Leandrew Beasley v. State of Indiana

Apr 29 2015, 9:03 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer M. Lukemeyer Gregory F. Zoeller
Tyler D. Helmond Attorney General of Indiana
Voyles Zahn & Paul
Michael Gene Worden
Indianapolis, Indiana
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Leandrew Beasley, April 29, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1406-CR-382
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt M. Eisgruber,
Judge
Appellee-Plaintiff.
Cause No. 49G01-1210-MR-67593
Brown, Judge.
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[1] Leandrew Beasley appeals his convictions for murder, attempted murder, a
class A felony, and unlawful possession of a firearm by a serious violent felon, a
class B felony. Beasley raises four issues, which we consolidate and restate as:
I. Whether the trial court abused its discretion when it admitted certain
statements as statements against interest and admitted testimony of a
police officer regarding a victim’s statement made to him minutes after
the incident;
II. Whether the trial court committed fundamental error by not declaring a
mistrial after an officer gave testimony not supported by her investigation
and the court admonished the jury to disregard the testimony; and
III. Whether the trial court erred in denying his motion for mistrial regarding
jury taint.1
We affirm.
Facts and Procedural History
[2] At around 11:00 a.m. on August 3, 2012, James Allen drove with his girlfriend,
Shantell Williams, to the home of his cousin, Gerald Beamon. Williams waited
in the car while Allen went inside to speak with Beamon. Allen told Beamon
that he had been involved in an altercation the night before with a man known
as “Little Rock,” who was later identified as Leandrew Beasley. Transcript at
350. According to Allen, also present during the altercation were men known
1
Beasley also argues in his reply brief that “[t]he cumulative effect of the trial errors warrant reversal even if
each may only be deemed harmless in isolation.” Appellant’s Reply Brief at 11. He did not raise this issue in
his appellant’s brief. Therefore, we do not address this argument. See Carden v. State, 873 N.E.2d 160, 162
n.1 (Ind. Ct. App. 2007) (holding that an issue not raised in an appellant’s brief may not be raised for the first
time in a reply brief).
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as Levi, Little Billy, and Little Rock’s brother, known as “J Rock” and later
identified as James Beasley (“James”). Id. at 351. Allen stated that they were
in a garage when he noticed Beasley reach for a gun in his waist band, and
Allen reached for the gun, punched Beasley, and struggled for control of the
gun. Allen also told Beamon that during the struggle, the gun went off and
Beasley was shot in the face. Then, Allen said, the gun would not fire anymore,
and he pushed Beasley and ran away.
[3] Allen asked Beamon to help him move some of his belongings from his home
to Williams’s apartment. Williams drove them to the home of a friend of hers
where they changed cars, and afterwards they drove to Allen’s house to pick up
his belongings. Beamon saw that Allen’s home had been ransacked. They then
returned to the friend’s house to switch back to the original car. While
Williams was inside the friend’s house, Allen showed Beamon some
photographs that had been taken of people at a club a few weeks earlier. Allen
identified in the pictures the people “he got into it with” the night before by
pointing to them in a photograph later admitted into evidence at trial as State’s
Exhibit 6. Id. at 370. Beamon looked at the pictures for “[a]bout ten minutes”
and handed them back to Allen. Id. at 372.
[4] Williams then drove the three of them to her apartment on Emerson Avenue
near 39th Street on the east side of Indianapolis, parked near a common
entrance to the building, and Williams went inside. Allen removed his
belongings from the car and set them on the sidewalk while Beamon sat in the
rear seat on the driver’s side with the door open. As Beamon was about to exit
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the car, he heard at first a sound like firecrackers coming from behind the car,
heard the sound of loud gunfire, and saw three men walking toward the front of
the car and shooting at them. Beamon recognized two of the men from the
pictures that Allen had shown him as Little Rock and J Rock.
[5] Before exiting the vehicle, Beamon was shot in the stomach and leg. Despite
the gunshots, he managed to run south on Emerson and conceal himself near
some bushes in front of one of the apartment buildings. He took off his belt to
use as a tourniquet on his arm and then called 911 on his cell phone. When
police cars arrived, Beamon walked onto Emerson Avenue, flagged down a
squad car, and told the Indianapolis Metropolitan Police Officer Nick Gallico
that Little Rock and J Rock shot him. Allen was killed by the gunfire.
[6] At the hospital the next day, Beamon gave a statement to Detective Leslie
VanBuskirk and identified Beasley as Little Rock and James as J Rock as
participants in the shooting from photo arrays.2 After the interview, Detective
VanBuskirk retrieved the photographs that the coroner had recovered from the
right front pocket of Allen’s pants, made blowups of them, and returned to the
hospital to show them to Beamon. Beamon identified Little Rock and J Rock
in one of the blowups later admitted as State’s Exhibit 178, which was a blowup
of State’s Exhibit 6. Detective VanBuskirk also conferred with Detective John
2
Detective VanBuskirk testified at trial that she prepared photo arrays of Beasley and James based upon
Beamon’s statements to officers at the crime scene that he had been shot by Little Rock and J Rock.
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Green, who had interviewed Beasley on August 2, 2012, after Beasley went to
Methodist Hospital to receive treatment for a graze gunshot wound to his face.
[7] On October 17, 2012, the State filed initial informations against Beasley and
James, which, as subsequently amended, charged Beasley and James with
Count I, murder; Count II, attempted murder as a class A felony; and Count
III, battery as a class C felony. Beasley was also charged under Count IV with
unlawful possession of a firearm by a serious violent felon. On January 27,
2013, following a traffic stop in which a high-speed chase and subsequent foot
chase ensued, Beasley was apprehended. On October 30, 2013, Beasley filed a
motion in limine which, in relevant part, sought to exclude as hearsay the
statements made by Allen to Beamon, along with a memorandum in support of
the motion. James, who was tried jointly with Beasley, filed a similar motion
the same day. On November 20, 2013, the State filed its response to the
motions in limine, and, following a hearing on the motions, filed a second
response on January 10, 2014. The court held another hearing on the motions
on February 6, 2014, and on February 21, 2014, issued an order denying them.
