Presley Jermaine Brown v. State of Indiana

FILED
Apr 14 2020, 8:43 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John Kindley Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Myriam Serrano
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Presley Jermaine Brown, April 14, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2125
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jane Woodward
Appellee-Plaintiff Miller, Judge
Trial Court Cause No.
71D01-1712-MR-15
Crone, Judge.
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Case Summary
[1] Presley Jermaine Brown appeals his convictions for murder, a felony, and level
3 felony attempted armed robbery. He contends that the trial court erred by
admitting documents purportedly handwritten by Brown without
authenticating the handwriting as Brown’s. Finding no error in the admission
of the documents, we affirm.
Facts and Procedural History
[2] On October 5, 2016, Brown asked Caleb Smith to set up a robbery to obtain
drugs or money. Tr. Vol. 2 at 75. Smith’s girlfriend Miranda Gayheart
identified Miguel Dominguez-Campos as a potential individual to rob, and she
contacted Dominguez via Facebook messenger to purchase marijuana. Id. at
57, 81; Tr. Vol. 1 at 215. In the early morning hours of October 6, 2016, Smith
drove Brown and Brown’s friend Sir Lloyd to Dominguez’ house on Meadow
Lane. Tr. Vol. 2 at 95. Smith parked across the street from the house, and
Brown and Lloyd got out of the vehicle. About the same time, Smith saw a car
pull into the house’s driveway. Id. at 96. Tyler Hurtle, who lived with
Dominguez, was driving that car, and Hurtle’s girlfriend Shaelynn Martin was
a passenger. Tr. Vol. 1 at 193, 194-95. After Hurtle parked the car, he and
Martin walked to the front door. As Hurtle was unlocking the door, two armed
African-American men appeared and hit Hurtle on the head. Id. at 198. Hurtle
fell into the bushes. Martin heard gunshots and ran back toward the driveway.
Id.
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[3] Smith, who was still in the car, heard gunshots and got out of the car. He saw
Brown running through the yard to the car. Tr. Vol. 2 at 97. Brown had a
mask on and was carrying a gun, and he told Smith that his gun had jammed.
Id. at 98. Smith also saw Lloyd running around the side of the house and
shooting at Martin. Id. at 97. Lloyd, Brown, and Smith got into the car, and
Smith drove them away.
[4] Dominguez heard gunshots and came out of the house. Tr. Vol. 1 at 218.
Dominguez saw Smith, whom he knew, standing by the car across the street
and two men running toward it. All three men got in the car, and the car sped
away. Martin told Dominquez-Campos that Hurtle had been shot. They
pulled Hurtle, who was unresponsive and had a small amount of blood on his
head, out of the bushes and called the police. Id. at 222.
[5] Police and medics arrived at the crime scene. Hurtle was taken by ambulance
to the hospital and died of multiple gunshot wounds. An autopsy revealed that
a bullet had entered Hurtle’s left forehead and exited next to his right eye.
Another bullet had entered the left side of Hurtle’s chest wall, traveled through
his lung, diaphragm, and intestines, and remained lodged in the soft tissue of
Hurtle’s hip. The bullet was recovered and came from a 9-millimeter handgun.
Tr. Vol. 2 at 160; State’s Ex. 253.
[6] From the crime scene, police recovered four shell casings from a 9-millimeter
handgun and seven shell casings from a .45 caliber gun. Tr. Vol. 2 at 52. A
firearm expert determined that the .45 caliber shell casings had been fired from
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a .45 caliber gun that Lloyd had dropped when police were pursuing him for an
unrelated crime. Id. at 209-10, 250. The shell casings that came from a 9-
millimeter handgun and the bullet recovered from Hurtle’s body were
determined to have been shot from a gun that had been in Brown’s possession.
The police also obtained Brown’s cellular phone record, which showed that he
was in the vicinity of Meadow Lane at the time of the shooting. Id. at 232.
[7] In December 2017, the State charged Brown with Count 1, murder, a felony;
Count 2, murder while committing or attempting to commit armed robbery, a
felony; and Count 3, level 3 felony attempted armed robbery. The State also
filed a firearm sentencing enhancement.
[8] While Brown was incarcerated in the St. Joseph County Jail, he relayed details
of his crime to several fellow inmates. Brown told Byron Murray that he and
Lloyd shot someone and that Brown was worried that Smith was going to tell
the police because Smith had stayed in the car. Id. at 171-73. Brown also told
Murray that he gave the gun that he used to shoot the victim to an individual
called “BK.” Id. at 173. Brown told Javon Crockett-Berry that he went to a
house on Meadow Lane to rob someone of marijuana, and while at the house,
a white man walked up and both Brown and Lloyd shot the man. Id. at 185.
Brown also told Crockett-Berry that he was going to give Lloyd or Lloyd’s
attorney a statement that he wrote blaming Smith for the murder. Id. at 188.
