Marcus Washington v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Apr 11 2012, 9:13 am
the defense of res judicata, collateral
estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MATTHEW ANGLEMEYER GREGORY F. ZOELLER
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARCUS WASHINGTON, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1105-CR-429
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robert R. Altice, Judge
Cause No. 49G02-1007-MR-52616
April 11, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Following a jury trial, Marcus Washington was convicted of murder,1 a felony, and
carrying a handgun without a license,2 a Class A misdemeanor. He appeals and raises three
issues that we restate as:
I. Whether the exclusion of certain defense evidence pursuant to the trial
court‟s order granting the State‟s pretrial motion in limine resulted in
fundamental error where Washington did not offer or seek to admit it
during trial;
II. Whether the trial court abused its discretion when it denied
Washington‟s request to adjourn the trial and assist Washington with
enforcing a subpoena for a defense witness who refused to appear for
trial, stated that he intended not to provide any testimony, and whose
whereabouts were not known; and
III. Whether the trial court abused its discretion when it excluded as
hearsay an absent witness‟s statement to police.
We affirm.
FACTS AND PROCEDURAL HISTORY
On July 2, 2010, Regina Covington permitted Frederick Shaw (“Shaw”), a close friend
and ultimately the victim in this case, to use her rented Dodge Charger automobile. At
approximately 1:30 a.m. on July 3, Ajia Williams (“Williams”) called Shaw, who was her
boyfriend, and asked him to pick her up from her brother‟s house. About twenty minutes
later, Shaw arrived in the black Charger to pick up Williams. She rode in the front passenger
seat and two other male passengers, Kilo and P-Dog, rode in the back seat. After picking up
Williams, Shaw immediately drove to 4303 Guilford, in Indianapolis.
1
See Ind. Code § 35-42-1-1.
2
See Ind. Code § 35-47-2-1.
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Shaw immediately parked the vehicle in the driveway and exited the car, leaving the
lights on and the engine running. Shaw began verbally arguing with a man, who was later
identified as Washington, outside the house. Kari Washington (“Kari”), who is not related to
the defendant, lived at the home, and she heard Washington and Shaw, both of whom she
knew, arguing. Kari exited her house and attempted to break up the argument between
Washington and Shaw, who were facing each other near her front porch. However, as she
approached, Shaw threw a punch at Washington and accidently hit Kari, who fell to the
ground. At that point, a gun was fired. Upon hearing the shot, Williams, still in the Charger,
observed Washington holding a gun and pointing it at Shaw. Williams ran up to Washington
and pulled his shirt, and he said, “Bitch, get off of me.” Tr. at 64, 94. Kari ran inside her
house. Shaw fled the scene, and Williams did not see where he went. At some point, Kilo
and P-Dog exited the Charger because, after the shot was fired, and people scattered,
Washington got into the Charger and drove away alone.
Williams and others searched the area for Shaw but did not find him. Eventually,
Williams called the police. An officer responded to the anonymous “shots fired” call;
however, he did not search for a victim because he did not know that anyone was shot. Later,
around 6:00 a.m., police were called again to the scene after Shaw‟s cousins had located his
body across the street and behind or beside a house. Williams was at the scene and police
took a statement from her. The autopsy investigation revealed that Shaw died from a single
gunshot wound to the chest that was fired from a short distance away, three feet or more.
The police also recovered the Charger a couple of blocks away.
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On July 4, 2010, Kari told Indianapolis Police Department Homicide Detective Bill
Rogers (“Detective Rogers”) that the name of the man that had been arguing with Shaw in
front of her home was Marcus Washington, and Kari identified Washington from a photo
array. Kari did not see anyone with a gun at the scene. The next day, July 5, 2010, Detective
Rogers showed that same photo array to Williams, who identified Washington as being the
shooter. Id. at 280. Kari and Williams did not know each other.
The State charged Washington with murder, a felony, and carrying a handgun without
a license, a Class A misdemeanor. On the day of trial, the State filed a motion in limine.
Relevant to this appeal is paragraph eight, which sought to prohibit the defense from
presenting any evidence that, shortly after the shooting, members of Shaw‟s family had come
to Kari‟s home and threatened to kill her and everyone in the house. The trial court granted
paragraph eight over Washington‟s objection.
