                                                                             Oct 25 2013, 5:52 am



FOR PUBLICATION

ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

MATTHEW J. MCGOVERN                          GREGORY F. ZOELLER
Anderson, Indiana                            Attorney General of Indiana

                                             KATHERINE M. COOPER
                                             Deputy Attorney General
                                             Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

MICHAEL A. LANE,                             )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )       No. 82A05-1212-CR-640
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


               APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                        The Honorable Kelli E. Fink, Judge
                         Cause No. 82C01-1110-MR-1284


                                  October 25, 2013


                            OPINION - FOR PUBLICATION


FRIEDLANDER, Judge
        Michael A. Lane appeals his convictions for Murder,1 class B felony Conspiracy to

Commit Dealing in a Schedule II Controlled Substance,2 and two counts of class C felony

Criminal Recklessness.3 He presents the following restated issues for review:

        1.      Did the trial court abuse its discretion by rejecting Lane’s tendered jury
                instruction on reckless homicide as a lesser included offense of murder?

        2.      Did the trial court abuse its discretion by admitting certain hearsay
                evidence after concluding that Lane had opened the door to this
                previously excluded evidence?

        We affirm.

        On January 5, 2010, Jason Derrington arranged a drug deal between Michael Hooper

and David Clark, in which Clark was to purchase $5000 worth of Oxycontin from Hooper.

Hooper was Derrington’s friend, and Derrington had facilitated a number of drug deals

between Hooper and Clark in the past. At some point that day, Clark informed Derrington

that he was unavailable and would be sending money for the transaction with Lane, whom

Derrington knew as “Little Mike”. Derrington had met Lane several times before through

Clark and felt comfortable with the last-minute change. Clark instructed Derrington to meet

Lane in the back parking lot of the Sunburst Apartments in Evansville.

        Derrington went to Hooper’s residence that evening and informed him of the change

in plans. Hooper did not know Lane, so he decided to stop first at the home of Frank Hurst,

Hooper’s cousin. Hooper asked Hurst to give them a ride, and Hurst agreed. Hurst had one

handgun on his person and one in the glove box of his car. He had permits for both weapons.


1
   Ind. Code Ann. § 35-42-1-1 (West, Westlaw current with all 2013 legislation).
2
  Ind. Code Ann. § 35-48-4-2 (West, Westlaw current with all 2013 legislation); Ind. Code Ann. § 35-41-5-2
(West, Westlaw current with all 2013 legislation) (conspiracy).
3 I.C. § 35-42-2-2 (West, Westlaw current with all 2013 legislation).
Hurst apparently did not know Derrington or Lane and was allegedly unaware that he was

driving Derrington and Hooper to a drug deal. Hooper sat in the front passenger seat of

Hurst’s vehicle, and Derrington sat directly behind Hurst.

        The group arrived at the parking lot before 8:00 that evening and sat in the car while

Derrington texted and made phone calls. After several minutes, Hooper asked Derrington,

“where’s he at”, and Derrington responded, “he’s coming”. Transcript at 425, 426. At some

point after 8:00, Lane got into the vehicle and sat in the back seat next to Derrington and

behind Hooper. Hooper passed a bottle of Oxycontin to Lane, and Lane handed a Crown

Royal bag filled with money to Derrington. Hooper directed Derrington to count the money.

As Derrington began counting some of the money from the bag, he heard Lane’s door open

and saw the bag of remaining money move. Derrington grabbed the bag back but then

realized that Lane had a gun. Lane started shooting as he exited the car. He first shot

Derrington in the leg and then shot Hooper in the back near his right armpit as Hooper had

his hands in the air. Lane shot Hooper at close range, with the shot coming from inside the

car likely between the front passenger seat and the door frame.4 Neither Derrington nor

Hooper were armed.

