                                                               Jun 10 2015, 8:47 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Patricia Caress McMath                                    Gregory F. Zoeller
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jamar Minor,                                              June 10, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1409-CR-628
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Kurt Eisgruber, Judge

Appellee-Plaintiff                                        Case No. 49G01-1306-MR-41201




Crone, Judge.




Court of Appeals of Indiana | Opinion 49A02-1409-CR-628 | June 10, 2015                 Page 1 of 16
                                              Case Summary
[1]   Jamar Minor appeals his convictions for murder and class A felony attempted

      murder, following a jury trial.1 On appeal he asserts that the trial court abused

      its discretion in excluding certain hearsay evidence. Because the evidence does

      not conform to any exception to the hearsay rule, we find no abuse of

      discretion. Minor also contends that the trial court erred in instructing the jury

      regarding accomplice liability such that he may have been convicted of

      attempted murder absent the specific intent to kill. Although we find that the

      jury was indeed erroneously instructed, we conclude that the error did not

      impact the jury’s verdict and was therefore harmless. Finally, Minor argues

      that the trial court abused its discretion in refusing his tendered jury instruction

      on criminal recklessness as an inherently lesser included offense of attempted

      murder. Indiana case law is clear that criminal recklessness is not an inherently

      lesser included offense of attempted murder, and thus the trial court did not

      abuse its discretion in refusing the instruction. We affirm Minor’s convictions.


                                  Facts and Procedural History
[2]   The facts most favorable to the verdicts indicate that in the afternoon on June

      11, 2013, nineteen-year-old Bryisha Dickerson, twenty-two-year-old Taria Tate,

      Tia Tate, and Minor’s half-sister, Kabrea Slatter, were all hanging out together

      in Indianapolis. The Tate sisters received a call from their ten-year-old cousin,



      1
       Minor was also convicted of class A misdemeanor carrying a handgun without a license. He does not
      appeal that conviction.

      Court of Appeals of Indiana | Opinion 49A02-1409-CR-628 | June 10, 2015                     Page 2 of 16
      “Bam,” who told them that another boy in the neighborhood, eleven-year-old

      “Punney” Williams, had stolen his iPod. Tr. at 432. The group of females

      walked to Punney’s grandmother’s house on Guilford Avenue to see if they

      could help retrieve the iPod. Punney’s older brother, Leo Williams, his cousin

      Damien Williams, another cousin, Dazion Dulin, and another relative, Tron

      Harris, were all present at the house. The groups began to argue. The

      argument escalated into a physical altercation between the male and female

      members of each group, and eventually thirty-five to forty people gathered in

      the street. Damien was not involved and instead tried to break up the fight.

      Police came and the crowd dispersed. No arrests were made.


[3]   The group of girls went to the Tate sisters’ grandmother’s house on 24th Street.

      A blue SUV driven by Jordan Gray pulled up across the street. Minor was in

      the passenger seat. Minor’s half-sister, Slatter, had called Minor to come pick

      her up and informed him that she had been involved in a fight with some males.

      Minor and Gray parked the SUV in front of a white van and sat in the SUV

      between five and twenty minutes before driving off. The two men returned

      about five minutes later, parked in the same spot, and got out of the SUV to

      speak to the females. Minor and Gray then returned into the SUV but did not

      leave.


[4]   Approximately ten minutes later, Damien, Leo, Dulin, Harris, and a friend

      named Eric Taylor came walking up a nearby alley toward 24th Street. They

      had heard that someone might be planning to come “shoot up” the Williamses’

      grandmother’s house, so they wanted to talk to the girls to “make sure

      Court of Appeals of Indiana | Opinion 49A02-1409-CR-628 | June 10, 2015   Page 3 of 16
      everything’s squashed cause [they] all grew up together.” Id. at 115, 237.

