T.J. v. State

• Decision Date: 09 November 2015
• Docket Number: No. 49A05–1501–JV–21.,49A05–1501–JV–21.
• Citation: 42 N.E.3d 172 (Table)
• Parties: T.J., Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

42 N.E.3d 172 (Table)

T.J., Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A05–1501–JV–21.

Court of Appeals of Indiana.

Nov. 9, 2015.

On Rehearing Jan. 29, 2016.

Ruth Johnson, Deborah Markisohn, Marion County Public Defender Agency, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

KIRSCH

, Judge.

[1] T.J. appeals his juvenile delinquency adjudication for committing an act that would have been murder¹ if committed by an adult.² On appeal T.J. raises two issues, which we restate as:

I. Whether the juvenile court committed reversible error when it admitted the victim's autopsy report over defense objection that it was testimonial hearsay that violated the confrontation clause; and

II. Whether there is sufficient evidence to support T.J.'s juvenile delinquency adjudication based upon a true finding of murder.

[2] We affirm.

Facts and Procedural History

[3] In the early morning hours of January 2, 2014, fifteen-year-old Ty.A. was walking near the intersection of Temple Avenue and Graydon Street in Indianapolis, Indiana with his thirteen-year-old half-sister, J.E., to meet Ty.A.'s friend, R.W., at the Good News Center on the corner of East Washington Street and Rural Street, when they were approached by two men. One of the men asked Ty.A. if he was “Lil' T,” and when Ty.A. said, “No,” one of the men shot him once in the chest. Tr. at 74

. Ty.A. died as a result of the shot. The assailants fled south on Temple Avenue. R.W. and T.J., friends of Ty.A., were charged with his murder.

[4] Tomecka and her children lived with Tomecka's friend Michelle and Michelle's children in a house on Warren Avenue on the Westside of Indianapolis. On January 1, 2014, Michelle's fifteen-year old son, D.W., and three other teenagers, T.J., P.T., and R.W., were staying at the house. Tate that night, Tomecka borrowed Michelle's minivan to do some errands. As Tomecka was leaving, R.W. came out of the house and said that Michelle wanted Tomecka to take the teens somewhere. Tomecka drove the minivan, T.J. sat in the middle seat, and D.W. and P.T., who were dating at the time, sat in the back seat. R.W. sat in the front passenger seat and sent a Facebook message to Ty.A. asking if the two could get together. Ty.A. agreed to meet R.W. at the Good News Center.

[5] Around the same time, in a home on Trowbridge Street, Ty.A. told his younger sister, J.E., that he was going out to meet R.W. at the Good News Center. Just prior to leaving, Ty.A. asked J.E. to use her phone to send R.W. a Facebook message. Soon thereafter, R.W. called Ty.A. and the two agreed to meet. J.E. knew that Ty.A. was talking to R.W. because, at the end of the conversation, J.E., who had spoken with R.W. on a previous occasion, grabbed the phone and told R.W. that she was coming with her brother and they were on their way. As they walked to the Good News Center, J.E. and Ty.A. encountered two men, each of whom had the lower half of his face covered. After Ty.A. denied that he was known as “Lil' T,” one of the men shot Ty.A. once in the chest. Tr. at 74

.

[6] Officer Mike Diehl (“Officer Diehl”), a K–9 handler with the Indianapolis Metropolitan Police Department (“IMPD”) who responded to the dispatch, testified that he arrived at the scene around 12:51 a.m. Fresh snow allowed him to track two sets of footprints from the intersection of Temple Avenue and Graydon Street, about five houses south on the west side of Temple, and then east onto private property toward an alley between Temple Avenue and Feeds Avenue. Officer Diehl noted that the tracks stopped in the alley and that the suspects likely got into a vehicle. No spent bullets or spent shell casings were found at the scene, and the murder weapon was never recovered.

[7] IMPD Homicide Detective Greg Hagan (“Detective Hagan”), who was the lead investigator on the case, interviewed J.E. several hours after the shooting on January 2, 2014 and again on January 29, 2014. In her second interview, Detective Hagan showed J.E. numerous photographs. Looking at the photographs, J.E. said that the photo of T.J. “kind of looked like” the shooter. Tr. at 87.

[8] During an interview with Detective Hagan, T.J. admitted to being in the minivan with R.W. on the night of Ty.A.'s murder. T.J. remembered that R.W. had a black 32 “semiautomatic” gun when he left the minivan. Ex. Vol. at 80, 114. T.J. believed that Ty.A. was killed in retaliation for having sold a defective handgun to “Spider,” a gang-member friend of R.W. Id. at 67, 71, 80–88, 90–94. T.J. also admitted to knowing that R.W. was planning to “go pop [Ty.A.].” Id. at 113–14.

