Bryant Johnson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 22, 2016
• Docket: 71A03-1603-CR-672
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 22 2016, 9:32 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Marielena Duerring Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Bryant Johnson, November 22, 2016 Appellant-Defendant, Court of Appeals Case No. 71A03-1603-CR-672 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff. Hurley, Judge Trial Court Cause No. 71D08-1508-MR-10

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 1 of 9 Case Summary and Issue [1] Following a jury trial, Bryant Johnson was convicted of murder, attempted

murder, and battery. Johnson appeals his convictions, raising the sole issue of

whether the trial court abused its discretion in admitting certain evidence.

Concluding the trial court did not abuse its discretion, we affirm.

Facts and Procedural History [2] In the early morning hours of August 1, 2015, Justin Sharpe and Marcus Harris

were passengers in a green SUV driven by Stephen Johnson (“Stephen”).

Around 2:30 a.m., Stephen pulled out of a gas station and proceeded toward an

intersection near 301 North Lafayette Street in South Bend, Indiana. While

stopped at the intersection, a champagne-colored Chevrolet Tahoe pulled up to

right of the green SUV and a white vehicle pulled up behind the green SUV.

Stephen recognized the driver of the Tahoe as Johnson. Johnson then pulled

out a revolver and fired four bullets in the direction of the green SUV. One of

the bullets struck Stephen in the shoulder and at least one bullet struck Sharpe.

As Stephen attempted to drive away, an individual in the white vehicle also

fired at least three bullets in the direction of the green SUV.

[3] South Bend Police Officer John Cox heard the gunshots, but did not know

where the sound was coming from until he received a ShotSpotter alert

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 2 of 9 notifying him the shots were fired near 301 North Lafayette Street.1 Upon

arrival at that address, police officers observed multiple bullet holes in the green

SUV’s front passenger-side window and door; Sharpe was pronounced dead at

the scene from multiple gunshot wounds. Police officers then collected

fragments of ammunition from the street and the green SUV indicating at least

one of the guns used was either a .38 caliber special or a 357 magnum revolver.

Some of these fragments recovered from the scene matched the fragments

removed from Sharpe’s body during an autopsy. On August 5, 2015, the State

charged Johnson with murder, a felony; attempted murder as a Level 1 felony;

and battery as a Level 5 felony.

[4] At trial, the State elicited testimony pertaining to ShotSpotter technology from

Paul Greene, the lead forensic analyst and lead customer service support

engineer for SST Inc., the manufacturer of ShotSpotter. Greene testified

ShotSpotter is an acoustic gunshot detection and location system and its

purpose is to provide law enforcement with rapid notification of when and

where local gunfire occurs. The system uses microphone sensors with GPS

antennas to detect gunshots by recording nearly twenty acoustic measurements

and a location server that measures the latitude and longitude of the gunshots

recorded. The system then plots the location of gunshots on a map and reports

the location of gunshots to police departments. SST Inc. guarantees

1 Evidence pertaining to ShotSpotter is the sole issue on appeal, which we discuss in detail below.

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 3 of 9 ShotSpotter will detect and locate at least 80 percent of all outdoor detectable gunfire and will locate that gunfire to within 25 meters of where the weapon was actually fired. So you take where the weapon is fired, draw a 25 meter line out, draw a big single [sic] and we guarantee that at least 80 percent of the time that gunfire will have originated within that 25 meter or 50 meter diameter circle, actually, which actually comes out to about 150 feet diameter, 160 feet diameter or so.

Transcript at 267. Greene explained the more sensors that record a gunshot,

the more precise the system can be. For example, if at least five sensors record

a gunshot, then it is likely the system will pinpoint a location on the map within

ten meters of the gunshot’s location. Id. at 267-69.

[5] The State then moved to admit State’s Exhibit 180, a detailed ShotSpotter

forensic report of the August 1 incident. Specifically, the report includes a map

showing the location of the shooting; a map showing the number of

microphone sensors that recorded the shooting; and a table showing the exact

time the gunshots were recorded and the strength and sharpness of the

recordings. Johnson objected on the ground the report was cumulative.

Specifically, Johnson expressed concern that one page of the report merely gave

“a description about ShotSpotter . . . .” Id. at 271. The trial court agreed the

one page was cumulative of Greene’s previous testimony, but noted the

remaining pages, which include the maps and tables, would assist the jurors in

understanding Greene’s testimony. Johnson objected again, this time arguing

the remainder of the report was scientific evidence lacking proper foundation

pursuant to Indiana Evidence Rule 702. Specifically, he expressed concern as

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 4 of 9 to how much ShotSpotter has been tested and whether it has been subjected to

peer review. The trial court disagreed and overruled the objection as to the

remainder of the report, noting, “I would find it to be . . . more of a weight issue

than an admissible evidence issue and [an] argument that you could make,

[Defense Counsel], should you choose to do so.” Id. at 274.

