MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Feb 26 2020, 8:15 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
Matthew J. McGovern                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Patrick Duffy,                                     February 26, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-713
        v.                                               Appeal from the Floyd Circuit
                                                         Court
State of Indiana,                                        The Honorable J. Terrence Cody,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         22C01-1611-MR-2284



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-713 | February 26, 2020         Page 1 of 14
                                             Case Summary
[1]   James Duffy appeals his convictions and sentences for murder, a felony; armed

      robbery, a Level 3 felony; and auto theft, a Level 6 felony. We affirm.


                                                     Issues
[2]   Duffy raises three issues, which we consolidate and restate as:


              I.       Whether the trial court abused its discretion by excluding
                       the videotaped interview of a witness and whether the
                       exclusion denied Duffy his right to present a defense.

              II.      Whether Duffy’s sentence is inappropriate.


                                                     Facts
[3]   Sixty-eight-year-old Lewis Morrison worked at the American Legion post near

      his Floyds Knobs residence. Morrison often carried a black bag, which

      contained a large amount of cash, and Morrison also carried large amounts of

      cash in his wallet. Morrison was a friend of Stacie Chapman’s mother.

      Chapman needed a place to live, and in January 2016, Morrison allowed

      Chapman to move into the basement apartment of his residence.


[4]   In the early morning hours of November 5, 2016, Chapman and her friends,

      Duffy, Chelsea Wilson, and Brad Benningfield used methamphetamine in

      Chapman’s basement apartment. At approximately 5:00 a.m., Duffy, Wilson,

      and Benningfield left the residence, and Chapman went to a nearby

      McDonald’s to get breakfast. Morrison arrived at the American Legion at 5:38

      a.m. for work. Chapman returned to Morrison’s home to eat her breakfast and

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-713 | February 26, 2020   Page 2 of 14
      was at the residence when Morrison returned from the American Legion

      shortly after 7:00 a.m. As Chapman was getting ready, Duffy called her and

      asked what she was doing. Chapman told Duffy that she was getting ready to

      go to Madison to see her uncle. At approximately 8:00 a.m., Chapman left the

      residence, stopped to run errands, and drove toward Madison.


[5]   Duffy, Wilson, and Benningfield were driving around in Duffy’s green Chrysler

      Sebring vehicle “killing some time,” but they intended to “rob [Morrison’s]

      house.” Tr. Vol. VII p. 23. Duffy was aware that Morrison often carried

      significant amounts of cash. At approximately 8:15 a.m., Morrison’s neighbor

      saw a small green car with three occupants in the neighborhood. The neighbor

      saw a white male wearing a black hoodie and a black cap get out of the car and

      run toward Morrison’s residence. The neighbor then saw the other two

      occupants drive the car away from the neighborhood. According to Wilson,

      she and Benningfield dropped Duffy off at Morrison’s residence so that Duffy

      could rob Morrison. When Duffy got out of the vehicle, he had a 9-millimeter

      handgun. Duffy told Wilson “he’d meet back up with [her] after.” Id. at 26.


[6]   Duffy’s vehicle was recorded on a school’s security camera leaving the area at

      8:18 a.m. Wilson and Benningfield went to a nearby gas station in Duffy’s

      vehicle. At 8:43 a.m., Duffy texted Wilson for her to pick him up at Morrison’s

      home. At 8:44 a.m., Duffy then texted Chapman, “Can I come by.” Ex. Vol.

      11 p. 89. Chapman responded that she was on her way to Madison. Duffy

      then texted Wilson not to come back to Morrison’s home.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-713 | February 26, 2020   Page 3 of 14
[7]   At 12:30 p.m., a neighbor saw Morrison’s truck leave the subdivision with one

      occupant. Duffy, who was driving Morrison’s truck, met with Wilson at her

      friend’s house. Duffy told Wilson that he shot Morrison and said, “It was

      either him or me.” Tr. Vol. VII p. 27. Wilson then followed Duffy to

      Louisville, Kentucky, where he left Morrison’s truck in a parking lot. When he

      got into the vehicle with Wilson, Duffy was carrying a black drawstring bag and

      two handguns—the 9-millimeter handgun, which he had earlier, and a silver

      revolver.


