Amos v. State

• Decision Date: 25 November 2008
• Docket Number: No. 49A02-0803-CR-229.,49A02-0803-CR-229.
• Citation: 896 N.E.2d 1163
• Parties: Royal AMOS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

896 N.E.2d 1163

Royal AMOS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0803-CR-229.

Court of Appeals of Indiana.

November 25, 2008.

Ellen M. O'Connor, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Joby D. Jerrels, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Judge.

Royal Amos was convicted after a jury trial of two counts of murder,¹ four counts of attempted murder,² each as a Class A felony, one count of burglary³ as a Class B felony, and one count of carrying a handgun without a license⁴ as a Class A misdemeanor, and he was sentenced to an aggregate sentence of 271 years executed. He appeals, raising the following issues:

I. Whether the trial court abused its discretion when it admitted hearsay statements of one of the victims into evidence based on the present sense impression exception;

II. Whether the trial court abused its discretion when it submitted questions to a witness that had been posed by the jury; and

III. Whether sufficient evidence was presented to support Amos's convictions.

We affirm.

FACTS AND PROCEDURAL HISTORY

On the night of February 1, 2006, Lavonn Dunn spoke with her sister, Keyonia Dunn, on the telephone on a three-way call with Lavonn's boyfriend. At that time, Keyonia lived in an apartment with her two-year-old son, D.T., her friend, Erika Thornton, and Erika's three children, R.T., K.T., and J.T. During the telephone call, Keyonia received a call on her cell phone from Amos, who was the father of her unborn child. Keyonia put Lavonn on hold while she spoke with Amos. After a few minutes, Keyonia returned to her call with Lavonn and, in response to Lavonn's question of who had called, Keyonia stated that it had been Amos. Tr. at 142. Lavonn then asked what he had wanted, and Keyonia replied that he wanted some money and had told her that if she did not give him some, he was going to kill her. Id. Amos knew that Keyonia received a public assistance check on the first of every month. He would often take her to cash the check, and he would take some of the money. At the end of the telephone call, Keyonia told Lavonn that she would speak with her the next day and that she was not going to let anyone in the apartment. Id. at 151.

At approximately 11:00 p.m., R.T., who was ten years old, was woken up by his brothers and realized he was "hurt in the head." Id. at 206-07. He saw his mother lying in bed with her eyes closed and unsuccessfully attempted to wake her. K.T., who was nine years old, was awakened by a gunshot and saw a man wearing a ski mask and all black. K.T. was hit in the head with a gun. Five-year-old J.T. was shot in his side. The three boys were all bleeding and ran outside where they encountered a neighbor walking his dog. The neighbor called 911, and an officer from the Indianapolis Police Department arrived shortly thereafter. The responding officer arrived at the scene and observed the three boys who were bleeding. He proceeded into the apartment and discovered Keyonia and Erika who were both unresponsive. The officer also found two-year-old D.T. in a bedroom doorway. D.T. initially was unresponsive, but started to scream when the officer touched him. All four of the children were transported to hospitals, where it was determined that D.T. had suffered a gunshot wound to the neck, K.T. suffered a gunshot wound to the head, J.T. sustained gunshot wounds, one of which pierced his liver, and R.T. suffered a scalp laceration from either a bullet or blunt force trauma. All of these injuries were life-threatening, but all of the boys survived. Both Keyonia and Erika died as a result of gunshot wounds they received.

In their initial investigation, the police considered Amos and Howard Harris as suspects in the crime. After obtaining search warrants for the men's cell phones, the police were able to track the location of the phones to Bowling Green, Kentucky. On February 2, 2006, Amos and Harris arrived unannounced at the home of Amos's cousin in Bowling Green. The two men stayed about an hour, and Amos asked his cousin if she had heard anything "good or bad" about him. Id. at 269. The two men returned later in the evening and stayed for about ten minutes. On the night of the murders, Amos called a friend and told her that he needed to meet and talk. Amos called this friend about twenty-four hours later and told her that he needed to talk. The friend told Amos about news reports indicating that Amos was a person of interest in the murders. Amos said, "I didn't do it," but he could not talk about it on the phone. Id. at 363-64. The friend contacted the police and arranged to meet Amos in Bloomington, Indiana. Amos was arrested by the police when he went to the meeting place.