On the afternoon of the second and final day of trial, Washington raised the matter of
a defense witness, Eddie Kinnel, who had refused to appear for trial, even after being
subpoenaed. Washington‟s counsel requested trial court assistance with bringing Kinnel to
court, but conceded that they did not know Kinnel‟s current location or his place of
employment. Counsel further shared that Kinnel had said if he was brought to court he
would say that he did not know anything. The trial court determined that there was no
realistic timely means of obtaining the witness at that point in trial and proceeded with the
trial. Later, during the testimony of Detective Rogers, Washington attempted to introduce
Kinnel‟s taped statement to police, but the State objected on hearsay grounds, which the trial
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court sustained. Id. at 302-05. The jury found Washington guilty as charged. He now
appeals.
DISCUSSION AND DECISION
I. Evidence of Threats
At the start of trial, the State filed a motion in limine seeking to exclude, among other
things, the following evidence from trial on the basis that it was not relevant and any
probative value was outweighed by unfair prejudice:
[T]he defense attorney should be prohibited from asking about, and the
defendant and his witness(es) should refrain from commenting upon the
alleged threats that Kari Washington received from the victim‟s family after
this incident occurred.
Appellant’s App. at 89; Tr. at 14-15. After receiving argument from counsel, the trial court
granted the State‟s motion in limine, over Washington‟s objection. However, the trial court
further stated that, at the appropriate time during trial, defense counsel could approach the
bench and a final ruling would be made at that time with regard to the admissibility of the
evidence. Tr. at 15.
Rulings on motions in limine are not final decisions and, therefore, do not preserve
errors for appeal. Barnett v. State, 916 N.E.2d 280, 287 (Ind. Ct. App. 2009) (offer of proof
required to preserve error in exclusion of witness testimony), trans. denied (2010); Simmons
v. State, 760 N.E.2d 1154, 1158 (Ind. Ct. App. 2002). Although motions in limine serve to
protect against prejudicial evidence being placed before the jury, the ultimate determination
of the admissibility of the evidence is made by the trial court in the context of the trial.
Earlywine v. State, 847 N.E.2d 1011, 1013 (Ind. Ct. App. 2006). By requiring that an
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objection be made during the trial at the time when the testimony is offered into evidence, the
trial court is able to consider the evidence in the context in which it is being offered and is
able to make a final determination on admissibility. Id.In this case, Washington failed to request relief during trial from the trial court‟s prior
ruling on the motion in limine or otherwise seek to present any evidence concerning the
alleged threat(s). Appellant’s Br. at 8. Our Supreme Court has recognized that “[a]bsent
either a ruling admitting evidence accompanied by a timely objection or a ruling excluding
evidence accompanied by a proper offer of proof, there is no basis for a claim of error.”
Hollowell v. State, 753 N.E.2d 612, 615–16 (Ind. 2001). Candidly recognizing the absence
of an offer of proof, Washington urges that if we find he failed to preserve the issue, which
he characterizes as an improper exclusion of evidence, “it must be analyzed under the
doctrine of fundamental error.” Appellant’s Br. at 8. However, his argument is misguided.
First, contrary to his characterization, this issue is not one of improper exclusion of evidence;
the trial court only ruled on a pretrial motion in limine. Second, by its very nature, a trial
court‟s ruling on a motion in limine cannot constitute fundamental error. An order in limine
has no conclusive effect and cannot deny a defendant a fair trial. It is preliminary only. The
final determination on the admissibility of the evidence is made during the trial in response to
a party‟s motion for relief from the order in limine and evidentiary proffer. Earlywine, 847
N.E.2d at 1013. By failing to make such a motion or proffer at trial upon which the trial
court could rule, there simply is no trial court ruling before us to review. Washington‟s
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failure to preserve error cannot constitute fundamental error. Otherwise, a party could create
fundamental error by his own inaction.
