Gray v. State

• Decision Date: 10 August 2007
• Docket Number: No. 49A04-0609-CR-518.,49A04-0609-CR-518.
• Citation: 871 N.E.2d 408
• Parties: Kunta GRAY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

871 N.E.2d 408

Kunta GRAY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A04-0609-CR-518.

Court of Appeals of Indiana.

August 10, 2007.

Marshelle Dawkins Broadwell, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

Kunta Gray appeals his conviction of Murder,¹ a felony, Attempted Murder,² a class A felony, Possession of a Firearm by a Serious Violent Felon,³ a class B felony, and Carrying a Handgun Without a License,⁴ a class C felony. Gray presents the following restated issues for review:

1. Did the trial court err in refusing to admit into evidence the certified case chronology involving another case in which a witness who testified on the State's behalf was the defendant?

2. Did the trial court err in imposing consecutive sentences?

3. Did the failure to provide a plausible, race-neutral challenge to the striking of a juror violate equal protection principles?

4. Was the evidence sufficient to support Gray's convictions?

We affirm.

The underlying facts were set out in a previous opinion of this court, as follows:

The evidence most favorable to the judgment is that on November 16, 2000, Gray arranged to purchase a large quantity of marijuana from Greg Jones at an Indianapolis residence. Jones's friend, Avant, was at the house when Gray and an unidentified man arrived to buy the drugs. Jones retrieved a brown trash bag from his vehicle parked outside and then escorted Gray and the other man to the rear of the house, while Avant remained in the front living room area. A few minutes later, the unidentified man returned to the living room, hit Avant in the head with a handgun, and told him to get on the floor, stating, "[T]his is a robbery." Avant heard a number of gunshots from the back area of the home. Upon hearing the shots, the unidentified man stood and ran out of the house. Avant saw Gray stumble from the rear of the house and out the door. As Avant stood in or near the doorway, Gray pointed and fired his handgun at Avant, but missed. Gray and the other man sped away in a vehicle. Jones, who had suffered a number of gunshot wounds, staggered to the front door. Avant called 911 and waited with Jones until emergency personnel arrived. Jones underwent surgery, but died twelve days later from the injuries.

The State charged Gray with felony murder, murder, robbery, attempted murder, unlawful possession of a firearm by a serious violent felon ("possession by a SVF"), and carrying a handgun without a license as a C felony. The possession by a SVF count alleged as the prior violent felony a February 1997 B felony dealing in cocaine conviction. During trial, Gray stipulated that he had been convicted of a serious violent felony within the meaning of IC 35-47-4-5.

Gray v. State, 786 N.E.2d 804, 805 (Ind.Ct. App.2003) (footnote and internal citation to the transcript omitted), trans. denied. At the conclusion of trial, a jury found Gray guilty on all charges, and the trial court entered convictions for murder, attempted murder, and possession of a firearm by a serious violent felon. Gray was also determined to be an habitual offender. The court imposed an executed sentence of ninety years — sixty years for murder, to run concurrently to a forty-year sentence for attempted murder and a twenty-year sentence for possession of a firearm by a serious violent felon, which was enhanced by thirty years as a result of the habitual offender finding. We affirmed Gray's conviction and sentence in the foregoing direct appeal.

On November 11, 2003, Gray filed a petition for post-conviction relief (PCR). The trial court denied the petition and Gray appealed. We reversed the denial of Gray's PCR petition, overturned his convictions, and ordered a new trial. See Gray v. State, 841 N.E.2d 1210 (Ind.Ct. App.2006). This decision was based upon our conclusion that Gray received ineffective assistance of appellate counsel for counsel's failure to appeal the trial court's denial of Gray's request for a bifurcated trial (i.e., trying separately the charge that Gray was a serious violent felon).

In August 2006, a second jury trial was conducted and Gray was again found guilty on all counts.⁵ He was sentenced to thirty years for attempted murder, ten years for carrying a firearm by a serious violent felon, and four years for carrying a handgun without a license, with those sentences to run concurrently with one another and consecutive to the fifty-five-year sentence imposed for the murder conviction. Thus, Gray received an eighty-five-year executed sentence.