While awaiting trial, Amos was housed in a cellblock with Brian Wynne, who had previously been housed with Harris. Wynne told Amos that he was familiar with Amos's case and asked Amos about it because of his own "morbid curiosity." Id. at 515. Amos told Wynne that he and Harris had been at a restaurant on the night of the murders, drinking and using cocaine. Amos told Wynne that he had needed money and knew that his girlfriend had money because it was the first of the month and she had recently received her assistance check. Amos told Wynne that they went to his girlfriend's apartment, kicked the door open, and Amos went to Keyonia's room and demanded money. Keyonia argued with Amos, and he shot her in the head. He then shot D.T. and went into the other bedroom and emptied his gun.

At Amos's jury trial, the trial court allowed two questions posed by jury members to be asked of Wynne over the objection of Amos's counsel. The first question was whether Amos admitted to Wynne that he had shot a female, to which Wynne responded that Amos did admit so. Id. at 549. The second question was whether Amos had admitted, "to shooting the children or to just emptying his firearm," to which Wynne responded that Amos had admitted to shooting the children. Id. At the conclusion of the trial, the jury found Amos guilty as charged, and he was given an aggregate sentence of 271 years executed. Amos now appeals.

DISCUSSION AND DECISION

I. Hearsay Statement

The admission of evidence is within the sound discretion of the trial court. Cox v. State, 774 N.E.2d 1025, 1026 (Ind.Ct.App. 2002). We will not reverse the trial court's decision to admit evidence absent an abuse of discretion. Boney v. State, 880 N.E.2d 279, 289 (Ind.Ct.App.2008), trans. denied. An abuse of discretion occurs if the trial court's decision is against the logic and effect of the facts and circumstances before the court. Id.

Amos argues that the trial court abused its discretion when it allowed Lavonn to testify as to what Keyonia told her that Amos said in their cell phone conversation. He contends that the statements were hearsay and should not have been admitted into evidence because they did not fall under the present sense impression exception to the hearsay rule.

Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ind. Evidence Rule 801(c). Hearsay is generally inadmissible. Evid. R. 802. However, hearsay statements may be admitted into evidence if they qualify as a present sense impression, which is defined as "[a] statement describing or explaining a material event, condition, or transaction, made while the declarant was perceiving the event, condition, or transaction, or immediately thereafter." Evid. R. 803(1).

In the present case, the State sought to admit Lavonn's testimony regarding what Keyonia told her that Amos said during their cell phone conversation. Because Lavonn's testimony contains hearsay (Amos's statement) within hearsay (Keyonia's statement), each layer of hearsay must qualify under an exception to the hearsay rule before the statement at issue may be admitted into evidence. Mayberry v. State, 670 N.E.2d 1262, 1267 (Ind.1996) (citing Evid. R. 805). Amos's statements to Keyonia, the first layer of hearsay, were not hearsay because they were statements by a party-opponent in that they were statements made by Amos and offered against Amos at his trial. A statement qualifies as a statement by a party-opponent if "the statement is offered against the party and is . . . the party's own statement, in either an individual or representative capacity." Evid. R. 801(d)(2)(A).

At trial, the trial court allowed Lavonn's testimony as to what Keyonia said, the second layer of hearsay, into evidence under Evidence Rule 803(1), the present sense impression exception to the hearsay rule. This rule requires that the statement describe or explain the event or condition during or immediately after its occurrence, and the statement must be based upon the declarant's perception of the event. Truax v. State, 856 N.E.2d 116, 125 (Ind.Ct.App.2006) (citing Jones v. State, 780 N.E.2d 373, 376-77 (Ind.2002)).

Here, the trial court allowed Lavonn to testify to the following statements Keyonia made to her relaying what Amos had said during a cell phone conversation she and Amos had just completed:

She told us to hold on a minute and she put the phone down, and we was on hold for, like 15 minutes and she picked [the] phone back up, and I, like, who was that? She was, like, [Amos]. And I was, like, what did he want? She said he wanted some money. She said, he said if he [sic] didn't give her [sic] no money that he was gonna kill her.

Tr. at 142. In order for this testimony to fall under the present sense impression, three requirements must be met: (1) it must describe or explain an event; (2) during or immediately after its occurrence; and (3) it must be based on the declarant's perception of the event. Truax, 856 N.E.2d at 125. The record reveals that the event being described or...