In the order, the court found that the statements were admissible under Ind.
Evidence Rule 804(b)(3) as statements against interest.
[8] A jury trial commenced on April 14, 2014, in which evidence consistent with
the foregoing was presented. At the outset of trial, the court denied a defense
motion to reconsider the denial of the motions in limine. The court also
overruled at trial defense counsel’s objections to the admission of the evidence.
Beamon testified regarding what Allen had told him about the altercation of
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August 2, 2012, and he identified, based on his perceptions at the scene,
Beasley and James as two of the shooters on August 3, 2012. When asked to
describe the moment when he witnessed the shooters approaching the vehicle,
Beamon testified that “[i]t was messed up because after lookin at the pictures
and then you look up and you see the people right before your eyes that was in
the picture you like wow and it . . . messed me up . . . it was surreal.” Id. at
572. He also indicated that his identification of the shooters was not “just a
particular feature of the picture” and instead “was body type and face and hair
and the way they were shaped . . . .” Id. at 573. Also, regarding the August 2,
2012 altercation, Officer Jeremy Lee testified that he interviewed Beasley that
evening at Methodist Hospital, where he was being treated for a graze wound
to the face, and that Beasley told Officer Lee he was shot by an unknown
assailant as he was walking on the sidewalk near 25th and Hillside. Detective
Green testified that he interviewed Beasley later that night at police
headquarters in which he repeated a similar version of events.
[9] Officer Gallico testified over objection that, after Beamon flagged him down at
the scene, Beamon told him that he was shot by Little Rock and J Rock. Also,
Detective VanBuskirk was asked about a photo array she prepared which was
marked as State’s Exhibit 9 and featured a photograph next to which Beamon
had written “AK” and “75-80%” in the margin. State’s Exhibit 9. Detective
VanBuskirk subsequently testified that the person identified by Beamon was
named “Melvin Beasley” and that she “believe[d] it’s a cousin or an uncle” of
the codefendants. Id. at 836. Beasley’s counsel was allowed to voir dire
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Detective VanBuskirk, and she admitted that she did not have any firsthand
knowledge of Melvin Beasley. The court admonished the jury to strike her
testimony regarding Melvin Beasley’s relation to the codefendants.
[10] On April 17, 2014, the court granted a defense motion for a directed verdict on
Count III, which pertained to both defendants. During deliberations, the jury
submitted the following question to the court: “One of the jurors is concerned
for their safety and well-being because they recognize someone in the gallery
and that is influencing their decision, is there any assurance of safety we can
give this juror?” Appellant’s Appendix at 145. The court ordered the jury to
stop deliberations and proceeded to interview each juror, beginning with the
juror having the issue, Juror No. 9. Juror No. 9 told the court that she
“interacted with” the person “awhile back and [] knew their face,” and she
believed she would “see them again or interact with them again.” Transcript at
949. She stated that she saw the person that day after lunch, that during
deliberations she could not decide on a verdict, and that when she was asked
why she “expressed [her] opinion” she stated that she was concerned for her
safety. Id. at 950. She also said that there was “[v]ery little” discussion about
the issue and that she did not believe that her discussions had an influence on
the jury. Id. She said that she “thought [her] safety might be jeopardized if
[she] were not to return the right verdict” because she was “acquainted with the
kind of people that they were,” referring to persons associated with the
defendants. Id. at 954.
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[11] The court proceeded to individually question the rest of the empaneled jurors,
and each juror assured the court that the statements by Juror No. 9 would not
influence their deliberations. Specifically, Juror No. 2 stated that the concerns
expressed by Juror No. 9 did not affect how he/she3 viewed the case and that
“it’s a personal concern for her.” Id. at 959. Juror No. 5, when asked whether
the concerns expressed by Juror No. 9 would have an effect, stated “[n]o,
absolutely not,” that it did not change his/her “perspective in any way” and
that, other than with respect to Juror No. 9, it would not change the other
jurors’ “ability to deliberate or their perspective.” Id. at 964. Juror No. 6 stated
that the other jurors were “just showing concern for [Juror No. 9] really.” Id. at
967. Juror No. 10 stated: “I do not think it changed anyone’s verdict.” Id. at
974.
[12] After speaking with the jurors individually, the court stated that it thought Juror
No. 9 would be removed, but “[b]ased on every jurors’ response, I’m satisfied
that the rest of the jury’s not tainted and I believe we can substitute alternate
one in for” her. Id. at 981. Counsel for Beasley moved for a mistrial, and
James’s counsel joined in that request. The court denied their motion,
reiterating that it did not believe the integrity of the jury had been
compromised, and ruled that it would remove Juror No. 9 and replace her with
Alternate Juror No. 1. After replacing Juror No. 9, the court admonished the
3
The transcript does not indicate the gender of Jurors No. 2 or 5.
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jury as follows: “We have replaced juror number nine with the first alternate
juror. The reasons for the removal of juror nine and her replacement by the
alternate juror number one need not be discussed and I’d admonish you from
discussing any of the – the rationale behind that.” Id. at 988.
[13] The jury found Beasley guilty on Counts I and II. 4 Beasley subsequently
waived his jury trial right on Count IV. On May 9, 2014, the court found
Beasley guilty on Count IV. That same day, the court held a sentencing hearing
and sentenced Beasley to fifty-five years for Count I, murder, twenty years for
Count II, attempted murder, and ten years on Count IV, and ordered Counts I
and II to be served consecutively and Count IV to be served concurrently with
Count I.
Discussion
I.