Brown told Cedric Washington, Andre Pittman, Denzel Bridges, and
Demetrius Thomas that he went to a house on Meadow Lane to rob someone
of marijuana and ended up shooting a white man. Tr. Vol. 3 at 16, 29, 47, 58-
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59. Brown also told Thomas that he wrote a letter to Lloyd’s attorney blaming
Smith for the murder. Id. at 60.
[9] A jury trial was held. During the State’s case in chief, the prosecutor offered as
State’s Exhibit 401 a copy of a letter purportedly handwritten by Brown and
sent by him to Lloyd’s attorney Jeffrey Kimmel. Id. at 37; Ex. Vol. 2 at 92-95.
To provide a foundation for the letter’s admission, Kimmel testified that shortly
before Lloyd’s case went to trial, Kimmel received a handwritten letter that
purported to be from Brown in an envelope mailed from the St. Joseph County
Jail. 1 Tr. Vol. 3 at 35-36, 39. Kimmel stated that he made a photocopy of the
letter and turned it over to the prosecutor’s office. Id. at 36. Kimmel testified
that Exhibit 401 looked like a photocopy of the letter that he received. Id. at 37.
[10] Brown’s attorney objected to the admission of Exhibit 401 on the basis that
Kimmel had never seen Brown’s handwriting and could not authenticate the
letter. Id. at 39. The prosecutor then asked the trial court to take judicial notice
of State’s Exhibits 402 and 403 to provide the jury with a sample of Brown’s
writing, so that the jury could determine whether Exhibit 401 had been written
by Brown. Id. at 39. Exhibit 402 was a letter written by Brown to the St.
Joseph County clerk of the court and the envelope in which it arrived. Ex. Vol.
2 at 97-98. In the letter, Brown asked the clerk to send Brown a certified
chronological case summary (“CCS”) of this cause. Id. at 98. The envelope
1
Exhibit 401 did not include the envelope that the letter was sent in.
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contained Brown’s return address, and it was stamped with “Mailed From St.
Joseph County Jail[.]” Id. at 97. The letter and envelope were both file-
stamped by the St. Joseph County clerk on March 19, 2019, and the filing of the
correspondence was recorded in the CCS. Appellant’s App. Vol. 2 at 10.
[11] Exhibit 403 was a letter written by Brown to the trial court and the envelope in
which it arrived. Ex. Vol. 2 at 99-101. In this letter, Brown stated that his
court-appointed attorney Sean Hilgendorf had failed to respond to repeated
requests for communication, and Brown did not want Hilgendorf to represent
him any longer. Id. at 100-01. The envelope contained Brown’s return address,
and it was stamped with “Mailed From St. Joseph County Jail[.]” Id. at 99.
The letter and envelope were both file-stamped by the St. Joseph County Clerk
on February 13, 2018, and the filing of the correspondence was recorded in the
CCS. Appellant’s App. Vol. 2 at 5.
[12] Brown’s attorney objected to Exhibits 402 and 403 on grounds that there was
no proof that Brown wrote the letters. Tr. Vol. 3 at 39, 41. The prosecutor
stated that a hearing had been held before trial to address the contents of
Exhibit 403. Id. at 39. After reviewing the case file, the trial court told the
parties that the CCS showed that Exhibit 403 was filed on February 13, 2018,
and contained an entry reflecting that on February 20, the court had issued an
order setting a hearing on Brown’s “letter of complaint regarding attorney” for
February 27. Id. at 69. The court stated that a hearing was held on that date
and the issue was resolved, that Brown appeared at the hearing, and that there
was nothing in the entry of February 27 to suggest that Brown “came in and
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declared that he had not written that document[.]” Id. at 69, 70. The court
concluded that it had “acted upon [the letter] with [Brown] present. So, it
seem[ed] unlikely that someone other than [Brown] wrote it.” Id. at 72. The
court explained that the jury could do a handwriting comparison and that the
court was “confident under these circumstances that there is sufficient
foundation when [the court] take[s] judicial notice of the record in this case to
warrant [it] permitting the introduction of [Exhibit] 403 as what is in essence an
exemplar and that sufficient foundation was raised to admit [Exhibit] 401[.]”
Id. at 74.
[13] Prior to the admission of these exhibits, the State also introduced the testimony
of Crockett-Berry and Thomas, who stated that Brown had told them that he
had written a letter to Lloyd’s attorney blaming Smith for the murder. Tr. Vol.
2 at 188; Tr. Vol. 3 at 60.
