MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Aug 08 2017, 9:24 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
Ellen M. O’Connor                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Brent Lavon Thomas,                                      August 8, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1612-CR-2763
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Stanley Kroh,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G03-1511-MR-42385



Altice, Judge.


                                         Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2763 | August 8, 2017          Page 1 of 10
[1]   Following a jury trial, Brent Thomas was convicted of murder, a felony, and

      sentenced to sixty years imprisonment. On appeal, Thomas argues that the trial

      court abused its discretion in allowing evidence of a witness’s out-of-court

      identification of him as the shooter.


[2]   We affirm.


                                       Facts & Procedural History


[3]   John Clemons, known to many as “Uncle Johnny,” lived at the corner of 33rd

      Street and North Butler Avenue in Indianapolis. Clemons had known Ronald

      Munn for six to seven years and had worked on Munn’s cars. Clemons also

      knew Thomas and his brother, Bryant (a.k.a., “Tubby”), for six to seven years

      because their grandmother, known to many as “Granny,” lived in the cul-de-

      sac, three houses down from Clemons. Transcript Vol. 2 at 50.


[4]   Around 11:00 a.m. on November 25, 2016, Clemons went outside and saw

      Munn, who had parked his car in front of Granny’s house and was talking to

      Tubby and Lamar McNary. Munn yelled to Clemons that he needed to retrieve

      some phone numbers from the phone he had previously given to Clemons.

      Clemons walked over to Munn and gave him the cell phone. As Clemons

      returned to his home, Antonio Kinnebrew pulled up in his white Impala.


[5]   Clemons and Kinnebrew were standing beside Kinnebrew’s car when Munn

      pulled his car up beside the Impala. At that same time, Thomas and two other




      Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2763 | August 8, 2017   Page 2 of 10
      individuals, Tyre Sherman and Dominique,1 came out of a blue house located

      in the cul-de-sac.2 Of the three men, Thomas was the shortest. A verbal

      confrontation ensued, with “fighting words” being exchanged between Munn

      and Sherman. Id. at 56. Munn then backed up and got out of his car. Clemons

      and Kinnebrew watched as Sherman took off his white t-shirt and laid it on the

      ground and Munn removed his jacket. Sherman and Munn then started

      fighting in the middle of the street—throwing punches and kicking at each

      other. Munn eventually overpowered Sherman and “beat him up real bad”

      such that Sherman fell to the ground and could not get up. Id. at 60.

      Dominique, who was recording the fight with his cell phone, said something as

      he approached Munn, and Munn stopped the assault on Sherman. As Munn

      started to get up off of Sherman, Thomas, who was seen holding a gun

      sideways in his hand, fired shots at Munn. Munn looked at Clemons, who was

      still standing next to the white Impala and said, “Uncle Johnny, I’m hit.... Call

      911.” Id. at 62. Thomas then fired additional shots, hitting Munn again. In

      total, Munn suffered three gunshot wounds—one to his hip, one to his

      shoulder, and one to his chest that proved to be fatal.


[6]   As Munn stumbled toward his car, Thomas headed back toward the house from

      which he came and other bystanders ran for cover. Munn managed to get into

      his car and then drove north toward 34th Street. Kinnebrew got into his car and




      1
          Neither party provides a last name for Dominique.
      2
          Sherman lived in the blue house.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2763 | August 8, 2017   Page 3 of 10
      called 911. Shortly thereafter, Clemons also got into Kinnebrew’s car and they

      followed Munn, ultimately locating Munn’s car at a gas station at 34th Street

      and Emerson Avenue. Clemons found Munn curled up beside his car.

      Believing that Munn was dead, Clemons and Kinnebrew returned to Clemons’s

      home, where they encountered police responding to the 911 call reporting the

      shooting. Clemons told the police what had happened and identified Thomas

      as the shooter. Clemons later identified Thomas from a photo array.

      Kinnebrew likewise told police that “the shorter” of the individuals (i.e.,

      Thomas) was the shooter and later identified Thomas from a photo array.

      Transcript Vol. 3 at 14.