[9] The State filed a delinquency petition against T.J. alleging murder, carrying a handgun without a license, and dangerous possession of a firearm. The State's theory was that Ty.A., having sold a defective gun to R.W.'s friend Spider, was lured to his death by R.W.'s request that the two meet. The State maintained that T.J. and R.W. left the minivan while it was parked near the route that Ty .A. would have taken to reach the Good News Center. R.W. and T.J. walked up Temple Street, met J.E. and Ty.A. at the corner of Temple Avenue and Graydon Street, and one of them shot and killed Ty.A. R.W. and T.J. fled south on Temple and east to an alley where the minivan picked them up.

[10] During the fact-finding hearing, Tomecka testified that R.W. wanted to go to North Dearborn Street and 13th Street. When they arrived, two men, one of whom was identified as T.J.'s brother, came up to the minivan and got in. Tomecka drove everyone to the pawn shop near Michigan Street and Rural Street, a location where she parked the minivan in the pawn shop parking lot. Later, Tomecka took the two men back to North Dearborn and 13th Street. Tomecka testified that the only person who got out of the minivan at the pawn shop was R.W., who was gone “[p]robably two to five minutes.” Id. at 273.

[11] P.L., who was sitting in the back of the minivan with her then-boyfriend D.W., testified that she did not get out of the minivan that night, nor did she hear any shots fired. P.T. said she knew that R.W. had called Ty.A. and that the two had planned to meet. P.L. recalled that the minivan made several stops that night. P.L. testified that R.W. had a black gun and T.J. had a small silver gun. Id. at 230–31, 243–44. P.L. testified that, at one point, R.W. and T.J. got out of the minivan and “both went off”; the two men returned about five minutes later. Id. at 233. P.L. also testified that, as they all drove away, P.L. saw a body in the street and T.J. said, “There he goes.” Id. at 237. P.L. did not recognize the body, and testified that she only found out the next morning that Ty.A. had been shot and killed. Id. at 237–38.

[12] J.E. testified at the fact-finding hearing that she and Ty.A. were walking along Graydon Street toward Temple Avenue when they saw two men walking toward them. As the two men approached, one asked Ty.A. if his name was “Lil' T.” Id. at 74. Ty.A. said, “No”; J.E. confirmed that Ty.A. had never used that nickname. Id. at 74, 82. When the two males were about ten feet away, one of them “put up the gun and told [Ty.A.] to get on the ground and [Ty.A.] did[n't] have enough time to get on the ground and they shot him.” Id. at 74, 79. She said that the shooter pointed a black gun at Ty.A.'s chest, so close that it was almost physically touching him, and then Ty.A fell to the ground. J.E. ran over to the shooter, who pointed the gun at her; fearing that she would be shot, J.E. dropped to the ground. The men went through Ty.A.'s pockets and then fled south on Temple Street—the direction from which they had come.

[13] Ty.A. was still breathing right after the men left. Unable to reach anyone by phone, J.E. ran back home to tell her family that Ty.A. had been shot and to call 911. J.E., her dad, and Ty.A.'s older brother's girlfriend, L.B., ran to the scene, where L.B. attempted to perform CPR. Ty.A. took three breaths and died. Id. at 61.

[14] J.E. could only see part of the men's faces, which were partially covered; even so, J.E. said that one of the men in the photographs shown to her by Detective Hagan looked like the shooter. During the fact-finding hearing, the State asked J.E. if she recognized anyone in the courtroom. J.E. said that she recognized “The shooter.” Id. at 87. When asked to point to the person she was describing as the shooter, J.E. pointed to T.J.

[15] Detective Benjamin Bierce (“Detective Bierce”), of the IMPD, introduced cell tower data as evidence of the calls made to and from the cell phone R.W. was using the night of January 1 and into the early morning hours of January 2, 2014. From this evidence, Detective Bierce was able to link the calls made and received on R.W.'s cell phone to the minivan's various locations on the night of the murder. At 12:31 a.m. on January 2, 2014, R.W. made a call to J.E.'s cell (the cell phone Ty.A. was using). Ty.A. was shot sometime after 12:31 a.m., but before 12:46.³ When R.W. made his next call, around 12:50 a.m., the phone tower data indicated that the call was made from a location very close to the scene of the shooting.

[16] Forensic pathologist Dr. Thomas Sozio, M.D., from the Marion County Coroner's Office, testified for the State regarding Ty.A.'s autopsy—an autopsy that had been performed by another pathologist, Dr. Randy Tashjian, M.D. On December 8, 2014, the juvenile court entered true findings on the murder count and the carrying a handgun without a license count, but found the dangerous possession of a firearm count not true. Appellant's App. at 227–29. Following the dispositional hearing, the juvenile court placed T.J. on a suspended commitment to the Indiana Department of Correction, and placed T.J. in the Bashor Children's Home with the condition that he complete all required programming. T.J. now appeals.

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