MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 30 2020, 9:49 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Scott H. Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jesus Pedraza, Jr., March 30, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-850 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff. Hurley, Judge Trial Court Cause No. 71D08-1709-MR-12
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 1 of 26 Case Summary [1] Jesus Pedraza, Jr., appeals his convictions, following a jury trial, for two counts
of murder. We affirm.
Issue [2] Pedraza raises four issues on appeal, which we consolidate and restate as
whether the trial court’s evidentiary rulings regarding the admission and
exclusion of evidence violated Pedraza’s substantial rights.
Facts [3] In late July or early August 2017, Pedraza asked Jermon Gavin to facilitate a
drug deal for a large quantity of methamphetamine. Gavin relayed Pedraza’s
request to Ronald Snyder, who contacted Joshua Sage. Sage agreed to sell 1.5
pounds of methamphetamine to Pedraza and his brother, Benito Pedraza
(“Benito”), for $13,500.00. Snyder added a $500.00 fee for himself and relayed
the terms to Gavin, who accepted on Pedraza’s behalf.
[4] In the late evening of August 2, 2017, Sage and his brother, Robert Brady, went
to Snyder’s house on Frederickson Street in St. Joseph County to complete the
transaction. Sage and Brady were armed with “a couple [of] guns” when they
joined Snyder, Alyssa Sanchez, and others in Snyder’s house. Tr. Vol. III p. 88.
[5] The drug buy was a ruse, and Pedraza intended to steal the methamphetamine
from Sage. That same evening, Pedraza, Benito, Gavin, and Damon Bethel
drove past Snyder’s house in Benito’s dark Chevy Impala. Each man was
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 2 of 26 armed with a gun, and Pedraza indicated that Snyder’s house would be the site
of the robbery. Benito circled the block and dropped Bethel off in a nearby alley
that led to Frederickson Street. Pedraza instructed Bethel to approach Snyder’s
house on foot from the alley. Pedraza, Benito, and Gavin proceeded to
Snyder’s house. Gavin telephoned Snyder that he and Pedraza were outside
the house. Snyder, Sage, Brady, Gavin, and Pedraza then met in Snyder’s
garage to complete the transaction. Benito remained in the Chevy Impala.
[6] Near the same time, Anton “Stoney” James parked his white SUV in front of
Snyder’s house. James was at Snyder’s house to see Sanchez. James remained
in the SUV, while Sanchez shuttled between the house and the SUV.
[7] Inside the house, Pedraza inspected the methamphetamine and left the garage,
purportedly to get the $14,000.00 from the Chevy Impala. Pedraza telephoned
Bethel and instructed Bethel to ambush Snyder’s garage. After Pedraza was
gone too long, Gavin telephoned Pedraza. Pedraza told Gavin: “I ain’t going
to lie, I need that sh**, I’m about to send [Bethel] in.” Tr. Vol. IV p. 138.
[8] Bethel suddenly emerged, pointed his gun at the occupants of the garage, and
demanded the methamphetamine. The occupants of the garage and Bethel
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 3 of 26 exchanged gunfire. 1 Gavin ran from the garage, fired his gun into the garage as
he fled, and jumped into the back seat of the Chevy Impala.
[9] Sanchez was near or entering James’ SUV when the gunfire erupted. James
and Sanchez sped from the scene. Benito exited the Chevy Impala and fired
multiple gunshots at James’ SUV. Pedraza, Benito, and Gavin fled the scene
without Bethel, who lay wounded in Snyder’s garage.
[10] At 11:22 p.m., Officer Joshua Morgan of the South Bend Police Department
heard “about twenty shots, gunfire coming from the south of [his] location.”
Tr. Vol. III p. 16. Dispatch directed Officer Morgan to Snyder’s address.
When Officer Morgan arrived, bystanders directed him to Snyder’s garage. In
Snyder’s garage, Bethel lay face down with a gun near his hand. Bethel died
soon thereafter. An unidentified person flagged down Officer Mollie O’Blenis
of the South Bend Police Department and pointed out Sanchez, who was
“laying [sic] face down unresponsive” in a driveway. 2 Id. at 36. James’ SUV
was crashed nearby, and James was dead inside the vehicle.
