trial court’s ruling and any unrefuted
evidence in the defendant’s favor. Id. (citing Dawson v. State, 786 N.E.2d 742, 745 (Ind.
Ct. App. 2003), trans. denied).
The State disputes the standard of review. Specifically, the State argues that Jones
has not preserved the issue for review and, therefore, we must determine whether the trial
court committed fundamental error. Thus, we first examine whether Jones preserved the
issue on appeal for review.
The relevant colloquy involving Officer Cooper’s trial testimony is as follows:
Q [State]: What did Mr. Ross tell you?
A: I don’t recall very specifically at the time. It would be in the CAD
history that it was a black male, I believe, around 6’2”, 200 pounds. I
remember there was a gold tooth and a tank top was [sic] suspect number 1.
Suspect 2 I believe was going to be a little smaller, little bit lighter in
weight. And stated that they [sic] were dressed in all black and covering
the face.
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Q: Once you got that information what did you do with it?
A: Broadcast that over the radio so that units in the area could be out
looking for those individuals.
Q: Were you—in your initial discussions with Mr. Ross were you also
given information regarding a weapon?
A: Yes, ma’am.
Q: Did Mr. Ross tell you which—whether it was the masked or
unmasked suspect?
A: It was the unmasked suspect. He also stated that he knew that
person by a nickname.
Q: And what was that nickname that he told you?
A: Country.
Q: Did he describe the weapon to you?
A: He said it was a small handgun that would almost fit like in the palm
of his hand. I believe he said he may have said it was silver in color.
Again, that would be in my description in the CAD.
Q: Great. After getting some preliminary information from Mr. Ross,
what did you do next?
A: After everything was broadcast out, then just started going back over
the exact kind of step-by-step what had happened and had him describe the
events leading up to before I arrived on scene.
Q: And at this point had you called for anyone else to come to the
scene, or do you get kind of the version first?
A: Initially I kind of get the quick and dirty of what happened before we
break it down into real specifics to find out what appropriate detective to
call to the scene.
Q: Okay. And what was the quick and dirty version that you were
getting?
A: That the individual he knew as Country came into the store, started
speaking with him as he was behind the counter.
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[Defense counsel]: Judge, I think I’m going to object to this line at this
point as hearsay.
The Court: Hearsay? Okay. Sustained.
[State]: If I may just respond that it does not go to the truth of the
matter asserted, more just, like the officer said, how his investigation
progressed from that point on.
The Court: Okay. Ladies and gentlemen of the jury, what the detective
[sic] is saying about what someone else may have told him is only offered
to show why the detective [sic] did what he did next, not for the truth of
what the other person may or may not have said. So the objection is
overruled with that admonition. If you’ll continue.
Q: Please continue. What was the short version that you were given
initially by Mr. Ross?
A: That Country had come in, started speaking with him as he was
behind the counter. Just moments later another male, the one that was all
dressed in black came in, pulled the door closed, and then at that time
Country produced a weapon and made the statements to the effect of don’t
make me use this, and then started inquiring about how to access the
register.
Q: Once you were given that information, what did you do?
A: He continued his story to tell me that he was then pushed into the
back room where the masked individual took the register—got into the
register and took the contents of it. Also took the store’s computer and a
backpack that was sitting there, and then exited the store. Country had him
turn around, made some remarks reference [sic[ again the weapon and not
making him use it, asked for his wallet, and then he left the store and that’s
when Mr. Ross called for police.
Transcript at 86-89. Thereafter, Detective Green testified:
Q: Then what was the next step that you took in your investigation?
A: After speaking with Officer Cooper, then I spoke with Mr. Ross who
was outside of the business.
Q: When you spoke with Mr. Ross, what type of information were you
trying to get from him?
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A: I was trying to gather from him exactly what had occurred in the
business, the before, the after and during.
Q: Did you also get suspect information, as well?
A: Yes, I did.
Q: And can you tell the jury what suspect information you received
from Mr. Ross?
A: The information that I got from Mr. Ross was two individuals came
into the business. One that he knew or was familiar with, and that
individual he was familiar with called Country, and another individual that
he did not know and that person’s face was concealed and he had on a
hoodie and gloves.
Q: Did he give you more of a description of the person that he knew to
be Country, did he give you more of a physical description of him?
A: Yes, he did.
Q: What did he give you?
A: He described him to be approximately six foot, six foot two, in the
range of about 230 pounds. He said he had a gold tooth in his mouth and
some facial hair.
Q: Did he mention a weapon at all?
A: Yes.
Q: And what did he—you said he gave you a description of the second
person being masked, gloves and a jacket?
A: Hoodie.
Q: Now after getting his version of what happened and what he
remembered and the suspect information, what was the next step that you
took?