[8]   When Chapman arrived home shortly before 1:00 p.m., the door to the

      basement was open, which was unusual. Chapman discovered Morrison

      upstairs on the floor and called 911. Officer Andrew Benson was dispatched to

      Morrison’s residence and made contact with Chapman. Officer Benson entered

      the open door to the basement and saw muddy footprints on the carpet leading

      to the stairs. Officers entered the residence and discovered Morrison’s dead

      body. Morrison was face down on the floor of the laundry room near the door

      to the garage. Morrison’s white truck was missing.


[9]   The basement had been “ransacked,” and muddy footprints led from the

      basement door to the stairwell leading upstairs. Tr. Vol. IV p. 11. The living

      room, which was located at the top of the stairwell, led into the kitchen and

      laundry room. The main level of the house had also been ransacked. A bullet

      hole was found in the wall near the top of the stairwell, and another bullet hole

      was found in a wall in the kitchen. Bullet holes and casings were found from

      the stairwell to the laundry room. In all, seven shots were fired.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-713 | February 26, 2020   Page 4 of 14
[10]   Morrison sustained four gunshot wounds—three gunshot wounds to the back

       and one to the back of the head. The gunshot to the head and one of the

       gunshots to the back would have been fatal. The gunshot to the head would

       have caused “death within a couple minutes,” and the fatal gunshot to the back

       would have resulted in Morrison “coughing up blood” but still being “able to

       move around somewhat.” Id. at 167.


[11]   Evidence found at the scene demonstrated that Morrison confronted the

       intruder in the stairwell, and the intruder shot at Morrison. Morrison tried to

       escape through the living room and kitchen but was shot and fell in the laundry

       room. As Morrison was on the floor of the laundry room, he was shot another

       three times and died in the laundry room.


[12]   Upon learning that a small green car was seen in Morrison’s neighborhood that

       morning, the detectives questioned Chapman regarding the vehicle. Chapman

       identified Duffy as the possible owner and driver of the green vehicle. Officers

       located Duffy’s vehicle at his parents’ residence and learned that there was a

       warrant for Duffy’s arrest. When they arrived at the residence, Duffy and

       Wilson were in a pole barn next to the house. Wilson was helping Duffy count

       the money from Morrison’s residence at that time. Both Duffy and Wilson ran,

       but Wilson was quickly apprehended. Duffy ran into a nearby wooded area,

       and officers stopped pursuing Duffy after they heard a gunshot. In the pole

       barn, officers found a black bag, a glove, ammunition for a .38-caliber handgun,

       a couple of knives, a 9-millimeter magazine, and $1,429 in cash. The black bag

       was identified as belonging to Morrison.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-713 | February 26, 2020   Page 5 of 14
[13]   Three or four hours later, a homeowner a few miles away called 911 to report

       that he found a sleeping man, later identified as Duffy, with two guns in his

       garage. The homeowner reported that he was holding the subject at gunpoint.

       Duffy was found in possession of a 9-millimeter Taurus handgun, a .38-caliber

       revolver, and $1,375.00 in cash. Morrison was the owner of the .38-caliber

       revolver. The 9-millimeter Taurus was later identified as the weapon used to

       shoot Morrison.


[14]   On November 7, 2016, the State charged Duffy with murder and armed

       robbery, a Level 3 felony. In a separate cause, the State charged Duffy with

       auto theft, a Level 6 felony. The State later moved to join the auto theft charge

       with the murder and armed robbery charges, which the trial court granted. The

       State also charged Wilson with murder and robbery. Wilson pleaded guilty to

       robbery, a Level 2 felony, and was sentenced to twenty years in the Department

       of Correction (“DOC”) with two years suspended.


