                                                                          FILED
                                                                      Feb 18 2019, 5:57 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                        Curtis T. Hill, Jr.
Anderson, Indiana                                          Attorney General of Indiana
                                                           J.T. Whitehead
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Deryan Oneil Cook,                                         February 18, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-348
        v.                                                 Appeal from the Vanderburgh
                                                           Superior Court
State of Indiana,                                          The Honorable Robert J. Pigman,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           82D03-1706-MR-3487



Pyle, Judge.




Court of Appeals of Indiana |Opinion 18A-CR-348 | February 18, 2019                           Page 1 of 11
                                        Statement of the Case
[1]   Deryan Cook (“Cook”) appeals his conviction by jury of murder. 1 He argues

      that the trial court abused its discretion in excluding evidence and that his sixty-

      five (65) year sentence is inappropriate in light of the nature of the offense and

      his character. Concluding that the trial court did not abuse its discretion and

      that Cook’s sentence is not inappropriate, we affirm the trial court’s judgment

      and sentence.


[2]   We affirm.


                                                      Issues
                 1.      Whether the trial court abused its discretion in excluding
                         evidence.


                 2.      Whether Cook’s sentence is inappropriate in light of
                         the nature of the offense and his character.


                                                       Facts
[3]   On June 4, 2017, Michael Turpin’s (“Turpin”) truck broke down. After

      unsuccessfully attempting to find someone to pick him up, he and Jamie Baker

      (“Baker”) decided to walk to a friend’s house on the other side of town. As

      they walked across a Walgreen’s parking lot at approximately 12:30 a.m. the

      following morning, Turpin noticed twenty-year-old Cook approach them from




      1
          IND. CODE § 35-42-1-1.


      Court of Appeals of Indiana |Opinion 18A-CR-348 | February 18, 2019             Page 2 of 11
      a nearby gas station. Cook gave Turpin a “fucked up look,” and Turpin told

      Baker to walk faster. (Tr. Vol. 2 at 89). As Turpin and Baker began to walk

      down a residential street, Turpin turned around and noticed that Cook was

      standing in front of the Walgreen’s and staring at them. Turpin told Baker to

      “pick up the pace.” (Tr. Vol. 2 at 89-90). A few minutes later, Turpin heard

      Cook’s footsteps behind them. Cook yelled at Turpin and Baker to “get on the

      fucking ground” and began shooting at them. (Tr. Vol. 2 at 94). Turpin turned

      around and got a clear view of Cook, whose face was illuminated by a street

      light. Turpin grabbed Baker and heard “like three more shots” and then a click.

      (Tr. Vol. 2 at 97). Cook took off running, and Turpin realized that Baker had

      been shot in the center of her back. Baker died before emergency personnel

      arrived at the scene.


[4]   Cook returned to his nearby apartment where several of his roommates were

      listening to a police scanner. Cook told roommate Alexander Southard

      (“Southard”) that he “had to do it” and that he had “shot four and saved five.”

      (Tr. Vol. 2 at 212, 213). Cook later told Southard that he had gone out to rob

      somebody and that he had seen Turpin and Baker walking down the street.

      According to Cook, Baker was carrying a purse and “if she wasn’t going to give

      it up [I] was going to shoot her and that’s what happened.” (Tr. Vol. 2 at 214).

      Cook further explained to Southard that he had told Turpin and Baker “to lay

      down or whatever and they took off running.” (Tr. Vol. 2 at 214). According

      to Cook, he had then shot them. Cook also told Southard that he had used a

      .40 caliber handgun.


      Court of Appeals of Indiana |Opinion 18A-CR-348 | February 18, 2019     Page 3 of 11
[5]   A few days later, Southard told the police what Cook had told him about

      Baker’s murder. Turpin then identified Cook in a photo array, and Cook was

      brought in for questioning by Detective Peter DeYoung (“Detective

      DeYoung”). Cook told Detective DeYoung that he had been with Jerome

      Height (“Height”) when Height had attempted to rob and had then shot Baker.

