Terrance L. Richardson v. State of Indiana

FILED
Jul 06 2017, 8:03 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Terrance L. Richardson, July 6, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1701-CR-17
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark D. Stoner,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G06-1510-MR-35635
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Terrance L. Richardson (Richardson), appeals his
conviction for murder, a felony, Ind. Code § 35-42-1-1.
[2] We affirm.
ISSUES
[3] Richardson raises two issues for our review, which we restate as:
(1) Whether the trial court abused its discretion when it excluded a Facebook
message from the evidence presented at trial; and
(2) Whether the State presented sufficient evidence beyond a reasonable doubt
to rebut Richardson’s claim of self-defense.
FACTS 1 AND PROCEDURAL HISTORY
[4] On the afternoon of October 4, 2015, Richardson, and his three friends, Jalen
Heffner (Heffner), Kaylend Gilbert (Gilbert), and Steven Kendall (Kendall)—all
approximately seventeen years old—walked together to the New York Express
convenience store, located at 2801 East New York Street—on the corner of
Rural Street and New York Street—in Indianapolis, Indiana. Richardson and
Gilbert entered the store, while Heffner and Kendall waited outside. After a
1
The facts are partially derived from the various security cameras outside and inside the convenience store,
as well as from a remodeling business one door south of the store. These security cameras captured images
only and did not register sound.
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short while, Kendall walked around the corner of the store, while Heffner sat on
the curb in front of the store’s entrance. A couple of seconds after Kendall
walked around the corner, Richardson exited the store and joined Heffner on
the curb; Gilbert remained inside, waiting in line at the cash register. When his
purchase was complete, Gilbert joined Richardson and Heffner at the curb, just
as Kendall turned the corner and walked towards them.
[5] About a minute later, the group turned their attention to Rural Street as a black
car pulled up. Richardson, Heffner, and Gilbert moved toward the vehicle and
leaned into the passenger side window to start conversing with the occupant.
Kendall hung back, remaining on the curb. Eventually, Kendall walked
towards the vehicle and appeared to speak with the occupant. Then,
Richardson, Gilbert, and Kendall moved away and began talking amongst
themselves on the curb; Heffner remained at the vehicle. During the
conversation, Kendall lifted his shirt with both hands and showed the other two
a black item—appearing to be a gun—in the waistband of his pants. A couple
of seconds later, Heffner shook hands with the occupant of the vehicle, which
then drove away. All four talked briefly in front of the store, before walking
away. Approximately thirty seconds later, Heffner and Richardson returned to
the store. Upon entering, they immediately walked toward the back where
Heffner reached in his right-hand pocket and handed Richardson a black object,
which Richardson quickly pocketed in his jacket. The two then exited the store
without making a purchase.
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[6] The four boys walked together to the parking lot behind the convenience store.
Behind the store, Kendall stopped first. Richardson turned and walked back to
Kendall, leaning down briefly with his hands on his knees. Richardson then
faced Kendall and put his hand in his jacket. Heffner faced Kendall at the
opposite side of Richardson. Richardson pulled out a gun and abruptly lunged
at Kendall. Kendall put his left hand out to ward off the attack, and
Richardson fired a single shot into Kendall’s chest.
[7] Heffner immediately sprinted back to the front parking lot of the New York
Express. Richardson and Gilbert ran into each other as they fled towards Rural
Street, causing Gilbert to drop his cellphone. Richardson, Gilbert, and Heffner
met up after crossing the street and started walking as if nothing had happened.
Although shot, Kendall managed to run in the opposite direction. As he ran,
he dropped his gun. Seconds after he picked up the gun, he collapsed on the
sidewalk and died.
[8] When law enforcement arrived, they discovered Kendall face-first on the
concrete, showing no signs of life. They recovered a handgun a few feet from
Kendall’s body. The handgun was fully loaded but did not have a bullet in the
chamber. Forensic testing of the firearm revealed that it was not the weapon
that had fired the fatal shot. A cellphone was recovered from Kendall’s body.
Another cellphone, later determined to belong to Gilbert, was found in the
parking lot where Richardson and Gilbert had bumped into each other as they
fled. Police officers obtained the surveillance footage from the New York
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Express and from the remodeling business, which allowed the officers to
quickly identify the individuals involved.