[6] The jury found Johnson guilty as charged. At the sentencing hearing, the trial

court entered judgment of conviction and ordered Johnson to serve an

aggregate sentence of eighty-five years executed in the Indiana Department of

Correction. This appeal ensued.

Discussion and Decision I. Standard of Review [7] The trial court has broad discretion in ruling on the admissibility of

evidence. Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003). This

court will reverse the trial court’s ruling only if it abused that discretion. Id. An

abuse of discretion involves a decision that is clearly against the logic and effect

of the facts and circumstances before the court. Huffines v. State, 739 N.E.2d

1093, 1095 (Ind. Ct. App. 2000) (citation omitted), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 5 of 9 II. ShotSpotter Evidence [8] Johnson argues the trial court abused its discretion in admitting State’s Exhibit

180.2 Specifically, he contends the trial court failed to assess the reliability of

the ShotSpotter technology pursuant to Rule 702(b). We disagree.

[9] Rule 702(b) states, “Expert scientific testimony is admissible only if the court is

satisfied that the expert testimony rests upon reliable scientific principles.”

Stated differently, “expert scientific testimony is admissible only if reliability is

demonstrated to the trial court.” Doolin v. State, 970 N.E.2d 785, 787 (Ind. Ct.

App. 2012), trans. denied.

The proponent of expert testimony bears the burden of establishing the foundation and reliability of the scientific principles. There is no specific test that must be considered in order to satisfy Rule 702(b). Rather, reliability may be established by judicial notice or, in its absence, by sufficient foundation to convince the trial court that the relevant scientific principles are reliable. In determining whether scientific evidence is reliable, the trial court must determine whether the evidence appears sufficiently valid, or, in other words, trustworthy, to assist the trier of fact.

Id. at 787-88 (citations and internal quotation marks omitted).

[10] Prior to admission of Exhibit 180, the State elicited extensive testimony from

Greene. Our review of Greene’s testimony indicates he explained how the

2 Johnson does not challenge Greene’s testimony or any other exhibits the State admitted that contained evidence pertaining to ShotSpotter.

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 6 of 9 ShotSpotter system operates to inform local law enforcement of any shots fired

in their jurisdiction. Specifically, he explained how the system generates

reports pinpointing the location of gunshots within twenty-five meters. As

noted above, Exhibit 180 is a ShotSpotter report prepared by Greene with

regard to the August 1 incident and it is clear by the trial court’s own words it

determined Exhibit 180 would “help” and “assist” the jurors “in understanding

the testimony.” Tr. at 272. Therefore, contrary to Johnson’s assertion, the trial

court properly assessed the reliability of the ShotSpotter evidence prior to the

admission of Exhibit 180.

[11] In addition, we note “Rule 702 is not intended to interpose an unnecessarily

burdensome procedure or methodology for trial courts.” Turner v. State, 953

N.E.2d 1039, 1050 (Ind. 2011) (citation and internal quotation marks omitted).

Rather, the intent of Rule 702 is to liberalize the admission of reliable scientific

evidence and therefore the evidence need not be conclusive to be admissible.

Id. In the event shaky—but reliable—scientific evidence is admitted, the

appropriate means of attacking such evidence is by “[v]igorous cross-

examination, presentation of contrary evidence, and careful instruction on the

burden of proof . . . .” Id. (alteration in original) (citation omitted). For

example, by cross-examining the witness, the opposing party has the

opportunity to expose the differences between the actual evidence and the

scientific theory. Id. at 1051. “The dissimilarities go to the weight rather to the

admissibility of the evidence.” Id. To the extent Johnson argues the evidence

lacked reliability, the trial court concluded the evidence was reliable and would

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 7 of 9 assist the jury in understanding Greene’s testimony. Even assuming the

evidence was “shaky,” the trial court correctly noted Johnson’s reliability

concerns went to the weight of the evidence, not its admissibility. Johnson had

a full opportunity to attack the credibility of the evidence in an attempt to

diminish any weight it carried with the jury. We conclude the trial court did

not err in admitting Exhibit 180.

[12] Further, and assuming the trial court erred, we conclude any error was

harmless. See Barnhart v. State, 15 N.E.3d 138, 143 (Ind. Ct. App. 2014)

(“Errors in the admission or exclusion of evidence are to be disregarded as

harmless error unless they affect the substantial rights of a party.”) (citation

omitted). Exhibit 180 merely shows a shooting occurred near 301 North

Lafayette Street, and at trial, the State admitted numerous other ShotSpotter

exhibits also showing a shooting occurred near 301 North Lafayette Street;

Johnson does not challenge the admission of these other exhibits on appeal. In

addition, many witnesses testified they heard a shooting occur, Stephen testified

Johnson shot him, the green SUV had numerous bullet holes, and Sharpe was

killed by a gunshot. This evidence undoubtedly indicates a shooting occurred.

Exhibit 180 is no different and its admission did not prejudice Johnson.

Conclusion [13] The trial court did not abuse its discretion in admitting evidence. Accordingly,

we affirm Johnson’s convictions.

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 8 of 9 [14] Affirmed.

Mathias, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 9 of 9