[11] Investigators processed the scene and recovered over two pounds of
methamphetamine; in excess of fifty shell casings and bullets; handguns; and a
cell phone from Bethel’s person. Cell phone records revealed call activity
1 Snyder was not in the garage when Bethel entered. Snyder was about to descend into his basement when he heard “somebody r[u]n in and say something”; Snyder began to walk toward the garage when he “started hearing gunfire and [ ] dropped to the ground.” Tr. Vol. III p. 97. 2 Sanchez survived her gunshot wound.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 4 of 26 between Gavin, Snyder, Pedraza, and/or Bethel, as well as multiple calls to
Bethel’s cell phone after the shooting. Cell phone tower data placed Pedraza’s
phone in the vicinity of Frederickson Street when the murders were committed.
The police recovered DNA evidence from the scene, including multiple DNA
profiles on the handgun that was found near Bethel.
[12] Also, surveillance cameras captured the events that occurred outside Snyder’s
house during the robbery. The footage depicts the following events: Benito’s
Chevy Impala parks outside Snyder’s house. Pedraza and Gavin exit the
vehicle and walk up Snyder’s driveway. Snyder emerges to greet them.
Pedraza, Gavin, and Snyder enter the garage and remain inside; after a short
time, Pedraza exits the garage and walks to Benito’s car. Soon thereafter,
Bethel runs into the garage with his gun drawn. Benito exits his car and shoots
his gun, and Gavin runs from the garage and is also shooting his gun. Pedraza
exits Benito’s car and crouches behind it. See State’s Exhibit 17; see also Tr. Vol.
IV pp. 145-48. Additionally, Gavin cooperated with the police investigation,
told investigators about the foregoing events, and led investigators to Benito’s
Chevy Impala, which had undergone fresh bodywork repairs.
[13] On September 12, 2017, the State charged Pedraza with two counts of murder
and one count of attempted robbery, a Level 5 felony. The next day, Pedraza
was arrested and interviewed by the police. Pedraza was tried by a jury on
March 4, 2019. The State’s evidence of Pedraza’s guilt included: (1)
surveillance footage placing Pedraza at Snyder’s house on the night of the
murders, despite Pedraza’s claim that he was out of town when the murders
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 5 of 26 were committed; (2) surveillance footage that, consistently with Gavin’s
testimony, depicted Pedraza entering Snyder’s garage and exiting moments
before Bethel ran in with a gun; (3) Gavin’s testimony that Pedraza orchestrated
the robbery; (4) cell phone tower data placing Pedraza’s phone in the vicinity of
Frederickson Street at the time of the murders; and (5) other corroborating
evidence.
[14] The jury found Pedraza guilty of two counts of murder and one count of
attempted robbery, a Level 5 felony. On April 16, 2019, Pedraza was sentenced
to concurrent sixty-year terms for the murders; 3 he now appeals. Additional
facts will be provided below.
Analysis [15] Pedraza’s arguments on appeal stem from the trial court’s decisions to admit or
exclude evidence. A trial court’s ruling on the admission of evidence is
generally accorded a great deal of deference on appeal. Hall v. State, 36 N.E.3d
459, 466 (Ind. 2015), reh’g denied. We do not reweigh the evidence; rather, we
consider only evidence that is either favorable to the ruling or unrefuted and
favorable to the defendant. Beasley v. State, 46 N.E.3d 1232, 1235 (Ind. 2016).
3 The trial court did not enter judgment of conviction on Pedraza’s conviction for attempted robbery, a Level 5 felony, which merged with his murder convictions.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 6 of 26 [16] We will not reverse an error in the admission of evidence if the error was
harmless. Turner v. State, 953 N.E.2d 1039, 1058 (Ind. 2011). Indiana Trial
Rule 61 provides:
No error in either the admission or the exclusion of evidence . . . is ground for . . . setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order or for reversal on appeal, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
An improper admission is harmless if the conviction is supported by substantial
independent evidence of guilt satisfying the reviewing court that there is no
Turner, 953 N.E.2d at 1059.
I. Pedraza’s Statement
[17] Pedraza’s first argument pertains to the admission of his redacted statement to
the police. The following facts relate to these issues.
[18] At the outset of Pedraza’s videotaped interview, Investigator Gery Mullins told
Pedraza that Pedraza was in custody and was not free to leave. 4 Investigator
Mullins read Pedraza his Miranda rights and gave Pedraza a written advisement
and waiver that Pedraza signed. Investigator Mullins asked Pedraza: “Any
4 The record reveals that an “Inspector Riley” was also present in the interview room.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 7 of 26 idea why you’d be down here[?]”; “[i]t’s got everything to do with Frederickson
[Street] and Huey”; and “[w]e’ve got information that you were out there that
night all this stuff happened.” Tr. Exhibits Vol. p. 177, State’s Ex. 129. 5
Multiple times, Pedraza asked Investigator Mullins to state the charges on
which Pedraza was being detained. Pedraza denied any involvement and
insisted that he was out of town when the murders were committed. Further,
Pedraza stated that: (1) he was aware of what happened at Frederickson Street;
(2) his friend, Bethel, died in the Frederickson Street incident; and (3) Pedraza
had knowledge of the events but did not want to be involved.