        After the first two shots, Derrington fled from the car and Hurst retrieved his .38

caliber revolver from the glove box and fired four shots. At that point, Lane was standing

outside and firing into the car. Lane shot Hurst in the chest during the crossfire. Lane also

4  The trajectory of the bullet travelled from above to below and from back to front. This bullet bounced
around in Hooper’s body, eventually striking his liver and heart. In addition to this fatal gunshot wound,
Hooper also had injuries to his scalp, forehead, and hand that were consistent with collapsing on hard
pavement.

                                                    3
went around the back of the vehicle and shot at Derrington as he fled. Derrington was struck

in the back by one of Lane’s shots, which caused immediate and permanent paralysis. Lane

then fled the scene. At some point, Hooper and Hurst also exited the car, but Hurst reentered

and placed his revolver back in the glove box.5

       Evansville police received the first dispatch call at 8:24. Upon arriving at the scene,

officers found Hooper dead or near death behind Hurst’s car, Derrington seriously injured on

the ground near the driver’s door, and Hurst injured in the driver’s seat. There was also

$4000 in cash strewn in the backseat and floorboard, along with a Crown Royal bag. Hurst

immediately informed officers that he was armed. Both Hurst and Derrington identified the

shooter as “Little Mike”. Derrington also indicated that he had Little Mike’s phone number

in his cell phone. After securing the scene, officers discovered that this number was 812-

454-7192, which was Lane’s number. Within an hour of the shooting, Derrington was

presented with three photo arrays. Derrington, without hesitation, identified Lane from the

third photo array. At the hospital, Hurst also identified Lane as the shooter but then

expressed some brief hesitation. The following day, January 6, 2010, the State filed charges

against Lane for murder, felony murder, two counts of attempted murder, and conspiracy to

deal in a schedule II controlled substance.

       Lane evaded capture until October 2011, when he was arrested in Chicago on the

outstanding warrant. Detective Brent Melton traveled with two other officers to pick up



5
  The bullets later removed from Hooper, Derrington, and Hurst were all fired from the same weapon. This
weapon was never located.

                                                   4
Lane in Chicago. Melton read Lane his Miranda rights before transporting him back to

Evansville. While talking with Melton on the drive back to Evansville, Lane adamantly

stated that the money he brought to the scene was his own money, not David Clark’s.

        Lane’s first jury trial commenced on August 7, 2012 but ended in a mistrial because

only eleven jurors were selected following voir dire. The second trial commenced on

October 8, 2012 and lasted five days. Among many other witnesses, Hurst and Derrington

testified against Lane. The jury found Lane guilty of murder, two counts of criminal

recklessness as a lesser-included offense of attempted murder, and conspiracy to commit

murder.6 Before sentencing, Lane filed a motion for a new trial, arguing that the trial court

abused its discretion when it refused his tendered lesser-included-offense instruction on

reckless homicide. The trial court denied this motion and subsequently sentenced Lane to an

aggregate sentence of fifty-five years in prison. Lane now appeals. Additional facts will be

provided below as needed.

                                                       1.

        Lane argues that the trial court abused its discretion by refusing to instruct the jury on

reckless homicide as a lesser-included offense of murder. He claims a serious evidentiary

dispute existed regarding his state of mind at the time of the shooting. Specifically, Lane

argues that the evidence supported a reasonable inference that Hooper, Hurst, and Derrington

ambushed Lane and that “Lane fired wildly in retreat to scare [them] away.” Appellant’s


6 Following the State’s presentation of evidence, the trial court granted Lane’s motion for a directed verdict
on the felony murder charge because the State failed to allege a statutory predicate felony in the information to
support this charge.

                                                       5
Brief at 9.7

        When considering instructions on lesser-included offenses, a court must first

determine whether the lesser offense is either inherently or factually included within the

crime charged. Young v. State, 699 N.E.2d 252 (Ind. 1998). It is well established that

reckless homicide is an inherently included lesser offense of murder. Id. Accordingly, the

next step in the analysis of whether the instruction should be given is “whether the evidence

provided by both parties creates a serious evidentiary dispute about the element or elements

which distinguish the greater from the lesser offense.” Id. at 255.

