Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                        FILED
court except for the purpose of establishing                  Apr 11 2012, 9:13 am
the defense of res judicata, collateral
estoppel, or the law of the case.                                    CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court




ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

MATTHEW ANGLEMEYER                                  GREGORY F. ZOELLER
Marion County Public Defender                       Attorney General of Indiana
Indianapolis, Indiana
                                                    MICHAEL GENE WORDEN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

MARCUS WASHINGTON,                                  )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A02-1105-CR-429
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Robert R. Altice, Judge
                            Cause No. 49G02-1007-MR-52616



                                          April 11, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Following a jury trial, Marcus Washington was convicted of murder,1 a felony, and

carrying a handgun without a license,2 a Class A misdemeanor. He appeals and raises three

issues that we restate as:

       I.        Whether the exclusion of certain defense evidence pursuant to the trial
                 court‟s order granting the State‟s pretrial motion in limine resulted in
                 fundamental error where Washington did not offer or seek to admit it
                 during trial;

       II.       Whether the trial court abused its discretion when it denied
                 Washington‟s request to adjourn the trial and assist Washington with
                 enforcing a subpoena for a defense witness who refused to appear for
                 trial, stated that he intended not to provide any testimony, and whose
                 whereabouts were not known; and

       III.      Whether the trial court abused its discretion when it excluded as
                 hearsay an absent witness‟s statement to police.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       On July 2, 2010, Regina Covington permitted Frederick Shaw (“Shaw”), a close friend

and ultimately the victim in this case, to use her rented Dodge Charger automobile. At

approximately 1:30 a.m. on July 3, Ajia Williams (“Williams”) called Shaw, who was her

boyfriend, and asked him to pick her up from her brother‟s house. About twenty minutes

later, Shaw arrived in the black Charger to pick up Williams. She rode in the front passenger

seat and two other male passengers, Kilo and P-Dog, rode in the back seat. After picking up

Williams, Shaw immediately drove to 4303 Guilford, in Indianapolis.



       1
           See Ind. Code § 35-42-1-1.
       2
           See Ind. Code § 35-47-2-1.

                                                2
       Shaw immediately parked the vehicle in the driveway and exited the car, leaving the

lights on and the engine running. Shaw began verbally arguing with a man, who was later

identified as Washington, outside the house. Kari Washington (“Kari”), who is not related to

the defendant, lived at the home, and she heard Washington and Shaw, both of whom she

knew, arguing. Kari exited her house and attempted to break up the argument between

Washington and Shaw, who were facing each other near her front porch. However, as she

approached, Shaw threw a punch at Washington and accidently hit Kari, who fell to the

ground. At that point, a gun was fired. Upon hearing the shot, Williams, still in the Charger,

observed Washington holding a gun and pointing it at Shaw. Williams ran up to Washington

and pulled his shirt, and he said, “Bitch, get off of me.” Tr. at 64, 94. Kari ran inside her

house. Shaw fled the scene, and Williams did not see where he went. At some point, Kilo

and P-Dog exited the Charger because, after the shot was fired, and people scattered,

Washington got into the Charger and drove away alone.

       Williams and others searched the area for Shaw but did not find him. Eventually,

Williams called the police. An officer responded to the anonymous “shots fired” call;

however, he did not search for a victim because he did not know that anyone was shot. Later,

around 6:00 a.m., police were called again to the scene after Shaw‟s cousins had located his

body across the street and behind or beside a house. Williams was at the scene and police

took a statement from her. The autopsy investigation revealed that Shaw died from a single

gunshot wound to the chest that was fired from a short distance away, three feet or more.

The police also recovered the Charger a couple of blocks away.


                                              3
       On July 4, 2010, Kari told Indianapolis Police Department Homicide Detective Bill

Rogers (“Detective Rogers”) that the name of the man that had been arguing with Shaw in

front of her home was Marcus Washington, and Kari identified Washington from a photo

array. Kari did not see anyone with a gun at the scene. The next day, July 5, 2010, Detective

Rogers showed that same photo array to Williams, who identified Washington as being the

shooter. Id. at 280. Kari and Williams did not know each other.

       The State charged Washington with murder, a felony, and carrying a handgun without

a license, a Class A misdemeanor. On the day of trial, the State filed a motion in limine.

