Braven Harris v. State of Indiana ( 2024 )

FILED
Oct 23 2024, 9:47 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Court of Appeals of Indiana
Braven Harris,
Appellant-Defendant
v.
State of Indiana,
Appellee-Plaintiff
October 23, 2024
Court of Appeals Case No.
24A-CR-542
Appeal from the Marion Superior Court
The Honorable Jane Spencer Craney, Judge
Trial Court Cause No.
49D28-2209-MR-23928
Opinion by Judge Tavitas
Judges Crone and Bradford concur.
Court of Appeals of Indiana | Opinion 24A-CR-542 | October 23, 2024 Page 1 of 16
Tavitas Judge.
Case Summary
[1] Following a jury trial, Braven Harris was convicted of murder and sentenced to
sixty years in the Department of Correction (“DOC”). Harris appeals and
claims that: (1) the trial court abused its discretion by admitting into evidence
certain online messages; and (2) the trial court erred by failing to ask Harris if
he wished to exercise his right of allocution. We disagree and, accordingly,
affirm.
Issues
[2] Harris presents two issues for our review, which we reorder and restate as:
I. Whether the trial court abused its discretion by admitting
into evidence certain online messages.
II. Whether the trial court erred by failing to ask Harris if he
desired to exercise his right of allocution.
Facts
[3] In the early morning hours of June 30, 2022, several people were at Kyria
Tishner’s home in Indianapolis, where they sat in the back yard around a firepit
and drank alcohol. Among the people at Tishner’s home that day were Payton
Wilson, Mikey Allen, and the defendant, Harris. Allen and Harris were sitting
on a couch in the back yard. At some point, Wilson told Harris that Harris
needed to leave because Harris “d[id]n’t belong there.” Tr. Vol. II p. 144.
Court of Appeals of Indiana | Opinion 24A-CR-542 | October 23, 2024 Page 2 of 16
Harris then stood up and shot Wilson multiple times. After Harris shot Wilson,
Harris and Allen ran to a car parked in a nearby alley and fled.
[4] Officers from the Indianapolis Metropolitan Police Department (“IMPD”) were
dispatched to the scene of the shooting. IMPD Officer Michael Cheh arrived at
the scene and determined that Wilson was dead. Tishner told the police that
Harris was the shooter. 1 Officers collected shell casings from the scene. A
subsequent autopsy of Wilson revealed that he had been shot multiple times,
and the pathologist recovered several bullets from Wilson’s body. Meanwhile,
detectives obtained a warrant for Harris’ arrest.
[5] Several months later, on September 13, 2022, the police located and arrested
Harris. At the time, Harris had in his possession a cell phone. The police
obtained a warrant to search the cell phone, and a search of the phone revealed
that someone had conducted a Google search on September 7, 2022, for the
phrase “how to find out if I have a warrant.” Tr. Vol. IV p. 63; Ex. Vol. I p.
174. The phone had also been used to search for “Indianapolis killing June,”
and “[a]ll Indianapolis shootings 2022.” Tr. Vol. IV p. 65; see also Ex. Vol. I p.
177-78. The phone also contained a self-taken photo of Harris.
[6] The police obtained a warrant for the Instagram account that was logged into
the Instagram app on the phone. This account had a user name of “_profile5”
1
Tishner stated at the scene that Harris was the shooter. The two other eyewitnesses initially told detectives
that they did not know who shot Wilson and gave inconsistent descriptions of what happened. At trial,
however, these eyewitnesses testified unequivocally that Harris shot Wilson.
Court of Appeals of Indiana | Opinion 24A-CR-542 | October 23, 2024 Page 3 of 16
and had an internal Instagram account number of 6998561673. Tr. Vol. III p.