        When an instruction is refused on grounds that a serious evidentiary dispute does not

exist, as in the instant case, we reverse only upon an abuse of discretion. Young v. State, 699

N.E.2d 252. “An abuse of discretion occurs when a decision is clearly against the logic and

effect of the facts and circumstances before the court.” Turner v. State, 751 N.E.2d 726, 731

(Ind. Ct. App. 2001), trans. denied.

        The only difference between murder and reckless homicide is the mens rea the State

must prove to obtain a conviction. Young v. State, 699 N.E.2d 252. Reckless homicide


7
   Lane also asserts that the record “clearly establishes that the jury thought the shooting was reckless.” Id. at
11. He claims this is so because the jury found him guilty for the shootings of Derrington and Hurst of only
criminal recklessness, not attempted murder. This logic is misguided. First, we observe that the jury found
Lane guilty of murder, which necessarily indicates that they found his mens rea to be knowing, at the least.
Further, Lane’s argument ignores the fact that a conviction for attempted murder requires proof of a specific
intent to kill, while a murder conviction requires only a knowing killing. See Henley v. State, 881 N.E.2d 639
(Ind. 2008). Thus, the fact that the jury determined that Lane did not have the specific intent to kill Derrington
and Hurst says nothing about whether he had a knowing mens rea with respect to the shooting of Hooper.
Finally, Lane’s argument is premised on a belief that the crime of criminal recklessness applies to only reckless
conduct, which it does not. I.C. § 35-42-2-2(b) indicates that criminal recklessness may involve reckless,
knowing, or intentional conduct. In other words, in convicting him of criminal recklessness rather than
attempted murder, the jury could have concluded that Lane knowingly shot Hooper but did not intend to kill
him.

                                                        6
requires proof that he defendant acted recklessly, while murder requires knowing or

intentional conduct. See I.C. § 35-42-1-5; I.C. § 35-42-1-1. Thus, the issue here is whether

the evidence presented at trial by both parties created a serious evidentiary dispute about

whether Lane knowingly or recklessly killed Hooper when he shot him in the back.8 The trial

court answered this question in the negative, explaining:

        the evidence in this case was that the shooter actually shot into the car, that
        there were three people in close proximity in that vehicle, I do not think there
        was any evidence to dispute the fact that whoever shot into that car did it in a
        knowing fashion and aware of what the consequences of that action would
        be[.]

Transcript at 773.

        “A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is

aware of a high probability that he is doing so.” I.C. § 35-41-2-2(b) (West, Westlaw current

with all 2013 legislation). On the other hand, conduct is reckless if the actor engaged in said

conduct “in plain, conscious, and unjustifiable disregard of harm that might result and the

disregard involves a substantial deviation from acceptable standards of conduct.” I.C. § 35-

41-2-2(c).

        After a thorough review of the record, we conclude that the trial court did not abuse its

discretion when it found no serious evidentiary dispute regarding whether Lane knowingly or

recklessly shot Hooper. The evidence presented at trial reveals that Lane shot Derrington and

then Hooper (both unarmed) while exiting the car after a botched drug transaction. Lane shot




8 We do not consider whether Lane intentionally killed Hooper because the information alleged only that he
knowingly killed Hooper.

                                                    7
Hooper in the back as Hooper sat in the front passenger seat with his hands up. The location

of the wound on Hooper’s body and the pathologist’s description of the bullet’s trajectory are

consistent with Derrington’s testimony of how and where Hooper was shot. After Derrington

and Hooper were shot, Hurst returned fire and was then shot by Lane. The fact that Lane

shot wildly in retreat once he was out of the vehicle and realized Hurst was firing back does

not change the fact that he shot Hooper at close range in the back as he exited the car.