Relevant to this appeal is paragraph eight, which sought to prohibit the defense from

presenting any evidence that, shortly after the shooting, members of Shaw‟s family had come

to Kari‟s home and threatened to kill her and everyone in the house. The trial court granted

paragraph eight over Washington‟s objection.

       On the afternoon of the second and final day of trial, Washington raised the matter of

a defense witness, Eddie Kinnel, who had refused to appear for trial, even after being

subpoenaed. Washington‟s counsel requested trial court assistance with bringing Kinnel to

court, but conceded that they did not know Kinnel‟s current location or his place of

employment. Counsel further shared that Kinnel had said if he was brought to court he

would say that he did not know anything. The trial court determined that there was no

realistic timely means of obtaining the witness at that point in trial and proceeded with the

trial. Later, during the testimony of Detective Rogers, Washington attempted to introduce

Kinnel‟s taped statement to police, but the State objected on hearsay grounds, which the trial


                                              4
court sustained. Id. at 302-05. The jury found Washington guilty as charged. He now

appeals.

                             DISCUSSION AND DECISION

                                I.      Evidence of Threats

       At the start of trial, the State filed a motion in limine seeking to exclude, among other

things, the following evidence from trial on the basis that it was not relevant and any

probative value was outweighed by unfair prejudice:

       [T]he defense attorney should be prohibited from asking about, and the
       defendant and his witness(es) should refrain from commenting upon the
       alleged threats that Kari Washington received from the victim‟s family after
       this incident occurred.

Appellant’s App. at 89; Tr. at 14-15. After receiving argument from counsel, the trial court

granted the State‟s motion in limine, over Washington‟s objection. However, the trial court

further stated that, at the appropriate time during trial, defense counsel could approach the

bench and a final ruling would be made at that time with regard to the admissibility of the

evidence. Tr. at 15.

       Rulings on motions in limine are not final decisions and, therefore, do not preserve

errors for appeal. Barnett v. State, 916 N.E.2d 280, 287 (Ind. Ct. App. 2009) (offer of proof

required to preserve error in exclusion of witness testimony), trans. denied (2010); Simmons

v. State, 760 N.E.2d 1154, 1158 (Ind. Ct. App. 2002). Although motions in limine serve to

protect against prejudicial evidence being placed before the jury, the ultimate determination

of the admissibility of the evidence is made by the trial court in the context of the trial.

Earlywine v. State, 847 N.E.2d 1011, 1013 (Ind. Ct. App. 2006). By requiring that an

                                               5
objection be made during the trial at the time when the testimony is offered into evidence, the

trial court is able to consider the evidence in the context in which it is being offered and is

able to make a final determination on admissibility. Id.

       In this case, Washington failed to request relief during trial from the trial court‟s prior

ruling on the motion in limine or otherwise seek to present any evidence concerning the

alleged threat(s). Appellant’s Br. at 8. Our Supreme Court has recognized that “[a]bsent

either a ruling admitting evidence accompanied by a timely objection or a ruling excluding

evidence accompanied by a proper offer of proof, there is no basis for a claim of error.”

Hollowell v. State, 753 N.E.2d 612, 615–16 (Ind. 2001). Candidly recognizing the absence

of an offer of proof, Washington urges that if we find he failed to preserve the issue, which

he characterizes as an improper exclusion of evidence, “it must be analyzed under the

doctrine of fundamental error.” Appellant’s Br. at 8. However, his argument is misguided.

First, contrary to his characterization, this issue is not one of improper exclusion of evidence;

the trial court only ruled on a pretrial motion in limine. Second, by its very nature, a trial

court‟s ruling on a motion in limine cannot constitute fundamental error. An order in limine

has no conclusive effect and cannot deny a defendant a fair trial. It is preliminary only. The

final determination on the admissibility of the evidence is made during the trial in response to

a party‟s motion for relief from the order in limine and evidentiary proffer. Earlywine, 847

N.E.2d at 1013. By failing to make such a motion or proffer at trial upon which the trial

court could rule, there simply is no trial court ruling before us to review. Washington‟s




                                                6
failure to preserve error cannot constitute fundamental error. Otherwise, a party could create

fundamental error by his own inaction.