      Cook told the detective that he, Cook, had run back to his apartment after the

      shooting and cried. Cook also stated that he did not “mess around with guns.”

      (Tr. Vol. 3 at 62). Cook later admitted to the detective that he had had

      possession of the murder weapon a week before the murder and that he had

      given it to Height. Cook also admitted that he had stood at the Walgreen’s, had

      watched Turpin and Baker, and had then followed them. While Cook was

      following the couple, he had heard gunshots and had taken off running. Cook

      was sure that Height had fired the shots.


[6]   Cook was arrested and charged with murder and felony murder. The State also

      requested that Cook’s sentence be enhanced pursuant to INDIANA CODE § 35-

      50-2-11 because he had knowingly used a firearm in the commission of the

      crime.


[7]   At trial, Turpin identified Cook as the shooter. When defense counsel

      challenged Turpin’s identification and suggested that Cook happened to

      “magically [be] standing under that street light,” Turpin responded as follows:


               It’s not magically standing under that street light. That’s where
               he told us to stop and pointed a gun at me and shoot and I seen
               his face, I seen the smirk on his face. The same smirk he had at

      Court of Appeals of Indiana |Opinion 18A-CR-348 | February 18, 2019          Page 4 of 11
              the Walgreens doors and the same one I seen in that picture and I
              will never forget it. I dream about it every night.


      (Tr. Vol. 2 at 117).


[8]   In addition, forensic pathologist Dr. Christopher Kiefer (“Dr. Kiefer”) testified

      that Baker had died from the gunshot wound to her back. According to Dr.

      Kiefer, Baker’s pulmonary artery was injured “such that blood was not

      effectively being pumped to the lungs. It was spilling out into the chest so this

      [led] to both [exsanguination] within the body and the lack of heart to function

      because it [was] not moving fluid properly.” (Tr. Vol. 3 at 27). Indiana State

      Police Firearms Examiner Angela Kilmon further testified that the bullet that

      had killed Baker had been fired from a .40 caliber gun.


[9]   Detective DeYoung testified that he had followed up on his interview with

      Cook by questioning Height, who had denied shooting Baker. During cross-

      examination of Detective DeYoung, defense counsel requested a hearing

      outside the presence of the jury and asked the trial court to allow her to ask the

      detective “if he had received information from Karen Montgomery [(”Detective

      Montgomery”)] that Jerome Height [had] allegedly confessed to committing the

      shooting.” (Tr. Vol. 3 at 169). Defense counsel further explained as follows:


              My rational[e] for that is not to introduce it for the truth of the
              matter asserted but to show the steps that Detective DeYoung
              took in his investigation. I believed that at the time he received
              this information he did not do anything with it and I want to
              show the jury that at that point he had developed a bias or a
              belief that [Cook] was the shooter, that he took no steps to

      Court of Appeals of Indiana |Opinion 18A-CR-348 | February 18, 2019           Page 5 of 11
                  establish that there’s any other possibility. I also think it goes to
                  the quality and thoroughness of his investigation.


       (Tr. Vol. 3 at 169-70).


[10]   The State pointed out that the statement that Cook sought to admit was a jail

       house conversation in which Height had allegedly told Geonovan Bailey

       (“Bailey”) that he had shot Baker. Bailey had then allegedly told Detective

       Montgomery what Height had told him, and Detective Montgomery had

       allegedly told Detective DeYoung what Bailey had told her. According to the

       State, defense counsel wanted “to get three layers of hearsay in. She want[ed]

       to get that out there for the truth of the matter asserted. . . . She [was]

       attempting to go around – to do an end round- end run around the hearsay rule

       to gain exactly what is not permitted under the hearsay rule.” (Tr. Vol. 3 at

       172-73). The State further pointed out that defense counsel could have

       subpoenaed Bailey or requested a continuance to look for Height, who had a

       warrant out for his arrest. The trial court concluded that Cook’s proffered

       evidence was hearsay and excluded it.