       Further, although not dispositive, we observe that the theory of Lane’s defense was

that he was not present on the night in question. In fact, defense counsel indicated on more

than one occasion that “this case stands and falls on identification.” Transcript at 742. Lane

failed to argue to the jury and presented no evidence that the shooter was ambushed by the

alleged victims and shot only in an effort to get away as Hurst fired at him. While Lane

makes this claim now on appeal, we cannot agree that the evidence presented below by both

parties supports an inference that “Lane was ambushed by Derrington, Hurst, and Hooper,

and that Lane fired wildly in retreat.” Appellant’s Brief at 15. While there are certainly

minor inconsistencies in the evidence, the undisputed evidence indicates that Lane fired the

first two shots into the car as he exited, striking two different victims. These shots were fired

at close range. His second shot struck Hooper in the back as Hooper sat in the front seat with

his arms up.

       We agree with the trial court that the facts presented at trial do not create a serious

evidentiary dispute as to whether Lane killed Hooper knowingly or recklessly. In other

words, there is not a serious evidentiary dispute that Lane shot Hooper with anything less


                                               8
than an awareness of a high probability that he was engaged in killing.

       The cases cited by Lane are distinguishable from the instant case. In Turner v. State,

the defendant fired shots from a second-floor balcony after being challenged to a fight by a

crowd below and seeing someone throw a bottle at his vehicle. There was contradictory

evidence presented as to whether Turner was shooting at individuals or whether he was

simply firing in the air and toward the ground to scare the crowd away. Turner himself

testified that his intent was only to scare them away and that he was not trying to hit anyone.

In light of the defendant’s testimony denying an intent to kill, our Supreme Court determined

that a serious evidentiary dispute existed regarding his intent. Turner v. State, 751 N.E.2d

726. In the instant case, Lane did not testify or present other evidence of a contrary intent.

       Young v. State, 699 N.E.2d 252, is similarly distinguishable. In that case, a crowd was

outside a residence at dark watching two individuals wrestle, when a car went by with Young

hanging out the passenger-side window with a gun. The car abruptly stopped and Young

shouted several times to the crowd. He then told the driver to pull off as he fired two shots.

One of the shots struck Korey Roney in the back of the head. Shortly thereafter, the car

turned around and came back quickly. Everyone ran inside except Roney, who was on the

ground. Young was seated on the passenger-side door with his arms extended over the car.

He fired four more shots as the car passed. No one else was injured and several bullets

struck a house immediately south of the house where Roney was shot.

       Several of the witnesses at the scene testified that there had been no problems between

Young and those in the front yard that night and some even indicated that he was a friend.


                                              9
No witness stated that Young appeared to be aiming his gun at any specific person, and one

witness testified, “he was just shootin’…dude was pullin’ off, you know.” Id. at 256. In

determining that a serious evidentiary dispute existed as to whether Young knowingly or

recklessly killed Roney, our Supreme Court noted the lack of evidence regarding motive or

intent to target a certain person. Further, the Court stated:

               The evidence about Young’s state of mind at the time he fired the shot
       that killed Korey Roney is both conflicting and obscure…. Though shooting
       in the direction of numerous people only twenty feet away is obviously
       “reckless” behavior no matter whether one is in a set or moving position,
       whether [Young’s] acts are sufficient to show he was aware of a high
       probability that his act would kill is less certain.
               While it is [his] mental state when he fired the shot which actually
       killed Korey that would determine whether he committed murder or reckless
       homicide, a jury might glean inferences from the larger pattern of shots fired to
       determine this specific mens rea. Of the estimated six shots fired, one bullet
       his Korey…, another was discovered rather far away in a wall of the home
       next door…. A crime scene specialist was unable to say whether the recovered
       bullets were fired [randomly] or specifically aimed. Also possibly relevant is
       the fact that [Young] returned and fired four more shots though all except
       Korey were inside the home. Korey was prone on the ground during this time
       but was not shot again.
               A jury considering these facts could well have found [Young] was
       acting recklessly but not knowingly when he fired the shot that killed Korey.
       Firing a handgun towards a group of people only twenty feet away is certainly
       an act committed in “plain, conscious, and unjustifiable disregard” of the harm
       that might result, and a “substantial deviation from acceptable standards of
       conduct,” but given the specific facts of this case, a jury might reasonably
       decide that such behavior did not reflect a knowing killing.

