Gary Ellis v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 31, 2017
• Docket: 49A05-1701-CR-37
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jul 31 2017, 7:59 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Suzy St. John Curtis T. Hill, Jr. Marion County Public Defender Attorney General Appellate Division Indianapolis, Indiana Angela N. Sanchez Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Gary Ellis, July 31, 2017 Appellant-Defendant, Court of Appeals Case No. 49A05-1701-CR-37 v. Appeal from the Marion Superior Court State of Indiana, The Honorable David Hooper, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G08-1601-CM-1822

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-37 |July 31, 2017 Page 1 of 9 Case Summary [1] Gary Ellis appeals his conviction, following a jury trial, for class A

misdemeanor theft. On appeal, he argues that the trial court violated his Sixth

Amendment right to confrontation and committed fundamental error in

admitting a surveillance video in the absence of testimony in front of the jury

from the State’s foundational witness. Finding no constitutional violation and

therefore no fundamental error, we affirm.

Facts and Procedural History [2] On December 26, 2015, the manager of the Sunglass Hut store in Circle Centre

Mall, Danielle Carl, called 911 to report that a pair of sunglasses was stolen

from the store on Christmas Eve. Carl reported that she recognized the

individual who took the sunglasses, that he was in the mall on a regular basis,

and that she believed that he worked at a nearby hotel. Indianapolis

Metropolitan Police Department (“IMPD”) Detective Stephen Gorgiveski was

assigned to investigate the case. Detective Gorgiveski watched the Sunglass

Hut store surveillance video from Christmas Eve, which depicted an African-

American male removing a pair of sunglasses from a display and then leaving

the store without paying. Detective Gorgiveski took a still photograph of the

man from the surveillance footage. On January 7, 2016, Detective Gorgiveski

sent the still photo in a BOLO (“Be on the Lookout”) alert to other police

officers who worked in downtown Indianapolis. Tr. Vol. 2 at 52.

Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-37 |July 31, 2017 Page 2 of 9 [3] IMPD Officer Brycen Garner received the BOLO photo and immediately

recognized the individual in the photo. Officer Garner regularly saw the

individual during Officer Garner’s part-time job as security for IndyGo bus

service. Officer Garner was familiar with the man because he had seen him “a

couple times a week, a few times a week” over the last four years. Id. at 59.

The same day Officer Garner received the BOLO photo, he saw the individual

exiting a bus in downtown Indianapolis. Officer Garner approached the man

and asked for his identification. The individual, Ellis, gave Officer Garner his

identification and was calm and cooperative. Officer Garner was confident that

Ellis was the same man he saw in the photo.

[4] Thereafter, the State charged Ellis with class A misdemeanor theft. A jury trial

was held on November 7, 2016. At the start of the trial, the State indicated that

it intended to offer into evidence the surveillance video of Ellis stealing the

sunglasses. To lay the foundation for the video’s admissibility, the State sought

to call Jesse Spencer, a regional trainer for the parent company of Sunglass Hut

who was responsible for training store managers regarding loss management

policies and investigations, including use of the video surveillance system. Ellis

moved to exclude Spencer as a witness because the State had identified him as a

potential witness only on the Friday prior to the Monday start of trial. The trial

court took the motion to exclude under advisement and decided to hold a

hearing outside the presence of the jury to allow defense counsel to question

Spencer under oath and to identify any potential objections to his testimony.

Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-37 |July 31, 2017 Page 3 of 9 [5] After counsel questioned Spencer extensively regarding his qualifications and

personal knowledge regarding the video surveillance system, defense counsel

clarified that she sought either exclusion of Spencer or a mistrial due to the

State’s late disclosure of the witness. The trial court denied the motion for

mistrial but granted the motion to exclude in part. Specifically, the trial court

determined that “[t]he State may ask this witness foundational questions as it

relates to the admissibility of video. The State shall not explore any other topics

with this witness.” Id. at 29. Because the court determined that Spencer’s

testimony would be relevant only to laying a foundation for the admissibility of

the video, the trial court decided to “go ahead and do a hearing outside the

presence of the jury regarding admissibility of the video.” Id. at 31. The trial

court asked defense counsel if she had any objection to such procedure, and

counsel responded, “No, Your Honor.” Id. The State called Spencer as a

witness outside the presence of the jury.

[6] Spencer testified that as a regional trainer for the parent company of Sunglass

Hut, he was responsible for training store managers regarding loss management

policies and investigations. He stated that he had worked with the Circle

Centre store manager, Carl, on numerous occasions involving the surveillance

camera system. Spencer explained the digital, motion-activated camera system

and how it records the time and date at the top left corner of each video. He

further explained that the system stores video for up to ninety days but that

video is saved to a DVD if a discrepancy in inventory is reported and the video

reveals that a theft has occurred. Spencer admitted that he did not personally

Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-37 |July 31, 2017 Page 4 of 9 export the video of Ellis’s theft and save it on DVD, but he also stated that there

was no way for a store employee to edit or tamper with any extracted video.

Spencer stated that he had watched the video ten times and that he recognized

the store on the video as the one located in Circle Centre Mall.

[7] Following direct examination of Spencer by the State, defense counsel

conducted an extensive cross-examination of Spencer challenging his lack of

personal knowledge as to whether the video was genuine and had not been

altered. Defense counsel then objected to the admission of the video claiming

that Spencer lacked sufficient personal knowledge and that the State had not

provided a sufficient foundation for the video’s admissibility. The trial court

overruled counsel’s objection and determined that the video was admissible.