207; Tr. Vol. IV pp. 13-14; Ex. Vol. I pp. 181-82. This Instagram account had
sent a message on July 7, 2022, that stated, “Detective shows up where I was
staying in nap,” 2 “And I had to get a new phone.” Ex. Vol. I p. 182. When
another Instagram user asked how “_profile5” was feeling, “_profile5”
responded, “Worried,” and “Stressed.” Id. at 183. Other messages from
“_profile5” stated, “That’s what’s stressing me[.] Only 2 people knew I was
there,” “I gotta leave nap again,” and indicated that he would be gone for “[a]t
least 3 months.” Id. at 183, 185. In an Instagram message dated July 15, 2022,
“_profile5” stated that he had to sell his car because the police were looking for
it. When asked why the police were looking for his car, “_profile5” stated, “I
can’t say a lot on instagrams [sic].” Id. at 188. The person with whom the
“_profile5” was messaging referred to him as “Braven,” to which the account
holder responded affirmatively. Id. Harris’ first name is Braven.
[7] While incarcerated awaiting trial, Harris made several calls from jail, which
were recorded. During these calls, Harris stated, “It’s over then” when
informed that the police had located his car. Ex. Vol. 2, State’s Ex. 182,
Redacted Jail Call 9.14 at 22.05. 3 Harris said that he had attempted to get rid of
his car. Id. Harris also stated that he had been trying to “look at” and “stare
at” the witnesses against him to “give them a message.” Id., Redacted Jail Call
2
“Nap” is a slang term for the city of Indianapolis. Tr. Vol. IV p. 14.
3
These citations refer to the file names of the audio files located on the CD that is State’s Exhibit 182.
Court of Appeals of Indiana | Opinion 24A-CR-542 | October 23, 2024 Page 4 of 16
9.16 at 17.14. Harris said that his friend needed to “apply pressure because
these motherf**kers will be ID-ing me.” Id. In another recorded jail call,
Harris stated that the witnesses listed in the probable cause affidavit were
“snitching” on him. Id., Redacted Jail Call 9.16 at 17.50. He also complained
that his girlfriend had not gotten rid of his car. Referring to one of his
upcoming court dates, Harris stated, “I just want as many people there so these
witnesses can see motherf**kers not playing.” Id., Redacted Jail Call 10.12 at
18.14.
[8] A jury trial was held on January 8-10, 2024. At trial, IMPD Detective Ronald
Sayles testified that he submitted a search warrant for the Instagram account on
Harris’ phone to Meta, Inc., the parent company of Instagram. In return,
Detective Sayles received the messages and an affidavit from Meta. Harris
objected to the admission of the Instagram messages and argued that the
messages were not properly authenticated because the affidavit from Meta “says
that they are authenticating as business records messages under identifier
6998561673,” but that “[t]his identifier does not appear in the warrant, nor do
the number or profile returned to in the warrant appear in the affidavit.” Tr.
Vol. III p. 207. The State explained that the identifying number was generated
by Meta in response to the warrant. After taking the matter under advisement,
the trial court overruled Harris’ objection and admitted the Instagram messages.
Tr. Vol. IV p. 4. At the conclusion of the trial, the jury found Harris guilty as
charged.
Court of Appeals of Indiana | Opinion 24A-CR-542 | October 23, 2024 Page 5 of 16
[9] At the sentencing hearing, the trial court told Harris, “I give you first and last
on sentencing. Do you have any witnesses you’d like to call?” Tr. Vo. IV p.
129. Harris called two witnesses: his sister, who testified that Harris was
remorseful and who asked the court for leniency; and a social worker in the
public defender’s office, who testified regarding Harris’ troubled upbringing.
After Harris’ witnesses testified, the trial court asked, “Anything further,” to
which Harris’ counsel responded, “No, just argument.” Id. at 141. The trial
court did not ask Harris directly whether Harris wished to make a statement on
his own behalf. The parties then presented their sentencing arguments, and the
trial court imposed a sentence of sixty years in the DOC. Harris now appeals.
Discussion and Decision
I. Authenticating Instagram Messages
[10] Harris argues that the trial court abused its discretion by admitting the
Instagram messages without proper authentication. “We review challenges to
the admission of evidence for an abuse of the trial court’s discretion.” Jones v.
State, 218 N.E.3d 3, 9 (Ind. Ct. App. 2023) (citing Combs v. State, 168 N.E.3d
985, 990 (Ind. 2021)), trans. denied. A trial court abuses its discretion only if its
decision on the admission of evidence is clearly against the logic and effect of
the facts and circumstances before it, or if the court has misinterpreted the law.