[19] At one point during the interview, Pedraza said: “Just charge me and let me
talk to my lawyer before I get myself or somebody else in some bulls***.” Tr.
Vol. II p. 55. Investigator Mullins exited the interview room; conferred with
other officers regarding whether Pedraza requested counsel; returned to the
interview room; and asked whether Pedraza desired counsel. Pedraza replied
that he did not, and Investigator Mullins proceeded with the interview.
[20] On October 26, 2018, Pedraza moved to suppress his statement to police and,
on November 19, 2018, the trial court conducted a hearing wherein Pedraza
argued: (1) he did not knowingly, voluntarily, and intelligently waive his Fifth
and Sixth Amendment rights; (2) the police denied Pedraza information about
5 State’s Exhibit 129 is a redacted DVD of Pedraza’s videotaped interview with police.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 8 of 26 their reasons for questioning him and the charges against him; and (3) the
police continued to interview Pedraza after he invoked his right to counsel.
[21] The trial court denied Pedraza’s motion to suppress on December 10, 2018, and
found: (1) Pedraza’s waiver of his rights was voluntary; (2) officers provided
Pedraza with sufficient information about why they arrested Pedraza and
brought Pedraza in for questioning; and (3) Pedraza did not make an
unequivocal request for counsel. Appellant’s App. Vol. II p. 114.
[22] At Pedraza’s trial, Investigator Mullins testified that: at the time of the
interview, Investigator Mullins knew that the State had already filed charges
against Pedraza; and that, although Pedraza repeatedly asked to be advised of
the charges against him, Investigator Mullins did not oblige because “[Pedraza]
had an idea as to why [investigators] were questioning him.” Tr. Vol. V p. 48.
On cross-examination, defense counsel asked Investigator Mullins about the
importance of “[b]eing totally aware of what is going on before [one] can
intelligently and knowingly waive [Fifth and Sixth Amendment] rights.” Id. at
48. The State objected that the question “call[ed] for a legal conclusion, one
that the Court ha[d] already decided . . . .” Id.
[23] During Investigator Mullins’ testimony, the State moved to introduce a
redacted version of Pedraza’s statement. The redacted statement omitted
alleged Indiana Evidence Rule 404(B) evidence; Pedraza’s alleged request for
counsel; and Pedraza’s remarks after his alleged request for counsel. Pedraza
objected to the redacted statement and argued that the State placed him in a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 9 of 26 Hobson’s Choice scenario in which Pedraza could either: ask the trial court to
admit, in its entirety, the statement that Pedraza initially sought to suppress; or
waive his right against self-incrimination to clarify misleading impressions
caused by the introduction of the incomplete statement. The State countered
that Pedraza could not simultaneously oppose the introduction of the statement
and object to a redacted version of the statement that excluded the objectionable
remarks.
[24] The trial court: (1) found that Pedraza’s statement was voluntary; (2) deemed
the redacted statement to be admissible; (3) advised that defense counsel could
elect to introduce the entire statement; and (4) admitted the redacted statement,
after defense counsel declined to introduce the entire statement and lodged a
continuing objection alleging violation of Pedraza’s right to a fair trial.
A. Knowing and Informed Miranda Waiver
[25] First, Pedraza argues that the trial court erred in admitting his statement
because the police “intentionally withh[e]ld [charging] information and lie[d]”
to him, denying him information necessary to make an informed Miranda
waiver. Pedraza’s Br. p. 17. The Fifth Amendment, incorporated to the States
via the Fourteenth Amendment, guarantees that “no person . . . shall be
compelled in any criminal case to be a witness against himself.” U.S. Const.
amend. V; Kelly v. State, 997 N.E.2d 1045, 1053 (Ind. 2013). The United States
Supreme Court held in Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602
(1966), that, before a law enforcement officer may subject someone to custodial
interrogation, the officer must advise him “that he has a right to remain silent, Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 10 of 26 that any statement he does make may be used as evidence against him, and that
he has a right to the presence of an attorney, either retained or appointed.”
