Smith v. State

• Decision Date: 09 October 2012
• Docket Number: No. 49A02–1109–CR–860.,49A02–1109–CR–860.
• Citation: 977 N.E.2d 29
• Parties: Victor SMITH, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

977 N.E.2d 29

Victor SMITH, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1109–CR–860.

Court of Appeals of Indiana.

Oct. 9, 2012.

Appeal from the Marion Superior Court; The Honorable Carol J. Orbison, Judge; Cause No. 49G22–0905–MR–52143.

Kimmerly A. Klee, Greenwood, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

BROWN, Judge.

Victor Smith appeals his convictions for robbery and attempted robbery as class B felonies. Smith raises four issues which we consolidate and restate as:

I. Whether the trial court abused its discretion and violated Smith's confrontation rights by admitting the discovery deposition of Justin Callaway and excluding a video reenactment of the offense; ¹

II. Whether the trial court abused its discretion by denying Smith's motion for a separate trial from that of his codefendant; and

III. Whether the trial court abused its discretion by denying Smith's motions for mistrial.²

We affirm.

The relevant facts follow. Jeremy Swift and Justin Callaway knew each other in middle school. Callaway moved away from Indianapolis and returned in late August or early September prior to the beginning of his senior year in high school. In late December or early January 2009, Swift was driving his cousin Ramone Swift and Callaway when Robert Johnson called Swift. Swift indicated that Johnson wanted a blunt and drove to the back of the Lakeview Apartments. Johnson walked up to Swift's car, entered the backseat of the car behind Swift, purchased a blunt from Callaway, and then said: “I'm a be hitting you up. I'm, I be around here needing weed .” State's Exhibit 25A at 374.

On January 25, 2009, Swift received a phone call, drove Callaway to a location near the Lakeview Apartments, and parked his car near where Johnson and another man were standing on a sidewalk and wearing black hoodies. Johnson and the man indicated that they wanted five dollars worth of marijuana instead of ten dollars and entered the car. After Swift gave Johnson some marijuana, Johnson and the man exited the car, and Callaway felt something pulling on his hoodie and saw a gun in his face. Swift put the car in reverse and “whipped out” and hit another car. Id. at 393. Swift's car then went dead, and Swift jumped out of the car and starting running. Two or three men wearing masks and hoodies then “ran in,” searched the back seat of Swift's car, hit Callaway, asked him “where everything was,” and took his cell phone. Id. at 398. Callaway then heard a shot, and the men left. Callaway glanced over, saw Swift on the ground, jumped out of the car, and ran over to him. Callaway called 911 on Swift's cell phone. Swift died the following day from a gunshot wound to the head.

Indianapolis Metropolitan Police Sergeant Mark Hess located Callaway's phone later during the evening of January 25, 2009, on the ramp from westbound 70 on to northbound Emerson Drive. On January 30, 2009, Indianapolis Metropolitan Police Detective Steven Scott came into contact with Smith when he found him “up under a car.” Transcript at 481. Detective Scott retrieved a pair of black gloves, a black face mask, a black hat, two “hoodie-style upper top wear,” and Smith's Indiana State identification card from Smith. Id. at 474. Detective Scott placed the items in a bag and placed the bag on the desk of Detective Lesia Moore.

Rochella O'Neil, a latent print examiner with the Indianapolis Metropolitan Police Department, identified a print retrieved from the exterior driver's side rear opera window of Swift's car as belonging to Smith. O'Neil also identified a fingerprint from Callaway's recovered cell phone as belonging to Smith.

On May 29, 2009, a grand jury indicted Smith for murder, felony murder, robbery as a class B felony, and attempted robbery as a class B felony. On April 8, 2010, Smith filed a pro se motion for a separate trial requesting he be tried separately from Johnson.³ On April 28, 2010, the State filed a notice of intent to introduce evidence under Ind. Evidence Rule 404(b) and mentioned Johnson's plea of guilty related to his attempted murder of Corrionna Johnson.

The court held a jury trial beginning on May 23, 2011. Johnson's counsel moved to exclude certain evidence related to the attempted murder of Corrionna Johnson under Ind. Evidence Rule 404(b), and the court took the motion under advisement. Smith's counsel asked that Smith's trial be severed if certain evidence mentioned in Johnson's Rule 404(b) motion was allowed, and the court took the motion under advisement.

