MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                     Feb 05 2015, 8:50 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jeffrey E. Kimmell                                        Gregory F. Zoeller
South Bend, Indiana                                       Attorney General of Indiana
                                                          Larry D. Allen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

James Stewart,                                           February 5, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         71A05-1406-CR-287
        v.                                               Appeal from the St. Joseph Superior
                                                         Court.
                                                         The Honorable Elizabeth C. Hurley,
State of Indiana,                                        Judge.
Appellee-Plaintiff                                       Cause No. 71D08-1303-MR-7




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1406-CR-287 | February 5, 2015   Page 1 of 9
[1]   James Stewart appeals his conviction for Murder,1 a felony, and the sentence

      imposed by the trial court for the conviction. Stewart argues that the trial court

      erroneously found a witness to be unavailable such that the witness’s out-of-

      court statements were admissible at trial and that the trial court erred by

      ordering his sentence in this cause to be served consecutively to a sentence

      being served in another cause. Finding no error, we affirm.


                                                     Facts
[2]   On September 17, 1999, Christopher Pierre was fatally shot in the head with a

      9mm-caliber pistol. Twelve days later, police officers stopped a vehicle in

      which Stewart was a passenger. Police found a loaded 9mm-caliber pistol in

      Stewart’s possession that was later determined to be the same firearm that was

      used to shoot Pierre.


[3]   On the night of the incident, Johnny Clark was sitting outside on his porch.

      Clark saw Pierre, Stewart, and an unknown man talking outside. Clark

      observed Pierre turn to walk to his car, when Stewart pulled out a firearm and

      shot Pierre.


[4]   On May 15, 2000, the State filed charges against Stewart related to this

      incident. The State later dismissed those charges without prejudice. On July 1,

      2000, the State filed charges of attempted murder and aggravated battery that




      1
          Ind. Code § 35-42-1-1.


      Court of Appeals of Indiana | Memorandum Decision 71A05-1406-CR-287 | February 5, 2015   Page 2 of 9
      stemmed from an unrelated incident. Stewart was convicted 2 of attempted

      murder and the aggravated battery charge was dismissed. On March 8, 2001,

      the trial court sentenced Stewart to twenty-five years imprisonment. His

      projected release date was August 18, 2014, and he was incarcerated in the

      Department of Correction on this cause when the State refiled charges related

      to the murder of Pierre.


[5]   On March 1, 2013, the State charged Stewart with the murder of Pierre. At

      some point during the pretrial phase of the cause, Clark was deposed and stated

      that he had witnessed Stewart shoot and kill Pierre. Later, Clark wrote several

      letters saying that he no longer wished to testify because he was afraid of

      Stewart and Stewart’s fellow gang members, who had been threatening Clark.


[6]   Stewart’s jury trial began on May 12, 2014. At trial, but outside the presence of

      the jury, the State called Clark to testify. The following exchange took place

      when Clark was called to the stand:

              State:            Mr. Clark, are you the person that has written the court
                                a couple different letters recently concerning your desire
                                not to testify?


              Clark:            Correct.




      2
       It is unclear from the record whether Stewart pleaded guilty or was found guilty by a factfinder. Supp. App.
      p. 174.

      Court of Appeals of Indiana | Memorandum Decision 71A05-1406-CR-287 | February 5, 2015            Page 3 of 9
        State:           Are you telling us today that you are not going to
                         testify?


        Clark:           Correct.


        State:           You[r] honor.


        Court:           Mr. Clark, you understand you have been issued a
                         subpoena by the court directing you to testify in this
                         matter?


        Clark:           Yes.


        Court:           Are you saying then to this court that despite that
                         subpoena you are still refusing to testify?


        Clark:           Yes ma’am.


        Court:           Do you understand you can be subject to being held in
                         contempt of court for refusing to obey a court’s order to
                         testify in this matter?


        Clark:           Yes.


        Court:           And you still refuse to do so?


        Clark:           Yes.


                                       [Short recess taken]


        Court:           I will ask you, Mr. Clark, if you’ve had a chance to
                         speak with your attorney . . . before making this
                         decision?


Court of Appeals of Indiana | Memorandum Decision 71A05-1406-CR-287 | February 5, 2015   Page 4 of 9
              Clark:           Yes.


              Court:           So am I correct in saying that you still refuse to testify
                               after both speaking with your attorney and after
                               receiving the court’s directive that you must testify in
                               response to the subpoena that was issued to you?


              Clark:           Yes.


              Court:           And you are still refusing to testify?


              Clark:           Yes.


[7]   Tr. p. 247-49. Ultimately, the trial court found that Clark was an unavailable

      witness and ordered that Clark’s deposition would be admitted as a prior sworn

      statement under oath and that police officers could testify about Clark’s

      statement to them under the exception to the Confrontation Clause for

      forfeiture by wrongdoing.


[8]   The jury found Stewart guilty as charged. On June 11, 2014, the trial court

      sentenced Stewart to sixty-five years imprisonment and ordered that the

      sentence be served consecutively to the sentence he was already serving for the

      attempted murder conviction in another unrelated case. Stewart now appeals.


