MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                 Jan 18 2019, 8:10 am
court except for the purpose of establishing
                                                                              CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Frederick Vaiana                                         F. Aaron Negangard
Voyles Vaiana Lukemeyer Baldwin &                        Chief Deputy Attorney General
Webb
                                                         Justin F. Roebel
Indianapolis, Indiana                                    Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Casey,                                           January 18, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1775
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia A. Gooden,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G21-1705-F4-19051



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1775 | January 18, 2019                  Page 1 of 10
[1]   Michael Casey appeals his conviction for unlawful possession of a firearm by a

      serious violent felon as a level 4 felony. He raises one issue which we revise

      and restate as whether the trial court erred or abused its discretion in permitting

      his statement to police to be played for the jury a second time. We affirm.


                                      Facts and Procedural History

[2]   On May 17, 2017, Indianapolis Metropolitan Police Officer Scott Emminger

      was dispatched to 44 North Euclid Avenue regarding a person who had been

      shot. When Officer Emminger arrived at 44 North Euclid, he observed two

      women come from the porch at 48 North Euclid who appeared to be in a hurry

      and “were trying to get in a blue Chevy Cav[alier] in an open front door at 44 N

      Euclid.” Transcript Volume II at 17. Officer Emminger had Officer Carver

      detain the females while he went to see if he could locate a person who had

      been shot at 44 North Euclid. Officer Emminger observed a man lying on the

      living room floor of the residence at 44 North Euclid, confirmed the man had

      been shot, and rendered aid. Indianapolis Metropolitan Police Detective Jason

      Leitze arrived at the scene and spoke with Officer Emminger and Tara

      Hamilton, one of the two women at the scene, who was arrested by officers.

      Hamilton had a puppy with her as she was being arrested. Hamilton indicated

      that Casey, who had arrived at the scene, could take the puppy.


[3]   Later that day, Detective Leitze received an anonymous phone call that led him

      to believe potential evidence could be found at 48 North Euclid, and he

      obtained a search warrant for 48 North Euclid to look for firearms,

      ammunition, spent casings, live ammunition, and paperwork related to
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1775 | January 18, 2019   Page 2 of 10
      firearms. Detective Leitze executed the search warrant that same day with the

      assistance of the Indianapolis SWAT Team. Casey and two others were

      present at the residence.1 Detective Leitze found a 16-gauge shotgun

      manufactured by Stevens under a bed. He also found ammunition and spent

      cartridges. Detective Leitze placed Casey into custody, transported him to the

      City County Building for an interview, and learned that Casey was not allowed

      by law to possess a firearm. After Casey was informed of his Miranda rights, he

      made a statement to police which was recorded.


[4]   On May 23, 2017, the State charged Casey with unlawful possession of a

      firearm by a serious violent felon as a level 4 felony. On June 4, 2018, the State

      alleged that Casey was an habitual offender.


[5]   On June 12, 2018, the court held a jury trial. During Detective Leitze’s

      testimony, the State moved to admit Casey’s statement to police as State’s

      Exhibit 20. The court admitted Casey’s statement over objection. Prior to

      playing a redacted version of the statement, the prosecutor moved to admit as

      Exhibit 23 the parties’ stipulation indicating that all redactions and omissions

      from the audio/video recorded statement were by agreement. Without




      1
       When asked who was at 48 North Euclid at the time of the execution of the search warrant, Detective
      Leitze answered: “Mr. Casey was present as well as two additional (inaudible).” Transcript Volume II at 25.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1775 | January 18, 2019               Page 3 of 10
      objection, the court admitted the stipulation. The recording was then played for

      the jury.2


[6]   When asked what he learned from Casey’s statement, Detective Leitze

      answered: “That Mr. Casey claimed ownership of this shotgun found at 48

      North Euclid.” Id. at 33. The prosecutor asked: “And he keeps referencing a

      Stevens, is that the same shotgun we saw in court today?” Id. Detective Leitze

      answered: “That is the shotgun right in front of me.” Id.


