924 N.E.2d 678 (Ind.App. 2010), 49A05-0905-CR-296, Thomas v. State

Docket Nº49A05-0905-CR-296.
Citation924 N.E.2d 678
Opinion JudgeBAKER, Chief Judge.
Party NameSylvester THOMAS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
AttorneyPatricia Caress McMath, Indianapolis, IN, Attorney for Appellant. Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Judge PanelBAILEY, J., and ROBB, J., concur.
Case DateMarch 23, 2010
CourtCourt of Appeals of Indiana

Page 678

924 N.E.2d 678 (Ind.App. 2010)

Sylvester THOMAS, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 49A05-0905-CR-296.

Court of Appeals of Indiana.

March 23, 2010

Editorial Note:

This opinion appears in the reporter in a table titled "Disposition of Cases by Unpublished Memorandum Decision in the Court of Appeals of Indiana ." 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; The Honorable Kurt Eisgruber, Judge; Cause No. 49G01-0902-MR-024145.

Patricia Caress McMath, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION-NOT FOR PUBLICATION

BAKER, Chief Judge.

Appellant-defendant Sylvester Thomas appeals his conviction and sentence for Felony-Murder,1 a felony. Specifically, Thomas argues that the trial court abused its discretion when it denied his motion to dismiss. In addition, Thomas maintains that he was denied his right of confrontation under the United States and Indiana Constitutions when the trial court admitted a witness deposition in place of in-court testimony. Furthermore, Thomas contends that the trial court erroneously admitted hearsay evidence through recordings of telephone conversations.

Thomas also argues that the trial court abused its discretion when it denied his motion for mistrial that was made on the grounds of prosecutorial misconduct. Additionally, Thomas asserts that he was denied a fair trial under the United States and Indiana Constitutions when the trial court engaged in lengthy questioning of the jurors without him being present. Likewise, Thomas contends that he was denied a fair trial when the trial court denied his motion for mistrial on the basis of jury contamination.

Furthermore, Thomas maintains that the trial court should have vacated the jury's verdict finding him guilty of attempted robbery instead of merging it into his conviction for felony-murder. Finally, Thomas argues that his sixty-year sentence is inappropriate in light of the nature of the offense and his character. Finding no error, we affirm the judgment of the trial court.

FACTS

Around 11:45 p.m. on January 7, 2008, police and emergency personnel responded to a report that someone had been shot at an Indianapolis apartment complex. They found Emanuel Jenkins lying on the parking lot outside one of the apartment buildings, suffering from a fatal gunshot wound to his chest.

The police immediately began an investigation. Detective Christine Mannina of the Indianapolis-Metropolitan Police Department interviewed a bystander, Shon Hudson, who told her that he had been inside Jenkins's apartment when he heard a knock at the door followed by two gunshots.

Detective Mannina also interviewed Tasia Lee, who lived with her son in the adjacent apartment. Lee told Detective Mannina that before the shooting, two men had entered her apartment and held her at gunpoint. After Lee became extremely upset and scared, the men told her that " they did not want her but wanted her neighbors." Appellant's App. p. 26. Lee watched while one of the men went to Jenkins's apartment and knocked on the door. Shortly thereafter, the second man jumped from her apartment into the hallway and began firing his handgun.

The next day, on January 8, 2008, Lee notified Detective Mannina that the shooter had come to her place of employment wearing a jacket with either " Thomas Sylvester" or " Sylvester Thomas" written on it. Id. at 29. Lee identified Thomas from a photo array as the person who did the shooting.

On January 31, 2008, the State charged Thomas with one count of murder, two counts of criminal confinement, and one count of possession of a firearm by a serious violent offender under Cause Number 49G01-0802-MR-28025 (MR-28025). Forensic testing identified Thomas's DNA on cigarettes left in an ashtray in Lee's apartment. In addition, Lee's telephone records indicated that on the day of the shooting, she had received several calls from Alan Thomas, Thomas's brother and an inmate at the Marion County Jail. When confronted with this evidence, Lee admitted that Alan was her boyfriend and that Thomas had been in her apartment just before the shooting.

On February 9, 2009, the day scheduled for Thomas's trial in MR-28025, Hudson admitted that on the day of the shooting, there was a high-stakes dice game occurring in Jenkins's apartment. Hudson told the police that after the door of Jenkins's apartment was opened, someone ordered the occupants to lie on the floor, and he realized that someone was trying to rob the players of the dice game. In an attempt to thwart the robbery, Hudson fired a gun towards the door of the apartment.