[14] The first issue is whether the trial court abused its discretion when it admitted
certain statements made by Allen regarding an altercation the night before he
was killed as statements against interest, and when it admitted testimony of
Officer Nick Gallico regarding Beamon’s statement made to him minutes after
the incident that he was shot by Little Rock and J Rock. Generally, we review
the trial court’s ruling on the admission or exclusion of evidence for an abuse of
4
James was similarly found guilty on each count.
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discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied. We
reverse only where 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. Even if the trial court’s decision was an abuse of discretion, we will not
reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d
957, 966 (Ind. Ct. App. 1999), reh’g denied, trans. denied.
[15] We address separately Beasley’s arguments regarding: (A) Allen’s hearsay
statements; and (B) Officer Gallico’s testimony.
A. Allen’s Hearsay Statements
[16] Beasley argues that “[m]ost cases involving the statement against interest
exception involve statements made by informants to police officers or
confessions by a third party to police officers regarding the crime being
charged.” Appellant’s Brief at 10. He argues that “[t]he statement did not
expose Allen to criminal liability” because “it was made to a close friend,
Beamon, and not to a law enforcement officer or someone Allen did not trust to
keep his confidences.” Id. at 11. He also asserts that “the self-defense
justification of the claim eliminates any potential criminal exposure.” Id.
Beasley further suggests that “the reliability of the statement is questionable” in
that Allen and Beamon “were close friends,” Beamon was similarly shot and
witnessed Allen’s killing, and “[i]t is not farfetched to believe a person could
inadvertently misconstrue or misremember a statement made by a close friend
who was killed in his presence shortly thereafter,” as well as that “what Allen
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told him is tainted by the bias Beamon has for his deceased friend.” Id. Beasley
also argues that the reliability of Allen’s statements “is gutted by his girlfriend’s
claim that she was with Allen during the time frame in which [Beasley] was
shot in the face . . . .”5 Id. at 12.
[17] The State argues that “[a] statement against the declarant’s penal interest is one
that tends to subject the declarant to criminal liability such that a reasonable
person would not have made it unless he believed it to be true.” Appellee’s
Brief at 11. It maintains that Allen’s statement to Beamon regarding the first
altercation “clearly would have exposed [him] to penal consequences had the
defendants reported it to the police rather than seeking personal vengeance.”
Id. It states that “Allen’s rendition of the altercation might well have provided a
self-defense claim, [but] that does not equate with no criminal consequences
because he could have been charged and would then have to defend himself . . .
.” Id. at 14. The State also argues that “any error in the admission of Allen’s
statement to Beamon was harmless in light of the fact that Beamon clearly and
unequivocally identified [Beasley] and [James] as two of the shooters that he
personally observed.” Id. at 15.
[18] Hearsay is a statement, other than one made by the declarant while testifying at
trial, offered in evidence to prove the truth of the matter asserted. Ind.
5
Williams testified that on August 2, 2012, Allen picked her up from work “around 4 or 5” pm, she later
“dropped him off somewhere,” and she “came back to get him like 9 or 10.” Transcript at 681. Officer
Jeremy Lee testified that he was dispatched to Methodist Hospital to meet with Beasley at approximately
8:30 p.m.
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Evidence Rule 801(c). Hearsay is inadmissible unless admitted pursuant to a
recognized exception. Ind. Evidence Rule 802; see also Blount v. State, 22
N.E.3d 559, 565 (Ind. 2014) (“Hearsay is an out-of-court statement offered for
the truth of the matter asserted, and it is generally not admissible as evidence.”)
(internal citations and quotations omitted).
[19] The parties do not dispute that the testimony given by Beamon regarding
Allen’s statements were admitted for the truth of the matter asserted: that
Beasley drew a gun on Allen and a fight ensued, resulting in Beasley being
wounded in the cheek when a gunshot grazed it. The court admitted Beamon’s
testimony regarding the statements made to him by Allen under Ind. Evidence
Rule 804(b)(3) as statements against interest. That rule provides that if a
declarant is unavailable as a witness, the court may admit
[a] statement that a reasonable person in the declarant’s position
would have made only if the person believed it to be true because,
when made, it was so contrary to the declarant’s proprietary or
pecuniary interest or had so great a tendency to invalidate the
declarant’s claim against someone else or to expose the declarant to
civil or criminal liability.
[20] In Jervis v. State, the Indiana Supreme Court examined the application of the
statement against interest exception where defendant Jervis sought to introduce
the testimony of Marilyn Molinet to show that not he but another person, Tony
Floyd, murdered Terri Boyer. 679 N.E.2d 875, 878-880 (Ind. 1997). The court
held an admissibility hearing outside the presence of the jury in which Molinet
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testified that on the morning after Boyer’s body was found, Floyd told
her at work that he had gone out “partying” two nights earlier (the
same night Boyer was killed), picked up a woman at Frenchie’s, gone
“riding around” with her, and then “dumped her off” behind
Newburgh Cinema around 3 or 4 a.m. Molinet also testified that
Floyd told her that he knew “the best way to kill a girl” and put his
hands around his own neck to indicate strangulation, and that Floyd,
who appeared to be “awful nervous,” asked Molinet to be on the
lookout for “detective cars.” Floyd did not refer to Boyer by name.
Id.[21] The Court observed that the focus of the parties’ arguments centered “on the
extent to which a statement against penal interest must have ‘so far tended to
subject the declarant to civil or criminal liability . . . that a reasonable person in
the declarant’s position would not have made the statement unless believing it
to be true,’”6 that the State contended such “a statement against penal interest
must be incriminating on its face to be admissible under this exception” and
that “Jervis, by contrast, essentially argue[d] that it is sufficient if the statement
merely arouses some suspicion as to culpability in the factual context of the
case.” Id. The Court agreed with the State that the trial court “was within its
6
At the time of Jervis, Ind. Evidence Rule 804(b)(3) stated in relevant part:
Statement against interest. A statement which was at the time of its making so far contrary to the
declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or
criminal liability, or to render invalid a claim by the declarant against another, that a reasonable
person in the declarant’s position would not have made the statement unless believing it to be
true. . . .