Id. at 256-57 (citations omitted).

       Contrary to Lane’s assertion on appeal, the facts of the instant case are not on par with

those in Young. Here, the evidence established a clear motive for the shooting. Further,

unlike in Young, the eyewitness testimony does not indicate that Lane was firing wildly and


                                              10
not targeting Hooper when he shot him in the back. On the contrary, the evidence indicates

that Lane shot Hooper at close range as Lane was exiting the car. Lane also shot the other

two individuals who were with Hooper that night. Although Lane’s shots apparently became

dispersed after he shot Hooper, the evidence indicates this is because Hurst returned fire. On

the specific facts of this case, a jury could not reasonably conclude that Lane acted recklessly

but not knowingly when he fired the shot that killed Hooper. An instruction on reckless

homicide was, therefore, not warranted.

                                              2.

       Lane contends that certain evidence was admitted in violation of his right to confront

witnesses against him. He claims the trial court erroneously determined that he had opened

the door to this evidence during cross-examination of the lead detective, Brent Melton.

       During trial, evidence was admitted indicating that Derrington had made four calls

with his cellphone to 678-372-6455 at 6:51, 8:10, 8:13, and 8:18 on the night of the shooting.

The State did not initially seek to introduce evidence linking this phone number to a

particular person, and the trial court denied a jury question seeking this information.

       On cross-examination, defense counsel asked Detective Melton about inconsistencies

in the testimonies of the victims and the lack of physical evidence from the scene linking

Lane to the crime. Counsel also reviewed with the witness the evidence police had against

Lane including the identifications by both surviving victims and the contact phone number

listed for “Little Mike” in Derrington’s cellphone, with police tying both the nickname and

the number (812-454-7192) to Lane. The cross-examination continued in part as follows:


                                              11
       Q         And beyond that all of the evidence that was in the boxes and all the
                 evidence that’s in the bags and all the evidence that’s been
                 introduce[d], there’s nothing else that ties Michael Lane to this crime?
       A         The statement he made to me in the car on the way back from Chicago?
       Q         Assuming you got that statement correct….
       A         Yes.
       Q         That’s it?
       A         I believe so.

Transcript at 629.

       During a subsequent sidebar, the State argued that Lane had opened the door to

hearsay evidence linking the 678-372-6455 number to Lane. The State claimed the door was

opened when the defense asked Detective Melton if there was nothing else that tied Lane to

the crime. In fact, police had learned during an interview with Obie Davis (Lane’s cousin)

that the 678 number was affiliated with Lane.

       Following a brief recess, the trial court ruled in favor of the State as follows:

       [Court:]       I do believe that [defense counsel’s question] gives the
              impression to the jury that there’s nothing else that this Detective relied
              on to tie Mr. Lane to the crime and therefore I do think it’s opened the
              door to the evidence of the telephone number….
                                               ***
       [Defense:] Well, with regard to the Court’s ruling, defendant’s position is
              that this is hearsay evidence, that the admission of said evidence
              violates Crawford in that the declarant is not available to be cross
              examined about the information that the officer is going to testify to,
              Mr. Davis isn’t here, apparently has never been under subpoena by the
              State….
                                               ***
       [Court:]       I do agree that there is, I had sustained a hearsay objection to this
              evidence previously, but under open the door and the cases that talk
              about opening the door does indicate that otherwise inadmissible
              evidence can be admissible if the door opens and I think that’s occurred
              in this case, so any other record?

Id. at 643-44.