      Since the fight was about “nothin important,” they just wanted to make sure

      that “everything was cool.” Id. at 511. Taylor noticed the blue SUV parked in

      the street but he could not see the individuals inside because they were “ducked

      down or something.” Id. at 223. Damien and his companions spoke to the

      females, and the females assured them that everything was fine.


[5]   As the five young men were leaving, they walked past the blue SUV. A voice

      that appeared to be coming from inside the SUV said something to the group.

      One of the females at the scene, Dickerson, immediately ran from the street

      onto the porch of a house because she felt a “bad vibe” and knew that

      something was about to happen. Id. at 117. The group of young men stopped

      walking and turned around so they were facing the SUV. Minor and Gray,

      both armed with weapons, jumped out of the SUV and started shooting at the

      group. Damien was hit immediately with multiple shots and fell into the street.

      The other young men ran from the gunfire. Taylor was hit in the leg as he was

      running away. Taylor fell, and Minor and Gray continued to fire at him.

      Taylor crawled toward the house of an acquaintance who eventually pulled him

      inside and called for an ambulance. Minor and Gray fled in the SUV.


[6]   Damien died as a result of two fatal gunshot wounds, one to his abdomen and

      one to his upper back. The two bullets recovered from his body were each fired

      by a different weapon. Taylor was hospitalized for three days. His leg was

      badly injured, and doctors placed a metal rod in his leg from his kneecap to his

      ankle. Investigators recovered sixteen spent shell casings at the crime scene

      Court of Appeals of Indiana | Opinion 49A02-1409-CR-628 | June 10, 2015   Page 4 of 16
      fired from two different nine-millimeter weapons. Police also found a .40

      caliber automatic pistol under the white van that was parked in the street.

      There was no physical evidence to indicate that the pistol had been fired.


[7]   The State charged Minor and Gray with murder, class A felony attempted

      murder, and class A misdemeanor carrying a handgun without a license.

      Minor and Gray were also each charged with a firearm sentence enhancement

      pursuant to Indiana Code Section 35-50-2-11.2 Minor and Gray were tried

      together as codefendants in a three-day jury trial. Minor testified at trial and

      claimed that Damien pointed a gun at him and that he shot at Damien and

      Taylor in self-defense. No other witnesses testified that they saw a gun on

      Damien. The jury found both Minor and Gray guilty of murder, attempted

      murder, and carrying a handgun without a license. Minor waived his right to a

      jury trial on the firearm sentence enhancement. Following a hearing, the trial

      court found Minor guilty of use of a firearm during the commission of the

      murder. The court sentenced Minor to an aggregate term of seventy years’

      imprisonment. Minor now appeals his convictions for murder and attempted

      murder. We will provide additional facts in our discussion as necessary.




      2
       This section provides in relevant part that the court may sentence a defendant to an additional fixed term of
      imprisonment between five and twenty years if the State has proven beyond a reasonable doubt that the
      defendant knowingly or intentionally used a firearm in the commission of certain felony offenses.

      Court of Appeals of Indiana | Opinion 49A02-1409-CR-628 | June 10, 2015                           Page 5 of 16
                                       Discussion and Decision

            Section 1 – The trial court did not abuse its discretion in
                      excluding certain hearsay evidence.
[8]    Minor first asserts that the trial court abused its discretion in excluding certain

       evidence that supported his self-defense claim. Specifically, Minor sought to

       admit an unsworn out-of-court statement made by Dulin to police the morning

       after the shooting that he knew that the murder victim, Damien, “had a gun on

       him” because Damien “said it.” Def. Ex. AA at 9. The trial court excluded the

       evidence as inadmissible hearsay. Minor concedes that the evidence was

       hearsay but maintains that it was admissible pursuant to two exceptions to the

       hearsay rule.


[9]    “A trial court has broad discretion to admit or exclude evidence, including

       purported hearsay.” Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014). We will

       disturb the trial court’s ruling only if it amounts to an abuse of discretion,

       “meaning the court’s decision is clearly against the logic and effect of the facts

       and circumstances or it is a misinterpretation of the law.” Id.