1.

Gray contends the trial court erred in refusing to admit into evidence a certified copy of the Chronological Case Summary (CCS) for a different criminal case involving a person who testified on the State's behalf.

Gray frames this issue in terms of the exclusion of evidence. This mischaracterizes the decision in question. The background facts are that Andrew White claimed Gray had confessed to him (White) that he (Gray) robbed and killed Jones. According to White, this occurred in the City-County Building, while White was there awaiting a jury verdict in a case in which he was the defendant, and Gray was there for a pretrial conference. In anticipation of White's testimony, and before he was called to the witness stand, defense counsel advised the court that she would be asking it to take judicial notice of the court's record in White's criminal case. According to counsel,

The facts are that — that he [i.e., White] was not taken back until 11:00 — until 23:42, Your Honor, which is about 18 minutes of midnight.... That's when he was remanded back to the custody of the — of the Sheriff — in other words that's when his proceedings concluded, not 9:00 [as White had claimed]. So, therefore, if the jury was out four hours [as White had claimed] the argument would be that the jury went out and began deliberating no earlier than 7:00 p.m. which makes it even more incredible or less likely that Mr. Gray would have been back there sitting in the holding tank with him while Mr. White's jury is out. That — he is certain — we nailed him down on several times it happened during — during during jury deliberations.

Transcript at 443-44.

In a nutshell, defense counsel sought, via judicial notice, the introduction of the CCS in White's case to show that White had no opportunity to speak with Gray on the day when he claims Gray confessed to him that he had killed Jones. The State objected to the appropriateness of judicial notice in this instance because it would not establish what defense counsel hoped to establish and, further, would be confusing to the jury. Ultimately, the court agreed that it was questionable "whether or not the times punched into the case chronology actually reflect when the event took place or when somebody had the opportunity to sit down and enter it into the computer." Id. at 446. In explaining its decision, the court stated, "But you're not asking to put the record into evidence, you're asking me to take judicial notice of a fact, and I cannot instruct the jury in good conscious [sic] that the record shows that Mr. White was taken back at X time based on that case chronology." Id. at 447. Gray claims he "should have been allowed to introduce the document." Appellant's Brief at 12.

Ind. Rules of Evidence 201(a)(2) states, in relevant part, "A court may take judicial notice of a fact. A judicially-noticed fact must be one not subject to reasonable dispute in that it is ... capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." This provision has been interpreted to permit judicial notice of court records, which presumably would include a chronological case summary. See Brown v. Jones, 804 N.E.2d 1197 (Ind.Ct.App.2004), trans. denied. "Nevertheless, notice of court records is not without limitation." Id. at 1202. Except for situations involving claim preclusion, "judicial notice should be limited to the fact of the record's existence, rather than to any facts found or alleged within the record of another case." Id.

In this case, Gray did not seek, via the CCS, judicial notice to establish the fact of White's case. Rather he sought judicial notice of certain facts found in the record of that case, i.e., what time jurors began deliberating, what time they returned with a verdict, and ultimately, what time Gray was in the holding cell. As the State's and trial court's comments indicated, the times listed on the CCS do not necessarily reflect what times those events occurred; neither do they reflect the times that White was confined in the holding cell. Therefore, they were properly excluded upon several bases. First, although it is undisputed that the CCS reflects certain times for certain events, the accuracy of the times provided is not indisputable; therefore, the facts Gray sought to prove thereby were in dispute as well. Second, it appears that Gray's request went beyond judicial notice merely of the fact of White's CCS, but extended impermissibly to facts found or alleged within the record of White's case. See Brown v. Jones, 804 N.E.2d 1197. Finally, the ruling that Gray sought here is, at best, inconsistent with the general rule that a trial court may not take judicial notice even of its own records in another case previously before the court on a related subject with related parties. See id. (citing Henderson v. State, 544 N.E.2d 507 (Ind.1989)).

The trial court did not err in refusing Gray's request for judicial notice.

2.

Gray contends the trial court erred in imposing consecutive sentences for the murder and attempted murder convictions. Following the first trial, Gray's sentences for murder and attempted murder were ordered to run concurrently. When those convictions...