[7]   Kyle Ellis was a civil engineer employed by a company doing work for the

      Department of Public Works for the City of Indianapolis. On the day of the

      shooting, Ellis and his co-worker were driving on 33rd Street, surveying the

      streets for needed services. Ellis was driving a full-sized pick-up truck and came

      to a stop at the intersection of 33rd Street and North Butler Avenue. Ellis’s path

      was hindered by Munn’s car and the men in the area. Ellis saw Munn exit his

      vehicle and take off his jacket and Sherman take off his shirt and then watched

      as the two men engaged in a physical confrontation in the street. Ellis tried to

      turn the truck around and retreat from the situation, but was blocked from

      doing so by a fence. Ellis then turned the truck back toward the intersection

      and saw Munn knock Sherman to the ground. He then heard gunfire and saw a

      man holding a semi-automatic gun sideways, firing at Munn. Munn collapsed

      to the ground as Ellis drove away from the intersection. Ellis observed the


      Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2763 | August 8, 2017   Page 4 of 10
      shooter run from the intersection. Ellis called 911, but did not remember if he

      provided his name.


[8]   About a week after the shooting, Ellis and his co-worker came across a news

      article about the shooting that included a photograph of Thomas. Ellis’s “first

      thought” was that the picture “looked like . . . [t]he shooter.” Transcript Vol. 2

      at 129. Ellis contacted police and was interviewed on December 3, 2016.

      About six months after he had spoken with the police, Ellis was shown a photo

      array, but could not identify Thomas. Over Thomas’s objection, Ellis testified

      at trial about identifying Thomas through the picture contained in the news

      article. He also testified regarding the physical characteristics of the other

      individuals he saw in the area of the shooting, and described the shooter as “the

      shortest” one.3 Id. at 123.


[9]   On November 30, 2015, the State charged Thomas with murder. A jury trial

      commenced on September 29, 2016, but ended in a mistrial when the jury failed

      to reach a verdict. A second jury trial was held on October 24-25, 2016, at the

      conclusion of which the jury found Thomas guilty as charged. Thomas was

      subsequently sentenced to sixty years imprisonment. He now appeals.


                                             Discussion & Decision




      3
       Ellis described Sherman as “stocky,” Dominique as “fairly tall” and “wearing a white track type suit,” and
      Thomas as “the shorter . . . probably about six inches or more shorter than the tall black male.” Transcript at
      119, 121, 122.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2763 | August 8, 2017              Page 5 of 10
[10]   Thomas argues that the trial court abused its discretion in allowing the State to

       introduce evidence of Ellis’s out-of-court identification of him as the shooter.


[11]   A trial court’s decision regarding the admission of evidence is squarely within

       that court’s discretion, and we afford it great deference on appeal. VanPatten v.

       State, 986 N.E.2d 255, 260 (Ind. 2013). We will not reverse such a decision

       unless it is clearly contrary to the logic and effect of the facts and circumstances

       of the case or misinterprets the law. Id.


[12]   “The Due Process Clause of the United States Constitution and the Due Course

       of Law Clause of the Indiana Constitution prohibit state action which deprives

       a person of life, liberty, or property without the ‘process' or ‘course of law’ that

       is due, that is, a fair proceeding.”4 Gingerich v. State, 979 N.E.2d 694, 710 (Ind.

       Ct. App. 2012), trans. denied. The identification of a defendant must comport

       with the standards of due process. Lewis v. State, 898 N.E.2d 429, 432 (Ind. Ct.

       App. 2008), trans. denied. Thus, if an out-of-court identification was obtained by

       law enforcement in an impermissibly suggestive manner, then the testimony

       relating to it is inadmissible. Rasnick v. State, 2 N.E.3d 17, 23 (Ind. Ct. App.

       2013), trans. denied. If, “under the totality of the circumstances, the

       identification was reliable even though the procedure was suggestive,” such

       identification is admissible. Hubbell v. State, 754 N.E.2d 884, 892 (Ind. 2001).




       4
         Thomas does not present a separate and independent argument under the Indiana Constitution. We
       therefore confine our review to consideration of federal due process protections.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2763 | August 8, 2017      Page 6 of 10
[13]   Underlying the due process requirement is state action via the use of suggestive

       identification procedures by law-enforcement officials. “[I]n order to present a

       valid constitutional argument that a pretrial identification was impermissibly

       suggestive [because the witness had viewed defendant’s photograph in a news

       article prior to a pretrial lineup], one must first show that the law enforcement

       personnel or the prosecution were responsible for the circumstances giving rise

       to the claim.” Harris v. State, 619 N.E.2d 577, 581 (Ind. 1993). In other words,

       when an identification is attended only by private action such as publication of

       a photograph or other material by print or electronic media, the required

       element of state action is missing and due process concerns do not limit

       admission of the identifying testimony. Id.


