Daquoine D. Harriston 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 Dec 06 2019, 10:00 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Marielena Duerring Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daquoine D. Harriston, December 6, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1059
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jane Woodward
Appellee-Plaintiff. Miller, Judge
Trial Court Cause No.
71D01-1805-F1-9
Mathias, Judge.
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[1] Following a jury trial in St. Joseph Superior Court, Daquoine Harriston
(“Harriston”)1 was convicted of two counts of Level 1 felony attempted murder
and sentenced to an aggregate term of fifty years of incarceration. Harriston
appeals and presents one issue: whether the State presented sufficient evidence
to support Harriston’s convictions. Finding that ample, though circumstantial,
evidence supports the convictions, we affirm.
Facts and Procedural History
[2] In May 2018, Aleatha Carter (“Carter”) lived on Miami Street on the southeast
side of South Bend, Indiana with her wife, Torkika Tibbs (“Tibbs”), and
Carter’s children S.S., D.S., and C.G. Carter’s family was from the west side of
South Bend, and there are neighborhood and gang rivalries between people
from these two parts of town. A gas station convenience store was located
about a half a block away from Carter’s home on the other side of Miami Street
at the intersection of Miami Street and Bowman Street. There is also an alley
behind the gas station that connects Bowman to Donald Street and runs parallel
to Miami Street. The following diagram is based on the evidence presented at
trial, specifically aerial photographs of the area at issue and the expositional
testimony of the witnesses. See Ex. Vol. State’s Exs. 1, 112. It is included only
as an aid to the reader.
1
The defendant’s surname is also spelled as “Hairston” in portions of the record. See Appellant’s
Confidential App. p. 186. The parties, however, both spell the defendant’s name as “Harriston,” and we
therefore use this spelling.
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[3] Shortly before noon on May 2, 2018, S.S., D.S., and C.G. went to the gas
station to buy snacks. As the siblings approached the corner of Miami and
Bowman, they saw two African-American men in the parking lot of the gas
station. One of the men wore his hair in dreadlocks, and the other had a
shorter, “low fade” haircut. Tr. Vol. 1, p. 55. After making eye contact, the man
in dreadlocks asked S.S., “What you on,” meaning “What’s the deal?” Tr. Vol.
1, p. 121. As the parties exchanged words, the man in dreadlocks showed the
siblings a handgun he had in his pants and pulled at the handle of the gun. S.S.,
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D.S., and C.G. decided to go back home. Once back home, S.S. told her
mother that two men had just threatened them with a gun.
[4] Carter, Tibbs, and the children then went out onto their front porch and looked
left toward the gas station where the confrontation had taken place. Tibbs
looked in the other direction, at the intersection of Miami and Donald streets
and saw two men running toward the house. The two men yelled, “Loose
Screws,” and made signs with their hands, both indicating their affiliation with
a southeast-side street gang. Tr. Vol. 1, pp. 50, 101. Tibbs saw that the men
were preparing to shoot and warned her family. As the family attempted to run
back into the house, the two men opened fire, shooting at the house
approximately fifteen times. Several bullets hit the house, leaving bullet holes in
the front of the house, the screen door, and the windows. Carter was angry and
prepared to chase the shooters but changed her mind when she realized that
S.S. had been shot in the arm.
[5] Carter described both shooters as African-American men, one with dreadlocks
and wearing a white t-shirt, and the other with a shorter fade haircut. Tibbs got
a good look at only one of the shooters, whom she described as having
dreadlocks and wearing a white t-shirt. S.S. stated that the shooter with
dreadlocks wore a white t-shirt, and that the other shooter had a fade haircut
and also wore a white t-shirt. C.G. too described one of the shooters as having
dreadlocks and the other a shorter fade haircut. D.S. stated that the shooter
who had initially flashed his handgun had dreadlocks and that the other had a
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fade haircut. S.S., D.S., and C.G. all identified the shooters as the same men
who had confronted them near the gas station moments before.
[6] D.R. also lived on Miami Street at the corner Miami and Donald. He was
home at the time of the shooting and heard gunfire coming from the north side
of his home. He looked toward Miami Street and saw a young African-
American man walking backwards, holding a gun in his hand. D.R. saw the
man shoot six or seven more times. The man wore a white tank top. Id. at 65.
D.R. heard another gun being fired at the same time and saw a second man
walking backwards in the same direction as the first man. He saw an object in
the second man’s hand, but could not tell if it was a gun. The second man also
had on a white shirt, but had his hair in dreadlocks.
[7] Another bystander, K.H., was working at a lighting business on the corner of
Miami and Donald Streets and also heard the sound of multiple gunshots. He
looked outside and saw two African-American men running toward and then
down the alley. One of the men had dreadlocks and was carrying a handgun,
and the other had shorter hair. Yet another bystander, J.J., lived nearby on the
1300 block of Donald Street. At approximately noon that day, he noticed two
men, one of whom had dreadlocks, run down the alley very fast and go inside a
house two doors down from him.