[10]   Hearsay is an out-of-court statement used to prove the truth of the matter

       asserted. Ind. Evidence Rule 801(c). Hearsay is inadmissible unless it falls

       under a hearsay exception. Teague v. State, 978 N.E.2d 1183, 1187 (Ind. Ct.

       App. 2012). “If a statement involves hearsay within hearsay, also known as

       multiple hearsay or double hearsay, the statement may still be admitted if ‘each

       layer of hearsay’ qualifies ‘under an exception to the hearsay rule[.]’” Id.


       Court of Appeals of Indiana | Opinion 49A02-1409-CR-628 | June 10, 2015    Page 6 of 16
       (quoting Palacios v. State, 926 N.E.2d 1026, 1030 (Ind. Ct. App. 2010)); see also

       Ind. Evidence Rule 805 (“Hearsay included within hearsay is not excluded

       under the hearsay rule if each part of the combined statements conforms within

       an exception to the hearsay rule provided in these rules.”). The evidence at

       issue here involves double hearsay because Dulin relayed to police a statement

       made by Damien. Thus, pursuant to Rule 805, Damien’s statement to Dulin

       and Dulin’s statement to police must both fall within a hearsay exception to be

       admissible. See Palacios, 926 N.E.2d at 1030.


[11]   As to the first layer of hearsay, Minor argues that Damien’s statement to Dulin

       constituted a present sense impression and was therefore admissible as an

       exception to the hearsay rule. A present sense impression is “[a] statement

       describing or explaining an event, condition or transaction, made while or

       immediately after the declarant perceived it.” Ind. Evidence Rule 803(1). In

       order for a statement to fall under the present sense impression exception, three

       requirements must be met: (1) it must describe or explain an event or condition;

       (2) during or immediately after its occurrence; and (3) it must be based upon the

       declarant’s perception of the event or condition. Amos v. State, 896 N.E.2d

       1163, 1168 (Ind. Ct. App. 2008), trans. denied (2009).


[12]   At a minimum, Damien’s statement to Dulin fails to satisfy the first two

       requirements. We agree with the State that Damien’s purported statement to

       Dulin neither described nor explained an event or condition. Indeed, due to the

       vagueness of Dulin’s account, we have no idea what Damien’s actual statement

       to Dulin was; we just know that “he said it” and that “it” was a reference to

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-628 | June 10, 2015   Page 7 of 16
       Damien having a gun. Def. Ex. AA at 9. Assuming for the sake of argument

       that Damien’s statement adequately described or explained the condition of

       having a gun, there is no indication as to when Damien purportedly made the

       statement to Dulin, so we have no idea whether Damien’s statement was made

       in any temporal proximity to the condition of having a gun and his statement

       describing or explaining that condition to Dulin. Under the circumstances,

       Williams’s purported statement to Dulin does not qualify as a present sense

       impression.


[13]   In the alternative, Minor maintains that Damien’s statement was admissible as

       a statement against interest because it “did tend to subject 19 year old Damien

       to criminal liability for carrying a handgun without a license.” Appellant’s Br.

       at 8. Indiana Evidence Rule 804(b)(3) provides an exception to the hearsay rule

       when the declarant is unavailable as a witness and the statement is:

               A statement that [] a reasonable person in the declarant’s position
               would have made only if the person believed it to be true because,
               when made, it was so contrary to the declarant’s propriety or
               pecuniary interest or had so great a tendency to invalidate the
               declarant’s claim against someone else or to expose the declarant to
               civil or criminal liability.
[14]   The requirement of reliability is embodied within this hearsay exception, as

       reliability is the ultimate justification of statements against interest. Bryant v.

       State, 794 N.E.2d 1135, 1142 (Ind. Ct. App. 2003), trans. denied. To qualify

       under this hearsay exception, the statement against interest must be

       incriminating on its face. Jervis v. State, 679 N.E.2d 875, 878 (Ind. 1997).