We find the language in the previous rule regarding a statement which “so far tended to subject the declarant
to civil or criminal liability” to be substantially similar to the current language contemplating a statement
which “had so great a tendency to . . . expose the declarant to civil or criminal liability.”
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discretion in rejecting” the proffered evidence, holding that such statements
“did not even ‘tend to subject’ Floyd to criminal liability” and “[a]t most, they
cast suspicion on Floyd when paired with other information that may or may
not have been known to Floyd.” Id. The Court also instructed trial courts to be
“alert to evaluate the overall reliability of the proffered statement,” noting that
“[r]eliability is, after all, the ultimate justification for admission of statements
against interest.” Id. The Court found that “[a]t the end of the day, the
statements by Floyd [] were uncorroborated, only marginally against penal
interest, and only marginally relevant.” Id. It further noted that the record did
not show that Floyd even knew a murder had occurred or that such murder was
accomplished by strangulation, and it stated that, “[w]ithout knowledge of
Boyer’s death, Floyd could not have believed his statements to be inculpating,”
citing to a treatise for the proposition that, “[i]f the declarant does not believe
the statement to be against his interest, the rationale for the exception fails.” Id.
at 879, 879 n.6 (quoting 4 WEINSTEIN’S EVIDENCE ¶ 804(b)(3)[02], at 804-147
(1996)).
[22] At trial, Beamon indicated that Allen told him “that he had been involved in an
altercation the night before” in a garage with “Little Rock,” in which “Levi . . .
. Jay Rock and Little Billy” were also present. Transcript at 350-351. Beamon
testified that as Allen “turned to bend and pick something up” he observed
Beasley “reaching in his waistband” for a gun, and Allen “reached for it and
they started strugglin over it.” Id. at 351-352. Beamon also testified that Allen
told him that Allen “stoled” Beasley, meaning that Allen “swung and punched
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him,” and as the two men fought for control of the gun it “went off and [Allen]
shot Little Rock in the face.” Id. at 352-353. Beamon further stated that Allen
told him that soon after that shot fired, “the gun wouldn’t fire anymore so he
pushed [Beasley] and then started runnin.” Id. at 353.
[23] As the Court observed in Jervis, the rationale for allowing statements against
interest into evidence is that the declarant would only make such a statement if
it were true because the content of the statement goes against the declarant’s
interests, and that this rationale fails if the declarant did not believe the
statement was against his or her interest. The rules of evidence assume that
such statements are reliable precisely because they are against the interest of the
declarant. Here, none of the statements attributed to Allen are facially
incriminating and rather suggest that Allen was forced to defend himself from
an attack by Beasley after Allen bent down to pick something up. Indeed, even
the trial court in its ruling stated that “it is a stretch to suggest that [Allen] knew
of the legal jeopardy he placed himself in by admitting his actions during the
August 2 altercation.” Appellant’s Appendix at 90. Under the circumstances,
in which Allen told his cousin Beamon about an episode the evening before in
which he was forced to defend himself from an attack by Beasley, we conclude
that the trial court abused its discretion when it admitted such statements as
statements against interest under Ind. Evidence Rule 804(b)(3). See Camm v.
State, 908 N.E.2d 215, 233 (Ind. 2009) (noting that the hearsay exception
provided by Ind. Evidence Rule 804(b)(3) was not available because none of the
statements seeking to be admitted “constituted ‘an admission of a crime’ or
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‘tended to subject [the declarant] to criminal liability’”), reh’g denied; Tolliver v.
State, 922 N.E.2d 1272, 1280 (Ind. Ct. App. 2010) (noting that “as a general
matter, to qualify under this hearsay exception, the statement against interest
must be incriminating on its face” (citing Jervis, 679 N.E.2d at 878)), trans.
denied.
[24] This does not end our analysis, however. An error will be found harmless if its
probable impact on the jury, in light of all of the evidence in the case, is
sufficiently minor so as not to affect the substantial rights of the parties. Gault v.
State, 878 N.E.2d 1260, 1267-1268 (Ind. 2008). In this case one of the victims,
Beamon, survived the shooting and testified at trial. Beamon specifically
testified that he observed the shooters approach, and he identified Beasley and
James as two of the shooters. When asked to describe the moment when he
witnessed the shooters approaching the vehicle, Beamon testified that “[i]t was
messed up because after lookin at the pictures and then you look up and you see
the people right before your eyes that was in the picture you like wow and it . . .
messed me up . . . it was surreal.” Transcript at 572. He indicated that his
identification of the shooters was not “just a particular feature of the picture”
and instead “was body type and face and hair and the way they were shaped . .
. .” Id. at 573. He also identified both Beasley and James from photo arrays
prepared by Detective VanBuskirk the day after the shooting. We therefore
conclude that while the trial court abused its discretion by admitting the hearsay
statements of Allen through Beamon’s testimony, this error was harmless. See
Tolliver, 922 N.E.2d at 1281 (noting that any error in admitting hearsay
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statements as statements against interest under Ind. Evidence Rule 804(b)(3)
was harmless where independent eyewitness testimony identified Tolliver as the
shooter and other testimony linked Tolliver to the type of gun used to kill the
victim).7
B. Officer Gallico’s Testimony
[25] Beasley argues that Officer Gallico’s testimony that Beamon told him Beamon
had been shot by Little Rock and J Rock does not satisfy the three-part test used
for admitting out-of-court statements as evidence of an officer’s course of
investigation first articulated in Craig v. State, 630 N.E.2d 207, 211 (Ind. 1994),
and recently reiterated in Blount, 22 N.E.3d at 566-567. He argues that the
statement “falls within the highest category of risk” and accordingly “there is a
greater certainty that the jury relied upon the statement as substantive evidence
instead of for the limited purpose of understanding the method of investigation .