                      II.    Defense Witness Who Failed to Appear

       On the second day of Washington‟s jury trial, nearing the conclusion of the State‟s

case in chief, counsel for Washington advised the trial court that a subpoenaed defense

witness, Kinnel, refused to appear for trial. Kinnel was expected to testify that, on the night

in question, he was staying at his girlfriend‟s home, which was adjacent to Kari‟s home, and

he had been awakened by the sound of the gun shot that night. At some point, he looked out

his window and saw a black Charger with a flat tire, with two passengers, backed into the

driveway of Kari‟s residence.

       Washington‟s counsel advised the trial court that he had taken action to bring Kinnel

to court, including hiring a private investigator to locate Kinnel and that the investigator had

been able to locate Kinnel only “just recently.” Tr. at 291. The first occasion that

Washington‟s counsel personally spoke to Kinnel by phone was during the current trial, and

in that conversation Kinnel told counsel that he was not coming to trial and further stated, “I

don‟t care if it‟s the State or the defense. If I come down there, I‟m just going to say „I know

nothing.‟” Id. at 292.

       Washington‟s counsel asked the trial court to enforce the subpoena that had been

issued to Kinnel. The trial court, frustrated that the matter was not brought to the court‟s

attention until midway through the second and final day of trial, nevertheless indicated its

willingness to issue a warrant for Kinnel, but noted that, realistically, trial would be over by


                                               7
the time the warrant reached the Civil Sheriff branch for service and Kinnel was found. Id.

at 291. Washington‟s counsel declined the offer to issue a warrant but asked the trial court to

issue a “writ of assistance,” where the “police department run out and pick him up.” Id. The

trial court initially indicated concern about whether it possessed the ability to do that, and

ultimately denied the request for police assistance, stating “Well, the bottom line is, we are

near the end of trial and you come to me now and tell me of your issues, which doesn‟t –

there‟s not a whole lot I can do.” Id. at 293. On appeal, Washington maintains that it was

error for the trial court not to continue the trial or help him bring his witness to court, and

consequently he was denied his Sixth Amendment right to compulsory process, including the

right to subpoena witnesses and the right to present them in defense.

       Washington concedes that he did not seek a continuance at trial when Kinnel failed to

appear. Appellant’s Br. at 11. Therefore, to avoid waiver, Washington must prove

fundamental error. Fundamental error occurs when the record reveals a clearly blatant

violation of basic and elementary principles, where the harm or potential for harm cannot be

denied, and which violation is so prejudicial to the rights of the defendant as to make a fair

trial impossible. Tolliver v. State, 922 N.E.2d 1272, 1281 (Ind. Ct. App. 2010), trans. denied.

       Every defendant has the fundamental right to present witnesses in his or her own

defense. Id at 1282. That right is not absolute, however, and both the State and the accused

must comply with established rules of procedure. Id. at 1283-84 (trial court did not err in

denying defense‟s motion for continuance during trial where subpoenaed witness who failed

to appear had clearly demonstrated his unwillingness to “come anywhere near police officers


                                              8
or the court system”). In deciding its course of action when faced with a witness that fails to

appear, a trial court must “evaluate and balance competing interests[.]” Rowe v. State, 444

N.E.2d 303, 306 (Ind. 1983) (no abuse of discretion occurred where trial court denied

defense‟s motion to continue trial in order to secure attendance of witness that failed to

appear).

       Here, defense counsel knew about Kinnel as a witness at least six months before trial.

However, Washington‟s counsel did not advise the court of the difficulty in reaching Kinnel

or obtaining his presence until the trial was nearing its end. Furthermore, Kinnel had

communicated his refusal to cooperate and intent to say he did not know anything, so it is

speculative that his testimony would have been credible or assisted Washington in any way.

As for whether the trial court could have or should have stopped trial and sent law

enforcement to locate Kinnel and bring him to court, Washington‟s counsel conceded that he

did not know where Kinnel worked, nor would Kinnel‟s wife disclose that information. Tr.

at 289. Lastly, if Kinnel were brought to court, he could only have provided testimony

concerning what he saw out the window after he was awakened by the gun shot; he could not

have testified as to who fired the shot that killed Shaw. On the other hand, Williams and

Kari each testified that she saw Washington and Shaw arguing face to face. After Kari fell to

the ground, she heard the gunshot, as did Williams who was still in the Charger. Williams

saw that Washington had a gun pointed at Shaw and testified that he was the only person she

saw with a gun.