       Court of Appeals of Indiana | Opinion 49A02-1409-CR-628 | June 10, 2015        Page 8 of 16
[15]   As noted above, we are not aware what Damien’s actual statement was, and

       consequently, we can hardly say that it was incriminating on its face. Again,

       even assuming that Damien’s statement to Dulin was something along the lines

       of “I am carrying a gun on me,” we would still be without sufficient

       information to determine anything about the legality of him carrying that gun

       that would lend reliability to the statement. Moreover, we cannot say that

       Damien’s statement to his cousin claiming that he was carrying a gun is the

       type of statement that a reasonable person in his position would have made

       only if he believed it to be true; it is highly unlikely that Damien would have

       been concerned with potential criminal liability when he made that statement to

       his cousin. We agree with the trial court that Damien’s statement was not

       admissible as a statement against interest pursuant to Indiana Evidence Rule

       804(b)(3).


[16]   Because Minor has failed to establish that Damien’s statement to Dulin is an

       exception to the hearsay rule, we need not reach the admissibility of the second

       layer of hearsay, Dulin’s unsworn statement to police. The trial court did not

       abuse its discretion when it excluded the evidence.


              Section 2 – The trial court’s erroneous jury instruction
             regarding accomplice liability as it applied to attempted
                           murder was harmless error.
[17]   Minor next contends that the trial court abused its discretion in instructing the

       jury regarding accomplice liability as it applied to attempted murder. Although

       he acknowledges that the jury was properly instructed regarding attempted

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-628 | June 10, 2015   Page 9 of 16
       murder, including the specific intent to kill element, he claims that the

       accomplice liability instruction given here was erroneous because it failed to

       inform the jury that the State was required to prove that he acted with specific

       intent to kill when he knowingly aided, induced, or caused another person to

       attempt murder. See Hopkins v. State, 759 N.E.2d 633, 637 (Ind. 2001) (when

       attempted murder is premised on accomplice liability, jury is required to be

       instructed that State must prove beyond a reasonable doubt that defendant

       acted with specific intent to kill). We agree, and the State concedes, that the

       accomplice liability instruction given here was erroneous for the precise reason

       argued by Minor. We are left only to determine whether such error is

       reversible.


[18]   The State claims that Minor has waived this issue for appeal because, although

       he objected to the accomplice liability instruction when it was proposed by the

       State, he failed to tender an alternative instruction. Thus, the State argues that

       in order to obtain a reversal of his convictions, Minor must demonstrate that

       the erroneous instruction constituted fundamental error. See Knapp v. State, 9

       N.E.3d 1274, 1281 (Ind. 2014) (fundamental error is an extremely narrow

       exception to waiver rule requiring defendant to demonstrate error that made a

       fair trial impossible; it is a “daunting standard” that applies only in egregious

       circumstances), cert. denied 2015. Contrary to the State’s assertion, a defendant

       is not ordinarily required to tender alternative instructions to preserve a claim of

       error. Fry v. State, 748 N.E.2d 369, 373 (Ind. 2001). Instead, to preserve the

       error for appeal, the defendant must simply object to the proposed instruction,


       Court of Appeals of Indiana | Opinion 49A02-1409-CR-628 | June 10, 2015     Page 10 of 16
       and such objection must be “sufficiently clear and specific to inform the trial

       court of the claimed error and to prevent inadvertent error.” Id. (quoting Scisney

       v. State, 701 N.E.2d 847, 848 (Ind. 1998)).


[19]   Our review of the record reveals not only that Minor made a contemporaneous

       objection to the proposed accomplice liability instruction, but also that it was

       clear from his specific objection that Minor was claiming that the instruction

       failed to inform the jury that an accomplice must have the specific intent to kill

       when he or she knowingly or intentionally aids, induces, or causes another to

       attempt to commit murder. Minor’s objection was timely, articulate, on point,

       and sufficient to preserve his claim of error.


