Michael Casey v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 18 2019, 8:10 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Frederick Vaiana F. Aaron Negangard
Voyles Vaiana Lukemeyer Baldwin & Chief Deputy Attorney General
Webb
Justin F. Roebel
Indianapolis, Indiana Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Casey, January 18, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1775
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Alicia A. Gooden,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G21-1705-F4-19051
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1775 | January 18, 2019 Page 1 of 10
[1] Michael Casey appeals his conviction for unlawful possession of a firearm by a
serious violent felon as a level 4 felony. He raises one issue which we revise
and restate as whether the trial court erred or abused its discretion in permitting
his statement to police to be played for the jury a second time. We affirm.
Facts and Procedural History
[2] On May 17, 2017, Indianapolis Metropolitan Police Officer Scott Emminger
was dispatched to 44 North Euclid Avenue regarding a person who had been
shot. When Officer Emminger arrived at 44 North Euclid, he observed two
women come from the porch at 48 North Euclid who appeared to be in a hurry
and “were trying to get in a blue Chevy Cav[alier] in an open front door at 44 N
Euclid.” Transcript Volume II at 17. Officer Emminger had Officer Carver
detain the females while he went to see if he could locate a person who had
been shot at 44 North Euclid. Officer Emminger observed a man lying on the
living room floor of the residence at 44 North Euclid, confirmed the man had
been shot, and rendered aid. Indianapolis Metropolitan Police Detective Jason
Leitze arrived at the scene and spoke with Officer Emminger and Tara
Hamilton, one of the two women at the scene, who was arrested by officers.
Hamilton had a puppy with her as she was being arrested. Hamilton indicated
that Casey, who had arrived at the scene, could take the puppy.
[3] Later that day, Detective Leitze received an anonymous phone call that led him
to believe potential evidence could be found at 48 North Euclid, and he
obtained a search warrant for 48 North Euclid to look for firearms,
ammunition, spent casings, live ammunition, and paperwork related to
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1775 | January 18, 2019 Page 2 of 10
firearms. Detective Leitze executed the search warrant that same day with the
assistance of the Indianapolis SWAT Team. Casey and two others were
present at the residence.1 Detective Leitze found a 16-gauge shotgun
manufactured by Stevens under a bed. He also found ammunition and spent
cartridges. Detective Leitze placed Casey into custody, transported him to the
City County Building for an interview, and learned that Casey was not allowed
by law to possess a firearm. After Casey was informed of his Miranda rights, he
made a statement to police which was recorded.
[4] On May 23, 2017, the State charged Casey with unlawful possession of a
firearm by a serious violent felon as a level 4 felony. On June 4, 2018, the State
alleged that Casey was an habitual offender.
[5] On June 12, 2018, the court held a jury trial. During Detective Leitze’s
testimony, the State moved to admit Casey’s statement to police as State’s
Exhibit 20. The court admitted Casey’s statement over objection. Prior to
playing a redacted version of the statement, the prosecutor moved to admit as
Exhibit 23 the parties’ stipulation indicating that all redactions and omissions
from the audio/video recorded statement were by agreement. Without
1
When asked who was at 48 North Euclid at the time of the execution of the search warrant, Detective
Leitze answered: “Mr. Casey was present as well as two additional (inaudible).” Transcript Volume II at 25.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1775 | January 18, 2019 Page 3 of 10
objection, the court admitted the stipulation. The recording was then played for
the jury.2
[6] When asked what he learned from Casey’s statement, Detective Leitze
answered: “That Mr. Casey claimed ownership of this shotgun found at 48
North Euclid.” Id. at 33. The prosecutor asked: “And he keeps referencing a
Stevens, is that the same shotgun we saw in court today?” Id. Detective Leitze
answered: “That is the shotgun right in front of me.” Id.