Kelly, 997 N.E.2d at 1053. “If the officer does not so advise the subject, the
prosecutor cannot use any statements the subject does make against him in
court.” Id. “The trigger to require the announcement of Miranda rights is
custodial interrogation.” State v. Brown, 70 N.E.3d 331, 335 (Ind. 2017).
[26] “[T]he relinquishment of the [Miranda] right must [ ] be[ ] voluntary in the sense
that it was the product of a free and deliberate choice rather than intimidation,
coercion or deception. Second, the waiver must have been made with a full
awareness both of the nature of the right being abandoned and the
consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412,
106 S. Ct. 1135, 1141-42 (1986).
[27] In support of his argument, Pedraza relies on Armour v. State, 479 N.E.2d 1296
(Ind. 1985). Although Armour is distinguishable from the instant facts, 6 it is still
instructive. After Armour’s infant child suffered a brain injury, police asked to
speak with Armour, who agreed. The police read Armour his Miranda
advisements, and Armour signed a waiver and gave a statement to the police.
On appeal, Armour argued that his statement, which included a confession,
was not voluntarily made because he “believed that he was merely denying
6 Armour waived Miranda in the interrogation phase and before any charges were filed against him.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 11 of 26 battery charges and was unaware of potential neglect charges.” Armour, 479
N.E.2d at 1298.
[28] In finding a valid Miranda waiver; no deception, threat, or coercion; and that
Armour “knew the reason for the investigation before” he made the
incriminating statements, our Supreme Court reasoned:
While Miranda indicated that the police should not threaten, trick, or cajole an accused into making a statement, Miranda does not require that an accused be specifically informed by the interrogator of the precise nature of the potential charges for which the accused is being questioned. More recently, the Supreme Court has indicated that the police need not inform a suspect prior to questioning what the precise nature of the charges may be. Berkemer v. McCarty (1984), 468 U.S. 420, 104 S. Ct. 3138 [ ]. In Berkemer, the Court refused to accord the Miranda procedural safeguards based upon a felony-misdemeanor distinction since the police are often unaware at the time of arrest whether the person committed a misdemeanor or a felony.
*****
Similarly, it would be unreasonable to require that police inform suspects prior to questioning at the investigatory stage as to the nature of all potential charges since there are innumerable unknown factors which may affect the resulting formal charge, if any. The impracticality of requiring police to state the precise nature of the charge to which an investigation may lead does not mean that the suspect is to be relegated to total ignorance of the subject matter of the interview or interrogation. The suspect should be informed of the reason for the investigation or the incident which gave rise to the interrogation so that the suspect can make a knowing and intelligent decision whether to forgo the privilege against self- incrimination. However, a knowing and intelligent decision to Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 12 of 26 waive Miranda rights does not require that the police provide the suspect with that quantum of knowledge which an attorney would require before rendering legal advice.
Armour, 479 N.E.2d at 1298 (emphasis added) (some citations omitted).
[29] Here, Investigator Mullins was aware of the precise charges that the State had
already filed against Pedraza when the interview occurred. Although this
distinction could prove material under different circumstances, it is immaterial
here. The record reveals that, before Pedraza waived his Miranda rights, he
asked why he was being interviewed, and Investigator Mullins replied: “It’s got
everything to do with Frederickson [Street]”; and “[w]e’ve got information that
you were out there that night . . . .” See Tr. Exhibits Vol. p. 177, State’s Ex.
129. In response, Pedraza volunteered that his childhood friend, Bethel, died in
the Frederickson Street incident.
[30] Pedraza, thus, evinced his knowledge that the police were investigating at least
one homicide. We are not persuaded by Pedraza’s contention, under these
circumstances, that he lacked “full awareness both of the nature of the right
being abandoned and the consequences of the decision to abandon it” when he
agreed to give a statement to homicide investigators. See Moran, 475 U.S. at
1141-42. Pedraza’s claims of police deception are not credible. The trial court
did not abuse its discretion in finding a voluntary Miranda waiver.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 13 of 26 B. Miranda Right to Counsel
[31] Next, Pedraza argues that the trial court erred in admitting his statement
because the police continued to interrogate Pedraza after he requested counsel.
As established in Miranda v. Arizona, prior to any questioning of a person taken into custody, “the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” If the accused requests counsel, “the interrogation must cease until an attorney is present.” An accused’s request for counsel, however, must be unambiguous and unequivocal. The cessation of police questioning is not required “if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel.” Indeed, “[i]nvocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” The request must be made with sufficient clarity such that a “reasonable police officer under the circumstances would understand the statement as a request for an attorney.”
