Sir Christopher Lee Jones v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 31, 2017
• Docket: 49A02-1606-CR-1448
• 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, 8:58 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 Mark Small Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Sir Christopher Lee Jones, July 31, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1606-CR-1448 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila A. Carlisle, Appellee-Plaintiff Judge Trial Court Cause No. 49G03-1507-MR-23811

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1448 | July 31, 2017 Page 1 of 8 [1] Sir Jones appeals his conviction for Murder.1 Jones argues that the prosecutor

committed misconduct amounting to fundamental error and that the evidence is

insufficient to sustain the conviction. Finding no error and sufficient evidence,

we affirm.

Facts [2] On July 6, 2015, Gregory Moore was inside his home when he heard “a couple

of shots.” Tr. Vol. I p. 30. Moore then looked out three big windows at the

front of his house. He saw a man, later identified as Lakim Mabry, on the

ground on his stomach in the yard adjacent to Moore’s. Mabry was attempting

to get up when a man ran up to him, knelt down, shot him once in the head,

and ran away. Mabry died as a result of his injuries.

[3] After the shooting, Moore described the shooter to police as a Black male, “six

one or six two,” with lighter skin and dreadlocks. Id. at 56, 69-70. Moore got a

clear and unobstructed look at the shooter’s entire face. While Moore did not

know the shooter’s name, he had seen him “[e]very day up and down the

street” since February 2015, and knew that the shooter drove a blue Ford

Explorer. Id. at 46. Indianapolis Police Detective Mark Prater created a photo

array and showed it to Moore, who identified Jones as the shooter. At trial,

Moore identified Jones in the courtroom as the shooter and stated that he was

“a hundred percent” certain about the identification. Id. at 79. On July 7,

1 Ind. Code § 35-42-1-1.

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1448 | July 31, 2017 Page 2 of 8 2015, the State charged Jones with murder and a warrant was issued for Jones’s

arrest.

[4] On July 10, 2015, Kansas Highway Patrol Trooper Scott Baker pulled over a

speeding vehicle. Trooper Baker noticed that the driver, later identified as

Jones, was very nervous, shaking, and sweating despite the fact that the vehicle

was cool and the air conditioning was on. Trooper Baker learned upon running

Jones’s name through the computer that there was a warrant for his arrest out

of Indiana. He then arrested Jones and searched the vehicle. He did not find

any firearms but did find a phone that belonged to Jones. The phone was first

used on July 9, 2015, and had a Kentucky area code. Jones did not have

dreadlocks at the time of his arrest.

[5] When Detective Prater learned of Jones’s arrest, he traveled to Kansas to speak

with him. Jones informed the detective that he had cut his hair a couple of days

earlier. Jones told the detective that he had traveled west because “that’s far

away.” Supp. Tr. p. 22. According to Jones, his girlfriend had driven him to

Colorado Springs on July 7, 2015, despite the fact that he knew no one there,

had no place to stay, and ended up sleeping on a park bench. Jones admitted

that he drives a blue Ford Explorer.

[6] Jones’s jury trial took place on May 16 and 17, 2016. At the close of the trial,

during closing argument, the prosecutor made the following statements:

“One hundred percent,” those words were said together one time in the course of this trial, and it was yesterday when Greg Moore was up on this witness stand and testified. And he was asked: Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1448 | July 31, 2017 Page 3 of 8 “How certain are you that the person that you saw shoot and kill Lakim Mabry . . . how sure are you that it was this man right here” he signed the picture on, that he’d seen there many times on 3600 Gale. One hundred percent. One hundred percent.

There was nothing fleeting about him seeing this that day. He had said he’d never seen anything like this before. And for most of us, if we’re lucky we haven’t either.

We all remember 9/11. We all remember where we were. We all remember when we fist [sic] heard it, when we first saw it.

Tr. Vol. II p. 268. Jones did not object to these statements, and during his

closing arguments, his attorney addressed these points:

Let’s talk about fleeting. And when I talk about fleeting, I want to talk specifically about the two eyewitness testimony, and that is of Gregory Moore and Sonya Massey. Gregory Moore, a hundred percent. State put it up here big 100 percent certain that my client shot and killed Lakim Mabry.

But in voir dire we talked about certainty versus accuracy. And I can say I’m a hundred percent certain that I saw you at the store the other day. But you weren’t there, right? That doesn’t make me accurate.

Id. at 287-88. At the close of the trial, the jury found Jones guilty as charged.

On June 17, 2016, the trial court sentenced Jones to fifty-five years

imprisonment. Jones now appeals.