[8] South Bend Police Department Officer John Riddle (“Officer Riddle”) was on
patrol nearby at the time of the shooting. Within seconds of the shooting, the
residents of the Carter-Tibbs home flagged him down at the corner of Miami
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and Bowman streets and informed him about the shooting. Officer Riddle saw
spent shell casings on the ground outside the home and called for an ambulance
to transport S.S. to the hospital. Carter, however, insisted upon driving her
daughter to the hospital herself. At the hospital, S.S. underwent treatment for
the gunshot wound in her upper right arm. The police ultimately located
fourteen shell casings near the house.
[9] Later that afternoon, the police deduced that the shooters might be located at
the house on Donald Street where J.J. had seen the two men run and enter. The
police went to the house and asked to speak with Harriston and Kahala Wright,
both of whom they suspected in the shooting. Wright and Harriston, however,
refused to come out of the house, even after being asked to do so by Wright’s
mother. Eventually, the two surrendered to the police. Inside the house, the
police found a white t-shirt and a white sleeveless tank top; both shirts had been
rolled up and hidden between two toy chests.
[10] Detective Jim Taylor (“Detective Taylor”) attempted to interview Harriston at
the police department that afternoon but could not locate a family member of
Harriston’s. As Harriston did not turn eighteen until May 10, 2018, the police
needed the permission of a parent or guardian to speak with him. The police
therefore released Harriston.
[11] Later that day, P.Q., who lived near the house where Wright and Harriston had
been found, was mowing his lawn when he saw Harriston by the fence line
between P.Q. and his neighbor’s yards. When he asked Harriston what he was
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doing, Harriston claimed to be looking for his cell phone. K.G., who lived next
to P.Q., also saw Harriston and asked what he was doing. Harriston also told
K.G. that he was looking for his cell phone. Since K.G. did not know
Harriston, she thought it was odd that he would be looking for his cell phone in
her yard. After Harriston left, P.Q. searched the area where Harriston had been
looking and saw a handgun. After finding the gun, P.Q. called the police, who
arrived at the scene and recovered the weapon, later identified as a Smith and
Wesson 9 mm handgun. Subsequent testing revealed that four of the shell
casings found at the scene of the shooting had been fired from this handgun.
[12] The police eventually obtained security video footage from the gas station
where the initial encounter took place. The video shows two men, one with
dreadlocks and wearing a white t-shirt and the other with shorter hair and
wearing a white tank top. The men enter the gas station and leave shortly
thereafter. Outside, the man with dreadlocks stares at someone at the corner of
Miami and Donald Streets. Both men then walk toward the corner and
eventually go out of sight of the camera. Shortly thereafter, the men run down
Bowman Street to the alley, where they run in the direction of Donald Street.
Based on the reaction of the bystanders in the video, the shooting takes place
less than a minute after the two men ran down the alley and disappeared from
view of the camera. When Detective Taylor watched the video, he immediately
recognized the two men in the video as Harriston and Wright. In the video,
Harriston is wearing a white tank top. Wright can be seen wearing dreadlocks,
and the butt of a handgun can be seen sticking out of his pocket, which was
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sagging because of the weight of the gun. Harriston’s pocket is also seen sagging
in the video, as if weighed down by a heavy object. As they run down the alley
in the video, both men hold the objects in their respective pockets.
[13] On May 10, 2018, Harriston’s eighteenth birthday, Detective Taylor again
interviewed Harriston. Despite being confronted with the video evidence,
Harriston denied having anything to do with the shooting and claimed to have
been playing video games at the house on Donald Street at the time of the
shooting. When detective Taylor left the interview room, Harriston called his
girlfriend and told her that the police were questioning him about “the
shooting.” Tr. Vol. 1, p. 242.
[14] The State charged Harriston on May 14, 2018, with two counts of Level 1
felony attempted murder, alleging that Harriston, acting with the specific intent
to kill, took a substantial step toward killing S.S. and D.S. by shooting at them.
The State also filed an information for a criminal gang enhancement, alleging
that Harriston “was a member of a criminal gang while committing a felony
offense and committed the felony offense at the direction of or in affiliation
with a criminal gang.” Appellant’s Confidential App. p. 7; see also Ind. Code §
35-50-2-15 (setting forth the requirements of the criminal gang sentencing
enhancement).
[15] A bifurcated jury trial took place on March 18–21, 2019. At the conclusion of
the first phase of the trial, the jury found Harriston guilty of both counts of
attempted murder. The second phase of the trial concerned the criminal gang
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enhancement, and at the conclusion of this phase of the trial, the jury found
that the State had proven the criminal gang enhancement beyond a reasonable
doubt. On May 2, 2019, the trial court sentenced Harriston to twenty-five years
on the first count of attempted murder, a concurrent term of twenty years on
the second count of attempted murder, and a consecutive sentence of twenty-
five years on the criminal gang enhancement, for an aggregate term of fifty
years of incarceration. Harriston now appeals.