Anderson v. State, 961 N.E.2d 19, 26-28 (Ind. Ct. App. 2012) (citations and
footnote omitted).
[32] A defendant’s statement is either “an assertion of the right to counsel or it is
not.” Schuler v. State, 112 N.E.3d 180, 188 (Ind. 2018) (quoting Davis v. United
States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355 (1994)). Schuler argued that his
Miranda rights were violated when the police failed to stop questioning him
after he requested counsel during a custodial interrogation. Finding no Miranda
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 14 of 26 violation from the continuation of questioning after Schuler said: “I want my
attorney, but I’ll answer, you can ask me questions[,]” our Supreme Court
opined:
Police investigators are not required to stop questioning “if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel.” Davis [ ], 512 U.S. [at] 459, 114 S. Ct. [at] 2355 [ ]. If a defendant’s statements are unclear, police may ask clarifying questions to determine whether the accused has actually requested counsel.
See also Sleek v. State, 499 N.E.2d 751, 754 (Ind. 1986) (“Even if [an accused’s] request was perceived to be inherently ambiguous, or equivocal in light of the preceding events, any further questioning should have been narrowly limited to clarifying whether [the accused] actually wished to have counsel present.”).
Schuler, 112 N.E.3d at 187 (some citations omitted) (emphasis in original).
[33] Our Supreme Court concluded that: (1) “[a] reasonable officer in light of the
circumstances would have found Schuler’s statement to be ambiguous”; (2)
Schuler gave the police “permission to continue questioning [him]”; (3) the
detective “acted as any reasonable police officer would” by asking whether
Schuler wanted counsel, which Schuler denied; and (4) “Schuler’s statements [ ]
show[ed] that he was aware of his right to an attorney but chose to speak with
the detective anyway.” Id.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 15 of 26 [34] Here, as in Schuler, a reasonable officer would have deemed Pedraza’s remark—
“Just charge me and let me talk to my lawyer before I get myself or somebody
else in some bulls***”— to be ambiguous. See Tr. Vol. II p. 55. The record
reflects that Investigator Mullins immediately suspended the interview, left the
room to consult with colleagues, and—on his return—asked outright whether
Pedraza intended to invoke his right to counsel. Pedraza replied that he did
not. Pedraza was, thus, aware of his right to consult with counsel, but declined
to unequivocally assert it. Based on the foregoing, the trial court properly
concluded that the continued interrogation did not violate Pedraza’s Miranda
right to counsel. The trial court did not abuse its discretion in admitting
Pedraza’s redacted statement. 7
C. Cross-Examination of Investigator Mullins
[35] Pedraza maintains that the trial court erred in limiting his cross-examination of
Investigator Mullins “regarding the voluntariness of Pedraza’s purported waiver
of his Miranda rights.” Pedraza’s Br. p. 28. During Pedraza’s cross-
examination of Investigator Mullins, defense counsel asked about the
importance of “[b]eing totally aware of what is going on before [the defendant]
can intelligently and knowingly waive those rights.” Tr. Vol. V. pp. 48-49. The
7 The State redacted Pedraza’s statement to include only Pedraza’s remarks that preceded the equivocal request for counsel.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 16 of 26 State objected to the question as calling for a legal conclusion on a matter that
the trial court already decided. The trial court sustained the State’s objection.
[36] When a trial court limits cross-examination in violation of a defendant’s right of
cross-examination, a “conviction will be sustained only if the error is harmless
beyond a reasonable doubt.” McCorker v. State, 797 N.E.2d 257, 266 (Ind.
2003); McCarthy v. State, 749 N.E.2d 528, 534 (Ind. 2001).
[37] “The Due Process Clause of the Fourteenth Amendment to the United States
Constitution guarantees criminal defendants the right to a fair trial, and the
basic elements of a fair trial are defined largely through provisions of the Sixth
Amendment.” 8 Leonard v. State, 73 N.E.3d 155, 168 (Ind. 2017) (quoting
Huffman v. State, 543 N.E.2d 360, 375 (Ind. 1989), overruled in part on other
grounds, Street v. State, 567 N.E.2d 102 (Ind. 1991)) (citations omitted). “Among
a defendant’s Sixth Amendment rights is the right of confrontation that secures
the defendant’s opportunity to conduct cross-examination.” Id.