[15]   At Duffy’s January 2019 jury trial, Duffy sought to introduce Defendant’s

       Exhibit DDD, which was a videotaped interview of Wilson eleven days after

       Morrison’s death in which Wilson implicates Duffy.1 The State objected to the

       admission of the exhibit, and the trial court sustained the objection.




       1
         Duffy also sought to introduce Defendant’s Exhibit CCC, which was a recording of Wilson’s conversation
       with a detective after Wilson was arrested, in which she denied any involvement or knowledge of the
       incident. The trial court also sustained the State’s objection to the admission of this exhibit. On appeal,
       Duffy does not raise an argument regarding this exhibit.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-713 | February 26, 2020                Page 6 of 14
[16]   The jury found Duffy guilty as charged. The trial court found four aggravators:

       (1) Duffy’s criminal history; (2) Morrison’s age; (3) Duffy was in violation of

       the conditions of his home detention when he committed these offenses; and (4)

       “the harm, injury, or loss, particularly the harm suffered by Mr. Morrison . . .

       was significant and was greater than the elements necessary to prove the

       commission of the crime of murder.” Tr. Vol. X p. 155. The trial court found

       no mitigating circumstances. The trial court sentenced Duffy to: sixty-five years

       for murder; sixteen years for armed robbery; and two and one-half years for

       auto theft. The trial court ordered that the sentences be served consecutively for

       an aggregate sentence of eighty-three and one-half years in the DOC. Duffy

       now appeals.


                                                    Analysis
                                          I. Exclusion of Evidence

[17]   Duffy argues that the trial court abused its discretion by excluding Wilson’s

       police interview. The trial court has broad discretion to rule on the

       admissibility of evidence. Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017). We

       review rulings on the admissibility of evidence for an abuse of discretion. Id.

       An abuse of discretion occurs “when admission is clearly against the logic and

       effect of the facts and circumstances.” Id. “Errors in the admission or

       exclusion of evidence are to be disregarded as harmless error unless they affect

       the substantial rights of the party.” Turben v. State, 726 N.E.2d 1245, 1247 (Ind.

       2000); Ind. Trial Rule 61.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-713 | February 26, 2020   Page 7 of 14
[18]   Relatedly, Duffy also argues that the exclusion of the statement violated his

       Sixth Amendment right to present a defense.


                  The Sixth Amendment right to present witnesses in one’s defense
                  applies to the states through the Due Process Clause of the
                  Fourteenth Amendment. Washington v. Texas, 388 U.S. 14, 19,
                  87 S. Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). “Just as an
                  accused has the right to confront the prosecution’s witnesses for
                  the purpose of challenging their testimony, he has the right to
                  present his own witnesses to establish a defense. This right is a
                  fundamental element of due process of law.” Id. at 19, 87 S. Ct.
                  at 1923.


       Stickrod v. State, 108 N.E.3d 385, 391 (Ind. Ct. App. 2018), trans. denied.

       “[B]efore a federal constitutional error can be held harmless, [however,] the

       court must be able to declare a belief that it was harmless beyond a reasonable

       doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967).


[19]   At trial, Duffy argued that Wilson’s statement to the police was admissible as

       substantive evidence under Indiana Evidence Rule 801(d). 2 On appeal, Duffy

       contends that the statement was admissible not to prove the truth of the matter,

       but rather “to challenge [Wilson’s] evolving narrative by showing her demeanor

       while articulating it.” Appellant’s Br. p. 20. Duffy argues that Wilson’s

       “credibility and demeanor while accusing Duffy of murder were essential for




       2
           Duffy specifically did not seek to impeach Wilson with the statement.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-713 | February 26, 2020   Page 8 of 14
       the jury to assess whether she was telling the truth about Duffy or was simply

       trying to please law enforcement to get a beneficial plea agreement.” Id. at 21.