Discussion and Decision
[16] Harriston argues that the State failed to present sufficient evidence to prove his
identity as the shorter-haired shooter.2 When reviewing a claim that the
evidence is insufficient to support a conviction, we neither reweigh the evidence
nor judge the credibility of the witnesses. Harrison v. State, 32 N.E.3d 240, 247
(Ind. Ct. App. 2015) (citing McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)),
trans. denied. We instead respect the exclusive province of the jury to weigh any
conflicting evidence. Id. We consider only the probative evidence supporting
the verdict and any reasonable inferences that may be drawn from this
evidence. Id. We will affirm if the probative evidence and reasonable inferences
drawn from the evidence could have allowed a reasonable trier of fact to find
the defendant guilty beyond a reasonable doubt. Id.
2
Harriston makes no claim that there was insufficient evidence to prove that the shooters intended to kill S.S.
and D.S. or that the shooting constituted a substantial step toward committing the crime of murder, nor does
Harriston claim that there was insufficient evidence to support the criminal gang sentence enhancement.
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[17] In claiming that the evidence is insufficient to establish his identification as one
of the shooters, Harriston notes that there were no fingerprints or DNA that
linked him to crime. However, this is not necessary, as “[i]dentity may be
established entirely by circumstantial evidence and the logical inferences drawn
therefrom.” Cherry v. State, 57 N.E.3d 867, 877 (Ind. Ct. App. 2016) (citing
Bustamante v. State, 557 N.E.2d 1313, 1317 (Ind. 1990)), trans. denied. “When
the evidence of identity is not entirely conclusive, the weight to be given to the
identification evidence is left to the determination of the jury, as determining
identity is a question of fact.” Harbert v. State, 51 N.E.3d 267, 275 (Ind. Ct. App.
2016) (citing Whitt v. State, 499 N.E.2d 748, 750 (Ind. 1986)), trans. denied.
Moreover, identification testimony need not be unequivocal to sustain a
conviction. Cherry, 57 N.E.3d at 877 (citing Heeter v. State, 661 N.E.2d 612, 616
(Ind. Ct. App. 1996)).3
[18] It is true that none of the eyewitnesses who testified at trial specifically
identified Harriston as one of the shooters. But the evidence clearly supports the
jury’s finding that Harriston was the shooter with the shorter hair. S.S., C.G.,
and D.S. all testified that the two shooters were the same individuals who had
confronted them on the way to the gas station. The two men who confronted
3
Harriston cites Hampton v. State, 961 N.E.2d 480, 486 (Ind. 2012), which held that a jury must be instructed
that there is a “qualitative difference between direct and circumstantial evidence with respect to the degree of
reliability and certainty they provide as proof of guilt.” Harriston admits, however, that the jury was so
instructed in the present case. Nevertheless Harriston appears to argue that the evidence did not overcome
every reasonable hypothesis of innocence. This is not the correct standard of review on appeal. It has long
been held that “[o]n appellate review of circumstantial evidence of guilt, [the court] need not determine
whether the circumstantial evidence is adequate to overcome every reasonable hypothesis of innocence, but
rather whether inferences may be reasonably drawn from that evidence which support the verdict beyond a
reasonable doubt.” Bustamante, 557 N.E.2d at 1317–18 (citing Kidd v. State, 530 N.E.2d 287, 287 (Ind. 1988)).
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the siblings outside the gas station are clearly seen in the security video footage.
A gun can be seen in the pocket of the man with dreadlocks, and a heavy object
can be seen in the pocket of the man with the shorter hair. The video also shows
these same two men run to and then down the alley that led to where the
shooting took place. And, based on the reactions of the other people in the
video, the shooting took place less than a minute after this. When he viewed
this video, Detective Taylor immediately recognized the two men as Harriston
and Wright. The jury also saw this video and saw Harriston, and made a factual
determination that Harriston was the man depicted in the video.
[19] Moreover, after Harriston was released from the police station, a man matching
his description was seen looking for something near a fence line between two
homes near where the shooting took place hours earlier. The police found one
of the handguns used in the shooting in the area where Harriston had been
looking. Although there were some inconsistencies in the testimony of the
eyewitnesses regarding what the shooters were wearing, this is not uncommon.
Moreover, Carter, S.S., C.G., and D.S. all identified one of the shooters as
having dreadlocks and the other as having a shorter fade haircut, which
matched the men seen in the video and matched Wright and Harriston,
respectively. Several of the eyewitnesses testified that one of the shooters wore a
white tank top, which Harriston is seen wearing in the security video. A search
of the house where Harriston was found revealed a white tank top matching the
one Harriston is seen wearing in the video, inexplicably hidden in an odd place.
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Conclusion
[20] From all of these facts and circumstances, the jury could reasonably conclude
that Harriston was the man wearing a white tank top with shorter hair in the
video and that Harriston was one of two men who shot at the Carter-Tibbs
home minutes after the security video footage at the gas station. Accordingly,
we affirm the judgment of the trial court.
[21] Affirmed.
Robb, J., and Pyle, J., concur.
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