42 N.E.3d 586 (Ind.App. 2015), 49A02-1503-CR-151, Riley v. State

• Judge: Pyle, Judge. Vaidik, C.J., and Robb, J., concur. Vaidik, C.J., and Robb, J., concur.
• Parties: Allen Riley, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff
• Date: 30 November 2015
• Docket Number: Court of Appeals 49A02-1503-CR-151
• Court: Indiana Appellate Court
• Citation: 42 N.E.3d 586

Page 586

42 N.E.3d 586 (Ind.App. 2015)

Allen Riley, Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff

Court of Appeals No. 49A02-1503-CR-151

Court of Appeals of Indiana

November 30, 2015

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

Appeal from the Marion Superior Court, Criminal Division 1. The Honorable Kurt M. Eisgruber, Judge. Trial Court Cause No. 49G01-1308-FA-051528.

ATTORNEY FOR APPELLANT: Hilary Bowe Ricks, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Lyubov Gore, Deputy Attorney General of Indiana, Indianapolis, Indiana.

Pyle, Judge. Vaidik, C.J., and Robb, J., concur.

MEMORANDUM DECISION

Pyle, Judge.

Statement of the Case

[¶1] In this appeal, Allen Riley (" Riley" ) appeals, following a joint jury trial with two co-defendants,¹ his convictions for Class A felony robbery,² Class B felony robbery,³ Class B felony unlawful possession of a firearm by a serious violent felon,⁴ Class B felony aggravated battery,⁵ two counts of Class D felony criminal confinement,⁶ and Class A misdemeanor carrying a handgun without a license.⁷ On appeal, Riley contends that the trial court erred by denying his motion to separate his trial from one of his co-defendants. Specifically, he contends that he was prejudiced by testimony regarding his co-defendant's out-of-court statement. Because the co-defendant's out-of-court statement referred only to the co-defendant's actions and did not reference or implicate Riley, we conclude that the trial court did not abuse its discretion by denying Riley's motion for a separate trial, and we affirm Riley's convictions. However, because the sentencing documents contained in the record indicate that the judgments of conviction were incorrectly entered, we remand this case to the trial court with instructions to correct these sentencing documents.

[¶2] We affirm and remand with instructions to clarify the sentencing documents.

Issue

Whether the trial court abused its discretion by denying Riley's motion for a separate trial from one of his co-defendants.

Facts⁸

[¶3] On July 10, 2013, around 5:00 p.m., Sylvester Kenney (" Kenney" )⁹ and Michael Spann (" Spann" ) were at Spann's house on North Chester Avenue in Indianapolis. Spann did not live in this house but used it to sell marijuana. After hearing a knock on the door, Kenney opened it, and Antwion Carter (" Carter" ) entered the house. Carter, who was armed with a gun with a laser, pointed it at Kenney and told him to get on the floor. Carter hit Spann on the head with the gun and told him to also get on the floor. Carter then took money from Kenney and Spann. When Spann's phone rang, Carter grabbed the earpiece from Spann and threatened to shoot him in the face if he told someone to come to the house.

[¶4] Thereafter, Carter went by the window, made a phone call, and said, " I got these b****es -- y'all better hurry up." (Tr. 152). Riley and Troy Belk (" Belk" ), who were both armed with guns, entered the house. Belk kicked Kenney in the face, demanded money from him, and told Kenney that they had his mother and would kill her if he did not reveal the location of the money. Kenney, who recognized Belk, asked him, " Troy, why you doin['] this -- Troy -- you know I ain't got no money[.]" (Tr. 165). Belk then grabbed a baseball bat that was in Spann's house and hit Kenney with it several times. During this time, Carter continued to keep his gun pointed at Kenney. Riley unplugged the surveillance cameras and stood over Spann with his gun pointed at him. When Spann looked up at Riley, he told Spann that he would shoot Spann in the face if Spann looked at him again.

[¶5] Thereafter, Carter and Belk dragged Kenney into the kitchen, continued to beat him, and asked him where the " stuff" was. (Tr. 264). Riley then grabbed Spann by the shirt, dragged him to the kitchen, and continued to hold his gun on him. Belk " ra[n]sack[ed]" the kitchen and rummaged through closets while Riley kept his gun pointed at Spann. (Tr. 158). Riley said that he had an " itchy trigger finger" and cocked his gun. (Tr. 158). At that same time, the doorbell rang. Belk and Riley ran to the door while Carter, still armed and pointing his gun at Kenney, stayed in the kitchen with Kenney and Spann. Belk said, " open the door and let him in -- we gonna kill him with these two." (Tr. 159).