[20]   Having concluded that Minor properly preserved this issue for appeal, we turn

       to the merits. We afford trial courts broad discretion in the manner of

       instructing the jury, and we review such decisions only for an abuse of that

       discretion. Snell v. State, 866 N.E.2d 392, 395 (Ind. Ct. App. 2007).

       Instructional errors are considered harmless where a conviction is clearly

       sustained by the evidence, and the instruction would not likely have impacted

       the jury’s verdict. Randolph v. State, 802 N.E.2d 1008, 1013 (Ind. Ct. App.

       2004), trans. denied. Indeed, to obtain reversal on appeal based upon an

       erroneous jury instruction, a defendant must affirmatively demonstrate that the

       instructional error prejudiced his substantial rights. Schmid v. State, 804 N.E.2d

       174, 182 (Ind. Ct. App. 2004), trans. denied.




       Court of Appeals of Indiana | Opinion 49A02-1409-CR-628 | June 10, 2015   Page 11 of 16
[21]   Minor relies on our supreme court’s recent opinion in Rosales v. State, 23 N.E.3d

       8 (Ind. 2015), in which the court considered the question of whether an

       accomplice liability instruction was “fundamentally erroneous for not stating

       that an accomplice to attempted murder must have the specific intent to kill

       when he or she knowingly or intentionally aids, induces, or causes another to

       attempt murder, where it is unknown if the defendant was convicted of

       attempted murder on the basis of accomplice or direct liability.” Id. at 11. In

       Rosales, the jury was not instructed that specific intent to kill was required to

       properly convict Rosales under an accomplice liability theory, and, due to the

       general verdict form used by the jury, it was not possible to discern whether

       “the jury’s verdict may have rested exclusively on accomplice liability grounds

       (including a finding of Rosales’s ‘knowing or intentional’ mens rea), solely on

       direct liability grounds (including a finding of his ‘specific intent to kill’), or a

       combination thereof.” Id. at 15. Moreover, during closing arguments, the State

       “repeatedly told the jury that specific intent to kill was not required for

       accomplice liability.” Id. Because of the State’s repeated insistence that

       Rosales’s specific intent to kill did not matter, coupled with the inaccurate jury

       instruction on accomplice liability, our supreme court concluded that Rosales

       incurred actual prejudice; that is to say, a fair trial was impossible under the




       Court of Appeals of Indiana | Opinion 49A02-1409-CR-628 | June 10, 2015       Page 12 of 16
       circumstances and fundamental error occurred. Id. at 16.3


[22]   While we recognize that, unlike the defendant in Rosales, Minor need not meet

       the high burden of establishing fundamental error, he must still affirmatively

       demonstrate that the trial court’s instructional error prejudiced his substantial

       rights. See Schmid, 804 N.E.2d at 182. Based upon the evidence presented, we

       cannot say that Minor has established such prejudice.


[23]   Although the jury here was instructed regarding both direct and accomplice

       theories of liability, this is a unique case where the erroneous accomplice

       liability instruction was, in fact, “mere surplusage,” and accomplice liability

       was not truly offered as a “distinct basis” for the jury to convict Minor for

       attempted murder. Rosales, 23 N.E.2d at 15 (emphasis omitted). The evidence

       indicates that Minor, and his codefendant Gray, each fired multiple shots at a

       group of young men, seven shots coming from one of their guns and nine shots

       coming from the other. Taylor testified that both Minor and Gray were firing

       weapons at him when he was struck and fell to the ground. Unlike in Rosales,

       the State made clear in its closing arguments that the specific intent to kill was

       required for attempted murder and that both Minor and Gray were directly




       3
         It is noteworthy that the attempted murder victim in Rosales was struck from behind with a baseball bat, and
       therefore he did not see his attacker. Although the victim placed the defendant, a Hispanic man, at the scene,
       and another witness observed a Hispanic man holding a metal baseball bat, “considering that the getaway
       driver was also a Hispanic man, Rosales was not necessarily the Hispanic man [the witness] observed
       carrying the bat both before and after the attack….” Rosales, 23 N.E.3d at 16. Thus, while there was strong
       evidence that the defendant was the principal in the attack, accomplice liability was a relevant and viable
       theory for the jury to consider. As discussed more fully later, the same cannot be said regarding the current
       case.

