                                                                   Apr 29 2015, 9:49 am
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ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Noah T. Williams                                           Gregory F. Zoeller
Monroe County Public Defender                              Attorney General of Indiana

Stuart K. Baggerly                                         Jodi Kathryn Stein
Monroe County Public Defender                              Deputy Attorney General
Bloomington, Indiana                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Andre C.T. Wells,                                          April 29, 2015

Appellant-Defendant,                                       Court of Appeals Cause No.
                                                           53A04-1402-CR-61
        v.                                                 Appeal from the Monroe Circuit
                                                           Court; The Honorable Teresa D.
                                                           Harper, Judge;
State of Indiana,                                          53C09-1209-MR-857
Appellee-Plaintiff.




May, Judge.




Court of Appeals of Indiana | Opinion 53A04-1402-CR-61 | April 29, 2015                   Page 1 of 13
[1]   Andre C.T. Wells appeals his conviction of murder. He raises three issues for

      our review:


      1.       Whether the trial court abused its discretion when it admitted recordings

      of Wells’ statements to Brian Thompson;


      2.       Whether the trial court abused its discretion when it admitted evidence

      regarding Wells’ alleged plot to kill Brian Thompson; and


      3.       Whether the trial court abused its discretion when it admitted testimony

      concerning cell phone towers and the potential locations of cell phones relevant

      to the crime.


[2]   We affirm.


                                    Facts and Procedural History1
[3]   In October, 2010, Wells lived with his mother, Melissa, his brother, A., and his

      stepfather, Robin Sowders. Melissa worked at a resort in Bloomington. On

      October 23, Melissa left to go to work and noted Robin was intoxicated. She

      called Wells and asked him to spend time with Robin, but not to bring Robin to

      her place of employment.


[4]   After Wells and Robin drank wine and smoked marijuana, Wells, Robin, and

      Wells’ girlfriend Tristiny, went to Melissa’s place of employment. Robin and



      1
        We held oral argument on this matter on April 1, 2015, at the University of Southern Indiana. We thank
      the students, faculty, and staff of the University for their hospitality and counsel for their excellent advocacy.

      Court of Appeals of Indiana | Opinion 53A04-1402-CR-61 | April 29, 2015                               Page 2 of 13
      Melissa argued, and Wells took Robin home. Wells then went with Tristiny to

      his father’s house.


[5]   After he arrived home, Robin texted and called Melissa multiple times. At one

      point, Robin told Melissa he was going to kill A., who was at the house with

      Robin. Melissa then went home and retrieved A., and the two spent the night

      in a hotel. Melissa called Wells and told him to “handle the situation.” (Tr. at

      553.) Wells went to Robin’s house, wrapped his own hands in duct tape, and

      beat Robin and stomped on him.


[6]   The next morning a friend discovered Robin, who was still alive, in the house.

      The friend called the police. At the same time the police surveyed the scene,

      Melissa and A. arrived at the police station to file a protective order against

      Robin. Robin was transported to Methodist Hospital and died a short time

      later. The police interviewed Wells, who denied involvement in the crime.


[7]   A few days later, Wells told his friend, Brian Thompson, that he had killed

      Robin. A few days after that conversation, Thompson went home with Wells,

      so Wells could retrieve money and clothes to leave for Florida. Wells also took

      some tools, a red metal toolbox, and a clarinet from the residence, and he sold

      those items to Jeremy Kopp. Wells told Kopp he was moving to Florida

      because “he’d been in an altercation . . . [and] the guy was in the hospital.” (Id.

      at 611.) Wells ultimately did not leave for Florida because Melissa told him it

      would make him look guilty.




      Court of Appeals of Indiana | Opinion 53A04-1402-CR-61 | April 29, 2015   Page 3 of 13
[8]    By early 2011, police began to focus on Wells as a suspect in Robin’s murder

       based on cell phone records and Wells’ Facebook post which read, “I’m still

       free.” (Id. at 440.) Around the same time, police stopped Thompson for

       driving with a suspended license. In order to escape prosecution, Thompson

       told police Wells told him Wells killed Robin, and Thompson offered to wear a

       wire to record Wells’ confession. In September and October 2011, Thompson

       recorded three conversations during which Wells made inculpatory statements.