[38] Our Supreme Court has reasoned:
[T]he trial court must make a preliminary factual determination of voluntariness when assessing the statement’s admissibility. The jury, however, remains the final arbiter of all factual issues under Article 1, Section 19 of the Indiana Constitution. Even if the court preliminarily determines that the statement is voluntary and admits it for the jury’s consideration, then the defendant is
8 The Sixth Amendment to the United States Constitution provides, in part, that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]”
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 17 of 26 still entitled to dispute the voluntariness of the statement once it is presented to the jury. Although the court has previously determined voluntariness in connection with the statement’s admissibility, the jury may find that the statement was involuntarily given.
Miller v. State, 770 N.E.2d 763, 772 (Ind. 2002). Based on Miller, we find that
the trial court erred in limiting Pedraza’s cross-examination regarding the
voluntariness of the statement. See id. (“[A] trial court’s determination that a
defendant’s statement was voluntary and admissible does not preclude the
defense from challenging its weight and credibility.”).
[39] Ultimately, however, the error is harmless, given the strength of the State’s
case, which included surveillance footage placing Pedraza at the scene, despite
his claim that he was out of town when the murders were committed; testimony
of Gavin and Snyder; cell phone records; and other corroborating evidence. See
Bailey v. State, 131 N.E.3d 665, 683 (Ind. Ct. App. 2019) (holding that exclusion
of wrongfully excluded evidence is harmless error where there is overwhelming
evidence of defendant’s guilt).
E. Redaction of Statement
[40] Pedraza argues that, by permitting the State to introduce only a portion of
Pedraza’s statement, the trial court created a Hobson’s Choice scenario wherein
Pedraza “[wa]s forced to” either “waive his Sixth Amendment argument that
he raised in his motion to suppress by introducing the remaining portion of his
statement, or [ ] waive his Fifth Amendment right not to testify and take the
stand.” Pedraza’s Reply Br. p. 6. Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 18 of 26 [41] Indiana Evidence Rule 106 provides: “If a party introduces all or part of a
writing or recorded statement, an adverse party may require the introduction, at
that time, of any other part—or any other writing or recorded statement—that
in fairness ought to be considered at the same time.”
[42] Pedraza cites U.S. v. Walker, 652 F.2d 708 (7th Cir. 1981), in support of his
argument. In Walker, the Government moved—in Walker’s second trial—to
introduce select portions of Walker’s testimony from the first trial, which ended
in a mistrial. When Walker sought to admit his trial testimony in its entirety,
the trial court refused. After Walker was convicted, he argued, on appeal, that
the district court’s evidentiary ruling violated Federal Evidence Rule 106.
Walker, 652 F.2d at 710.
[43] On appeal, the Seventh Circuit found that “substantial portions” of the
excluded testimony “were both relevant to specific elements of the
Government’s proof and explanatory of the excerpts already admitted” and
“qualif[ied] for admission under [Rule] 106[.]” Id. at 711, 713. Further, the
Seventh Circuit concluded that the Government’s selective presentation of
Walker’s prior testimony “resulted in the total exclusion of Walker’s testimony
explaining the parts admitted” and “penalize[d] Walker for failing to testify at
his second trial[.]” Id. at 714. Having found error, the Seventh Circuit declined
to deem the error harmless and reversed Walker’s conviction because the
evidence against Walker was “close and often conflicting[.]” Id. at 715.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 19 of 26 [44] Pedraza’s reliance on Walker is misplaced here. Unlike the circumstances in
Walker, the trial court here did not foreclose Pedraza’s opportunity to introduce
his statement in its entirety. As the trial court stated to defense counsel: “. . .
[T]he choice is yours”; and “[t]he State has the right to put in a portion of the
statement. [The Defense] ha[s] a right to ask that . . . more of [the statement] be
put in pursuant to Rule 106[.]” Tr. Vol. V. p. 20.
[45] Walker does not stand for the proposition that a defendant who elects not to
testify, and who also rejects the remedial effect of Rule 106 to clarify potentially
misleading impressions caused by the incomplete presentation, has suffered a
violation of his constitutional rights. To the contrary, a defendant who elects
not to testify can avail himself of Rule 106 to address misleading impressions
created by the incomplete presentation of evidence. 9 Presented with the
opportunity to introduce his entire statement, Pedraza declined.
[46] Moreover, unlike Walker, in which the evidence was close and conflicting, the
State presented considerable evidence of Pedraza’s involvement in the crime
9 In Walker, the Seventh Circuit reasoned:
In criminal cases where the defendant elects not to testify, as in the present case, more is at stake than the order of proof. If the Government is not required to submit all relevant portions of prior testimony which further explain selected parts which the Government has offered, the excluded portions may never be admitted. Thus there may be no “repair work” which could remedy the unfairness of a selective presentation later in the trial of such a case. While certainly not as egregious, the situation at hand does bear similarity to “(f)orcing the defendant to take the stand in order to introduce the omitted exculpatory portions of (a) confession (which) is a denial of his right against self-incrimination.”