                                   Discussion and Decision
                                 I. Out-of-Court Statements
[9]   Stewart first argues that the trial court erroneously concluded that Clark was an

      unavailable witness for the purpose of admitting his deposition and his

      Court of Appeals of Indiana | Memorandum Decision 71A05-1406-CR-287 | February 5, 2015   Page 5 of 9
       statements to police officers into evidence. Generally, rulings on the admission

       of evidence are reviewed for an abuse of discretion. Roberts v. State, 894 N.E.2d

       1018, 1022 (Ind. Ct. App. 2008). Whether a witness is unavailable for the

       purpose of the Confrontation Clause in the United States Constitution is a

       question of law subject to de novo review on appeal. McGaha v. State, 926

       N.E.2d 1050, 1056 (Ind. Ct. App. 2010).


[10]   The parties agree that Clark’s deposition as well as his statements to the officers

       constitute hearsay. They also agree that if Clark was unavailable as a witness,

       the evidence would fall under exceptions to the hearsay rule and the

       Confrontation Clause. Specifically, the deposition would be admissible as

       former testimony pursuant to Indiana Rule of Evidence 804(b)(1). The

       statements to the police officer would be admissible as statements offered

       against a party that wrongfully caused the declarant’s unavailability pursuant to

       Indiana Rule of Evidence 804(b)(5). See also Roberts, 894 N.E.2d at 1023-24

       (explaining the forfeiture by wrongdoing doctrine, noting that an exception to

       the constitutional right to confront witnesses occurs when the defendant

       procured the witness’s unavailability by conduct designed to prevent the

       witnesses by testifying).


[11]   The only issue in dispute on appeal, therefore, is whether the trial court

       properly concluded that Clark was unavailable as a witness. Indiana Rule of

       Evidence 804(a)(2) provides that a declarant is considered to be unavailable as a

       witness if the declarant “refuses to testify about the subject matter despite a

       court order to do so[.]” Stewart contends that because the trial court never

       Court of Appeals of Indiana | Memorandum Decision 71A05-1406-CR-287 | February 5, 2015   Page 6 of 9
       explicitly ordered Clark to testify while he was on the stand, that Clark cannot

       be considered unavailable.


[12]   We cannot agree with this hair-splitting analysis of the conversation between

       the trial court and Clark. Initially, the trial court sent a subpoena—a court

       order—to Clark that he be present in court and testify. Then, once in court, the

       trial court reminded Clark that he had been issued a subpoena, and Clark still

       refused to testify. The trial court cautioned Clark that he could be held in

       contempt for refusing to obey a court order, and Clark said he understood and

       still refused to testify. Finally, the trial court reminded Clark of “the court’s

       directive that you must testify in response to the subpoena that was issued to

       you[.]” Tr. p. 249. We find that the content of the conversation between the

       trial court and Clark suffices to establish that Clark was ordered to testify and

       refused to do so. Consequently, the trial court erred neither by finding that

       Clark was unavailable as a witness nor by admitting the deposition and

       statements to the officers into evidence.


                                              II. Sentencing
[13]   Finally, Stewart argues that the trial court erred by ordering that his sentence in

       this cause be served consecutively to a sentence he was serving in another,

       unrelated cause. The decision to impose consecutive sentences lies within the

       discretion of the trial court. Ind. Code § 35-50-1-2. We will affirm an order of

       consecutive sentences if it is supported by a statement of the trial court’s




       Court of Appeals of Indiana | Memorandum Decision 71A05-1406-CR-287 | February 5, 2015   Page 7 of 9
       reasoning and at least one aggravating circumstance. McBride v. State, 992

       N.E.2d 912, 919-20 (Ind. Ct. App. 2013), trans. denied.


[14]   Stewart points out that at the sentencing hearing, his attorney mistakenly

       informed the trial court that “if the court finds a firearm was used in the

       commission of this offense . . . it would be required that this [sentence] be

       served consecutively to any other case that Mr. Stewart is serving.” Sent. Tr. p.

       8. While it is true that this is a mistaken statement of the law in application to

       this case, there is simply no indication that the trial court relied on this

       statement in sentencing Stewart. Indeed, neither the trial court nor the parties

       mentioned it again, and the trial court’s careful sentencing statement made no

       reference to it whatsoever. We cannot find that a statement made by a party’s

       own attorney is a sufficient basis on which to overturn or remand a sentence,

       and we decline to do so.


[15]   In any event, a single aggravating circumstance is sufficient to justify

       consecutive sentences. Gleason v. State, 965 N.E.2d 702, 712 (Ind. Ct. App.

       2012). Here, the trial court found Stewart’s lengthy criminal history, the

       similarity of his past offenses, and his intimidation of Clark as a witness before

       trial as aggravating circumstances. Stewart does not argue that any of these

       were improper aggravators. Any one of the three would suffice to support an

       order of consecutive sentences. We find no error on this basis.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1406-CR-287 | February 5, 2015   Page 8 of 9
[16]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1406-CR-287 | February 5, 2015   Page 9 of 9