[9] On October 5, 2015, the State filed an Information charging Richardson with
murder, a felony. On November 14 through 16, 2016, the trial court conducted
a joint bench trial for Richardson, Heffner, and Gilbert. 2 At the close of the
evidence, the trial court found Richardson guilty as charged, but found Gilbert
and Heffner not guilty. On December 1, 2016, the trial court sentenced
Richardson to fifty-five years executed in the Indiana Department of
Correction.
[10] Richardson now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
I. Admission of Evidence
[11] Richardson contends that the trial court abused its discretion when it excluded
a Facebook message between Kendall and a third party from the evidence
admitted at trial. The trial court has inherent discretionary power over the
admission of evidence, and its decisions are reviewed only for an abuse of that
discretion. Bowman v. State, 73 N.E.3d 731, 734 (Ind. Ct. App. 2017), trans.
denied. Accordingly, we will reverse the trial court’s decision only when it is
2
All three defendants were charged with murder, but only Richardson was found guilty. The trial court did
not find sufficient evidence to prove beyond a reasonable doubt that Heffner and Gilbert were knowing
accomplices in Kendall’s murder.
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clearly against the facts and circumstances before the court. Id. Even if the trial
court abused its discretion in admitting evidence, the judgment will be
undisturbed if the decision to admit evidence is harmless error. Id. “Harmless
error occurs ‘when the conviction is supported by such substantial independent
evidence of guilt as to satisfy the reviewing court that there is no substantial
likelihood that the questioned evidence contributed to the conviction.’” Id.
(quoting Lafayette v. State, 917 N.E.2d 660, 666 (Ind. 2009)).
[12] During his case-in-chief, Kendall called Detective Grant Melton of the
Indianapolis Metropolitan Police Department (Detective Melton). Detective
Melton testified about his examination of the password-protected cellphone that
had been recovered from Kendall’s body. During his examination, Detective
Melton retrieved a Facebook profile under the name “Bandman Trapp.”
(Transcript Vol. III, p. 63). Through Facebook’s Messenger application,
Detective Melton discovered a conversation between Bandman Trapp and
another account with the name “Little L Mike Brookside” from a couple days
prior to the shooting. (Tr. Vol. III, p. 64). Richardson moved to admit the
message and the State objected on grounds of improper foundation, relevance,
and hearsay.
[13] After the trial court expressed concerns about the evidentiary foundation of the
message, Richardson questioned Detective Melton about the author of the
message and the recovery of the data during follow-up questioning. Upon
being interrogated by the State, Detective Melton noted that the Facebook
account could not only be accessed through the cellphone that was recovered at
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the scene, but could also be accessed through any computer or any other
telephone. “Other than [] having seen Bandman Trapp on that message,”
Detective Melton had “no idea who made that statement or who composed that
message.” (Tr. Vol. III, p. 72). He clarified that he did not know who
composed the message because anyone could sign into that account on a
computer and compose the message which “would then sync to that phone if
it’s signed into the account.” (Tr. Vol. III, p. 72). After the trial court denied
the admission of the message based on foundation grounds, Richardson made
an offer to prove. In his offer to prove, Richardson indicated that the exhibit
would show that on October 1, 2015, Kendall, under his Facebook account of
Bandman Trapp, messaged Little L Mike Brookside, “Nah I’m boutta finesse
hoodie for this strap but I need you[,]” which Richardson represented to mean,
“I’m about to rob somebody for a black gun.” (Tr. Vol. III, pp. 83, 84).
[14] “To lay a foundation for the admission of evidence, the proponent of the
evidence must show that it has been authenticated.” Hape v. State, 903 N.E.2d
977, 989 (Ind. Ct. App. 2009), trans. denied. Indiana Rule of Evidence 901(a)
provides that “[t]o 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.” Absolute proof of
authenticity is not required. M.T.V. v. State, 66 N.E.3d 960, 963 (Ind. Ct. App.
2016), trans. denied. Rather, the proponent of the evidence must establish only a
reasonable probability that the evidence is what it is claimed to be, and may use
direct or circumstantial evidence to do so. Pavlovich v. State, 6 N.E.3d 969, 976
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(Ind. Ct. App. 2014), trans. denied. Once this reasonable probability is shown,
any inconclusiveness of the evidence’s connection with the events at issue goes
to evidential weight, not admissibility. Fry v. State, 885 N.E.2d 742, 748 (Ind.