[14]   Here, Ellis’s pre-trial identification resulted from his viewing of Thomas’s

       picture in a news article. Thomas even acknowledges that there was no state

       action as the police were not involved in Ellis’ pretrial identification. Due

       process protections are therefore not implicated. See id.


[15]   Notwithstanding the lack of state action, Thomas argues that the circumstances

       of Ellis’s pre-trial identification—that he identified Thomas upon viewing

       Thomas’s picture in a news article—were such that his pre-trial identification

       was unreliable and therefore inadmissible. Our Supreme Court has rejected this

       very argument. In Broadus v. State, 487 N.E.2d 1298, 1300-01 (Ind. 1986),

       witnesses to a robbery provided descriptions of the suspects immediately after

       the crime. After the witnesses viewed the pictures of the suspects in the

       newspaper, they changed their descriptions to conform more closely with the

       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2763 | August 8, 2017   Page 7 of 10
       characteristics of the suspects. The defendants challenged the admissibility of

       the in-court identification of them by the victims as being tainted by suggestive

       identification procedures. The Court held that “any suggestion implanted in

       the witness’ mind by seeing a suspect’s photograph in the newspaper should go

       to the weight, and not the admissibility, of the in-court identification.” See also

       Norris v. State, 265 Ind. 508, 512, 356 N.E.2d 204, 206 (1976) (holding the

       viewing by a witness of a newspaper article containing a photograph of the

       accused and identifying him as the suspect does not constitute an impermissibly

       suggestive identification procedure). Here, Thomas did not make an in-court

       identification of Thomas. Further, Thomas’s arguments as to why Ellis’s pre-

       trial identification of him is unreliable are matters that go to the weight to be

       afforded his testimony, not its admissibility. The trial court did not abuse its

       discretion in allowing the State to present Ellis’s identification testimony.


[16]   Even if the admission of such evidence was error, any error would be harmless.5

       An error in the admission of evidence is harmless “when the conviction is

       supported by such substantial independent evidence of guilt as to satisfy the

       reviewing court that there is no substantial likelihood that the questioned

       evidence contributed to the conviction.” Granger v. State, 946 N.E.2d 1209,

       1213 (Ind. Ct. App. 2011) (quoting Lafayette v. State, 917 N.E.2d 660, 666 (Ind.

       2009)). In other words, we will reverse “only if the record as a whole discloses




       5
         For the reasons stated herein, we need not delve into Thomas’s arguments that Ellis’s testimony was not
       relevant and unduly prejudicial. See Ind. Evidence Rules 401 and 403.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2763 | August 8, 2017           Page 8 of 10
       that the erroneously admitted evidence was likely to have had a prejudicial

       impact upon the mind of the average juror, thereby contributing to the verdict.”

       Id. (quoting Wales v. State, 768 N.E.2d 513, 521 (Ind. Ct. App. 2002), trans.

       denied). Further, any error in admitting evidence will be found harmless where

       evidence is merely cumulative. Kilpatrick v. State, 746 N.E.2d 52, 57 (Ind.

       2001).


[17]   Here, we first note that the State did not elicit from Ellis an in-court

       identification of Thomas as the shooter. Further, Ellis unequivocally testified

       before and during trial that his recognition of Thomas’s photograph as a

       photograph of the man he saw shoot Munn was occasioned by the publication

       of the photograph by a news outlet. At trial, Ellis testified only as to what he

       had personally witnessed on the day of the incident and his conclusion that the

       photograph published by the news source was a photograph of the person he

       had seen shooting at Munn that day. Thomas thoroughly cross-examined Ellis,

       challenging the reliability of his conclusion that Thomas was the shooter. The

       jury was also made aware that when Ellis was presented with a photo array by

       police approximately six months after the shooting, Ellis was unable to identify

       Thomas.


[18]   Moreover, we note that Ellis’s testimony was not the only evidence identifying

       Thomas as the shooter. Clemons, who had known Thomas for over six years,

       clearly and unequivocally testified that he “saw [Thomas] do the shooting” and

       also identified him from a photo array. Transcript Vol. 2 at 67. Kinnebrew also

       testified and confirmed that he identified Thomas as the shooter from a photo

       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2763 | August 8, 2017   Page 9 of 10
       array. Ellis’s identification testimony was merely cumulative of other properly

       admitted evidence to the same effect.


[19]   Judgment affirmed.


       Kirsch, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2763 | August 8, 2017   Page 10 of 10