[9]    In January 2012, Thompson told Kopp that the tools and clarinet Kopp bought

       from Wells came from Robin’s house. Kopp then went to the police and told

       them about his transaction with Wells. The police arrested Wells for murder in

       September 2012.


[10]   Later in the fall of 2012, Wells was incarcerated with Jamaal Jefferson. Wells

       told Jefferson he killed Robin. He told Jefferson the only reason he had been

       charged with murder is because Thompson wore a wire and recorded his

       statements. Wells asked Jefferson if Jefferson could have a man killed, and

       Jefferson indicated he could. Wells then gave Jefferson Tristiny’s phone

       number and said to contact Wells through her. On his release from

       incarceration, Jefferson told police about Wells’ statements.


[11]   Prior to trial, Wells filed a motion to suppress the recordings of his

       conversations with Thompson, which was denied. He contemporaneously

       objected to their admission during trial. Wells also objected during trial to




       Court of Appeals of Indiana | Opinion 53A04-1402-CR-61 | April 29, 2015   Page 4 of 13
       Jefferson’s testimony and to the testimony regarding the location of different

       cell phones relevant to the case. The jury found Wells guilty of murder.


                                       Discussion and Decision
[12]   We typically review allegations of error in the admission of evidence for an

       abuse of discretion, which occurs only when the trial court’s ruling is “clearly

       against the logic, facts, and circumstances presented.” Kindred v. State, 973

       N.E.2d 1245, 1252 (Ind. Ct. App. 2012), trans. denied. We consider only the

       evidence in favor of the trial court’s ruling, Sallee v. State, 777 N.E.2d 1204,

       1210 (Ind. Ct. App. 2002), trans. denied, and we will not reverse the decision to

       admit or exclude evidence if that decision is sustainable on any ground.

       Crawford v. State, 770 N.E.2d 775, 780 (Ind. 2002).


                                                 1.       Recordings

[13]   During Wells’ trial, the State introduced into evidence recordings of Thompson

       and Wells discussing the details of Robin’s murder. Wells filed a pre-trial

       motion to suppress the recordings, which was denied, and he

       contemporaneously objected at trial. The trial court ruled the recordings were

       admissible under Ind. Evidence Rule 403. On appeal, Wells attacks the trial

       court’s decisions with four different arguments, which were also presented

       before the trial court and are discussed below.


       A.      Fifth Amendment, Section 1, Article 14, and Miranda Warning

               Under the Fifth Amendment to the United States Constitution and
               Article 1, Section 14 of the Indiana Constitution, persons shall be free

       Court of Appeals of Indiana | Opinion 53A04-1402-CR-61 | April 29, 2015            Page 5 of 13
               from being compelled to make disclosures which might subject them to
               criminal prosecution or aid in their conviction. Hastings v. State, 560
               N.E.2d 664, 667 (Ind. Ct. App. 1990), trans. denied. In protection of
               the right against self-incrimination, the United States Supreme Court’s
               opinion in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16
               L.Ed.2d 694 (1966) established that “the prosecution may not use
               statements, whether exculpatory or inculpatory, stemming from
               custodial interrogation of the defendant unless it demonstrates the use
               of procedural safeguards effective to secure the privilege against self-
               incrimination.” Such procedural safeguards include an advisement to
               the accused that he has the right to remain silent, that anything he says
               can be used against him, that he has the right to an attorney, and that
               if he cannot afford an attorney one will be appointed for him. Id. at
               479. Miranda warnings are only required, however, where a suspect is
               both in custody and subjected to interrogation. Rhode Island v. Innis,
               446 U.S. 291, 300, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).
       P.M. v. State, 861 N.E.2d 710, 713 (Ind. Ct. App. 2007).


[14]   Miranda warnings are meant to preserve the Fifth Amendment rights of a

       person during “incommunicado interrogation of individuals in a police-

       dominated atmosphere.” Miranda v. Arizona, 384 U.S. 436, 445 (1966). The

       “police dominated atmosphere” has been found to generate “inherently

       compelling pressures which work to undermine the individual’s will to resist

       and to compel him to speak where he would not otherwise do so freely.” Id. at

       467. The requirement to administer a Miranda warning attaches only when

       “there has been such a restriction on a person’s freedom as to render him ‘in

       custody.’” Stansbury v. California, 511 U.S. 318, 322 (1994).