[20]   We need not address whether the statement was admissible as substantive

       evidence, however, because any error in the exclusion of the statement was

       harmless beyond a reasonable doubt. During Wilson’s testimony, it was clear

       that Wilson was required to testify against Duffy as part of her plea agreement

       and that the murder charge against Wilson was dismissed as part of the plea

       agreement. The jury was well aware of Wilson’s changing stories, plea

       agreement, substance abuse issues, criminal history, and credibility issues. The

       prior statement, which was, for the most part, consistent with her testimony,

       would not have further impacted Wilson’s credibility.


[21]   Moreover, Duffy incorrectly argues that “this case came down to a credibility

       contest between [Wilson] and the defense” and that “[t]he primary and only

       direct evidence against Duffy was [Wilson’s] testimony.” Appellant’s Br. pp.

       22-23. Aside from Wilson’s testimony, there was significant evidence of

       Duffy’s involvement in the murder and robbery. Earlier that morning, Duffy

       was driving his green Chrysler Sebring. A neighbor saw a small green vehicle

       in front of Morrison’s residence on the morning of the robbery. The neighbor

       saw a man get out of the vehicle and run toward Morrison’s residence. That

       evening, when police attempted to arrest Duffy in his parents’ garage, Duffy

       and Wilson ran. Wilson was quickly apprehended, and Duffy was found a few

       hours later hiding in another garage. At Duffy’s parents’ garage, officers found

       a black bag, a glove, ammunition for a .38-caliber handgun, a couple of knives,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-713 | February 26, 2020   Page 9 of 14
       a 9-millimeter magazine, and $1,429 in cash. The black bag was identified as

       belonging to Morrison. In the garage where Duffy was hiding, officers found a

       9-millimeter Taurus handgun, a .38-caliber revolver, and $1,375.00 in cash.

       Morrison was the owner of the .38-caliber revolver, and the 9-millimeter Taurus

       was later identified as the weapon used to shoot Morrison.


[22]   Given that Wilson’s credibility was already substantially challenged by Duffy

       and the overwhelming evidence of Duffy’s guilt, any error in the exclusion of

       Wilson’s statement to the police as substantive evidence is harmless beyond a

       reasonable doubt. See, e.g., Hall v. State, 36 N.E.3d 459, 470 (Ind. 2015)

       (holding that the trial court’s ruling regarding a child molestation victim’s

       alleged prior false allegation of sexual misconduct was erroneous but that the

       error was harmless beyond a reasonable doubt where the victim immediately

       reported the molestation, the defendant’s semen was present on the victim’s

       shorts, and the victim had fresh genital lacerations).


                                         II. Inappropriate Sentence

[23]   Duffy contends that his sentence is inappropriate. Indiana Appellate Rule 7(B)

       provides that this court may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, we find that the sentence “is

       inappropriate in light of the nature of the offense and the character of the

       offender.” The defendant bears the burden to persuade this court that his or her

       sentence is inappropriate. Wilson v. State, 966 N.E.2d 1259, 1266 (Ind. Ct. App.

       2012) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-713 | February 26, 2020   Page 10 of 14
[24]   In Indiana, trial courts can tailor an appropriate sentence to the circumstances

       presented; the trial court’s judgment receives “considerable deference.” Sanders

       v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017) (quoting Cardwell v. State, 895

       N.E.2d 1219, 1222 (Ind. 2008)), trans. denied. In conducting our review, we do

       not look to see whether the defendant’s sentence is appropriate or “if another

       sentence might be more appropriate; rather, the question is whether the sentence

       imposed is inappropriate.” Id. at 844 (citing King v. State, 894 N.E.2d 265, 268

       (Ind. Ct. App. 2008)). When determining whether a sentence is inappropriate,

       the advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.


[25]   Here, Duffy was convicted of murder; armed robbery, a Level 3 felony; and

       auto theft, a Level 6 felony. The sentencing range for murder is forty-five to

       sixty-five years with an advisory sentence of fifty-five years. See Ind. Code § 35-

       50-2-3. The trial court sentenced Duffy to sixty-five years in the DOC for the

       murder conviction. The sentencing range for a Level 3 felony is six to twenty

       years with an advisory sentence of ten years. See I.C. § 35-50-2-5. The trial

       court sentenced Duffy to sixteen years for the robbery conviction. The

       sentencing range for a Level 6 felony is six months to three years with an

       advisory sentence of one and one-half years. See I.C. § 35-50-2-7. The trial

       court sentenced Duffy to two and one-half years for the auto theft conviction.