. . .” Appellant’s Brief at 23.
7
Beasley argues in his brief that “[a]llowing Allen’s statement to be admitted into evidence flies in the face of
the protections afforded to defendants by Article I, Section 13 of the Indiana Constitution,” and also that
“[s]ince the statement made by Allen is a hearsay statement which does not fall within an exception . . . the
admission of the statement through Beamon’s testimony violated Leandrew’s constitutional right to confront
and cross examine witnesses.” Appellant’s Brief at 12. However, he does not cite to authority for these
propositions or otherwise develop the arguments. Consequently, we find that he has waived these
arguments. Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the defendant’s contention was
waived because it was “supported neither by cogent argument nor citation to authority”); Shane v. State, 716
N.E.2d 391, 398 n.3 (Ind. 1999) (holding that the defendant waived argument on appeal by failing to develop
a cogent argument); Smith v. State, 822 N.E.2d 193, 202–203 (Ind. Ct. App. 2005) (“Generally, a party waives
any issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation to
authority and portions of the record.”), trans. denied.
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[26] The State argues that the court did not abuse its discretion in admitting Officer
Gallico’s testimony, “although not entirely for the reasons expressed by the trial
court.” Appellee’s Brief at 24. The State notes that after the defendants
objected, the State “initially argued that the testimony was admissible as an
excited utterance” and was “entirely correct on this point.” Id. The State
maintains that “[t]he evidence amply supports a finding that Beamon was under
the influence of a startling event when he made his statement,” noting that
“there can be no dispute that [he] had been shot and was bleeding when Officer
Gallico encountered him” including having “been shot twice in the arm, once
in the leg, and once in the stomach and had fashioned a tourniquet to stop the
profuse bleeding in his arm shortly before he flagged down the officer for help.”
Id. at 25. The State further argues that the statements were “also admissible
under Indiana Evidence Rule 801(d)(1)(C),” which instructs that “a statement is
not hearsay if the declarant testifies in court, is subject to cross-examination
about a prior statement, and the statement ‘is an identification of a person
shortly after perceiving the person.’” Id. at 27. The State asserts that Beamon
testified and was subject to cross-examination, and accordingly “Officer
Gallico’s testimony relating to who Beamon told him were the shooters was not
hearsay and was properly admitted . . . .” Id. The State finally notes that any
error was harmless “because the same evidence was admitted at trial without
objection during Beamon’s testimony” and is merely cumulative of properly
admitted evidence. Id. at 28.
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[27] Beasley argues in his reply brief that “[t]he State is trying to create an issue in
which no foundational basis was laid at trial.” Appellant’s Reply Brief at 8.
Regarding the State’s argument that the testimony was admissible under Ind.
Evidence Rule 801(d)(1)(C), the question is “whether Beamon’s identification
of [Beasley] was made ‘shortly after perceiving the person.’” Id. at 9. Beasley
suggests that the pictures were shown to Beamon soon before the shooting and
“were fresh in [his] mind when the shootings began,” and thus “[i]t is more
than likely that [he] was so focused on the individuals in this picture that he
assumed that one of the shooters was [Beasley], rather than actually perceiving
[Beasley] coming at him firing a weapon.” Id. at 9-10.
[28] We observe that “[i]t is well-settled that ‘[t]he Court of Appeals may affirm the
trial court’s ruling [on the admissibility of evidence] if it is sustainable on any
legal basis in the record, even though it was not the reason enunciated by the
trial court.’” Reeves v. State, 953 N.E.2d 665, 670 (Ind. Ct. App. 2011) (quoting
Scott v. State, 883 N.E.2d 147, 152 (Ind. Ct. App. 2008)), trans. denied. At trial,
Beamon testified that following the shooting he observed a police car coming
towards him and he “walked out into the street . . . and I told him I had been
shot, told him I had a firearm on me . . . .” Transcript at 397. He also testified
that he told the responding officer that he had been shot by Little Rock and J
Rock. Later in the trial, Officer Gallico testified that he responded “to the
scene . . . of shots fired” and came upon Beamon who “flagged [him] down”
while “standing in the street.” Id. at 709. Officer Gallico noticed that Beamon
was bleeding, and Beamon informed him that he had been shot and that he had
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a gun on his person. Officer Gallico secured Beamon’s weapon and had him sit
down while they waited for paramedics, and Officer Gallico provided first aid.
Officer Gallico was asked if he had a conversation with Beamon about what
had occurred, and defense counsel objected. After a sidebar, the court
overruled the objection and permitted the answer “as course of investigation.”
Id. at 715. The State then asked Officer Gallico if Beamon had identified any of
the shooters at the scene and Officer Gallico responded: “He told me they go by
J [R]ock and Little Rock.” Id. at 717. Officer Gallico indicated that he then
“broadcast that information out over the radio.” Id.
[29] We find that the testimony given by Officer Gallico regarding Beamon’s
statements to him at the scene of the shooting were admissible under Ind.
Evidence Rule 801(d)(1)(C), which provides that out-of-court statements are not
hearsay when the “declarant testifies and is subject to cross-examination about
a prior statement, and the statement . . . is an identification of a person shortly
after perceiving the person.” As noted, Beasley acknowledges that whether this
rule applies turns on “whether Beamon’s identification of Leandrew was made
‘shortly after perceiving the person.’” Appellant’s Reply Brief at 9. “The term
‘shortly’ is relative, not precise; the purpose of the rule is to assure reliability.”
Davis v. State, 13 N.E.3d 939, 945 (Ind. Ct. App. 2014) (quoting Dickens v. State,
754 N.E.2d 1, 6 n.6 (Ind. 2001)), trans. denied. Here, Beamon’s statement
identifying Little Rock and J Rock as the shooters was made mere minutes
following the shooting, before paramedics had even responded. Under the
circumstances, we conclude that Beamon’s statement of identification was
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made “shortly after perceiving the person.” See Kendall v. State, 790 N.E.2d
122, 127 (Ind. Ct. App. 2003) (affirming admission of out-of-court statement of
identification made one month after witness perceived event), trans. denied;
Robinson v. State, 682 N.E.2d 806, 810 (Ind. Ct. App. 1997) (affirming
admission of out-of-court statement of identification made two months and
thirteen days after witness perceived event).