A: He informed me—he went through the whole scenario inside the
business, exactly what took place, where he was, where items were inside
the business and he explained that he had some video. He believed he still
had some video of the robbery. I asked him, “Do you have any video?” He
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said, “Yes, it’s in the bank. [sic] It’s on a DVR.” And we proceeded to the
back where he displayed various camera views or angles of the robbery.
Transcript at 97-99. Jones did not object to Detective Green’s testimony.
On appeal, Jones contends that his objection to the “line” of questioning during
Officer Cooper’s testimony was “plainly an attempt to lodge a continuing objection to the
hearsay repetition of Ross’ description of the incident, even though he did not specifically
ask nor did the court rule one way or the other whether a continuing objection was
granted, as ordinarily required.” Appellant’s Brief at 10. We cannot agree. Jones did not
object until Officer Cooper was about to testify about something Jones said to Ross
during the robbery. As such, Jones’ objection was clearly to testimony about what Jones
had said to Ross, not about what Ross had said to Officer Green.2
Instead, Jones contends that he objected to “the line” of questioning in which
Officer Cooper related what Ross had said happened during the robbery. He concedes
that he did not object to Detective Green’s testimony on the same topic and argues that
his objection to Officer Cooper’s testimony had been a continuing objection. Indiana
recognizes continuing objections as a way to avoid the futility and waste of time inherent
in requiring repetition of the same unsuccessful objection each time a party offers
evidence of a given character. Hutcherson v. State, 966 N.E.2d 766, 770 (Ind. Ct. App.
2012) (citation omitted), trans. denied. To avoid the necessity of objecting each time a
class of evidence is offered, the objecting party must specify to the trial court that he is
making a continuing objection. See Hayworth v. State, 904 N.E.2d 684, 692 (Ind. Ct.
2
In any case, what Jones may have said during the robbery is not hearsay. Ind. Evidence Rule
801(d)(2). And because Jones did not discuss in his brief on appeal the admissibility of testimony from
Ross about what Jones may have said during the robbery, any argument on that issue has been waived.
See Ind. Appellate Rule 46(A)(8)(a).
8
App. 2009). The decision whether to grant a continuing objection is a matter for the
discretion of the trial court, and objecting counsel must ensure that the continuing
objection fully and clearly advises the trial court of the specific grounds for objection.
Hutcherson, 966 N.E.2d at 770. If the trial court does not specifically grant the right to a
continuing objection, it is counsel’s duty to object to the evidence as it is offered in order
to preserve the issue for appeal. Id. (quotations and citation omitted).
We cannot agree with Jones that his objection to the “line” of questions specified
to the court that he was making a continuing objection. Nor did the court acknowledge or
specifically grant a continuing objection. We conclude that Jones did not make a
continuing objection to questioning regarding Ross’ police interviews. See id. Thus,
while Jones made a single timely objection to Officer’s Cooper’s testimony, he did not
make a continuing objection, and neither did he object to similar testimony by Detective
Green, and we review the latter only for fundamental error. To constitute fundamental
error, the error must constitute a blatant violation of basic principles, the harm or
potential for harm must be substantial, and the resulting error must deny the defendant
fundamental due process. Brown v. State, 799 N.E.2d 1064, 1067 (Ind. 2003) (quotation
omitted). It must be so prejudicial to the rights of a defendant as to make a fair trial
impossible. Id. (quotation omitted).
Here, again, Jones contends that the trial court should not have admitted the police
officers’ testimony on what Ross told them about the offenses because such was hearsay.
Hearsay is “a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted,” Ind. Evidence
Rule 801(c), and is not typically admissible, Evid. R. 802. But our supreme court has
9
held that one exception to this rule is hearsay testimony used to show the steps of an
investigation. Spencer v. State, 703 N.E.2d 1053, 1056 (Ind. 1999). In such cases, the
“testimony of the officers should be limited to that specific purpose.” Id. Such was the
case here, where the trial court admonished the jury that Officer Cooper’s testimony was
offered to show only the steps of his investigation, not the truth of the matter asserted.
As such, Jones’ argument regarding Officer Cooper’s testimony must fail. The same
result applies to Detective Green’s testimony. As such, Jones has not shown that the trial
court erred, let alone committed fundamental error, when it admitted Detective Green’s
testimony about Ross’ description of the robbery.
Finally, we also observe that Officer Cooper and Detective Green testified after
Ross had already given his testimony describing the robbery. As such, the officers’
testimony was cumulative. Admission of hearsay evidence is not grounds for reversal
where it is merely cumulative of other evidence admitted. VanPatten v. State, 986
N.E.2d 255, 267 (Ind. 2013). Thus, even if the trial court had erred in admitting the
officers’ testimony, which it did not, such would not have been error. We affirm Jones’
convictions for robbery and criminal confinement.
Affirmed.
MATHIAS, J., and BROWN, J., concur.
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