Howard v. State, 236 N.E.3d 735, 742 (Ind. Ct. App. 2024) (citing Spells v. State,
225 N.E.3d 767, 771 (Ind. 2024)).
[11] Authentication of evidence is governed by Indiana Evidence Rule 901(a), which
provides: “To satisfy the requirement of authenticating or identifying an item of
Court of Appeals of Indiana | Opinion 24A-CR-542 | October 23, 2024 Page 6 of 16
evidence, the proponent must produce evidence sufficient to support a finding
that the item is what the proponent claims it is.” Once this has been shown,
“‘any inconclusiveness regarding the exhibit’s connection with the events at
issue goes to the exhibit’s weight, not its admissibility.’” Wilson v. State, 30
N.E.3d 1264, 1268 (Ind. Ct. App. 2015) (quoting Pavlovich v. State, 6 N.E.3d
969, 976 (Ind. Ct. App. 2014)), trans. denied. “‘Absolute proof of authenticity is
not required.’” Id. (quoting Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App.
2008)). Authentication of an exhibit can be established by either direct
evidence or circumstantial evidence. Id. (citing Pavlovich, 6 N.E.3d at 976).
“Letters and words set down by electronic recording and other forms of data
compilation are included within Rule 901(a).” Wilson, 30 N.E.3d at 1268
(citing Hape v. State, 903 N.E.2d 977, 989 (Ind. Ct. App. 2009)).
[12] Here, the State presented sufficient evidence to show that the Instagram
messages were made from Harris’ Instagram account. The police found a cell
phone on Harris when Harris was arrested. This cell phone, which had a photo
of Harris on it, also contained the Instagram app with a user account of
“_profile5.” Tr. Vol. III p. 204-05. The State obtained a search warrant for this
account, and Meta—Instagram’s parent company—responded to this with a
business record that listed the account number for “_profile5” as “6998561673.”
Ex. Vol. p. 182. All of the messages listed were sent to and from that account.
The messages produced in response to the warrant also included a conversation
in which the other party referred to the user as “Braven,” Harris’ first name. Id.
at 188. From this, the trial court concluded that the State had adequately
Court of Appeals of Indiana | Opinion 24A-CR-542 | October 23, 2024 Page 7 of 16
shown that the messages were what the State claimed them to be—messages
from Harris’ Instagram account.
[13] Harris claims his case is similar to Richardson v. State, 79 N.E.3d 958 (Ind. Ct.
App. 2017), trans. denied. In that case, the police recovered a cell phone from
the body of a shooting victim. Although the phone was password-protected,
the police were able to access a Facebook Messenger app that had a user name
of “Bandman Trapp.” Id. at 962. The Messenger app contained a conversation
between Bandman Trapp and another user named “Little L Mike Brookside”
that occurred a few days prior to the shooting. Id. Richardson moved to admit
the conversation, claiming that the victim, using the name Bandman Trapp,
had messaged “Little L Mike Brookside” indicating that Bandman Trapp
planned to rob someone for a gun. Id. The trial court sustained the State’s
objection to the admission of this evidence.
[14] On appeal, we affirmed the trial court’s decision to exclude the evidence,
concluding:
[The detective] described the procedure used to unlock the
password-protected cellphone and after opening up the Facebook
application, he located an account under the name of Bandman
Trapp. Upon preliminary questioning by the State, [the
detective] explained that there are several ways a Facebook
account could be accessed. He clarified that anyone who signed
into the Facebook account, through a computer or cellphone,
could compose messages that would then sync to the Facebook
application on the recovered cellphone. In other words, [the
detective] had ‘no idea who made that statement or who
composed that message.’ . . . Richardson did not present any
evidence describing distinctive characteristics that could connect
Court of Appeals of Indiana | Opinion 24A-CR-542 | October 23, 2024 Page 8 of 16
the particular statement to [the victim], nor did he present any
other indicia of reliability establishing [the victim] as the author
of the contested statement.
Id. at 963-64 (record citations omitted).