[7] After the examination of Detective Leitze by the parties, the court held a
sidebar in response to questions from jurors, and stated:
Question 1 is what was, I think this is in the video, what was the
question before the confrontation about finding the gun? Oh
okay. Question 2 what time did you get, what time did you get
the tip, question 3 how long does it take to get a warrant,
question 4 how did detective know [Casey] was unlawfully in the
possession, if you want to look at them? I don’t know where it
was, I know that one of jurors - -. I’m not going to give that
question, if they had been asking to see the video again and they
do. 2 and 3 will be given. Stipulation (inaudible) okay.
Id. at 41.
[8] The court held another sidebar and stated:
Counsel, so we may do (inaudible) excuse him I don’t know, this
is the same woman that couldn’t hear, she has another question,
2
The transcript indicates that the recording was played at 2:26 p.m. and ended at 2:35 p.m.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1775 | January 18, 2019 Page 4 of 10
question number 5 for the record in 2 parts, part A I missed
[Casey’s] answer regarding whose bedroom that was at 48 North
Euclid so she clearly couldn’t hear, and she obviously made a
note that she couldn’t hear, so I don’t know what your position is
I mean I don’t (inaudible) I don’t know what your position is, I
have a bit of a problem with her not being able to hear and asking
questions that clearly could be answered by watching the video I
don’t know whether it’s fair to leave her wondering when
everyone else heard it, but I don’t know what your position is
about playing part of it, the part that she missed (inaudible) or
letting the officer answer the question based on?
Id. at 44.
[9] Following a lengthy discussion outside the presence of the jury, and over
defense counsel’s objection, the court indicated it would replay the entire video
again. Defense counsel asked: “And is it possible to admonish about not
making deliberation, not making a decision until after they’ve heard everything,
including the closing arguments?” Id. at 54. The court stated: “That is already
in the instructions and is in my admonishment, but I would.” Id. The court
stated: “I would just admonish the jury that you will have instructions, both
ones already given to you and one’s [sic] will be given you, to you in a few
moments with respect to final instructions that will discuss how you are two
[sic] way [sic] all the pieces of evidence that you would get okay.” Id. The
court told the jurors to wave if there was any part they could not hear, and the
video was played for the jury.
[10] The State rested. Casey testified that he lived at 8523 Lena Court, that
Hamilton was his girlfriend, that the shotgun belonged to Hamilton, and that he
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1775 | January 18, 2019 Page 5 of 10
did not fire the shotgun two days before May 17th. When asked if anyone else
fired it two days before May 17th, Casey answered: “It was like 3 days,
[Hamilton] was selling, selling it to a Mexican.” Id. at 56. He testified that he
“googled [the gun] because they don’t make them, they don’t make that gun no
more, it’s an antique . . . .” Id. Defense counsel asked Casey, “Okay we saw
you on this video saying that it was yours and that you fired it 2 days before
why did you say that?” Id. Casey answered: “I was scared and confused, and I
didn’t want [Hamilton] to go to jail.” Id. When asked why he was scared and
confused, he stated that he had just smoked “Katie” which is “blunts . . . spice.”
Id. at 56-57.
[11] On rebuttal, Detective Leitze testified that he did not tell Casey when he first
entered the interview room that he found his shotgun. The prosecutor asked:
“So the first mention when you say are there any weapons at 498 [sic] North
Euclid, he says yes that 16 gauge shotgun that came from Mr. Casey?” Id. at
60. Detective Leitze answered: “Correct.” Id. He also testified that Casey did
not seem under the influence of spice or any other narcotic.
[12] The jury found Casey guilty of unlawful possession of a firearm. Casey waived
his right to a jury trial on the habitual offender allegation, and the court found
him to be an habitual offender.
[13] The court sentenced Casey to twelve years for unlawful possession of a firearm
by a serious violent felon as a level 4 felony and enhanced the sentence by ten
years for being an habitual offender for an aggregate sentence of twenty-two
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1775 | January 18, 2019 Page 6 of 10
years. The court’s sentencing order states: “Enhancement Sentence Split. 8
years DOC 2 Years MCCC Program Deemed Appropriate.” Appellant’s
Appendix Volume II at 12.