                                              9
       Washington has not demonstrated that he was denied a fair trial because of the trial

court‟s decision not to stop trial in order to try to locate an uncooperative witness whose

whereabouts were not known and who had already expressed intent not to provide honest

testimony. The trial court did not commit fundamental error.

                     III.    Exclusion of Kinnel’s Statement to Police

       On direct examination, Detective Rogers testified about various aspects of his

investigation of the crime. During cross-examination of Detective Rogers, Washington‟s

counsel asked Detective Rogers whether, as part of his investigation, he had obtained a taped

statement from Kinnel. The State objected to the ensuing questions, which were headed

toward the substance of Kinnel‟s statement, on the basis of hearsay; the trial court agreed,

sustaining the objection and excluding the evidence. Washington argues on appeal that the

trial court erred when it excluded the evidence of Kinnel‟s taped statement to police.

       In general, the decision to admit or exclude evidence, including purported hearsay, is

within a trial court‟s sound discretion and is afforded great deference on appeal. Ballard v.

State, 877 N.E.2d 860, 861-62 (Ind. Ct. App. 2007). We will not reverse the trial court‟s

decision unless it represents an abuse of discretion that results in the denial of a fair trial. Id.

at 862. An abuse of discretion in this context occurs where the trial court‟s decision is

clearly against the logic and effect of the facts and circumstances before the court or it

misinterprets the law. Id.

       Hearsay is a statement, other than one made by the declarant while testifying at the

trial or hearing, offered to prove the truth of the matter asserted. Ind. Evidence Rule 801(c).


                                                10
Hearsay, generally, is inadmissible. Evid. R. 802. Statements not offered for their

truthfulness are not hearsay. Treadway v. State 924 N.E.2d 621, 635 (Ind. 2010).

          Here, Washington‟s counsel argued to the trial court that Kinnel‟s taped statements to

Detective Rogers were not being sought for the truth of the matters asserted, and therefore

were not hearsay. Tr. at 303-05. He argued that the statements were being offered to

demonstrate the manner in which Detective Rogers proceeded with his investigation, in

particular his investigation of Kilo and P-Dog. Id. The trial court received counsels‟

arguments at the bench and ultimately rejected Washington‟s claim that the statements were

not being offered for their truth, stating it was not going to allow Washington to “back door”

a defense into evidence. Id. at 305. Based on the record before us, we find no abuse of

discretion in the trial court‟s decision to exclude Kinnel‟s statements as “blatant hearsay.” Id.

at 304.

          Furthermore, even if it was an abuse of discretion to exclude Kinnel‟s statement to

police, we do not find that Washington‟s substantial rights were affected. See Barnett v.

State, 916 N.E.2d 280, 286 (Ind. Ct. App. 2009) (citing to Ind. Evid. Rule 103, error may not

be predicated upon ruling to admit or exclude evidence unless substantial right of party is

affected), trans. denied. If, as Washington claims, he wanted the statements in evidence not

for the truth of the matters asserted, but only to “show why Rogers proceeded with his

investigation into Kilo and P-Dog as he did, and possibly to impeach the thoroughness of

Rogers‟ investigation,” he has not demonstrated in what way the exclusion of that purported

impeachment evidence prejudiced him or substantially affected his rights. Appellant’s Br. at


                                                11
13. Again, the evidence presented was that Williams observed Washington and Shaw, facing

each other, arguing. Williams was looking down, but heard a gunshot, and when she looked

up, she saw Washington holding a gun. She testified that he was the only person at the scene

that she observed with a gun. She ran to Washington and, within feet of him, pulled his shirt.

He pointed the gun at her and told her to get away from him.             She later identified

Washington in a photo array. On a separate date, Kari, who did not know Williams, also

identified Washington from a photo array as the man who was arguing with Shaw in front of

her house that night. In light of this evidence, we do not find that Washington was

substantially prejudiced or denied a fair trial because the trial court excluded Kinnel‟s

statement to police, which, according to Washington, was only meant to impeach the

thoroughness of Detective Rogers‟s investigation.

       Affirmed.

BARNES, J., and BRADFORD, J., concur.




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