Stewart v. State, 112020 INCA, 19A-CR-2661
| Opinion Judge | Robb, Judge |
| Party Name | James Henry Stewart, Jr., Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff, |
| Attorney | Attorney for Appellant Denise L. Turner DTurner Legal LLC Indianapolis, Indiana Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana |
| Judge Panel | Crone, J., and Brown, J., concur. |
| Case Date | November 20, 2020 |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
Appeal from the Madison Circuit Court The Honorable Mark Dudley, Judge Trial Court Cause No. 48C06-1705-MR-1227
Attorney for Appellant Denise L. Turner DTurner Legal LLC Indianapolis, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Robb, Judge
Case Summary and Issues
[¶1] Following a jury trial, James Stewart was convicted of murder and sentenced to serve fifty-seven years in the Indiana Department of Correction. Stewart appeals and presents two issues for our review: (1) whether the trial court abused its discretion in admitting certain evidence at trial; and (2) whether the trial court erred in denying Stewart's motion to recuse the lead deputy prosecutor. Concluding the trial court did not abuse its discretion in admitting the evidence or in denying Stewart's motion, we affirm.
Facts and Procedural History
[¶2] The facts most favorable to the verdict are as follows. In May 2017, Montez McCloud and Cheyanne Gosler had been dating for approximately five years. Gosler's best friend, Hailey Carr, had been in a long-term relationship with Stewart. Stewart and Carr lived in a house at 1717 Jefferson Street in Anderson with their children.[1] On May 9, after Gosler picked up McCloud's lost cellphone, she and McCloud got into a disagreement. Gosler drove to Carr and Stewart's house, parked in their driveway, and went inside. McCloud later drove a moped to the house. Gosler walked outside and she and McCloud then walked back into the house where Gosler got her keys and phone. Carr testified that McCloud began hitting Gosler, prompting Carr to yell for Stewart, who had been sleeping in a room in the back of the house. Carr told them to "get out." Transcript of Evidence, Volume IV at 126. McCloud and Gosler left the house and Carr and Stewart followed. The four began arguing.
[¶3] David Lennen lived across the street and witnessed "an argument going on" between Stewart, Carr, and another man and woman. Id. at 180. Lennen heard Stewart say, "[I]f you're still out here when I come back I got something for you." Id. at 181. Stewart then went inside. McCloud got into Gosler's vehicle and began to drive away when Gosler pushed the moped over, which "[h]it the back corner of the car." Id. McCloud jumped out of the car and hit Gosler "one time, [and] went to hit her again" at which time Stewart "was standing [outside the front door] with a rifle." Id. at 181-82. Stewart pointed the rifle at McCloud's chest and began shooting. Lennen believed Stewart shot McCloud nine or ten times. After McCloud fell to the ground, Stewart fired an additional round. See id. at 130-31, 216. Stewart "leaned over [McCloud] . . . and said I hope I killed your a**. Somebody call 911." Id. at 182. Lennen asked Stewart if "everything is ok" to which Stewart responded, "[H]e came in my house and hit my girl." Id. at 185. Stewart then went back into the house until police arrived.
[¶4] Police and paramedics arrived on scene. The paramedics immediately began to render aid to McCloud, who was "unconscious, not breathing, and . . . did not have a pulse." Id., Vol. II at 169. Paramedics applied a monitor to assess McCloud's heart rhythm, which revealed his heart was no longer beating. Paramedics pronounced McCloud dead at the scene. Stewart surrendered and was arrested by police.
[¶5] Later, Stewart was interviewed by police[2] and stated, "I didn't do anything wrong. I was just protecting my family." Id., Vol. V at 184. He explained that he was sleeping in the back room when Carr woke him up and told him "this guy's in the house, and he's . . . beating the hell out of her friend[, ]" Gosler. Id. at 189. He got up and witnessed McCloud beating the friend and then "he turn[ed] around and attack[ed]" Carr, who was holding their baby son. Id. at 189-90. He also stated that when they were all outside, McCloud attacked Gosler and Carr; he went inside, got his .22 rifle, and went back outside. He told McCloud to get off his property and described McCloud's attitude toward him as "I don't give a f***, like shoot me" to which Stewart responded, "you just broke in my house[, ] scared the s*** out of my kids. . . . I got babies in here." Id. at 202. He claimed McCloud threatened to "spray this motherf*****" and "that's when he lunged at me and I fired off a shot[, ]" which hit McCloud in the shoulder. Id. Stewart told police the shot "didn't really phase him. . . . And then he . . . kind of like lunged a little bit at me, and I shot him again . . . . [T]hen he went to like fall back, and then I . . . squeezed off probably like six (6) times[.]" Id. When police asked whether McCloud had a gun, Stewart acknowledged that he "didn't say [McCloud] had a gun." Id. at 211. When asked why he shot McCloud, Stewart responded, "I shot him after he was already attacking my baby momma and them. He had already seen the rifle [and] wasn't worried about it." Id. at 230. The State subsequently charged Stewart with murder.
