Churchill v. State
| Decision Date | 13 September 2012 |
| Docket Number | No. 48A02–1111–CR–1108.,48A02–1111–CR–1108. |
| Citation | 974 N.E.2d 602 |
| Parties | Delon CHURCHILL, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Madison Circuit Court; The Honorable Thomas Newman, Jr., Judge; Cause No. 48D03–1007–FB–323.
Christopher A. Cage, Anderson, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Gary R. Rom, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-defendant Delon Churchill appeals his convictions for Robbery, 1 a class B felony, and four counts of Criminal Confinement, 2 a class B felony. Specifically, Churchill argues that testimony regarding a telephone call that his mother made to the police constituted inadmissible hearsay and its admission into evidence violated his right of confrontation. Churchill also contends that he is entitled to a reversal of his convictions because there were several instances of prosecutorial misconduct, that the convictions for both robbery and criminal confinement violated double jeopardy principles, and that he was improperly sentenced.
We conclude that the admission of the evidence regarding the telephone call that Churchill's mother made to law enforcement officials was properly admitted into evidence and that there was no prosecutorial misconduct. However, Churchill's convictions and sentences on the confinement counts must be vacated in light of double jeopardy principles. Finally, we conclude that the trial court did not abuse its discretion in sentencing Churchill and that the twenty-year sentence imposed for robbery was not inappropriate.
The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions that the trial court vacate the convictions and sentences on the four confinement counts.
Shortly before 11:00 a.m. on July 16, 2010, Churchill entered the First Merchant's Bank (Bank) in Anderson. No other customers were inside, and Churchill approached the teller counter and asked Jason Homing to change three $20 bills into $5 bills. After Homing removed the money from the drawer, Churchill produced a handgun and said, “this is a robbery,” and demanded that Homing give him money. Tr. p. 196, 199, 229. The teller next to Homing, Jama Doyle, looked up when she heard this, and Churchill pointed the gun at her face and told her to raise her hands. Churchill also pointed the gun at Tim Hunt, the branch manager, and Preston Beamer, the drive-through teller, and instructed them to put their hands up.
Churchill told Homing to use a bank courier bag for the money. Although Homing began to empty the money from his drawer into the courier bag, he left “bait money” in the drawer because Churchill stated that he did not want any “funny money” or a dye pack. Tr. 201, 233, 257. The bait money consisted of ten $10 bills and was the only money that was wrapped with a band that had a teller stamp on it. The bait money had also been photocopied.
Churchill instructed Horning to retrieve the money from the drive-through where Beamer had been balancing the drive-through drawer before Churchill entered. Homing walked to the drive-through area and Churchill told him to move faster. Homing placed the money in the bag, and when he returned to his drawer, Churchill told him to empty the rest of his drawer. This time Homing placed the bait money and mutilated marked money into the bag. Horning returned the bag, which included nearly $6455 of the bank's money. Before Churchill left, he pointed his gun at the employees and told Horning to lie on the ground and Hunt to lie next to Horning. Churchill then told Beamer and Doyle to lie on top of Horning and Hunt with their faces towards the ground. Churchill exited the bank, and after the bank employees were sure that Churchill was gone, Horning locked the front door and tripped an alarm to alert the police.
After the robbery occurred, Churchill's identity remained unknown, so a photograph taken from the bank's surveillance video was released to various news outlets around the Indianapolis area and to local newspapers. No details concerning the robbery were released other than the photograph. At some point, Churchill's mother called the police and told them that her son was the robber. Meanwhile, Tyson McCoy, who was a friend of Churchill, borrowed his brother's identification card to rent a motel room and drove Churchill to a Muncie motel. Once Churchill's identity was known, law enforcement officials obtained a warrant to trace Churchill's location through his cell phone. The police learned that Churchill was in a Muncie motel and waited outside his room to arrest him.
When Churchill exited the room, he was arrested. He had a large duffel bag with him that contained approximately $2600 in cash, including all of the bait money that had been photocopied. Inside the motel room was Churchill's identification card, the band that wrapped the bait money, and mutilated money.