After receiving this new information, the State dismissed the charges in MR-28025. The next day, on February 10, 2009, the State charged Thomas with Count I, felony-murder; Count II, attempted robbery; and Count III, possession of a firearm by a serious violent felon under Cause Number 49G01-0902-MR-24145 (MR-24145).

On April 22, 2009, five days before Thomas's trial was to begin, Thomas filed a motion to dismiss the charges against him, which the trial court denied. The first part of Thomas's bifurcated trial commenced on April 27, 2009. On April 29, a jury found Thomas guilty on Counts I and II. The second part of Thomas's trial commenced on May 8, 2009, and the trial court found Thomas not guilty on Count III.

On May 8, 2009, the trial court held a sentencing hearing, where it merged Count II into Count I. The trial court noted that the nature of the offense, specifically, shooting randomly into an apartment full of people, was an aggravating circumstance. The trial court also concluded that Thomas's criminal history was an aggravating factor.

In mitigation, the trial court noted the hardship on Thomas's family, but declined to give it significant weight in light of the hardship on the victim's family. The trial court also observed that Thomas was a " smart man," but stated that despite his potential, " it all comes down to these circumstances and your having been convicted of this crime." Tr. p. 785. The trial court sentenced Thomas to sixty years imprisonment. Thomas now appeals.

DISCUSSION AND DECISION

I. Motion to Dismiss

Thomas argues that the trial court abused its discretion when it denied his motion to dismiss. Specifically, Thomas contends that he was prejudiced when the State filed new charges under MR-24145 after dismissing the charges under MR-28025.

Because Thomas bore the burden of proving the facts necessary to support his motion to dismiss, he now appeals from a negative judgment. Hollowell v. State, 773 N.E.2d 326, 330 (Ind.Ct.App.2002). And, an appellate court will reverse a negative judgment only if the evidence is without conflict and leads inescapably to the conclusion that the defendant was entitled to dismissal. Mendoza v. State, 869 N.E.2d 546, 551 (Ind.Ct.App.2007).

The State is authorized to move for dismissal of the charges at any time before sentencing. Ind.Code § 35-34-1-13(a). Generally, the State may file new charges after dismissing the previous charges " if it can be done without prejudicing the substantial rights of the accused." Hollowell, 773 N.E.2d at 330. Accordingly, the essential element of this court's review is whether the new charges substantially prejudiced the defendant. Davenport v. State, 689 N.E.2d 1226, 1229 (Ind.1997).

Whether a defendant has been substantially prejudiced " is a fact-sensitive inquiry, not readily amenable to bright-line rules." Johnson v. State, 740 N.E.2d 118, 120 n. 3 (Ind.2001). Nevertheless, a defendant is generally not substantially prejudiced when " he can receive a fair trial on the same facts and employ the same defense in the second trial as in the first." Hollowell, 773 N.E.2d at 330.

Thomas directs this court to Davenport in support of his assertion that the trial court should have granted his motion to dismiss. In Davenport, the defendant had initially been charged with one count of murder. 689 N.E.2d at 1229. Four days before trial, the State filed a motion to amend the information so that it could add charges of felony murder, attempted robbery, and auto theft. Id. The trial court denied the motion; however, less than a week later, the State dismissed the murder charge and refiled it, along with the three new charges. Id.

Our Supreme Court reversed the conviction on the three additional charges, reasoning that " [w]hile courts have allowed the State significant latitude in filing a second information, the State cannot go so far as to abuse its power and prejudice a defendant's substantial rights." Id. at 1230. The Davenport Court continued that " [b]ecause of a sleight of hand, the State was able to escape the ruling of the original court and pursue the case on the charges the State had sought to add belatedly." Id. On rehearing, the Court opined that the State might have been allowed to refile the murder charge with the additional charges at an earlier stage before the defendant had finished significant preparation for trial, but that it could not happen on the " very eve of trial." 696 N.E.2d 870, 871-72 (Ind.1998).

Thomas also directs our attention to Johnson. In that case, the defendant was initially charged with sexual misconduct. 740 N.E.2d at 119. The trial court excluded evidence relating to the defendant's prior misconduct after the State had failed to provide formal notice of its intent to use the evidence. Id. at 120. The State responded by filing a motion to dismiss. Id. Over the defendant's objection, the trial court granted the motion, and the State refiled the original charge and added ten...

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