[14] In response to Exhibit 401, Brown’s attorney moved to admit Defense’s Exhibit
B, Brown’s affidavit to deny allegation, as a handwriting sample for the jury to
use as a comparator. Id. at 76-77; Ex. Vol. 2 at 92-96. The Court took judicial
notice of Exhibits 402 and 403 and admitted Exhibit 401 and Defense’s Exhibit
B. Tr. Vol. 3 at 118, 120. All the exhibits were published.
[15] The jury found Brown guilty as charged. The trial court entered judgment of
conviction for Counts 1 and 3 and sentenced Brown to an executed term of
sixty years for Count 1, enhanced by twenty years for the firearm enhancement,
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and a consecutive executed term of twelve years for Count 3, for an aggregate
term of ninety-two years. This appeal ensued.
Discussion and Decision
[16] Brown challenges the admission of Exhibits 401, 402, and 403, arguing that
there was insufficient evidence of authentication. Our standard of review for
the admissibility of evidence is well established:
The admission or exclusion of evidence lies within the sound
discretion of the trial court and is afforded great deference on
appeal. We will reverse the trial court’s ruling on the
admissibility of evidence only for an abuse of discretion. An
abuse of discretion occurs where the trial court’s decision is
clearly against the logic and effect of the facts and circumstances
before it. In reviewing the admissibility of evidence, we consider
only the evidence in favor of the trial court’s ruling and any
unrefuted evidence in the defendant’s favor. Errors in the
admission or exclusion of evidence are considered harmless
unless they affect the substantial rights of a party. To determine
whether an error in the admission of evidence affected a party’s
substantial rights, we assess the probable impact of the evidence
on the jury.
Whiteside v. State, 853 N.E.2d 1021, 1025 (Ind. Ct. App. 2006) (citations
omitted); see also Thomas v. State, 734 N.E.2d 572, 573 (Ind. 2000) (stating that
trial court’s ruling on sufficiency of foundation laid for admission of evidence is
reviewed for abuse of discretion).
[17] Evidence Rule 901(a) provides, “The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence
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sufficient to support a finding that the matter in question is what its proponent
claims.” Evidence Rule 901(b) includes a nonexhaustive list of examples of
satisfactory evidence of authentication, including the following: “[a]
comparison with an authenticated specimen by an expert witness or the trier of
fact” and “[t]he appearance, contents, substance, internal patterns, or other
distinctive characteristics of the item, taken together with all the
circumstances.” Ind. Evid. Rule 901(b)(-3), (-4). “Absolute proof of
authenticity is not required.” Wilson v. State, 30 N.E.3d 1264, 1268 (Ind. Ct.
App. 2015) (quoting Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008),
trans. denied), 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.” Richardson v. State,
79 N.E.3d 958, 962 (Ind. Ct. App. 2017), trans. denied. “Once this reasonable
probability is shown, any inconclusiveness regarding the exhibit’s connection
with the events at issue goes to the exhibit’s weight, not its admissibility.”
Harrison v. State, 32 N.E.3d 240, 255 (Ind. Ct. App. 2015), trans. denied.
[18] Here, Brown objected to the admissibility of Exhibit 401 because there was
insufficient evidence that he had written the letter. The trial court took judicial
notice that Exhibits 402 and 403 had been written by Brown and admitted them
as examples for the jury to determine whether Exhibit 401 had been written by
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Brown. 2 Brown contends that the trial court erred in allowing the jury to
determine whether he wrote Exhibit 401 by comparing the handwriting in
Exhibit 401 with that in Exhibits 402 and 403 because they had not been
properly authenticated.
[19] In support of his position, Brown relies on Payne v. State, 96 N.E.3d 606 (Ind.
Ct. App. 2018), trans. denied. In that case, Payne was convicted of level 4 felony
unlawful possession of a firearm by a serious violent felon, and on appeal he
argued that there was insufficient evidence that he had been previously
convicted of a qualifying felony, specifically robbery. To prove that Payne had
been previously convicted of robbery,
the State offered certified records from a 2010 robbery conviction
and claimed that the records proved that Payne was the
defendant in that cause who had previously been convicted of
robbery. The records included the charging information, probable
cause affidavit, supplemental probable cause affidavit, plea
agreement, the trial court’s order on plea hearing, and the trial
court’s sentencing order, which were all labeled with the same
2
Indiana Evidence Rule 201 authorizes a court to take judicial notice of
(1) a fact that:
(A) is not subject to reasonable dispute because it is generally known within the trial court's
territorial jurisdiction, or
(B) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.
(2) the existence of:
(A) published regulations of governmental agencies;
(B) ordinances of municipalities; or
(C) records of a court of this state.
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cause number. The charging information included the robbery
defendant’s name and birth date, which matched Payne’s name
and birth date as listed in the instant cause, as well as the robbery
defendant’s driver’s license number, which did not match the
information in the instant cause. The plea agreement included the
robbery defendant’s name, birth date, and signature. The trial court’s
order on plea agreement and sentencing order contained only the
robbery defendant’s name. The State rested its case without
further testimony.
Id. at 609 (emphasis added).