Walker, 652 F.2d at 713 (citations omitted).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 20 of 26 including surveillance footage placing Pedraza at the scene, despite Pedraza’s
claim that he was out of town when the murders were committed; surveillance
footage that, consistently with Gavin’s testimony, depicted Pedraza entering
Snyder’s garage and exiting moments before Bethel ran in with a gun; Gavin’s
additional testimony that Pedraza orchestrated the robbery; cell phone tower
data placing Pedraza’s phone in the vicinity of Frederickson Street at the time
of the murders; and other corroborating evidence. See Bailey, 131 N.E.3d at 683
(Where there is overwhelming evidence of defendant’s guilt, exclusion of
wrongfully excluded evidence is harmless error.). For the foregoing reasons,
the trial court did not deny Pedraza a fair trial or abuse its discretion when it
admitted Pedraza’s redacted statement.
II. Excluded Exhibits
[47] Next, Pedraza argues that the trial court abused its discretion by excluding, as
hearsay and needlessly cumulative, Pedraza’s proffered defense exhibits B and
C—excerpts of Gavin’s videotaped statement to police—that were purportedly
relevant to judging Gavin’s credibility. 10
[48] The record reveals that, at trial, the State called Gavin to testify. Gavin testified
to the facts regarding the drug-deal-turned-robbery; he also testified that: (1) en
10 Specifically, Pedraza argues that the trial court erred in refusing to admit excerpted portions of Gavin’s police interviews in which: (1) “the elected prosecutor of St. Joseph County, Ken Cotter[,] ultimately promis[ed] not to charge Gavin with anything related to the killings and shooting at [ ] Frederickson Street [ ] . . . as long as Gavin would ‘cooperate’”; and (2) “an ATF Agent t[old] Gavin that [the agent] knows Gavin is aware of the process, and that the ‘first horse to the trough gets the best drink.’” Pedraza’s Br. p. 24.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 21 of 26 route to Snyder’s house, Pedraza and Bethel “actually swapp[ed] guns with
each other”; (2) neither Benito nor Pedraza had “enough [money] to cover the
whole quantity for the pound and a half [of methamphetamine,]” tr. vol. IV p.
148; (3) Gavin initially lied to police investigators regarding his involvement in
the shooting; (4) the elected prosecutor agreed to forgo charging Gavin with
offenses in State court; (5) Gavin received another favorable plea agreement
from the State in an unrelated matter in which Gavin cooperated with the State;
and (6) the federal government dismissed two criminal counts against Gavin
during his period of cooperation with state and federal officials. On cross-
examination, defense counsel asked Gavin whether the favorable charging
treatment and plea agreements induced Gavin to give false testimony.
[49] We will not reverse a conviction for an error that does not affect the substantial
rights of the defendant. Pierce v. State, 29 N.E.3d 1258, 1268 (Ind. 2015).
Where the wrongfully excluded evidence is merely cumulative of other
evidence presented, its exclusion is harmless error. Id.
[50] Assuming—without deciding—that the trial court improperly excluded
Pedraza’s proffered exhibits, we find that any error was harmless. The State
argues, and we agree, that “the issue of Gavin’s credibility was squarely before
the jury, and [ ] any additional evidence in that regard was cumulative.” State’s
Br. p. 22. Here, Gavin testified before the jury that, during the relevant period:
(1) Gavin initially lied to police investigators; (2) the prosecutor agreed to forgo
charging Gavin with offenses in State court; (3) Gavin received another
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 22 of 26 favorable plea agreement in an unrelated matter; and (4) the federal government
dismissed pending charges against Gavin.
[51] The exclusion of Pedraza’s proffered exhibits was harmless in light of: (1)
Gavin’s cumulative testimony; (2) Pedraza’s opportunity to cross-examine
Gavin at length; and (3) the overall strength of the State’s case, which included
surveillance footage placing Pedraza at the scene, despite Pedraza’s claim that
he was out of town when the murders were committed; surveillance footage
that, consistently with Gavin’s testimony, depicted Pedraza entering Snyder’s
garage and exiting moments before Bethel ran in with a gun; Gavin’s additional
testimony that Pedraza orchestrated the robbery; cell phone tower data placing
Pedraza’s phone near Frederickson Street at the time of the murders; and other
corroborating evidence. Error, if any, from the exclusion of defense exhibits B
and C was harmless. See Pierce, 29 N.E.3d at 1268; see Bailey, 131 N.E.3d at 683
(If there is overwhelming evidence of defendant’s guilt, exclusion of wrongfully
excluded evidence is harmless error.).