[15] In contrast, here, the State presented evidence that the messages were found on
the Instagram app on Harris’ phone and from the account number associated
with the user name signed into the Instagram app on Harris’ phone. The
person with whom the account user was communicating also referred to the
user by Harris’ unusual first name, Braven, and the user responded to that
name. The phone also contained a “selfie” photo of Harris. This was sufficient
to support the trial court’s finding that the messages were Harris’ Instagram
conversations. Any weakness in the State’s authentication goes merely to the
weight of the evidence, not its admissibility. Wilson, 30 N.E.3d at 1268. We,
therefore, conclude that the trial court did not abuse its discretion in admitting
the Instagram messages. 4
II. Right of Allocution
[16] Harris also claims that the trial court erred by failing to ask Harris if he desired
to exercise his right of allocution—to personally address the trial court before
his sentence was pronounced. The Indiana allocution statute provides:
4
Even if we were to agree with Harris, any error in the admission of the messages would be harmless. Here,
three eyewitnesses testified that Harris shot Wilson, and Harris made multiple incriminating statements on
the recorded jail calls. Thus, we are satisfied that “there is no substantial likelihood that the questioned
evidence contributed to the conviction.” Setlak v. State, 234 N.E.3d 215, 219 (Ind. Ct. App. 2024).
Court of Appeals of Indiana | Opinion 24A-CR-542 | October 23, 2024 Page 9 of 16
When the defendant appears for sentencing, the court shall
inform the defendant of the verdict of the jury or the finding of
the court. The court shall afford counsel for the defendant an
opportunity to speak on behalf of the defendant. The defendant
may also make a statement personally in the defendant’s own
behalf and, before pronouncing sentence, the court shall ask the
defendant whether the defendant wishes to make such a
statement. Sentence shall then be pronounced, unless a sufficient
cause is alleged or appears to the court for delay in sentencing.
Ind. Code § 35-38-1-5 (emphases added).
[17] “The purpose of the right of allocution is to give the trial court the opportunity
to consider the facts and circumstances relevant to the sentencing of the
defendant in the case before it.’” Vicory v. State, 802 N.E.2d 426, 428-29 (Ind.
2004) 5 (citing Ross v. State, 676 N.E.2d 339, 343 (Ind. 1996)). Thus, “[w]hen the
defendant is given the opportunity to explain his view of the facts and
circumstances, the purpose of the right of allocution has been accomplished.”
Id. (citing Minton, 400 N.E.2d at 1180). “The right to allocution is ‘minimally
invasive,’ requiring only ‘a few moments of court time.’” Vicory, 802 N.E.2d at
429 (quoting United States v. Barnes, 948 F.2d 325, 331 (7th Cir. 1991)). On
appeal, “a defendant claiming that he was denied his right to allocution carries
a strong burden in establishing his claim.” Id.5
In Strack v. State, 186 N.E.3d 99, 103 n.1 (Ind. 2022), the Court disapproved of Vicory only to the extent it
could be read to suggest that a defendant who chooses to testify for evidentiary purposes waives his or her
right of allocution. Thus, Vicory remains good law for the purposes we cite it.
Court of Appeals of Indiana | Opinion 24A-CR-542 | October 23, 2024 Page 10 of 16
A. Harris waived his allocution claim.
[18] Here, it is undisputed that the trial court did not ask if Harris wished to exercise
his right of allocution. Harris argues that this is reversible error. The State
argues that Harris waived this claim by failing to object when the trial court did
not ask if Harris wished to exercise his right of allocution. We agree with the
State.
[19] The trial court gave Harris the opportunity to present evidence in mitigation at
the sentencing hearing. Harris took advantage of this opportunity by having his
sister testify that Harris did not plan the murder and that Harris was only
eighteen at the time of the shooting. After Harris had presented his evidence,
the trial court asked if Harris had “[a]nything further?” Id. at 141. Harris’
counsel replied, “No, just argument.” Id.[20] Our Supreme Court stated in Angleton v. State, 714 N.E.2d 156, 159 (Ind. 1999),
that “a defendant . . . may not sit idly by at a sentencing hearing, fail to object
to a statutory defect in the proceeding, then seek a new sentencing hearing on
that basis on appeal. The failure to object constitutes waiver.” The defendant
in Angleton, like Harris here, claimed that the trial court erred by failing to ask
the defendant whether he wished to make a statement at the sentencing hearing.