[20] Payne argued that this certified record was insufficient to prove that he was the
same person who had committed the robbery because the matching name and
birth date were not sufficient to prove his identity. The majority of the Payne
court agreed that “a matching name and birth date, absent other identifying
evidence, are not sufficient to prove identity.” Id. at 612 (citing Livingston v.
State, 537 N.E.2d 75, 78 (Ind. Ct. App. 1989)). The State contended that it
produced additional evidence of Payne’s identity because the plea agreement in
the robbery cause and the signed advisement of rights form in the unlawful
firearm possession case both contained Payne’s signature. The majority rejected
this argument because “the signature within the plea agreement had not been
authenticated as belonging to Payne.” Id. The majority reasoned,
[T]he State did not introduce expert or non-expert testimony to
authenticate the signature [in the plea agreement]; nor did Payne
admit that the signature was his. Accordingly, the signature was
never authenticated, and the only evidence the State introduced
to prove Payne’s identity as the defendant in the robbery cause
was the evidence of the robbery defendant’s name and birth date.
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Id. at 613.
[21] Brown focuses on the fact that the Payne court did not rely on the signed
advisement of rights in that cause as a means to authenticate the signature on
the plea agreement in the robbery cause. However, the Payne court did not
address whether the signature on the advisement of rights in that cause could
have been used by the trier of fact to authenticate the signature on the plea
agreement in the robbery cause because the prosecutor had not raised that
possibility to the trial court or asked the trial court to take judicial notice that
the signature on the advisement of rights was Payne’s. Therefore, Payne is
inapposite to the question presented here.
[22] Instead, we find Owen v. State, 272 Ind. 122, 396 N.E.2d 376 (1979), more
helpful. There, Owen was charged with robbery and represented himself pro se.
The prosecutor asked the trial court to take judicial notice of Owen’s pleadings
and filings in the cause and allow the jury to compare them to a handwritten
note left by the robber at the scene of the robbery. Our supreme court
concluded that it was reasonable “under the circumstances of this case, for the
court to take judicial notice of the fact that the defendant is the one who did, in
fact, sign these pleadings.” Id. at 129, 396 N.E.2d at 381. The Owen court
reasoned that it was reasonable based on the following circumstances:
[Owen] acted as his own attorney in this cause throughout the
pleading stage, tried the case before the jury, argued these matters
and spoke of them before the jury during the trial and in final
argument. He testified as a witness in his own behalf and never
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denied that he was the one who actually wrote all of the
pleadings and signed his name thereto.
Id., 396 N.E.2d at 381. The Owen court continued, “The trial judge may take
judicial notice [that the defendant signed the pleadings], and a rebuttable
presumption arises which requires the defendant to come forward with any
evidence to dispute the presumption.” Id., 396 N.E.2d at 381 The court noted
that Owen did not attempt to demonstrate that the documents judicially noticed
were not written by him, but only objected to notice being taken of them
because the trial judge did not personally see him sign them. Id., 396 N.E.2d at
382. Accordingly, the Owen court concluded that the “trial court could have
taken judicial notice that the documents were in the record filed on behalf of the
defendant and have permitted the jury to infer that they were, in fact, signed by
the defendant.” Id. at 130, 396 N.E.2d at 382.
[23] Although Brown did not proceed pro se as Owen did, we have no difficulty
concluding that under the circumstances it was reasonable for the trial court to
take judicial notice that the handwriting and signatures in Exhibits 402 and 403
were Brown’s. We first examine Exhibit 403, the 2018 letter to the trial court
complaining about the lack of communication from Brown’s court-appointed
attorney. The contents of the letter, that it was mailed from the jail where
Brown was incarcerated, that a hearing was held to address the letter’s
concerns, that Brown appeared at the hearing, and that the concerns expressed
in the letter were resolved and a pretrial hearing was set all support the trial
court’s decision to take judicial notice that the handwriting and signature in
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Exhibit 403 were Brown’s. Exhibit 402, the 2019 letter from Brown, was
mailed from the jail where Brown was incarcerated and asked the clerk to send
Brown the CCS, and the handwriting looks like the handwriting in the 2018
letter. Under the circumstances, it was reasonable for the trial court to take
judicial notice that the documents filed with the court had been written by
Brown. 3 Therefore, the trial court did not abuse its discretion in admitting the
State’s exhibits, and we affirm Brown’s convictions.
[24] Affirmed.
Bailey, J., and Altice, J., concur.
3
A rebuttable presumption then arose that the documents had been written by Brown requiring Brown to
come forward with evidence to dispute the presumption. Brown moved to admit Defendant’s Exhibit B, a
separate writing sample of Brown’s, which the trial court granted. Thus, the jury was able to compare the
handwriting in the court-filed documents and the writing sample that Brown provided to the letter Kimmel
received to determine whether Brown wrote it.
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