An investigator compiled a photo array and showed it to the four bank employees. Doyle, Horning, and Hunt all identified Churchill as the bank robber from those pictures. It was established that Churchill wore a red Philadelphia Phillies baseball cap during the robbery. At some point, police officers found a red Philadelphia Phillies baseball cap near a security fence on the eastside of the bank's property. The brim of the cap contained DNA evidence in which at least two people could not be excluded as contributors. Churchill was one who could not be excluded as a contributor to the DNA. It was also determined that the day before the robbery, a law enforcement officer came into contact with Churchill and saw him wearing such a cap.
When Churchill was incarcerated, he told a cellmate that he was in jail for bank robbery. Churchill confessed to his cellmate that he asked the teller to make change, demanded that the money be put in the bag, and said that he “stacked the people on top of each other.” Tr. p. 406. Churchill also acknowledged that when he fled from the bank, he dropped his hat in a parking lot. Churchill also explained that a man named “Ty” was driving the getaway vehicle and that they split the money. Churchill then stated that Ty took him to a Muncie hotel and dropped him off there.
On July 19, 2010, the State charged Churchill with Count I, robbery, a class B felony, and four counts (II–V) of class B felony criminal confinement. Churchill's jury trial commenced on October 25, 2011.
During opening statements, the deputy prosecutor told the jury that Churchill's mother had identified him as the robber. And during the testimony of Detective Randy Tracy of the Anderson Police Department, the deputy prosecutor was permitted, over objection, to have Detective Tracy recount, to the jury, the statements that Churchill's mother gave to the jury. The deputy prosecutor argued that the statements were admissible because they were being offered, not for the truth of the matter asserted, but to show why the police investigation was focused on Churchill.
The trial concluded on October 28, 2011, with the jury finding Churchill guilty as charged. On November 14, 2011, the trial court sentenced Churchill on Count I, robbery, and Count II, criminal confinement, to twenty years of imprisonment to the Indiana Department of Correction (DOC) to be served consecutively. Churchill also received twenty years of imprisonment at the DOC on each remaining confinement count to be served concurrently with the confinement charge in Count II. Thus, Churchill received an aggregate sentence of forty years of incarceration in the Indiana Department of Correction (DOC).
In imposing the sentence, the trial court identified Churchill's criminal history, the fact that he was on probation when he committed the offense, the fact that he was on parole when he committed the offense, and the fact that he was charged with another offense while the charges in this case were pending as aggravating factors. The trial court found no mitigating factors. Churchill now appeals.
Churchill claims that the trial court erred in permitting his mother to testify at trial that she had contacted Detective Tracy on the night of the robbery to report that it was her son in the photographs that were shown on the news. Churchill maintains that the testimony was inadmissible hearsay and that it violated his right to confrontation.
The admission or exclusion of evidence falls within the sound discretion of the trial court, and the determination regarding the admissibility of evidence is reviewed on appeal only for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.2002). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Id. In determining the admissibility of evidence, we will only consider the evidence in favor of the trial court's ruling and the unrefuted evidence in the defendant's favor. Sallee v. State, 777 N.E.2d 1204, 1210 (Ind.Ct.App.2002). We will not reverse the trial court's decision to admit or exclude evidence if that decision is sustainable on any ground. Crawford v. State, 770 N.E.2d 775, 780 (Ind.2002).
At trial, the following exchange occurred between the deputy prosecutor and Detective Tracy:
Q [You] spoke to a person named Regina Churchill, is that correct?
A Yes, I did.
Q What information did she provide to you?
A That she knew who did the robbery from looking at the newscast.
...
Q What information did she provide you detective? Did the [sic] give you the name of the person she said was involved in the robbery?
A Yes. She gave me the name of Delon Churchill.
Q Did she tell you who that person was?
A Yes, her son.
Q Her son. Once you got the name of Delon Churchill, did you begin focusing the investigation on the defendant?
A Yes, I...
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