And the Court held that the failure to object to this constituted waiver for
purposes of appeal. Id.[21] Harris argues that Angleton is distinguishable, because the defendant in that case
was an attorney and the trial court’s failure to ask the defendant if he wished to
Court of Appeals of Indiana | Opinion 24A-CR-542 | October 23, 2024 Page 11 of 16
exercise his right of allocution occurred at a second sentencing hearing after the
Court remanded for resentencing in Angleton’s first appeal. Angleton had been
advised of his right to make a statement at his first sentencing hearing.
Although the Angleton Court did mention these circumstances, the basis of its
holding was Angleton’s failure to object, not the fact that Angleton was an
attorney. Id. Thus, although Angleton is not entirely on point with the present
case, we still find it to be controlling.
[22] We also find support for our conclusion in Abd v. State, 120 N.E.3d 1126 (Ind.
Ct. App. 2019). In that case, the defendant was convicted of murder and
robbery. At sentencing, the trial court asked defense counsel if the defendant
wished to exercise his right of allocution before the court pronounced its
sentence. Defense counsel stated that the defendant would not exercise his
right. On appeal, the defendant argued that the trial court committed
fundamental error by not asking him directly, rather than through his counsel,
whether he wished to exercise his right of allocution. The Court noted that the
trial court asked defense counsel if the defendant wished to speak and that the
defendant failed to “speak up or object” when his counsel declined. Id. at 1137.
Thus, we concluded that the defendant waived his claim. Id. Again, although
not precisely the same situation that is present here, we find Abd to support our
conclusion that Harris waived his allocution claim. See also Woods v. State, 98
N.E.3d 656, 662 (Ind. Ct. App. 2018) (holding that defendant’s allocution
argument was waived on appeal where trial court asked defense counsel if
Court of Appeals of Indiana | Opinion 24A-CR-542 | October 23, 2024 Page 12 of 16
defendant wished to speak, defense counsel replied in the negative, and
defendant did not speak up or disagree with her counsel’s statement).
[23] Harris relies on Jones v. State 79 N.E.3d 911, 915-16 (Ind. Ct. App. 2017), in
which a panel of this Court held that the allocution statute requires a trial court
to directly ask the defendant whether he or she wishes to make a statement to
the court and that the trial court’s failure to do so was reversible error. The
Jones Court compared the right of allocution to the right to a jury trial, which
requires the defendant to personally waive the right. Id. at 915-16. Thus, even
though the trial court in that case asked Jones’ counsel whether Jones wished to
exercise his right of allocution, and Jones’ counsel responded in the negative,
the Jones Court held that “the trial court’s failure to inquire personally with the
defendant concerning allocution was error.” Id. at 917. The Jones Court held
that the right of allocution was a right “personal to the defendant—not available
for waiver by counsel.” Id. Thus, the Court concluded, “such error was
fundamental and mandate[d] reversal of Jones’s sentence.” Id.
[24] No subsequent opinion of this Court has followed the holding in Jones. See
Woods, 98 N.E.3d at 663-64; Abd, 120 N.E.3d at 1137 (both declining to follow
Jones). We too decline to follow Jones. We do not think that the statutory right
of allocution is akin to the right to a jury trial—the foundation of our criminal
justice system. Moreover, when a defendant is represented by counsel, as
Harris was, he speaks to the trial court through his counsel. Talbott v. State, 204
N.E.3d 288, 299 (Ind. Ct. App. 2023) (citing Flowers v. State, 154 N.E.3d 854,
867 (Ind. Ct. App. 2020)), reh’g denied, trans. denied. The defense counsel in
Court of Appeals of Indiana | Opinion 24A-CR-542 | October 23, 2024 Page 13 of 16
Talbott waived the defendant’s right to a speedy trial under Criminal Rule 4(B)
by agreeing to postpone a status conference and failing to object to a trial date
set outside the Rule 4(B) timeframe. Similarly, here, when Harris’ counsel told
the trial court that the defense had nothing further to present at the sentencing
hearing, Harris was bound by this statement.