[15]   In analyzing whether a person was “in custody,” we must “examine all of the

       circumstances surrounding the interrogation,” but ultimately we must

       determine whether there was a “‘formal arrest or restraint on freedom of

       Court of Appeals of Indiana | Opinion 53A04-1402-CR-61 | April 29, 2015        Page 6 of 13
       movement’ of the degree associated with a formal arrest.” Id. (quoting Oregon v.

       Mathiason, 429 U.S. 492, 495 (1977)). Interrogation under Miranda refers not

       only to express questioning but “also to any words or actions on the part of the

       police (other than those normally attendant to arrest and custody) that the

       police should know are reasonably likely to elicit an incriminating response

       from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). “Coercion is

       determined from the perspective of the suspect.” Illinois v. Perkins, 496 U.S.

       292, 296 (1990).


[16]   Wells argues his recorded conversations with Thompson violated his Fifth

       Amendment and Section 1, Article 142 rights against self-incrimination because

       Thompson was an agent of the police and, thus, Wells should have been given a

       Miranda warning before speaking with Thompson. Wells contends, because he

       was on house arrest at the time of his conversations with Thompson, he

       “should be deemed to have been in custody” because his “movements were

       monitored by agents of the State, he was forbidden from leaving his home

       without authorization, and he was under the threat of incarceration for

       violation of the rules of home detention.” (Br. of Appellant at 13.) Therefore,




       2
         Wells mentions the admission of the wiretap recordings violates his rights under Article 1, Section 14 of the
       Indiana Constitution, however, he makes no argument to that effect. Thus he has waived any such
       argument. See Indiana Appellate Rule 46(A)(8)(a) (appellate argument must be a cogent argument supported
       by citations to authority [and] statutes); and see West v. State, 755 N.E.2d 173, 181 (Ind. 2001) (failure to make
       a cogent argument waives issue from appellate court’s consideration).

       Court of Appeals of Indiana | Opinion 53A04-1402-CR-61 | April 29, 2015                              Page 7 of 13
       Wells asserts, the trial court abused its discretion when it admitted the

       recordings.


[17]   In its response, the State cites Perkins, in which the United States Supreme

       Court rejected “the argument that Miranda warnings are required whenever a

       suspect is in custody in a technical sense and converses with someone who

       happens to be a government agent.” 496 U.S. at 297. The Perkins Court further

       held, “placing an undercover agent near a suspect in order to gather

       incriminating information” does not violate the Fifth Amendment. Id. at 298.


[18]   The State analogizes the facts in the instant case to those in State v. Ashley, 661

       N.E.2d 1208 (Ind. Ct. App. 1995). In Ashley, a confidential informant, Bell,

       visited Ashley while Ashley was in jail. Bell recorded a conversation during

       which Ashley “told Bell that there was a white bucket near a freezer in the

       basement with old rugs on it which needed to ‘disappear.’” Id. at 1210. In that

       bucket, Bell found the contents of a safe, which resulted in Ashley being

       charged with Class D felony receipt of a stolen safe.


[19]   Ashley argued admission of the statements to Bell violated his Fifth

       Amendment rights. We held Ashley’s Fifth Amendment rights were not

       violated based on the holding in Perkins and added, “Ashley voluntarily

       appealed to Bell to help remove the incriminating evidence. We find that Bell’s

       visit to the jail was a ‘mere strategic deception’ in which Ashley put his

       misplaced trust into one he believed to be a friend.” Id. at 1212. We agree with

       the State that Ashley and Perkins control the outcome in the instant case, as the


       Court of Appeals of Indiana | Opinion 53A04-1402-CR-61 | April 29, 2015      Page 8 of 13
       “situation in which Thompson visited [Wells] at his apartment was not a police-

       dominated atmosphere, nor did Thompson in any way coerce [Wells] into

       giving the statement.” (Br. of Appellee at 17.) 3


                                     B.       Indiana Evidence Rule 403


[20]   Evid. R. 403 provides “[a]lthough relevant, evidence may be excluded if its

       probative value is substantially outweighed by the danger of unfair prejudice,

       confusion of the issues, or misleading the jury.” Wells argues the trial court

       abused its discretion when it admitted the recordings of his conversations with

       Thompson because “the probative value of the recordings was substantially

       outweighed by the danger of unfair prejudice.” (Br. of Appellant at 15.)