[7]   After the examination of Detective Leitze by the parties, the court held a

      sidebar in response to questions from jurors, and stated:


                 Question 1 is what was, I think this is in the video, what was the
                 question before the confrontation about finding the gun? Oh
                 okay. Question 2 what time did you get, what time did you get
                 the tip, question 3 how long does it take to get a warrant,
                 question 4 how did detective know [Casey] was unlawfully in the
                 possession, if you want to look at them? I don’t know where it
                 was, I know that one of jurors - -. I’m not going to give that
                 question, if they had been asking to see the video again and they
                 do. 2 and 3 will be given. Stipulation (inaudible) okay.


      Id. at 41.


[8]   The court held another sidebar and stated:


                 Counsel, so we may do (inaudible) excuse him I don’t know, this
                 is the same woman that couldn’t hear, she has another question,



      2
          The transcript indicates that the recording was played at 2:26 p.m. and ended at 2:35 p.m.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1775 | January 18, 2019                 Page 4 of 10
               question number 5 for the record in 2 parts, part A I missed
               [Casey’s] answer regarding whose bedroom that was at 48 North
               Euclid so she clearly couldn’t hear, and she obviously made a
               note that she couldn’t hear, so I don’t know what your position is
               I mean I don’t (inaudible) I don’t know what your position is, I
               have a bit of a problem with her not being able to hear and asking
               questions that clearly could be answered by watching the video I
               don’t know whether it’s fair to leave her wondering when
               everyone else heard it, but I don’t know what your position is
               about playing part of it, the part that she missed (inaudible) or
               letting the officer answer the question based on?


       Id. at 44.


[9]    Following a lengthy discussion outside the presence of the jury, and over

       defense counsel’s objection, the court indicated it would replay the entire video

       again. Defense counsel asked: “And is it possible to admonish about not

       making deliberation, not making a decision until after they’ve heard everything,

       including the closing arguments?” Id. at 54. The court stated: “That is already

       in the instructions and is in my admonishment, but I would.” Id. The court

       stated: “I would just admonish the jury that you will have instructions, both

       ones already given to you and one’s [sic] will be given you, to you in a few

       moments with respect to final instructions that will discuss how you are two

       [sic] way [sic] all the pieces of evidence that you would get okay.” Id. The

       court told the jurors to wave if there was any part they could not hear, and the

       video was played for the jury.


[10]   The State rested. Casey testified that he lived at 8523 Lena Court, that

       Hamilton was his girlfriend, that the shotgun belonged to Hamilton, and that he

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1775 | January 18, 2019   Page 5 of 10
       did not fire the shotgun two days before May 17th. When asked if anyone else

       fired it two days before May 17th, Casey answered: “It was like 3 days,

       [Hamilton] was selling, selling it to a Mexican.” Id. at 56. He testified that he

       “googled [the gun] because they don’t make them, they don’t make that gun no

       more, it’s an antique . . . .” Id. Defense counsel asked Casey, “Okay we saw

       you on this video saying that it was yours and that you fired it 2 days before

       why did you say that?” Id. Casey answered: “I was scared and confused, and I

       didn’t want [Hamilton] to go to jail.” Id. When asked why he was scared and

       confused, he stated that he had just smoked “Katie” which is “blunts . . . spice.”

       Id. at 56-57.


[11]   On rebuttal, Detective Leitze testified that he did not tell Casey when he first

       entered the interview room that he found his shotgun. The prosecutor asked:

       “So the first mention when you say are there any weapons at 498 [sic] North

       Euclid, he says yes that 16 gauge shotgun that came from Mr. Casey?” Id. at

       60. Detective Leitze answered: “Correct.” Id. He also testified that Casey did

       not seem under the influence of spice or any other narcotic.


[12]   The jury found Casey guilty of unlawful possession of a firearm. Casey waived

       his right to a jury trial on the habitual offender allegation, and the court found

       him to be an habitual offender.


[13]   The court sentenced Casey to twelve years for unlawful possession of a firearm

       by a serious violent felon as a level 4 felony and enhanced the sentence by ten

       years for being an habitual offender for an aggregate sentence of twenty-two


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1775 | January 18, 2019   Page 6 of 10
       years. The court’s sentencing order states: “Enhancement Sentence Split. 8

       years DOC 2 Years MCCC Program Deemed Appropriate.” Appellant’s

       Appendix Volume II at 12.