[30] Beamon testified at trial that he flagged down a police car at the scene and told
the officer that he had been shot by Little Rock and J Rock, and he was subject
to cross-examination about those statements, which were made shortly after
perceiving Beasley and James. The court did not err in admitting the testimony
of Officer Gallico regarding Beamon’s identification at the scene of Beasley and
James as two of the shooters. See Gates v. State, 702 N.E.2d 1076, 1077 (Ind.
1998) (noting that because the declarants “testified at trial about their
identification of [the defendant] at the scene of the crime, other witnesses were
free to repeat their statements”).
II.
[31] The next issue is whether the court committed fundamental error by not
declaring a mistrial after Detective VanBuskirk gave testimony not supported by
her investigation and the court admonished the jury to disregard the testimony.
In general, a mistrial is an extreme remedy that is warranted only when less
severe remedies will not satisfactorily correct the error. Randolph v. State, 755
N.E.2d 572, 575 (Ind. 2001). The decision to grant or deny a motion for
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mistrial lies within the discretion of the trial court. Id. The trial court’s
determination will be reversed only where an abuse of discretion can be
established. Id. To prevail, the appellant must establish that he was placed in a
position of grave peril to which he should not have been subjected. Id. The
gravity of the peril is determined by the probable persuasive effect on the jury’s
decision. Leach v. State, 699 N.E.2d 641, 644 (Ind. 1998). Where, as here, there
was no request for a mistrial, the issue is generally waived on appeal. Caruthers
v. State, 926 N.E.2d 1016, 1020 (Ind. 2010). We nevertheless sometimes
entertain such claims under fundamental error, “meaning an error that makes a
fair trial impossible or that constitutes a clearly blatant violation of basic and
elementary principles of due process presenting an undeniable and substantial
potential for harm.” Id.[32] Beasley argues that he “was placed in grave peril to which he should not have
been subjected and the admonishment did not cure the perilous situation in
which he was placed.” Appellant’s Brief at 15. He asserts that Detective
VanBuskirk’s “assumption of kinship was not based on any fact” and that she
“did not do any sort of investigation into Melvin Beasley as a possible third
shooter.” Id. He maintains that the grave peril Beasley was subjected to “could
not be cured by any admonishment” because it “does not negate any conclusion
that the testimony was intended to imply.” Id. at 15-16. He argues that “[t]he
wrong information lead the jury to believe a third related Beasley was possibly
involved in this shooting and thus bolsters the State’s claim that the other two
Beasleys were involved.” Id. at 16.
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[33] The State contends that Beasley has not met the “heavy burden” required to
show fundamental error and that his argument, which “is essentially
challenging his trial counsel’s strategic decision to forego making a mistrial
motion if the court struck the offending testimony and admonished the jury to
disregard that testimony,” amounts to “error invited as part of a legitimate and
reasonable trial strategy . . . .” Appellee’s Brief at 17. The State argues that
because Beasley invited any alleged error by not moving for a mistrial, he
cannot show reversible error and, in any event, such error is not fundamental
error. The State also asserts that Beasley has not demonstrated that a mistrial
would have been granted had it been requested and that “[i]t is long-established
law in this State that where a trial court strikes improper testimony and
admonishes the jury to disregard that testimony the defendant is not placed in a
position of grave peril because this remedy cures the error.” Id. at 18. The
State further contends that “the evidence identifying [Beasley] and his brother
as the perpetrators of this deadly shooting was strong” and that accordingly any
error is harmless. Id. at 19.
[34] At trial, Detective VanBuskirk was asked about three photo arrays she prepared
and marked as State’s Exhibits 7, 8, and 9. Exhibits 7 and 8 were photo arrays
in which James and Beasley, respectively, appeared and were admitted without
objection. Beasley objected regarding the introduction of State’s Exhibit 9,
which was a photo array in which Beamon marked “AK” and wrote “75-80%”
next to one of the faces depicted, and the court admitted the exhibit over
objection. State’s Exhibit 9. After Exhibit 9 was admitted, Detective
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VanBuskirk testified that the markings indicated that Beamon was “75 to 80
percent sure” that the individual in the picture was the third shooter who fired
an “AK” rifle at the scene of the shooting. Transcript at 831. Beasley objected
based upon hearsay grounds and that a proper foundation had not been laid for
the evidence. At a sidebar conference, the court inquired “how is it she put him
in an array,” and the prosecutor responded that “[t]hese guys were known to
hang out with him.” Id. at 833.
[35] After the sidebar, Detective VanBuskirk was asked the name of the person
featured in the picture identified by Beamon, and she responded: “Melvin
Beasley.” Id. at 836. She was then asked if that individual was related to the
defendants and she testified: “I believe it’s a cousin or an uncle.” Id. Beasley’s
counsel was then allowed to voir dire Detective VanBuskirk, and she testified
that she knew the identity of the person in the picture because “[i]t’s on the X-
image machine” which is “an internal record that’s maintained by the police
department.” Id. at 837. She further testified that in creating the photo arrays
for Beasley and James, she searched the name “Beasley” in the database and, in
addition to finding pictures for the codefendants, “Melvin’s [picture] came up
too and” she “threw him in an array.” Id. at 838. She admitted that prior to
that time she did not have “any first-hand knowledge of Melvin Beasley,” and
when asked the basis for her testimony that Melvin was a cousin or possibly an
uncle of the codefendants, she testified: “I believe he has reports from the same
general area that would lead me to believe he’s some kind of kin.” Id. 838-839.