[21]   Wells asserts the probative value of the recordings was reduced because the

       recordings were incomplete and “the procedure used to obtain the recordings

       was deficient.” (Id.) Wells points to Detective Karr’s testimony that the

       procedure by which the recordings were made was not typical, specifically

       concerning Thompson’s control over the recording device. Wells claims the

       record indicates, “Thompson was computer literate and had sufficient time

       between making the recordings and turning them in to Det. Karr to complete

       the simple procedure needed to access - and potentially alter or delete - Wells’




       3
         Wells also argues the recordings were inadmissible because he felt threatened by Thompson’s relation of
       threats from Robin’s family and his Fourteenth Amendment right to due process was violated. However, as
       we have concluded Thompson’s surveillance was not “police activity,” Wells’ argument fails. See Light v.
       State, 547 N.E.2d 1073, 1077 (Ind. 1989) (to hold a confession involuntary under the Fourteenth
       Amendment, a person must demonstrate coercive policy activity), reh’g denied.

       Court of Appeals of Indiana | Opinion 53A04-1402-CR-61 | April 29, 2015                       Page 9 of 13
       recorded statements.” (Id. at 16.)4 However, during trial, Wells stipulated to

       the incompleteness of the recordings, acquiesced to the trial court’s procedure

       for dealing with gaps in the recordings, and acknowledged he was one of the

       voices on the recordings. Therefore, any error in the admission of the wiretap

       recordings based on Evid. R. 403 is invited error. See Barnett v. State, 24 N.E.3d

       1013, 1017 (Ind. Ct. App. 2015) (party is estopped from taking advantage of

       error he invited during trial).5


                                          2.       Plot to Kill Thompson

[22]   During trial, the State introduced evidence Wells conspired with a fellow

       inmate, Jamal Jefferson, to kill Thompson. Wells argues the trial court abused

       its discretion when it admitted the evidence because the evidence violated Evid.

       R. 404(b), which states, in relevant part:

                (1) Prohibited Uses: Evidence of a crime, wrong, or other act is not
                admissible to prove a person’s character in order to show that on a
                particular occasion the person acted in accordance with the character.
                (2) Permitted Uses: . . . This evidence may be admissible for another
                purpose, such as proving motive, opportunity, intent, preparation,
                plan, knowledge, identity, absence of mistake, or lack of accident.




       4
         Thompson testified he was computer literate and understood how to use Microsoft Office products. (Tr. at
       604.) Detective Kerr testified Thompson would deliver the recording device to him after he recorded
       conversations with Wells, but there did not exist a set time schedule for making or delivering the recordings.
       (Id. at 443-44.)
       5
         Similarly, Wells argues the wiretap recordings were inadmissible because portions of them were
       unintelligible. As he stipulated to the incompleteness and agreed with the trial court’s procedure for dealing
       with the gaps in the transcript, any error in their admission was invited. See Barnett, 24 N.E.3d at 1017 (party
       is estopped from taking advantage of error he invited during trial).

       Court of Appeals of Indiana | Opinion 53A04-1402-CR-61 | April 29, 2015                           Page 10 of 13
       In determining the admissibility of an act under Evid. R. 404(b), the trial court

       must:

               First . . . “determine that the evidence of other crimes, wrongs, or acts
               is relevant to a matter at issue other than the defendant’s propensity to
               commit the charged act.” Second, the court must determine that the
               proponent has sufficient proof that the person who allegedly
               committed the act did, in fact, commit the act. And third, the court
               must “balance the probative value of the evidence against its
               prejudicial effect pursuant to Rule 403.”
       Camm v. State, 908 N.E.2d 215, 223 (Ind. 2009), reh’g denied.


[23]   Wells argues the State did not present sufficient proof to support its claim that

       Wells conspired with Jefferson to have Thompson killed because it “presented

       only the testimony of Jamal Jefferson, a federal inmate who has previously

       worked as an informant in exchange for a reduction of his sentence.” (Br. of

       Appellant at 19-20.)