[¶6] At that point, Kenney jumped on Carter and told Spann to run. Kenney punched Carter, who then shot Kenney in the face. Spann ran down the hall, saw Kenney fall to the ground, and saw a " flame" or a bullet coming toward him. (Tr. 161). Spann then dove out the window and ran down the alley, yelling repeatedly, " They tryin['] to kill us." (Tr. 163).

[¶7] Later, when officers from Indianapolis Metropolitan Police Department (" IMPD" ) arrived on the scene, Spann gave them the name " Troy" as a suspect. (Tr. 84, 163, 165). Spann and Kenney were both taken to the hospital, and Kenney was placed into a medically-induced coma. In the days following the crimes, IMPD officers investigated the crimes and subsequently showed photographic arrays to Kenney and Spann, who identified Carter, Belk, and Riley as the perpetrators of the crimes.

[¶8] On August 7, 2013, the State charged Riley, individually, with seven counts. Then, on September 16, 2013, the State amended the charging information by including an additional count against Riley and by combining it with Carter and Belk's previously filed joint charging information. Thus, the amended joint information contained ten counts, eight of which applied to Riley: Count I, Class B felony aggravated battery (of Kenney); Count II, Class C felony battery (of Spann); Count III, Class A felony robbery (of Spann); Count IV, Class B felony criminal confinement (of Kenney); Count V, Class B felony criminal confinement (of Spann); Count VIII, Class B felony unlawful possession of a firearm by a serious violent felon; Count IX, Class A misdemeanor carrying a handgun without a license with an enhancement to a Class C felony based on a prior conviction; and Count X, Class A felony robbery (of Kenney).¹⁰

[¶9] In September 2014, while Carter was incarcerated, he told Ronnie Archer (" Archer" )--who was in the same cell block as Carter and dated Carter's cousin--about the robbery. According to Archer, Carter told Archer that he had shot somebody and " asked [him] how could somebody get shot in the head and don't die." (Tr. 341). Thereafter, Archer talked to the police about his conversation with Carter.

[¶10] On October 20, 2014, Belk filed a " Motion for Severance from Co-Defendant," in which he sought a trial separate from Carter.¹¹ (App. 72). In the motion, Belk asserted that the State was planning to introduce, in the joint trial, a letter that was purportedly written by Carter and that contained incriminating statements he had made.¹² In this letter, which Carter was alleged to have sent from jail, he asked someone to kidnap Kenney's mother in an effort to keep Kenney from testifying at the joint trial. The letter provided, in part, that " [s]omebody got to grab her [Kenney's mother] up and hold her until we go to trial to make sure that he [Kenney] don't come because he been coming and he gonna keep coming unless we get her tied up somewhere and then we know we good at trial." (Ex. Vol. at 57). The letter also stated, " His mother is the key to freeing us." Id. Belk argued that admission of the letter in a joint trial with Carter would be prejudicial and would constitute a violation of his Sixth Amendment rights pursuant to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).¹³ Riley joined in the motion for a separate trial.

[¶11] On January 30, 2015, the trial court held a final pre-trial hearing, which included argument on the motion for a separate trial. Riley and Belk argued that the admission of the letter would create a Bruton issue due to Carter's reference to " we" and " us" contained in the letter and their inability to cross-examine Carter. (Tr. 494-97). The trial court ruled that the letter would not be admissible, and it denied Belk and Riley's joint motion for a separate trial.

[¶12] This pre-trial hearing was held on the Friday before the Monday trial. At the end of this hearing, the prosecutor, who had originally listed Archer on the State's witness list, told the trial court and the defendants that the State was not planning on calling Archer as a witness. However, during the weekend, the prosecutor contacted the defendants' attorneys to notify them that the State was going to call Archer as a witness.

[¶13] The trial court held a two-day jury trial on February 2-3, 2015. Prior to trial, the State filed an amended charging information for jury purposes. In this joint information, the State charged the robbery of Spann as a lesser included B felony; omitted some of the charges, including the charge and enhancement that needed to be bifurcated; and renumbered the remaining charges. Thus, for the purposes of trial, the joint charging information contained the following seven charges: Count I, Class A felony robbery (of Kenney); Count II, Class B felony robbery (of Spann); Count III, Class B felony aggravated battery (of Kenney); Count IV, Class B felony criminal confinement (of Kenney); Count V, Class B felony criminal confinement (of Spann); and Count VI, Class A misdemeanor carrying a handgun without a license.¹⁴

[¶14] Before the jury trial commenced, the State discussed its plan to present Archer as a witness. The prosecutor stated that Archer was not going to testify about the excluded letter and that, instead, he would " talk about conversations he had directly with Antwion Carter [while in jail]...