II. Defense Witness Who Failed to Appear
On the second day of Washington‟s jury trial, nearing the conclusion of the State‟s
case in chief, counsel for Washington advised the trial court that a subpoenaed defense
witness, Kinnel, refused to appear for trial. Kinnel was expected to testify that, on the night
in question, he was staying at his girlfriend‟s home, which was adjacent to Kari‟s home, and
he had been awakened by the sound of the gun shot that night. At some point, he looked out
his window and saw a black Charger with a flat tire, with two passengers, backed into the
driveway of Kari‟s residence.
Washington‟s counsel advised the trial court that he had taken action to bring Kinnel
to court, including hiring a private investigator to locate Kinnel and that the investigator had
been able to locate Kinnel only “just recently.” Tr. at 291. The first occasion that
Washington‟s counsel personally spoke to Kinnel by phone was during the current trial, and
in that conversation Kinnel told counsel that he was not coming to trial and further stated, “I
don‟t care if it‟s the State or the defense. If I come down there, I‟m just going to say „I know
nothing.‟” Id. at 292.
Washington‟s counsel asked the trial court to enforce the subpoena that had been
issued to Kinnel. The trial court, frustrated that the matter was not brought to the court‟s
attention until midway through the second and final day of trial, nevertheless indicated its
willingness to issue a warrant for Kinnel, but noted that, realistically, trial would be over by
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the time the warrant reached the Civil Sheriff branch for service and Kinnel was found. Id.
at 291. Washington‟s counsel declined the offer to issue a warrant but asked the trial court to
issue a “writ of assistance,” where the “police department run out and pick him up.” Id. The
trial court initially indicated concern about whether it possessed the ability to do that, and
ultimately denied the request for police assistance, stating “Well, the bottom line is, we are
near the end of trial and you come to me now and tell me of your issues, which doesn‟t –
there‟s not a whole lot I can do.” Id. at 293. On appeal, Washington maintains that it was
error for the trial court not to continue the trial or help him bring his witness to court, and
consequently he was denied his Sixth Amendment right to compulsory process, including the
right to subpoena witnesses and the right to present them in defense.
Washington concedes that he did not seek a continuance at trial when Kinnel failed to
appear. Appellant’s Br. at 11. Therefore, to avoid waiver, Washington must prove
fundamental error. Fundamental error occurs when the record reveals a clearly blatant
violation of basic and elementary principles, where the harm or potential for harm cannot be
denied, and which violation is so prejudicial to the rights of the defendant as to make a fair
trial impossible. Tolliver v. State, 922 N.E.2d 1272, 1281 (Ind. Ct. App. 2010), trans. denied.
Every defendant has the fundamental right to present witnesses in his or her own
defense. Id at 1282. That right is not absolute, however, and both the State and the accused
must comply with established rules of procedure. Id. at 1283-84 (trial court did not err in
denying defense‟s motion for continuance during trial where subpoenaed witness who failed
to appear had clearly demonstrated his unwillingness to “come anywhere near police officers
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or the court system”). In deciding its course of action when faced with a witness that fails to
appear, a trial court must “evaluate and balance competing interests[.]” Rowe v. State, 444
N.E.2d 303, 306 (Ind. 1983) (no abuse of discretion occurred where trial court denied
defense‟s motion to continue trial in order to secure attendance of witness that failed to
appear).
Here, defense counsel knew about Kinnel as a witness at least six months before trial.
However, Washington‟s counsel did not advise the court of the difficulty in reaching Kinnel
or obtaining his presence until the trial was nearing its end. Furthermore, Kinnel had
communicated his refusal to cooperate and intent to say he did not know anything, so it is
speculative that his testimony would have been credible or assisted Washington in any way.
As for whether the trial court could have or should have stopped trial and sent law
enforcement to locate Kinnel and bring him to court, Washington‟s counsel conceded that he
did not know where Kinnel worked, nor would Kinnel‟s wife disclose that information. Tr.
at 289. Lastly, if Kinnel were brought to court, he could only have provided testimony
concerning what he saw out the window after he was awakened by the gun shot; he could not
have testified as to who fired the shot that killed Shaw. On the other hand, Williams and
Kari each testified that she saw Washington and Shaw arguing face to face. After Kari fell to
the ground, she heard the gunshot, as did Williams who was still in the Charger. Williams
saw that Washington had a gun pointed at Shaw and testified that he was the only person she
saw with a gun.