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[36] Beasley’s counsel argued that it was improper for Detective VanBuskirk to
testify about any relationship between Melvin Beasley and the codefendants
“without any basis whatsoever” and asked the court “to strike the evidence and
admonish the jury” or he would request a mistrial. Id. at 843. After further
discussion, the court agreed with Beasley and admonished the jury as follows:
Ladies and gentlemen, when we -- we left there was the last question
asked before the -- exhibits were passed and the detective’s response to
that question that she believed that the person identified in exhibit 9
was a cousin or an uncle had no basis in fact -- there was no
foundation for her to say that, all right so that is to be stricken from the
record and you are not to consider that during your -- during your
deliberations -- is that clear -- all right -- okay. That is the
admonishment.
Id. at 849-850.
[37] “The remedy of mistrial is ‘extreme,’ strong medicine that should be prescribed
only when ‘no other action can be expected to remedy the situation’ at the trial
level.” Lucio v. State, 907 N.E.2d 1008, 1010-1011 (Ind. 2009) (internal citations
omitted). Where improper testimony has been offered, clear admonishments by
the court, “together with strong presumptions that juries follow courts’
instructions and that an admonition cures any error, severely undercuts” a
defendant’s contention that a mistrial is warranted. Id. at 1011; see also Warren
v. State, 757 N.E.2d 995, 999 (Ind. 2001) (noting that “reversible error is seldom
found when the trial court has admonished the jury to disregard a statement
made during the proceedings” (quoting Bradley v. State, 649 N.E.2d 100, 108
(Ind. 1995), reh’g denied)). Here, the trial court admonished the jury to strike
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from the record and not consider the testimony of Detective VanBuskirk that
Melvin Beasley was related to Beasley and James. Under the circumstances,
we cannot say that Beasley has demonstrated that he was subjected to grave
peril. Further, we cannot say that any error amounts to fundamental error,
particularly where he suggested he would move for a mistrial if the court did
not admonish the jury, the court issued an admonishment, and Beasley then
declined to request a mistrial. “A party may not invite error, then later argue
that the error supports reversal, because error invited by the complaining party
is not reversible error.” Booher v. State, 773 N.E.2d 814, 822 (Ind. 2002)
(quoting Ellis v. State, 707 N.E.2d 797, 803 (Ind. 1999) (quoting Kingery v. State,
659 N.E.2d 490, 494 (Ind. 1995), reh’g denied)). Beasley has not shown he was
subjected to clear, blatant violations of basic and elementary principles of due
process presenting an undeniable and substantial potential for harm;
accordingly, he has not demonstrated fundamental error.
[38] We conclude that the court’s admonishment to the jury that the testimony of
Detective VanBuskirk regarding any relation between Melvin Beasley and
Beasley was stricken from the record and was not to be considered, and to not
declare a mistrial, did not result in fundamental error.
III.
[39] The next issue is whether the court erred in denying Beasley’s motion for
mistrial after Juror No. 9 told the other jurors that she recognized a person in
the gallery and was concerned for her safety and well-being. A trial court is in
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the best position to evaluate whether a mistrial is warranted because it can
assess first-hand all relevant facts and circumstances and their impact on the
jury. Ramirez v. State, 7 N.E.3d 933, 935 (Ind. 2014) (citing Kelley v. State, 555
N.E.2d 140, 141 (Ind. 1990)). We therefore review denial of a motion for
mistrial only for an abuse of discretion. Id. (citing Gregory v. State, 540 N.E.2d
585, 589 (Ind. 1989)). However, the correct legal standard for a mistrial is a
pure question of law, which we review de novo. Id. (citing Hartman v. State, 988
N.E.2d 785, 788 (Ind. 2013)).
[40] Beasley argues that he “was placed in a position of grave peril and subjected to
undue prejudice because Juror 9 discussed with the rest of the jury that she
recognized someone in the gallery and was concerned with her safety due to the
possibility she may see the individual in the future.” Appellant’s Brief at 17.
He maintains that “[t]he jury was compromised because each juror saw the
physical and reaction [sic] of Juror 9’s fear and such observations must have
played a role in their decision making process.” Id. He argues that “[w]hile
some jurors claimed Juror 9’s fear did not infect deliberations, the Court never
inquired whether it affected how the individual juror perceived the fear as
evidence was still being admitted,” noting that “[t]he record reflects some jurors
knew of Juror 9’s fear while evidence was still being presented.” Id. at 19.
Beasley asserts that “whether subconsciously or consciously, all the jurors
knowing [he] had retaliatory or scary associates had to, at the least, reinforce
weighing the evidence against him.” Id.
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[41] The State argues that despite Beasley’s suggestion of influence on other jurors,
the court interviewed each juror and they uniformly stated “that their reaction
to Juror #9’s dilemma was only concern for Juror #9’s well-being and that the
situation did not impact their deliberations in anyway [sic] whatsoever.”
Appellee’s Brief at 21. The State asserts that “[a] trial court’s admonishment to
disregard what has occurred at trial is usually considered a sufficiently curative
measure so that the refusal to grant a mistrial motion is not reversible error.”
Id. at 21-22. The State argues that Beasley “was not placed in a position of
grave peril because the remaining jurors were not tainted by Juror #9’s
concerns, and the trial court admonished the jury. Under these circumstances,
the trial court’s denial of [his] mistrial motion did not constitute an abuse of
discretion.” Id. at 22.