Ct. App. 2008), trans. denied.
[15] “Letters and words set down by electronic recording and other forms of data
compilation are included within Rule 901(a).” Wilson v. State. 30 N.E.3d 1264,
1268 (Ind. Ct. App. 2015), trans. denied. Moreover, Evidence Rule 901(b)
provides a non-exhaustive list of evidence that satisfies the authentication
requirement. One example is where there is evidence describing a process or
system and showing that it produces an accurate result. Evid. R. 901(b)(9).
Another example, provided in Evidence Rule 901(b)(4), is where, taken
together with all the circumstances, the evidence has distinctive characteristics
in appearance, contents, or substance. Federal Rule of Evidence 901(b)(4) uses
language identical to that of Indiana Rule of Evidence 901(b)(4). “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.” Wilson, 30 N.E.3d at
1268.
[16] In Wilson, we addressed whether messages sent through a Twitter social media
account were properly authenticated as having been authored by the defendant.
Id. at 1268. During trial, a witness testified that she often communicated with
Wilson on Twitter and had general knowledge of the account by its
“@Nell_FearNoMan” header. Id. at 1268-69. The contents of the account
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included pictures depicting Wilson holding guns that matched the description of
those used in the crime. Id. at 1269. Moreover, there was testimony that
Wilson was affiliated with two gangs, and the @Nell_FearNoMan Twitter
account frequently used terms referring to those gangs, showing that the author
of the messages was affiliated with them. Id. We concluded 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.” Id.
[17] In M.T.V., M.T.V. admitted, in an interview with law enforcement officers, to
having had Facebook conversations with B.E., in which B.E. threatened to
shoot up the school on April 20, 2018. M.T.V., 66 N.E.3d at 963-64. The
Facebook records introduced at the hearing contained the content M.T.V.
admitted to. Id. at 964. Furthermore, in addition to having distinctive
characteristics in content, the Facebook records were also supported by an
affidavit from Facebook’s authorized records custodian, which specified, inter
alia, that the records were made and kept by Facebook’s automated systems and
were made at or near the time the Facebook user transmitted the information.
Id. At the hearing, law enforcement testified that the procedure used to obtain
the Facebook records was an ordinary procedure, previously used for criminal
investigations involving Facebook. Id. Concluding that, collectively, the State
had established the requisite reasonable probability that the Facebook records
corresponded to M.T.V.’s and B.E.’s accounts and that M.T.V. and B.E.
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authored the conversations therein, we found the records properly
authenticated. Id.
[18] Here, Detective Melton 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, Detective Melton 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, Detective Melton had “no idea who made that statement or
who composed that message.” (Tr. Vol. III, p. 72). Unlike the defendants in
Wilson and M.T.V., Richardson did not present any evidence describing
distinctive characteristics that could connect the particular statement to
Kendall, nor did he present any other indicia of reliability establishing Kendall
as the author of the contested statement. Accordingly, the trial court did not
abuse its discretion when it refused to admit the Facebook message.
II. Self-Defense
[19] Next, Richardson contends that the State failed to present sufficient evidence
beyond a reasonable doubt to rebut his claim of self-defense. The standard for
reviewing a challenge to the sufficiency of evidence to rebut a claim of self-
defense is the same standard used for any claim of insufficient evidence. Wilson
v. State, 770 N.E.2d 799, 801 (Ind. 2002). We neither reweigh the evidence nor
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judge the credibility of witnesses. Id. If there is sufficient evidence of probative
value to support the conclusion of the trier of fact, the judgment will not be
disturbed. Id.
[20] “A valid claim of self-defense is a legal justification for an otherwise criminal
act.” Henson v. State, 786 N.E.2d 274, 277 (Ind. 2003). To prevail on his self-
defense claim, Richardson must show that he: (1) was in a place where he had
a right to be; (2) acted without fault; and (3) was in reasonable fear of
apprehension of bodily harm. I.C. § 35-41-3-2; Henson v. State, 786 N.E.2d 274,
277 (Ind. 2003). A person who provokes, instigates, or participates willingly in
the violence does not act without fault for the purposes of self-defense. Shoultz
v. State, 995 N.E.2d 647, 660 (Ind. Ct. App. 2013), trans. denied. A mutual
combatant, whether or not the initial aggressor, must declare an armistice
before he may claim self-defense. Wilson, 770 N.E.2d at 801.