                                                12
       On re-direct examination, the State elicited the following testimony:

       Q         Detective, you were asked a question that there was nothing else that
                 tied Michael Lane to the crime, do you remember that question?
       A         Yes, sir.
       Q         That’s not actually true, is it?
       A         No.
       Q         Did you receive a phone number from Obie Davis for a contact number
                 for Mr. Lane?
       A         Yes.
       Q         What was that number, sir?
       A         Ah, missed call from Lane, the cell number was 678-372-6455.
                                                  ***
       Q         Do you recall Officer Sides testifying as to four phone numbers [sic] to
                 that particular number from Jason Derrington’s phone?
       A         Yes, I do.
       Q         Alright, and those calls were made at 6:51, 8:10, 8:13 and 8:18 on the
                 night in question, is that correct?
       A         Yes.

Id. at 645-46.

       We initially determine whether the admission of this hearsay evidence violated the

Confrontation Clause, which is embodied in the Sixth Amendment to the United States

Constitution. The clause prohibits the admission of an out-of-court statement if it is

testimonial, the declarant is unavailable, and the defendant had no prior opportunity to cross-

examine the declarant. King v. State, 985 N.E.2d 755 (Ind. Ct. App. 2013), trans. denied.

The only issue in this case is whether Davis’s statement to police regarding the phone

number was testimonial.

       To determine whether a statement such as this is testimonial, we look at the primary

purpose of the conversation between police and the declarant. Id. If the circumstances

indicate that the primary purpose of the conversation was to gather evidence of past events


                                                13
potentially relevant to later criminal prosecution, then the statements are testimonial and

protected by the Confrontation Clause.9 King v. State, 985 N.E.2d 755.

        The State argues that the statement given by Davis during police questioning was not

testimonial because its “original purpose” was not to create a record for trial but to “assist

police in identifying the person who committed the crimes against Hooper, Derrington, and

Hurst.” Appellee’s Brief at 24. We cannot agree. The record indicates that Lane was the

primary suspect within an hour or two of the shooting and well before Detective Melton

interviewed Davis. The purpose of the interview was to gather evidence and to locate Lane.

Further, there was no ongoing emergency when Davis was formally questioned several days

after the shooting. The statement was clearly testimonial.

        Despite the nature of this hearsay statement, the trial court found it admissible because

Lane had opened the door. As a matter of modern evidence law, the trial court may well

have been correct in determining that Lane opened the door to admission of this evidence.

See Kubsch v. State, 784 N.E.2d 905 (Ind. 2003). We must be mindful, however, that we are

faced with a constitutional challenge to the admission of Davis’s testimonial statement rather

than a challenge based on evidentiary rules.




9
  Factors to be considered include:
         (1) whether the declarant was describing events “as they were actually happening” or past
         events; (2) whether the declarant was facing an ongoing emergency; (3) whether the nature
         of what was asked and answered was such that the elicited statements were necessary to be
         able to resolve the present emergency rather than simply to learn about past events; and (4)
         the level of formality of the interview.
Id. at 758 (quoting State v. Martin, 885 N.E.2d 18, 20 (Ind. Ct. App. 2008)).

                                                     14
       Several other jurisdictions that have decided cases after Crawford v. Washington, 541

U.S. 36 (2004), have applied the “open the door” rule in holding testimonial hearsay

admissible where the defendant has opened the door to such evidence. See, e.g., United

States v. Holmes, 620 F.3d 836 (8th Cir. 2010); United States v. Lopez-Mendia, 596 F.3d 716

(10th Cir. 2010); People v. Rogers, --- P.3d ---, 2012 WL 5457358 (Col. Ct. App. 2012); State

v. Birth, 158 P.3d 345 (Kan. Ct. App. 2007). At least one jurisdiction has concluded

otherwise:

       If there is one theme that emerges from Crawford, it is that the Confrontation
       Clause confers a powerful and fundamental right that is no longer subsumed
       by the evidentiary rules governing the admission of hearsay statements. Thus,
       the mere fact that Cromer may have opened the door to the testimonial, out-of-
       court statement that violated his confrontation right is not sufficient to erase
       that violation. In this, too, we agree with Professor Friedman, who has
       postulated that a defendant only forfeits his confrontation right if his own
       wrongful conduct is responsible for his inability to confront the witness.
       Friedman, Confrontation, 86 Geo. L.J. at 1031. If, for example, the witness is
       only unavailable to testify because the defendant has killed or intimidated her,
       then the defendant has forfeited his right to confront that witness. A foolish
       strategic decision does not rise to the level of such misconduct and so will not
       cause the defendant to forfeit his rights under the Confrontation Clause.