[¶6] Detective Scott Sanderson of the Anderson Police Department ("APD") responded to the scene and noticed a camera on a nearby warehouse he knew belonged to Ken Kocinski, the owner of KT Pawn.3 At the time, Detective Sanderson did not know whether the cameras were pointed toward the crime scene, so he contacted Kocinski, who contacted his out-of-state IT team for assistance. Kocinski reviewed the footage and discovered that one of the cameras recorded the shooting. The same day, APD Detective Norman Rayford went to the warehouse and watched the video which showed the shooting at 1717 Jefferson Street with Kocinski. Detective Rayford recorded the footage using his cellphone and subsequently uploaded the cellphone footage onto APD's "digital phone dump for evidence." Id., Vol. III at 33. On May 17, APD Detective Larry Crenshaw met with Kocinski's wife at the warehouse to obtain the security camera footage. Detective Crenshaw watched her put the footage onto a thumb drive, which she then gave to him and he then uploaded onto APD's digital phone dump. Detective Crenshaw subsequently lost track of the thumb drive Kocinski's wife originally gave him.4
[¶7] In August 2019, Deputy Prosecutor Dan Kopp gave APD Detective Doug Stanton a thumb drive of unknown origin and asked him to slow down the video footage on the drive, which "was twice as fast as real time." Id. at 180. Deputy Prosecutor Andrew Hanna was also present when Kopp made this request. Using software, Detective Stanton successfully slowed the footage to half speed. A disc containing the original security camera footage was prepared for admission at trial as State's Exhibit 36 and a disc with the edited version was prepared for admission as State's Exhibit 37.
[¶8] Before trial, Stewart filed a motion to recuse Deputy Prosecutor Dan Kopp from the case alleging Kopp was a necessary witness in the chain of custody of the original and modified versions of the security footage (Exhibits 36 and 37). See Appellant's Appendix, Volume III at 136-37. Specifically, Stewart claimed: 3. The security footage came from the [APD] property room. Whether Mr. Kopp withdrew the evidence from the property room personally or received it from another individual, he is now a witness necessary to maintain the chain of custody of the security footage, as well as to establish the initial chain of custody of any modified version of the security footage prepared by Detective Stanton at his request.
4. Allowing Deputy Prosecuting Attorney Kopp to combine the roles of advocate and witness would pose a substantial risk of confusing and misleading the jury, as well as enhancing the importance and credibility of . . . Kopp, (and by inference the State's entire case), at the expense of [Stewart]'s right to a fair and impartial trial.
Id. at 136-37 (citation omitted). The trial court denied the motion.
[¶9] A jury trial commenced on September 3, 2019. At trial, the State offered Exhibit 36 during Kocinski's testimony. Kocinski had testified that he has a security camera at his business at 19th and Jefferson Streets; he requested assistance from his IT team to access and view the footage; he reviewed the video at APD's request, which showed the shooting that occurred on May 9; and the exhibit is a true and accurate copy of the security footage from May 9 as it pertains to the shooting at 1717 Jefferson Street. See Tr., Vol. II at 235-36. The State moved to admit the exhibit and Stewart objected on the basis that the exhibit had not been properly authenticated pursuant to the silent witness theory. The trial court sustained the objection because there were "some holes as to what occurred between the recording . . . and it being viewed" but allowed the State to present additional foundational evidence. Id. at 242.
[¶10] Kocinski further testified that the cameras are motion activated, run continuously, and record onto a hard drive that can store about twenty-three hours of footage before "it loops" and begins to record over existing footage. Id. at 247. He also stated that the recording system was working properly on May 9, he is unable to alter the recordings, and the recording system records the time and date but he was unaware as to whether it adjusted for daylight savings time. Kocinski testified that he...
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