[21] When self-defense is raised and finds support in the evidence, the State bears
the burden of negating at least one of the necessary elements. Id. at 800. The
State may meet this burden by offering evidence directly rebutting the defense,
by affirmatively showing that the defendant did not act in self-defense, or by
relying on the sufficiency of the evidence from its case-in-chief. Miller v. State,
720 N.E.2d at 696, 700 (Ind. 1999). If a defendant is convicted despite his self-
defense claims, we will reverse only if no reasonable person could say that self-
defense was negated beyond a reasonable doubt. Wilson, 700 N.E.2d at 801.
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[22] Richardson’s claim of self-defense rested entirely on Gilbert’s testimony and the
surveillance video of the incident. He presented a theory that he shot Kendall
in response to Kendall grabbing a gun from his waistband and clicking the
trigger, which failed to fire because there was no bullet in the chamber. Upon
rendering its guilty judgment, the trial court discussed Richardson’s self-defense
claim as follows:
The [c]ourt finds that first at looking at this, and as I indicated, I
looked at this, the tapes for about four hours last night and I
looked at, again, reviewed two critical parts of the tape, one the
part of the shooting, the second, the part of the grocery store and
whether or not there was a handoff of a weapon or not. Those to
me were the two critical points at issue. . . . The [c]ourt does not
believe that this was self-defense. It believes the State’s case in
chief proved beyond a reasonable doubt, one, that [Richardson]
did fire the shot and did knowingly killed [Kendall], two, that it
was not a matter of self-defense. The film does not show the
decedent in this case attacking anyone, raising his hands or doing
anything, even if he had his hand on the gun outside. [Gilbert] is
simply not credible on this point. [Gilbert’s] testimony indicates
he was standing not near—that he was merely watching and not
doing anything, the tape is pretty clear to the [c]ourt that once
[Richardson] shoots [Kendall], everybody is moving and
everybody is moving quickly. And so the [c]ourt doesn’t find
him credible on that point and does find the tape to be pretty
clear, that the [three defendants] fled the area, they did not return
to the area in terms of a self-defense claim, in the common
language of things, they didn’t stand their ground, wait for the
police and tell them that it was a justified shooting. They didn’t
do anything to aid [Kendall]. And, again, this is someone,
according to [Gilbert], they were all friends and had no beef
against each other and that they all got along . . . This was a
deliberate shooting. It was a deliberate killing.
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(Tr. Vol. III, pp. 99-101).
[23] On appeal, Richardson urges us to re-interpret the images captured by the
surveillance video to find that Kendall made a movement “which could have
been a reach for his loaded weapon” immediately before Richardson pointed a
gun and shot Kendall. (Appellant’s Br. p. 20). He also argues that the trial
court “could not properly consider Gilbert’s testimony, and any lack of his
credibility, as evidence against Richardson.” (Appellant’s Br. p. 17). However,
as there were no eyewitnesses to the killing and Gilbert was the only defendant
testifying, Richardson relied on Gilbert’s version of the facts in addition to his
interpretation of the surveillance video to bolster his claim of self-defense. In
fact, during closing argument, Richardson compared Gilbert’s testimony and
the images captured on the surveillance tapes almost side-by-side, noting that
“Gilbert got up there and told the truth.” (Tr. Vol. III, p. 93). If any error
existed in the trial court’s consideration of Gilbert’s testimony when weighing
its judgment against Richardson, it was invited by Richardson and he cannot
now be heard to complain. In other words, Richardson’s entire argument is an
invitation to reweigh the evidence displayed on the surveillance video and
Gilbert’s credibility. We decline to accept his invitation. See Wilson, 770
N.E.2d at 801.
CONCLUSION
[24] Based on the foregoing, we hold that the trial court properly excluded a
Facebook message from the evidence at trial; and the State presented sufficient
evidence beyond a reasonable doubt to rebut Richardson’s claim of self-defense.
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[25] Affirmed.
[26] Najam, J. and Bradford, J. concur
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