       The trial court then ordered the sentences to be served consecutively, for an

       aggregate sentence of eighty-three and one-half years in the DOC. Duffy

       requests that we revise his sentences to advisory, concurrent sentences.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-713 | February 26, 2020   Page 11 of 14
[26]   Regarding the nature of the offense, Duffy argues that the “murder was not

       drawn out and was not committed with a brutality not already inherent in the

       nature of any murder offense.” Appellant’s Br. p. 32. We disagree. Duffy

       entered sixty-eight-year-old Morrison’s home with the intent to rob Morrison.

       Duffy, who was friends with Morrison’s tenant, Chapman, used

       methamphetamine in the basement apartment with Chapman earlier that

       morning, and was aware that Morrison often carried significant amounts of

       cash. Upon entering the home, Duffy started firing gunshots at Morrison and

       chased Morrison through the residence, firing at Morrison as Morrison tried to

       get away.


[27]   The evidence at the scene demonstrated that, as Morrison was entering the

       laundry room, a bullet struck his back and exited through his chin, and he fell

       due to this “incapacitating shot.” Tr. Vol. VI p. 60. This wound would have

       resulted in Morrison “coughing up blood” but still being “able to move around

       somewhat.” Tr. Vol. IV p. 167. While Morrison was face down on the floor,

       Duffy “st[ood] over him” and shot Morrison another three times. Tr. Vol. VI p.

       60. One of those wounds was to the back of the head and would have caused

       “death within a couple minutes.” Tr. Vol. IV p. 167. Duffy then spent the next

       several hours ransacking Morrison’s residence. Duffy stole Morrison’s cash,

       gun, and vehicle. Later that day, when officers were attempting to take Duffy

       into custody, he ran and fired a gunshot. Duffy was found a few hours later

       sleeping under a pool table in another homeowner’s garage with two guns—




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-713 | February 26, 2020   Page 12 of 14
       including the gun used to kill Morrison—and part of Morrison’s cash. Duffy’s

       depraved, heartless actions do not warrant a revision of his sentence.


[28]   Regarding the character of the offender, Duffy argues none of his prior criminal

       offenses involve violence and he had a drug addiction. The record reveals that

       twenty-seven-year-old Duffy began abusing substances at the age of twelve,

       eventually abusing marijuana, Xanax, pain pills, methamphetamine, and

       heroin. He had convictions for possession of a controlled substance (twice),

       unlawful possession of a syringe (three times), invasion of privacy, resisting law

       enforcement, public intoxication, and possession of methamphetamine. He had

       pending charges for escape, a Level 6 felony; burglary, a Level 5 felony;

       criminal recklessness, a Level 6 felony; carrying a handgun without a license, a

       Class A misdemeanor; and carrying a handgun without a license, a Level 5

       felony. Duffy is a member of the Gaylords gang, and he was in violation of the

       conditions of his home detention when he committed these offenses. Although

       Duffy has had numerous opportunities to change his behavior, Duffy’s criminal

       conduct only escalated, leading to the instant offenses. Duffy’s criminal

       activities demonstrate a disdain for the rule of law and reflect poorly on his

       character.


[29]   Based on the foregoing, we cannot say that Duffy’s aggregate eighty-three and

       one-half year sentence is inappropriate in light of the nature of the offenses and

       the character of the offender.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-713 | February 26, 2020   Page 13 of 14
                                                 Conclusion
[30]   Any error in the exclusion of Wilson’s police interviews was harmless error.

       Duffy’s sentence is not inappropriate in light of the nature of the offenses and

       the character of the offender. We affirm.


[31]   Affirmed.


       Najam, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-713 | February 26, 2020   Page 14 of 14