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-628 | June 10, 2015                         Page 13 of 16
liable as principals in the commission of the attempted murder of Taylor.

Indeed, the State emphasized in its initial and rebuttal closing arguments that

both Minor and Gray were firing at Taylor and that both possessed the specific

intent to kill him. While accomplice liability was briefly mentioned by the

State during closing, it is clear from our review of the record that the State was

relying exclusively on the ample evidence of Minor’s liability as a principal and

his specific intent to kill Taylor.4 Similarly, defense counsel’s closing arguments

made clear to the jury that specific intent to kill was required for an attempted

murder conviction and that accomplice liability was not at issue. Under the

circumstances, Minor has failed to affirmatively demonstrate that the trial

court’s erroneous jury instruction prejudiced his substantial rights, as we can

safely say that no jurors voted to convict Minor of attempted murder under an

accomplice liability theory absent the specific intent to kill. Therefore, we

conclude that the instruction constituted harmless error.




4
  The evidence established that Damien, the murder victim, died of two fatal wounds, one wound inflicted
from each weapon. Taylor, the attempted murder victim, was struck by one bullet that remains in his leg that
could have come from either weapon. This appears to be the only reason that the jury was instructed on
accomplice liability and why it was briefly mentioned by the State during closing arguments. During closing
arguments the prosecutor stated,
         [Y]ou’ll get a jury instruction on what it means to be an accomplice. Now in this case
         basically what this means is if it is Jamar Minor’s bullet that is in Eric Taylor’s leg as
         opposed to Jordan Gray’s bullet that doesn’t mean he gets to say well, we don’t know
         whose bullet it was so I’m off the hook. Basically this is a long way to say you both did it.
Tr. at 730.

Court of Appeals of Indiana | Opinion 49A02-1409-CR-628 | June 10, 2015                            Page 14 of 16
            Section 3 – The trial court did not abuse its discretion in
             refusing Minor’s tendered jury instruction on criminal
                                   recklessness.
[24]   Finally, Minor argues that the trial court abused its discretion in refusing to give

       his tendered jury instruction on the offense of criminal recklessness as an

       inherently lesser-included offense of attempted murder.5 It is well established

       by our supreme court that criminal recklessness is not an inherently included

       offense of attempted murder. Ellis v. State, 736 N.E.2d 731, 734 (Ind. 2000).

       Minor acknowledges the state of Indiana law on this point and merely lodges

       his disagreement, opining that “criminal recklessness should be an inherently

       included lesser offense of attempted murder.” Appellant’s Reply Br. at 5

       (emphasis added). Be that as it may, “we are bound to follow the precedent of

       our supreme court.” Smith v. State, 777 N.E.2d 32, 38 n. 2 (Ind. Ct. App. 2002),

       trans. denied (2003). The trial court did not abuse its discretion in refusing the

       instruction.


[25]   In sum, the trial court did not abuse its discretion in excluding, as inadmissible

       hearsay, Damien’s purported statement to Dulin. Although we conclude that

       the trial court erroneously instructed the jury regarding accomplice liability as it

       applied to attempted murder, Minor has failed to demonstrate that he suffered

       prejudice as a result of the erroneous instruction. Therefore, the instructional

       error was harmless. Finally, the trial court did not abuse its discretion in



       5
        Minor concedes that criminal recklessness was not a factually lesser-included offense of attempted murder
       as charged by the State here.

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-628 | June 10, 2015                       Page 15 of 16
       refusing Minor’s proffered jury instruction on criminal recklessness. We affirm

       Minor’s convictions.


[26]   Affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1409-CR-628 | June 10, 2015   Page 16 of 16