Discussion
[14] The issue is whether the trial court erred or abused its discretion in permitting
Casey’s statement to police to be played for the jury a second time. Generally,
we review the trial court’s ruling on the admission or exclusion of evidence for
an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g
denied. We reverse only when the decision is clearly against the logic and effect
of the facts and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997),
reh’g denied. We may affirm a trial court’s decision regarding the admission of
evidence if it is sustainable on any basis in the record. Barker v. State, 695
N.E.2d 925, 930 (Ind. 1998), reh’g denied. A trial court “has the duty to manage
and control the proceedings conducted” before it, Garcia v. State, 517 N.E.2d
402, 405 (Ind. 1988), and “is given wide latitude of discretion in carrying out
[its] duties.” Pitman v. State, 436 N.E.2d 74, 78 (Ind. 1982).
[15] Casey cites Ind. Evidence Rule 403 and asserts that the unsolicited presentation
of the duplicitous and cumulative evidence deprived him of his right to a fair
trial. He argues that Ind. Code § 34-1-21-6 outlines strict circumstances when a
jury may be entitled to receive duplicitous or cumulative evidence and none of
the circumstances were present in his case.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1775 | January 18, 2019 Page 7 of 10
[16] The State argues the trial court properly exercised its discretion by replaying
Casey’s statement to police in response to jury questions. It asserts that the trial
court reasonably exercised its discretion to replay the evidence based on the
multiple jury questions asking about the content of the already played video and
other concerns regarding audio problems and redaction. The State also
contends that Casey has not shown substantial prejudice.
[17] Initially, we note that Casey did not specifically mention Ind. Evidence Rule
403 in his objection to the replaying of the video at trial. Ind. Evidence Rule
403 provides: “The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.” To the extent the objection by Casey’s
counsel that the replaying was “cumulative to just keep hammering on it over,
and over, and over,” falls under Rule 403, we will address the issue.3 Transcript
Volume II at 45.
3
We agree with Casey that Ind. Code § 34-36-1-6 does not apply because that statute addresses a request for
information after the jury retires for deliberation. Ind. Code § 34-36-1-6 provides:
If, after the jury retires for deliberation:
(1) there is a disagreement among the jurors as to any part of the testimony; or
(2) the jury desires to be informed as to any point of law arising in the case;
the jury may request the officer to conduct them into court, where the information required
shall be given in the presence of, or after notice to, the parties or the attorneys representing
the parties.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1775 | January 18, 2019 Page 8 of 10
[18] The trial court replayed Casey’s recorded statement due to multiple questions
from the jury and a juror’s inability to hear. We have previously held that, “[i]n
order for the jurors to properly perform their duty, it is essential that they be
able to hear the testimony.” Lewis v. State, 726 N.E.2d 836, 845 (Ind. Ct. App.
2000), trans. denied. We cannot say that Casey has demonstrated that replaying
his statement to police would not aid the jury. We note that the redacted
recording was less than ten minutes, was replayed in its entirety, and was
limited to a single replay in the presence of the trial judge. Under these
circumstances, we cannot say that the trial court abused its discretion. See
Chambers v. State, 422 N.E.2d 1198, 1204 (Ind. 1981) (holding that, “[a]t most,
the repeated playing of the tape was cumulative evidence” and that the trial
court did not err in allowing the tape to be replayed so all of the jurors could
hear it); see also Harris v. State, 659 N.E.2d 522, 526-527 (Ind. 1995) (holding
that the trial court did not abuse its discretion by sending exhibits and a tape
player to the jury room when the jury began its deliberations where the audio
taped confession served to aid the jury in its attempt to understand to what
extent defendant participated in the charged crimes and how the crimes were
committed, and there was little risk that the jury would misuse or give undue
weight to these exhibits because the audio tapes had already been played in
open court).
Conclusion
[19] For the foregoing reasons, we affirm Casey’s conviction.
[20] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1775 | January 18, 2019 Page 9 of 10
Bailey, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1775 | January 18, 2019 Page 10 of 10