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?
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?
Court: And you still refuse to do so?
[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?
Court: And you are still refusing to testify?
[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
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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?
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?
Court: And you still refuse to do so?
[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?
Court: And you are still refusing to testify?
[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