[11]   The jury convicted Cook of murder and felony murder, and Cook admitted to

       the firearm enhancement.2 At the sentencing hearing, the State pointed out that

       the crime was an “outrageous senseless act of shooting someone in the back as

       they are trying to flee, trying to avoid this.” (Tr. Vol. 4 at 10). Cook’s Pre-




       2
           The trial court vacated Cook’s felony murder conviction.


       Court of Appeals of Indiana |Opinion 18A-CR-348 | February 18, 2019                Page 6 of 11
       Sentence Investigation Report revealed that although Cook had no prior felony

       convictions, he had a history of delinquent behavior as a juvenile and had been

       adjudicated to be a delinquent child for possession of marijuana, conversion,

       and failure to stop. He had also been unsuccessfully discharged from probation

       as a juvenile. In addition, Cook had been using marijuana daily since he was

       seventeen or eighteen years old, and at the time of his arrest, he had been

       smoking approximately three to six marijuana blunts per day.


[12]   Before imposing Cook’s sentence, the trial court found Cook’s youth and

       relative lack of a prior criminal history to be mitigating factors and the nature

       and circumstances of the crime as pointed out by the State to be an aggravating

       factor. The trial court sentenced Cook to fifty-five (55) years for murder and

       enhanced the sentence by ten (10) years because he had knowingly used a

       firearm in his commission of the offense, for a total sentence of sixty-five (65)

       years.


[13]   Cook now appeals his conviction and sentence.


                                                    Decision
       1. Exclusion of Evidence

[14]   We review the trial court’s decision to admit or exclude evidence for an abuse

       of discretion. Teague v. State, 978 N.E.2d 1183, 1187 (Ind. Ct. App. 2012). An

       abuse of discretion occurs if the trial court’s decision is clearly against the logic

       and effect of the facts and circumstances before the court, or if the court had

       misinterpreted the law. Id.

       Court of Appeals of Indiana |Opinion 18A-CR-348 | February 18, 2019         Page 7 of 11
[15]   Cook first argues that the trial court abused its discretion when it excluded

       evidence that: (1) Height had allegedly told Bailey that he had shot Baker; (2)

       Bailey had allegedly told Detective Montgomery what Height had told him;

       and (3) Detective Montgomery had allegedly told Detective DeYoung what

       Bailey had told her. Cook refers to this evidence as “Height’s Confession.”

       (Cook’s Reply Br. at 5). The State responds that the trial court properly

       excluded this evidence because it was inadmissible hearsay.


[16]   Hearsay is “a statement, other than one made by the declarant while testifying

       at the trial or hearing, offered in evidence to prove the truth of the matter

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

       within one of the exceptions to the rule against hearsay. Evid. R. 802.


[17]   Here, Cook contends that Height’s confession is not hearsay because it was not

       offered to prove the truth of the matter asserted. Rather, Cook argues that the

       confession was admissible to show the course of the investigation. Specifically,

       Cook contends that this evidence was admissible “to prove Detective

       DeYoung’s bias toward Cook and refusal to look for another suspect.” (Cook’s

       Br. at 18).


[18]   An out-of-court statement introduced to explain why a particular course of

       action was taken during a criminal investigation is not hearsay because it was

       not offered to prove the truth of the matter asserted. Goodson v. State, 747

       N.E.2d 1181, 1185 (Ind. Ct. App. 2001), trans. denied. Even so, we require a

       reasonable level of assurance that such testimony was neither offered by the


       Court of Appeals of Indiana |Opinion 18A-CR-348 | February 18, 2019        Page 8 of 11
       proponent nor received by the trier of fact as evidence of the truth of the third

       party’s statement. Id.