Smith's counsel also asked that the ski mask found on Smith when he was arrested be excluded because the defense did not know that the ski mask existed until the previous night and argued that the mask changed the entire theory of the case. The prosecutor indicated that the police report from Smith's arrest indicated that a mask was taken from Smith and that the police report was disclosed to the defense on July 8, 2009. The court initially indicated that it would allow the admission of the mask, but, after further discussion, took the matter under advisement.

The court indicated that evidence of Johnson's attempted murder of Corrionna would be allowed into evidence, and Smith's attorney renewed her motion to sever Smith's trial “away from that 404(b) evidence” because it was detrimental and prejudicial. Id. at 95. Smith's attorney also argued: “I don't think it can be remedied by an instruction and there is absolutely no evidence whatsoever that my client was in any way, shape, or form, involved with the attempt[ed] murder of Corrionna Johnson.” Id. The court denied Smith's motion to sever.

On May 24, 2011, the prosecutor raised the issue of Callaway's failure to appear in court and asked for a body attachment. Detective Moore testified that Callaway was personally served on May 12th with a subpoena indicating that he was supposed to be available the week of trial. Detective Moore explained the subpoena to Callaway, and Callaway signed the subpoena. Investigator Roy West with the Marion County Prosecutor's Office testified that he gave a subpoena to Callaway on May 17, 2011, for a deposition on May 18th and a subpoena for trial on the week of May 23rd. On May 18, 2011, Investigator West went to pick up Callaway, but Callaway's grandmother informed him that Callaway thought that the deposition was for that Thursday. Investigator West returned to Callaway's residence on May 19, 2011, after arrangements had been made for him to return for a deposition, and Callaway gave a deposition that day. On May 23rd, Investigator West left a voicemail message for Callaway indicating that he would pick him up the following morning. On May 24th, Investigator West went to Callaway's residence, and Callaway's grandmother informed him that she had last seen Callaway on Sunday and that no one in his family had seen him since then. Investigator West went to Callaway's place of employment, attempted to contact Callaway's girlfriend, and contacted several family members of Callaway in an attempt to locate him but was unsuccessful. Investigator West also testified that Callaway's grandmother indicated that Callaway was fearful of coming to court because he believed something would happen to him. The prosecutor requested that the court issue a body attachment for Callaway, which the court did.

On the third day of trial, the prosecutor indicated that the State was still unable to locate Callaway. Investigator West testified that Callaway had initially indicated that he was scared to come to trial out of fear that he was going to be hurt or killed but became cooperative in subsequent dealings and that he was unable to find Callaway's location. Investigator West also indicated that the Violent Crimes Unit was still looking for Callaway. The prosecutor argued that the May 19th deposition of Callaway was admissible under Ind. Evidence Rule 804(b). Specifically, the prosecutor argued:

As for Victor Smith, [Smith's counsel] was informed of the deposition date and time. She did decline to attend. That decision to decline to attend the deposition was her choice and Crawford only speaks of the opportunity to cross examine someone. If the defense counsel chooses not to do that, that is their decision but the opportunity was there and that satisfies the Crawford requirement for confrontation in this particular case.

Id. at 353.

Smith's counsel stated:

Judge, I am just making my objection to the entrance of the deposition. I was not in attendance of the deposition. Well, I was told by the State that Mr. [Callaway] was available and would be here for trial. I did, in fact, know of the date of the deposition and did, in fact, consciously decide not to attend since we had, I think, four other statements that he had given—enough for me to know what he was going to say and impeach him with that. So I would object to the entrance of the deposition. Because I was not there, I did not confront and cross examine. It was last week and I had been told that Mr. [Callaway] would be here for trial. Having that been said, I do believe that the State has made a good faith effort to secure him to be here at trial. I will object to the entrance of that and I would offer ... these are my two concerns: Number One, we are going to have a deputy prosecutor reading the transcript who, in my estimation, will not sound anything like Mr. [Callaway] and will not put forth the type of attitude I think Mr. [Callaway] would put forth, as well, so I have a problem with that. I also have a problem in that I don't want this jury to get the impression he is either dead, scared, or any of those things. I would like somehow, be it through [Lesia] Moore, to get in that he is just not here for testimony. I don't want that to be misconceived. I do offer this, however. There...