United States v. Cromer, 389 F.3d 662, 679 (6th Cir. 2004).

       We agree with the majority of jurisdictions that have found that a defendant can open

the door to the admission of evidence otherwise barred by the Confrontation Clause. This

waiver of rights, however, is not as broadly applied as in non-constitutional contexts due to

the presumption against the waiver of constitutional rights. See United States v. Holmes, 620

F.3d 836. We hold that for a waiver of the fundamental constitutional right of confrontation

to be effective, such waiver must be “clear and intentional.” Id. at 843 (“decision to


                                             15
waive…must be done intentionally and for valid, tactical purposes”). See also United States

v. Lopez-Mendia, 596 F.3d at 731 (“[w]here, as here, defense counsel purposefully and

explicitly opens the door on a particular (and otherwise inadmissible) line of questioning,

such conduct operates as a limited waiver”). The standard is not met here, as there is no

indication in the record that the alleged waiver was done intentionally. Accordingly, the trial

court erred in concluding that Lane opened the door to admission of this testimonial

statement.

       Violations of the Confrontation Clause do not require reversal if the State can show

beyond a reasonable doubt that the error was harmless and did not affect the verdict. Koenig

v. State, 933 N.E.2d 1271 (Ind. 2010). In other words, “an otherwise valid conviction should

not be set aside if the reviewing court may confidently say, on the whole record, that the

constitutional error was harmless beyond a reasonable doubt.” Id. at 1273.

When considering whether a constitutional error was harmless, we may consider, among

other things:

       the importance of the witness’ testimony in the prosecution’s case, whether the
       testimony was cumulative, the presence or absence of evidence corroborating
       or contradicting the testimony of the witness on material points, the extent of
       cross-examination otherwise permitted and, of course, the overall strength of
       the prosecution’s case.

Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, (1986)). If the State presented

other overwhelming evidence of the defendant’s guilt, then an erroneously admitted

statement may be deemed harmless. See Rawley v. State, 724 N.E.2d 1087 (Ind. 2000);

Finney v. State, 786 N.E.2d 764 (Ind. Ct. App. 2003).


                                              16
        We are confident that the brief testimonial hearsay evidence admitted through

Detective Melton was harmless beyond a reasonable doubt. Although the evidence regarding

the phone number tended to establish some link between Lane and the crime, this link had

already been shown by other overwhelming evidence establishing that Lane came to the

scene to transact a drug deal that ended badly. Derrington, who knew Lane prior to the

shooting, identified Lane as the shooter while laying paralyzed at the scene, in a photo array

at the hospital hours after the shooting, and at trial.10 The other surviving victim, Hurst,

similarly identified Lane. Further, upon his arrest, Lane admitted to Detective Melton that

the money he (Lane) brought to the scene was his own. Thousands of dollars, along with a

Crown Royal bag, were also found in the back of the car.

        In light of this overwhelming evidence placing Lane at the scene to complete a drug

buy, the admission of additional evidence that, before the shooting, Derrington made calls to

a phone number associated with Lane did not affect the verdict. The error was harmless

beyond a reasonable doubt.

        Judgment affirmed.

BAKER, J., and VAIDIK, J., concur.




10
   Lane asserts that Derrington (as well as Hurst) had a profound motive to lie and that “the State presented
very little evidence that placed Lane at the scene.” Appellant’s Brief at 31. The record indicates that
Derrington openly admitted that he facilitated the drug deal, as he had in the past. He did not shy away from
implicating himself in criminal activity. Moreover, Lane does not explain why Derrington and Hurst would
have had a motive to wrongly identify the man who shot them and their friend/cousin.

                                                     17