[19]   At the outset, we note that Detective DeYoung interviewed Height after

       interviewing Cook, thus refuting Cook’s contention that the detective refused to

       look for another suspect and was biased against Cook. The out-of-court

       statements allegedly made by Height, Bailey, and Detective Montgomery have

       little or no bearing on Detective DeYoung’s particular course of action during

       the investigation and are therefore hearsay.


[20]   In addition, because the out-of-court statements involve hearsay within hearsay,

       which is also known as multiple or double hearsay, the statements are not

       admissible unless each layer of hearsay qualifies under an exception to the

       hearsay rule. See Teague, 978 N.E.2d at 1187; see also Evid. R. 805 (stating that

       “Hearsay included within hearsay is not excluded under the hearsay rule if each

       part of the combined statements conforms with an exception to the hearsay rule

       provided in these rules.”). Here, Cook has failed to set forth how each layer of

       the out-of-court statements allegedly made by Height, Bailey, and Detective

       Montgomery qualifies as an exception to the hearsay rule. The trial court did

       not abuse its discretion by excluding this evidence. 3




       3
         Cook also argues that the trial court violated his right to present a defense when it excluded Height’s
       confession. However, Cook has waived this issue. Our review of the trial transcript reveals that Cook did
       not raise this issue at trial. A trial court cannot be found to have erred as to an issue that it never had the
       opportunity to consider. Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004). Accordingly, a party that
       raises an issue for the first time on appeal has waived that issue. Id. Waiver notwithstanding, we find no
       error. The facts of Hyser v. State, 996 N.E.2d 443 (Ind. Ct. App. 2013) and Allen v. State, 813 N.E.2d 349 (Ind.

       Court of Appeals of Indiana |Opinion 18A-CR-348 | February 18, 2019                                Page 9 of 11
[21]   2. Inappropriate Sentence


[22]   Cook also argues that his sixty-five (65) year sentence was inappropriate in light

       of the nature of the offense and his character. Indiana Appellate Rule 7(B)

       provides that we 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 of persuading this Court that his

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       Whether we regard a sentence as inappropriate turns on the “culpability of the

       defendant, the severity of the crime, the damage done to others, and myriad

       other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d

       1219, 1224 (Ind. 2008).


[23]   When determining whether a sentence is inappropriate, we acknowledge that

       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.

       Here, Cook was convicted of murder. The sentencing range for murder is from

       forty-five (45) to sixty-five (65) years, with an advisory sentence of fifty-five (55)

       years. I.C. § 35-50-2-3. The trial court sentenced Cook to fifty-five (55) years

       for murder, which is the advisory sentence. Cook also admitted that he had

       used a firearm in the commission of the offense. The sentencing range for this




       Ct. App. 2004), trans. denied, the cases to which Cook directs us, are distinguishable from the facts of this case
       because the defendants in those cases were not attempting to admit hearsay evidence.

       Court of Appeals of Indiana |Opinion 18A-CR-348 | February 18, 2019                                 Page 10 of 11
       sentencing enhancement is from five (5) to twenty (20) years. I.C. § 35-50-2-11.

       The trial court enhanced Cook’s fifty-five (55) year advisory sentence by ten

       (10) years, for a total sentence of sixty-five (65) years.


[24]   With regard to the nature of the offense, Cook, who had never met Baker, shot

       the woman in the back as she walked away and attempted to avoid any conflict

       with him. With regard to his character, Cook had delinquency adjudications

       and an unsuccessful discharge from probation as a juvenile. He had also used

       marijuana daily for three to four years and, at the time of his arrest, had smoked

       three to six blunts per day.


[25]   Based on the nature of the offense and his character, Cook has failed to

       persuade this Court that his sixty-five (65) year sentence, which includes a fifty-

       five (55) year advisory sentence for murder as well as a ten (10) year

       enhancement because he used a firearm in the commission of the offense, is

       inappropriate.


[26]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana |Opinion 18A-CR-348 | February 18, 2019      Page 11 of 11