                                                    Discussion

[14]   The issue is whether the trial court erred or abused its discretion in permitting

       Casey’s statement to police to be played for the jury a second time. Generally,

       we review the trial court’s ruling on the admission or exclusion of evidence for

       an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g

       denied. We reverse only when the decision is clearly against the logic and effect

       of the facts and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997),

       reh’g denied. We may affirm a trial court’s decision regarding the admission of

       evidence if it is sustainable on any basis in the record. Barker v. State, 695

       N.E.2d 925, 930 (Ind. 1998), reh’g denied. A trial court “has the duty to manage

       and control the proceedings conducted” before it, Garcia v. State, 517 N.E.2d

       402, 405 (Ind. 1988), and “is given wide latitude of discretion in carrying out

       [its] duties.” Pitman v. State, 436 N.E.2d 74, 78 (Ind. 1982).


[15]   Casey cites Ind. Evidence Rule 403 and asserts that the unsolicited presentation

       of the duplicitous and cumulative evidence deprived him of his right to a fair

       trial. He argues that Ind. Code § 34-1-21-6 outlines strict circumstances when a

       jury may be entitled to receive duplicitous or cumulative evidence and none of

       the circumstances were present in his case.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1775 | January 18, 2019   Page 7 of 10
[16]   The State argues the trial court properly exercised its discretion by replaying

       Casey’s statement to police in response to jury questions. It asserts that the trial

       court reasonably exercised its discretion to replay the evidence based on the

       multiple jury questions asking about the content of the already played video and

       other concerns regarding audio problems and redaction. The State also

       contends that Casey has not shown substantial prejudice.


[17]   Initially, we note that Casey did not specifically mention Ind. Evidence Rule

       403 in his objection to the replaying of the video at trial. Ind. Evidence Rule

       403 provides: “The court may exclude relevant evidence if its probative value is

       substantially outweighed by a danger of one or more of the following: unfair

       prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

       presenting cumulative evidence.” To the extent the objection by Casey’s

       counsel that the replaying was “cumulative to just keep hammering on it over,

       and over, and over,” falls under Rule 403, we will address the issue.3 Transcript

       Volume II at 45.




       3
         We agree with Casey that Ind. Code § 34-36-1-6 does not apply because that statute addresses a request for
       information after the jury retires for deliberation. Ind. Code § 34-36-1-6 provides:
               If, after the jury retires for deliberation:

                         (1) there is a disagreement among the jurors as to any part of the testimony; or
                         (2) the jury desires to be informed as to any point of law arising in the case;

               the jury may request the officer to conduct them into court, where the information required
               shall be given in the presence of, or after notice to, the parties or the attorneys representing
               the parties.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1775 | January 18, 2019                     Page 8 of 10
[18]   The trial court replayed Casey’s recorded statement due to multiple questions

       from the jury and a juror’s inability to hear. We have previously held that, “[i]n

       order for the jurors to properly perform their duty, it is essential that they be

       able to hear the testimony.” Lewis v. State, 726 N.E.2d 836, 845 (Ind. Ct. App.

       2000), trans. denied. We cannot say that Casey has demonstrated that replaying

       his statement to police would not aid the jury. We note that the redacted

       recording was less than ten minutes, was replayed in its entirety, and was

       limited to a single replay in the presence of the trial judge. Under these

       circumstances, we cannot say that the trial court abused its discretion. See

       Chambers v. State, 422 N.E.2d 1198, 1204 (Ind. 1981) (holding that, “[a]t most,

       the repeated playing of the tape was cumulative evidence” and that the trial

       court did not err in allowing the tape to be replayed so all of the jurors could

       hear it); see also Harris v. State, 659 N.E.2d 522, 526-527 (Ind. 1995) (holding

       that the trial court did not abuse its discretion by sending exhibits and a tape

       player to the jury room when the jury began its deliberations where the audio

       taped confession served to aid the jury in its attempt to understand to what

       extent defendant participated in the charged crimes and how the crimes were

       committed, and there was little risk that the jury would misuse or give undue

       weight to these exhibits because the audio tapes had already been played in

       open court).


                                                   Conclusion

[19]   For the foregoing reasons, we affirm Casey’s conviction.


[20]   Affirmed.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1775 | January 18, 2019   Page 9 of 10
Bailey, J., and Bradford, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1775 | January 18, 2019   Page 10 of 10