Before calling in the jury, the court stated, “I’ve limited his testimony to

basically what we’ve just gone over. I just assume [sic] have him step down and

you can show the jury that [the video has] already been previously admitted as

Exhibit A.” Id. at 41. The trial court explained its belief that due to the limited

nature of Spencer’s testimony, further testimony in front of the jury was

unnecessary, but the court specifically ordered that Spencer was not yet released

as a witness in case either party wished to call him in front of the jury. Defense

counsel renewed the previous motion for a mistrial due to the late disclosure of

Spencer as a witness, and the trial court overruled the objection. The trial court

then brought in the jury, granted the State’s motion to publish Exhibit A, and

permitted the State to play the video for the jury.

Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-37 |July 31, 2017 Page 5 of 9 [8] At the conclusion of the trial, the jury found Ellis guilty as charged. The trial

court imposed a suspended sentence of one year. The court further ordered

Ellis to perform forty hours of community service and to pay restitution to

Sunglass Hut, as well as costs and fees. This appeal ensued.

Discussion and Decision [9] Ellis’s sole claim on appeal is that the trial court violated his Sixth Amendment

right to confrontation and committed fundamental error in admitting the

surveillance video in the absence of testimony in front of the jury from the

State’s foundational witness. Generally, we review the trial court’s ruling on

the admission of evidence for an abuse of discretion. Noojin v. State, 730 N.E.2d

672, 676 (Ind. 2000). However, here, because the issue is one of constitutional

law, we review Ellis’s claim de novo. See Jones v. State, 982 N.E.2d 417, 421-22

(Ind. Ct. App. 2013) (constitutional challenges are reviewed de novo), trans.

denied.

[10] The Sixth Amendment to the United States Constitution guarantees that, “[i]n

all criminal prosecutions, the accused shall enjoy the right … to be confronted

with the witnesses against him….” In Crawford v. Washington, 541 U.S. 36, 68

(2004), the United States Supreme Court held that the Confrontation Clause of

the Sixth Amendment prohibits admission in a criminal trial of testimonial

statements by a person who is absent from trial, unless the person is unavailable

and the defendant had a prior opportunity to cross-examine the person.

Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-37 |July 31, 2017 Page 6 of 9 [11] Here, however, Ellis made no objection to the trial court’s procedure in

admitting the video based on Crawford or the Sixth Amendment. Instead, his

only objections were based on the late disclosure of the foundational witness

and the witness’s lack of personal knowledge. A party may not object to the

admission of evidence on one ground at trial and seek reversal on appeal based

on a different ground. Malone v. State, 700 N.E.2d 780, 784 (Ind. 1998). Ellis’s

confrontation claim is therefore waived. See Small v. State, 736 N.E.2d 742, 747

(Ind. 2000) (defendant waived confrontation issue where his trial objection was

based solely on argument that testimony was hearsay and not subject to hearsay

exceptions).

[12] Because Ellis waived this argument, “he can only prevail by meeting the

‘daunting’ fundamental error standard.” Harris v. State, 76 N.E.3d 137, 140

(Ind. 2017). This means that Ellis must show “that the trial court should have

raised the issue sua sponte due to a blatant violation of basic and elementary

principles, undeniable harm or potential for harm, and prejudice that makes a

fair trial impossible.” Id.

[13] Ellis has not met his burden to show that fundamental error occurred here.

Ellis’s argument regarding the trial court’s alleged violation of his right to

confrontation is unique but misplaced. Ellis does not complain that the trial

court permitted any testimonial evidence to be presented against him without

first establishing unavailability or a prior opportunity at cross-examination as

contemplated by the Confrontation Clause. Indeed, Spencer was available, and

Ellis had a prior opportunity to cross-examine him. Rather Ellis complains that

Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-37 |July 31, 2017 Page 7 of 9 the admission of the video, in the absence of Spencer’s testimony in front of the

jury, violated his right to confrontation.

[14] We understand that had Spencer testified in front of the jury, Ellis may have

been able to undermine the authenticity of the video based on Spencer’s alleged

lack of personal knowledge. But the fact remains that Spencer did not testify or

provide evidence against Ellis. Ellis had ample opportunity to call Spencer to

testify in front of the jury to challenge the reliability of the video, but he chose

not to. Indeed, after determining the admissibility of the video outside the

presence of the jury, the trial court ordered that Spencer was not yet released

“in case something [came] up” and the State or defense counsel wished to call

him as a witness in front of the jury. Tr. Vol. 2 at 43. Neither party did so.

[15] We agree with the State that Ellis’s Confrontation Clause argument appears to

conflate the presentation of testimony with the absence of testimony. The Sixth

Amendment prohibits the presentation of testimonial evidence under certain

circumstances, not the absence of testimonial evidence as Ellis complains of

here. Ellis points to no testimonial evidence that was presented in violation of

his right to confrontation.1 Accordingly, Ellis’s Sixth Amendment argument is

misplaced, and he has not met his burden to show that the trial court

committed fundamental error.

1 We reiterate and emphasize that Ellis does not challenge the admissibility of the surveillance video itself or the adequacy of the foundation laid for its authenticity and competency. Thus, there is no “silent-witness” issue here. See Wise v. State, 26 N.E.3d 137, 141 (Ind. Ct. App. 2015) (a video recording may be admissible as substantive evidence as long as there is a strong showing of the video’s authenticity and competency), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-37 |July 31, 2017 Page 8 of 9 [16] Affirmed.

Baker, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-37 |July 31, 2017 Page 9 of 9