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Washington has not demonstrated that he was denied a fair trial because of the trial
court‟s decision not to stop trial in order to try to locate an uncooperative witness whose
whereabouts were not known and who had already expressed intent not to provide honest
testimony. The trial court did not commit fundamental error.
III. Exclusion of Kinnel’s Statement to Police
On direct examination, Detective Rogers testified about various aspects of his
investigation of the crime. During cross-examination of Detective Rogers, Washington‟s
counsel asked Detective Rogers whether, as part of his investigation, he had obtained a taped
statement from Kinnel. The State objected to the ensuing questions, which were headed
toward the substance of Kinnel‟s statement, on the basis of hearsay; the trial court agreed,
sustaining the objection and excluding the evidence. Washington argues on appeal that the
trial court erred when it excluded the evidence of Kinnel‟s taped statement to police.
In general, the decision to admit or exclude evidence, including purported hearsay, is
within a trial court‟s sound discretion and is afforded great deference on appeal. Ballard v.
State, 877 N.E.2d 860, 861-62 (Ind. Ct. App. 2007). We will not reverse the trial court‟s
decision unless it represents an abuse of discretion that results in the denial of a fair trial. Id.
at 862. An abuse of discretion in this context occurs where the trial court‟s decision is
clearly against the logic and effect of the facts and circumstances before the court or it
misinterprets the law. Id.Hearsay is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered to prove the truth of the matter asserted. Ind. Evidence Rule 801(c).
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Hearsay, generally, is inadmissible. Evid. R. 802. Statements not offered for their
truthfulness are not hearsay. Treadway v. State 924 N.E.2d 621, 635 (Ind. 2010).
Here, Washington‟s counsel argued to the trial court that Kinnel‟s taped statements to
Detective Rogers were not being sought for the truth of the matters asserted, and therefore
were not hearsay. Tr. at 303-05. He argued that the statements were being offered to
demonstrate the manner in which Detective Rogers proceeded with his investigation, in
particular his investigation of Kilo and P-Dog. Id. The trial court received counsels‟
arguments at the bench and ultimately rejected Washington‟s claim that the statements were
not being offered for their truth, stating it was not going to allow Washington to “back door”
a defense into evidence. Id. at 305. Based on the record before us, we find no abuse of
discretion in the trial court‟s decision to exclude Kinnel‟s statements as “blatant hearsay.” Id.
at 304.
Furthermore, even if it was an abuse of discretion to exclude Kinnel‟s statement to
police, we do not find that Washington‟s substantial rights were affected. See Barnett v.
State, 916 N.E.2d 280, 286 (Ind. Ct. App. 2009) (citing to Ind. Evid. Rule 103, error may not
be predicated upon ruling to admit or exclude evidence unless substantial right of party is
affected), trans. denied. If, as Washington claims, he wanted the statements in evidence not
for the truth of the matters asserted, but only to “show why Rogers proceeded with his
investigation into Kilo and P-Dog as he did, and possibly to impeach the thoroughness of
Rogers‟ investigation,” he has not demonstrated in what way the exclusion of that purported
impeachment evidence prejudiced him or substantially affected his rights. Appellant’s Br. at
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13. Again, the evidence presented was that Williams observed Washington and Shaw, facing
each other, arguing. Williams was looking down, but heard a gunshot, and when she looked
up, she saw Washington holding a gun. She testified that he was the only person at the scene
that she observed with a gun. She ran to Washington and, within feet of him, pulled his shirt.
He pointed the gun at her and told her to get away from him. She later identified
Washington in a photo array. On a separate date, Kari, who did not know Williams, also
identified Washington from a photo array as the man who was arguing with Shaw in front of
her house that night. In light of this evidence, we do not find that Washington was
substantially prejudiced or denied a fair trial because the trial court excluded Kinnel‟s
statement to police, which, according to Washington, was only meant to impeach the
thoroughness of Detective Rogers‟s investigation.
Affirmed.
BARNES, J., and BRADFORD, J., concur.
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