III. NIST Study
[52] Pedraza argues that he was denied his right to a fair trial when the trial court
limited his cross-examination of Daun Powers, forensic pathologist of the DNA
serology unit of the Indiana State Police Laboratory. During the jury trial,
Powers testified that she examined evidence for potential sources of DNA;
analyzed the handgun that was recovered near Bethel’s body; and discovered a
multi-source DNA profile on the gun magazine. Powers testified further that,
in analyzing the DNA, she found: (1) very strong support that Pedraza Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 23 of 26 contributed to the DNA profile recovered from the handgun; and (2) that it was
330 million times more likely that the DNA profile recovered from the handgun
originated from Pedraza, Bethel, and another person.
[53] On cross-examination of Powers, defense counsel asked Powers about a
National Institute of Standards and Technology (“NIST”) scientific research
study in which researchers found that, when laboratories conduct DNA mixture
analysis—forensic analysis of evidence that contains a mixture of DNA from
different people—the results can vary significantly across laboratories. Id. at
117; tr. vol. V p. 136. Defense counsel moved to introduce the study into
evidence. The State objected on hearsay grounds and argued that Pedraza was
“trying to offer the study and its conclusion as evidence in the form of a
question.” Tr. Vol. IV p. 104. The trial court sustained the State’s objection
and found that defense counsel sought “to go into the study in [ ] great [ ]
detail” without laying a sufficient foundation. Id. at 115. Powers testified that:
(1) she was aware of, but lacked specific knowledge of, the study; and (2) she
knew only that the researchers concluded “that interpretation varies” when
laboratories conduct DNA mixture analysis. Id. at 117.
[54] On appeal, Pedraza argues that, given the significance of Powers’ testimony
that Pedraza’s DNA was found on a handgun that was collected from the crime
scene, it was error for the trial court to “prevent[ ] Pedraza from confronting
Powers with the [ ] NIST study,” when “Powers was aware of the study [ ] and
[ ] NIST was a respected authority in [Power’s] field.” Pedraza’s Br. p. 28.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 24 of 26 [55] In general, excerpts from a journal or treatise offered to discredit an expert’s
testimony meet the definition of hearsay, which is an out-of-court statement
“offered in evidence to prove the truth of the matter asserted.” Ind. Evidence
Rule 801. Hearsay evidence is not admissible unless it meets one of the
exceptions set by statute or rule. Evid. R. 802. One of the exceptions applies to
treatises and periodicals, stating as follows:
A statement contained in a treatise, periodical, or pamphlet [is not excluded by the rule against hearsay] if:
(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination;
(B) the statement contradicts the expert’s testimony on a subject of history, medicine, or other science or art; and
(C) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit.
Ind. Evidence Rule 803(18).
[56] The record reveals that defense counsel called the NIST study to Powers’
attention on cross-examination, see Evid. R. 803(18)(A); and identified the
NIST study as being propounded by the National Institute of Standards and
Technology, of which Powers was aware, see Evid. R. 803(18)(C). Even Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 25 of 26 assuming that Pedraza’s broad challenge to the reliability of DNA mixture
analysis, as employed by Powers, constitutes a “contradict[ion]” under Rule
803(18)(B), we find that the trial court’s exclusion of the NIST study constitutes
harmless error, given the overwhelming evidence of Pedraza’s guilt. See Turner,
953 N.E.2d at 1058 (holding improper exclusion of evidence is harmless if the
conviction is supported by substantial independent evidence of guilt that
satisfies the reviewing court that there is no substantial likelihood that the
challenged evidence contributed to the conviction).
Conclusion [57] The trial court did not err when it found Pedraza's statement to police was
voluntary and that he waived his right to counsel, and the trial court did not
abuse its discretion in admitting Pedraza’s redacted statement. Any error from:
(1) the limitation of Investigator Mullins’ cross-examination; (2) the exclusion
of Pedraza’s proffered exhibits; and (3) the exclusion of the NIST study was
harmless. We affirm.
[58] Affirmed.
Najam, J., and Vaidik, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-850 | March 30, 2020 Page 26 of 26