[42] Initially, we note that the arguments of both Beasley and the State attempt to
apply the “grave peril” standard generally applicable to motions for mistrial
raised by defendants and discussed above in Part II. However, as discussed in
James’s appeal issued as a companion to the instant case, the Indiana Supreme
Court recently in Ramirez instructed courts that the grave peril standard is
inapplicable to examining whether the grant of a mistrial is warranted based
upon jury taint. Beasley v. State, No. 49A04-1406-CR-253, slip op. at 26 n.6
(Ind. Ct. App. ____ __, 2015) (citing Ramirez, 7 N.E.3d at 940-941). The
Ramirez Court clarified how courts should analyze motions for mistrial based
upon jury taint as follows:
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Defendants seeking a mistrial for suspected jury taint are entitled to the
presumption of prejudice only after making two showings, by a
preponderance of the evidence: (1) extra-judicial contact or
communications between jurors and unauthorized persons occurred,
and (2) the contact or communications pertained to the matter before
the jury. The burden then shifts to the State to rebut this presumption
of prejudice by showing that any contact or communications were
harmless. If the State does not rebut the presumption, the trial court
must grant a new trial. On the other hand, if a defendant fails to make
the initial two-part showing, the presumption does not apply. Instead,
the trial court must apply the probable harm standard for juror
misconduct, granting a new trial only if the misconduct is “gross and
probably harmed” the defendant. But in egregious cases where juror
conduct fundamentally compromises the appearance of juror
neutrality, trial courts should skip [the] two-part inquiry, find
irrebuttable prejudice, and immediately declare a mistrial. At all
times, trial courts have discretion to decide whether a defendant has
satisfied the initial two-part showing necessary to obtain the
presumption of prejudice or a finding of irrebuttable prejudice.
7 N.E.3d at 939 (certain internal citations omitted).
[43] We first find that Beasley is not entitled to a presumption of prejudice because
he failed to show that extra-judicial contact or communications between jurors
and unauthorized persons occurred. Indeed, the record does not suggest that
any extra-judicial contact or communications occurred at all. The record
reflects that Juror No. 9 noticed a person sitting in the gallery who she
recognized and who caused concern for her safety. Beyond sitting in proximity
of one another while in the courtroom, the record does not suggest any type of
interaction between Juror No. 9 and the person in the gallery. In order for the
presumption to attach, the defendant must show by a preponderance of the
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evidence that extra-judicial contact occurred. Not having done so, Beasley is
not entitled to a presumption of prejudice.
[44] We must therefore apply the probable harm standard for juror misconduct,
granting a new trial only if the misconduct is “gross and probably harmed” the
defendant, which we review for an abuse of discretion. See Henri v. Curto, 908
N.E.2d 196, 202 (Ind. 2009). Here, we find that the conduct at issue falls short
of gross misconduct. For instance, this court found that a juror’s misconduct
was gross and probably harmed the defendant in Dickenson v. State, 732 N.E.2d
238 (Ind. Ct. App. 2000). In that case, during voir dire, a potential juror Tammy
Lane was asked whether she had a relationship with the defendant or potential
witnesses that would affect her ability to be an impartial juror, and she “did not
acknowledge that she had such a relationship with Dickenson, who had been
her neighbor during childhood” and instead “stated that she knew a few of the
potential witnesses, but that her ability to weigh the testimony of those
witnesses would not be affected.” 732 N.E.2d at 240. She also did not respond
when asked whether she had prior knowledge about the facts of the case. Id.Lane was chosen as a juror, and, following the verdict of guilty, a member of
Dickenson’s family recognized her while she was being examined. Id. Further
investigation revealed that Lane “had lied about her relationship to witness
Karen Stinnett [], who was the victim’s wife, and her pre-trial knowledge of the
case.” Id. On post-conviction, this court reversed and ordered a new trial,
concluding that Lane’s act of lying during voir dire constituted juror misconduct
and that “because the evidence reveals that juror Lane had knowledge of the
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case prior to trial, and was friendly with the victim’s wife, who testified at trial .
. . the misconduct was gross and probably harmed the defendant.” Id. at 242.
[45] By contrast, in this case Juror No. 9 did not lie or otherwise make
misrepresentations. She became concerned for her safety late in the trial, and
she divulged her concerns during deliberations. When the court learned of her
concerns, it ordered that deliberations cease and interviewed each juror
individually, starting with Juror No. 9. Each of the remaining jurors assured
the court that the statements by Juror No. 9 would not influence their
deliberations. Juror No. 2 noted that “it’s a personal concern for” Juror No. 9.
Transcript at 959. Juror No. 5, stated that it did not change his/her
“perspective in any way” and that, other than with respect to Juror No. 9, it
would not change the other jurors’ “ability to deliberate or their perspective.”
Id. at 964. Juror No. 6 stated that the other jurors were “just showing concern
for [Juror No. 9] really.” Id. at 967. Juror No. 10 stated: “I do not think it
changed anyone’s verdict.” Id. at 974. The court then decided to remove Juror
No. 9 and replace her with Alternate Juror No. 1 and admonished the jury by
instructing them not to discuss the reasons for Juror No. 9’s dismissal.
[46] Based on the foregoing, we cannot say that the court abused its discretion when
it denied Beasley’s motion for mistrial. See Henri, 908 N.E.2d at 202-204
(holding that the defendant failed to show misconduct which was gross and
probably harmed the defendant based upon claims that one juror’s receipt of a
cell phone call created pressure to reach a hasty verdict, and that the alternate
juror communicated with the regular jurors during deliberations); see also
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Weisheit v. State, 26 N.E.3d 3, 13-14 (Ind. 2015) (holding that the trial court did
not err in denying the defendant’s motion for a mistrial after it was discovered
that one of the jurors delivered cookies to the jury room baked by his wife
which contained an attached note stating “Thank you for your service for the
family of Alyssa [and] Caleb Lynch. I will pray for you all to have strength and
wisdom to deal with the days ahead. God bless!” the court interviewed each
juror individually and determined that the note had no impact on the jurors,
and it removed the juror who brought the cookies and replaced the juror with
an alternate).
Conclusion
[47] For the foregoing reasons, we affirm Beasley’s convictions for murder,
attempted murder, a class A felony, and unlawful possession of a firearm by a
serious violent felon, a class B felony.
[48] Affirmed.
Bailey, J., and Robb, J., concur.
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