[24]   Contrary to Wells’ assertions, the State presented evidence to corroborate

       Jefferson’s testimony that Wells attempted to conspire with him to kill

       Thompson, including:

               1) Jefferson’s account of Defendant’s murder of Robin was almost
               exactly the same as Defendant’s statement to Thompson: Robin
               threatened [A.’s] life, Defendant drove to the residence, Defendant
               wrapped his hands in duct tape, and Defendant beat and stomped
               Robin; 2) Jefferson knew about Thompson and the secret recordings;
               3) Jefferson had Tristiny’s phone number in his possession as a means
               to communicate about killing Thompson.
       (Br. of Appellee at 27.) We hold the trial court did not abuse its discretion

       when it admitted the evidence of the murder for hire plot. See Matthews v. State,


       Court of Appeals of Indiana | Opinion 53A04-1402-CR-61 | April 29, 2015        Page 11 of 13
       866 N.E.2d 821, 825 (Ind. Ct. App. 2007) (Threats to kill a witness “are viewed

       as admissions of guilt and therefore are relevant to demonstrate an accused’s

       guilty knowledge.”), trans. denied.6


                                             3.      Cell Phone Tower Data

[25]   During trial, the State offered evidence regarding the location of certain cell

       phones relevant to Robin’s murder, including those used by Wells, Melissa, and

       Robin. The State offered the testimony of David Salyer, an AT&T network

       engineer, as a skilled lay witness under Evidence Rule 701.7 Wells objected to

       the testimony under Evid. R. 4038 and Evid. R. 701. Wells argues the evidence

       was highly prejudicial because the jury likely overestimated the value of

       Salyer’s testimony regarding the location of Well’s cell phone and Melissa’s cell

       phone and the inactivity of Robin’s cell phone after the time the police believed

       Wells attacked him. Wells also argues the evidence lacked probative value




       6
        Wells also argues the evidence regarding the murder for hire plot was inadmissible under Evid. R. 403
       because it was more prejudicial than probative. However, as we noted in our analysis of Wells’ Evid. R.
       404(b) argument, the evidence was probative under Matthews and the State corroborated Jefferson’s testimony
       with additional evidence. Therefore, the trial court did not abuse its discretion when it admitted the evidence
       of the murder for hire plot.
       7
           Evid. R. 701 states, in relevant part:

                  If the witness is not testifying as an expert, the witness’s testimony in the form of opinions
                  or inferences is limited to those opinions or inferences which are (a) rationally based on the
                  perception of the witness and (b) helpful to a clear understanding of the witness’s testimony
                  or the determination of a fact in issue.
       8
        Evid. R. 403 prohibits the admission of evidence when its probative value is substantially outweighed by its
       prejudice.

       Court of Appeals of Indiana | Opinion 53A04-1402-CR-61 | April 29, 2015                               Page 12 of 13
       because “this type of location testimony has been recognized to have serious

       limitations.” (Br. of Appellant at 24) (footnote omitted).


[26]   We need not determine whether the evidence should have been admitted. “The

       improper admission of evidence is harmless error when the reviewing court is

       satisfied that the conviction is supported by substantial independent evidence of

       guilt so that there is no substantial likelihood that the challenged evidence

       contributed to the conviction.” Meadows v. State, 785 N.E.2d 1112, 1121 (Ind.

       Ct. App. 2003), trans. denied. In the instant case, the State presented evidence

       Wells discussed his involvement in Robin’s murder with three people -

       Thompson, Jefferson, and Kopp. In addition, the State presented wiretap

       evidence where Wells admitted to killing Robin. As the State presented

       sufficient evidence to prove Wells committed murder, any error in the

       admission of the cell phone evidence was harmless error.


                                                     Conclusion

[27]   The trial court did not abuse its discretion when it admitted the wiretap

       evidence and the evidence of a murder for hire plot. In addition, if the

       admission of the cell phone location information was error, it was harmless.

       Accordingly, we affirm the judgment of the trial court.


[28]   Affirmed.


       Baker, J., and Barteau, S.J., concur.




       Court of Appeals of Indiana | Opinion 53A04-1402-CR-61 | April 29, 2015   Page 13 of 13