[25] While we acknowledge that the trial court should have, pursuant to the
allocution statute, advised Harris personally that he had the right of allocution,
we, nevertheless, conclude that Harris waived his allocution argument by
failing to object or assert his statutory right of allocution at the sentencing
hearing. See Locke v. State, 461 N.E.2d 1090, 1093 (Ind. 1984) (holding that
defendant waived his claim that trial court erred by failing to ask if he wished to
make a statement before the court imposed sentence because the defendant
failed to timely object); Robles v. State, 705 N.E.2d 183, 187 (Ind. Ct. App. 1998)
(holding that defendant waived claim that trial court erred by failing to grant
him an opportunity to speak before the court imposed sentence because the
record was “clear that Robles did not pose any objection at sentencing”).
B. The trial court’s failure to ask Harris if he wished to exercise his right of
allocution is not fundamental error.
[26] Harris also argues that, even if he did waive his allocution claim by failing to
timely object, the trial court’s failure here constitutes fundamental error.
“‘Fundamental error is an exception to the general rule that a party’s failure to
object at trial results in a waiver of the issue on appeal.’” Strack v. State, 186
N.E.3d 99, 103 (Ind. 2022) (quoting Kelly v. State, 122 N.E.3d 803, 805 (Ind.
Court of Appeals of Indiana | Opinion 24A-CR-542 | October 23, 2024 Page 14 of 16
2019). “[F]undamental error occurs only when the error ‘makes a fair trial
impossible or constitutes clearly blatant violations of basic and elementary
principles of due process presenting an undeniable and substantial potential for
harm.’” Id. (quoting Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009)). An
appellant bears a “heavy burden of showing fundamental error on appeal.” Id.(citing Isom v. State, 170 N.E.3d 623, 651 (Ind. 2021)). And this burden is in
addition to the “strong burden” a defendant bears when claiming he was denied
the right of allocution. Id. (citing Vicory, 802 N.E.2d at 429). Harris has not
met this burden.
[27] Harris’ claim that, had he been offered an opportunity to speak, he would have
shown respect to the trial court and the victim’s family is insufficient to
establish fundamental error. Indeed, as noted by the State, Harris declined to
make a statement to the officer preparing the pre-sentence investigation report.
This undermines Harris’ claim that he would have exercised his right of
allocution or shown respect to the trial court and the victim’s family had he
been allowed to speak. Also, Harris’ sister testified at the sentencing hearing
and stated that Harris did not “plan” the murder and that Harris was merely in
the “wrong place, wrong time” with the “wrong people” and made “wrong
decisions.” Tr. Vol. IV p. 132. Thus, the trial court heard mitigating evidence
in Harris’ favor.
[28] Under these circumstances, we cannot say that the trial court committed
fundamental error by not asking Harris if he wished to exercise his right of
allocution. See Strack, 186 N.E.3d at 104 (rejecting defendant’s claim of
Court of Appeals of Indiana | Opinion 24A-CR-542 | October 23, 2024 Page 15 of 16
fundamental error because he failed to show that his sentence would have been
different had the trial court not required defendant to be subject to cross-
examination during his allocution statement).
Conclusion
[29] The trial court did not abuse its discretion by admitting the Instagram messages
that were found on Harris’ cell phone. Harris waived his claim regarding
allocution by failing to timely object, and the trial court’s failure to ask Harris if
he wished to exercise his right of allocution was not fundamental error.
Accordingly, we affirm the trial court’s judgment.
[30] Affirmed.
Crone, J., and Bradford, J., concur.
ATTORNEY FOR APPELLANT
Talisha R. Griffin
Joshua Vincent
Marion County Public Defender Agency
Indianapolis, Indiana
ATTORNEY FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
George P. Sherman
Supervising Deputy Attorney General
Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 24A-CR-542 | October 23, 2024 Page 16 of 16