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1448 | July 31, 2017 Page 4 of 8 Discussion and Decision I. Prosecutorial Misconduct [7] Jones first argues that the prosecutor committed misconduct during closing

argument by restating Moore’s testimony that he was 100 percent certain

regarding the identity of Jones as the shooter and making a reference to 9/11.

[8] In reviewing a claim of prosecutorial misconduct, we must determine whether

misconduct occurred and, if so, whether the misconduct, under all of the

circumstances, placed the defendant in a position of grave peril to which he or

she would not have been subjected otherwise. Ryan v. State, 9 N.E.3d 663, 667

(Ind. 2014). Where, as here, the defendant waived a prosecutorial misconduct

claim by failing to object at trial, to succeed on appeal, he must also establish

that the prosecutorial misconduct constituted fundamental error. Id. at 667-68.

To make a successful claim of fundamental error, the defendant must show that

the alleged errors are so prejudicial to his rights as to make a fair trial

impossible. Id. at 668. To make this showing, the defendant must show that,

under the circumstances, the trial court erred in not sua sponte raising the issue

because the alleged errors (1) “constitute clearly blatant violations of basic and

elementary principles of due process” and (2) “present an undeniable and

substantial potential for harm.” Id.

[9] Here, Jones claims that by restating Moore’s testimony that he was 100 percent

certain of the identity of Jones as the shooter, the prosecutor impermissibly

vouched for the credibility of the witness. We disagree. By referencing

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1448 | July 31, 2017 Page 5 of 8 Moore’s testimony characterizing his own degree of confidence in his

identification of Jones as the shooter, the prosecutor was merely reminding the

jury of evidence they had already heard. Our Supreme Court has noted that

while a prosecutor may not personally vouch for the credibility of any witness,

a prosecutor “may ‘comment on the credibility of the witnesses as long as the

assertions are based on reasons which arise from the evidence.’” Id. at 671

(quoting Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006)). That is precisely

what occurred in this case. We see no prosecutorial misconduct on this basis,

let alone misconduct amounting to fundamental error.

[10] Jones also argues that by referencing the events of 9/11, the prosecutor was

again impermissibly vouching for Moore’s credibility. Again, we disagree. The

prosecutor used the analogy as a rhetorical device to persuade the jury that

Moore’s confidence in his identification of Jones was credible because

witnessing a murder right in front of his home was the kind of significant event

that prompts a person to remember details he might otherwise forget. Here,

again, the prosecutor’s comments were based on reasons arising from the

evidence. The prosecutor was merely fulfilling the “duty to present a persuasive

final argument,” id. at 667, and we find no error on this basis.2

2 Jones makes an offhand suggestion of an argument that Moore’s testimony that he was 100 percent confident in his identification was improperly admitted. Jones does not develop a cogent argument, failing even to recite the rules or standard of review regarding admission of evidence, so he has waived it. Waiver notwithstanding, we note that the concerns raised in the out-of-state cases cited by Jones do not apply to this case. Moore was not providing testimony regarding statistical probability or quantification; he was simply

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1448 | July 31, 2017 Page 6 of 8 II. Sufficiency [11] Jones also argues that the evidence is insufficient to support the conviction.

When reviewing a claim of insufficient evidence, we will consider only the

evidence and reasonable inferences that support the conviction. Gray v.

State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm if, based on the

evidence and inferences, a reasonable jury could have found the defendant

guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003, 1005

(Ind. 2009). To convict Jones of murder, the State was required to prove

beyond a reasonable doubt that he knowingly or intentionally killed another

human being. I.C. § 35-42-1-1. Jones contends that the State failed to prove

beyond a reasonable doubt that he was the person who shot and killed Mabry.

[12] The evidence in the record supporting the jury’s conclusion that Jones was the

shooter is as follows:

• Moore heard gunshots and saw Jones shoot Mabry in the head. Moore had a clear and unobstructed view of the shooting and saw Jones’s entire face. • Moore recognized the shooter as someone he saw every day on his street, provided a description that matched Jones at the time, told police that Jones drove a blue Ford Explorer, and identified Jones as the shooter from a photo array and again in court. • Following the murder, Jones cut his hair by removing his dreadlocks and obtained a new cell phone with a Kentucky area code. He then fled to Colorado even though he did not know anyone in that state and had to

testifying as to his degree of confidence in his belief that Jones was the shooter. This testimony was not improperly admitted.

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1448 | July 31, 2017 Page 7 of 8 sleep on a park bench when he arrived. When he was pulled over by police in Kansas for a traffic stop, Jones was very nervous, shaking, and sweating.

This evidence is sufficient to support the jury’s determination that Jones is

guilty of murder. See Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001) (holding

that “flight and related conduct may be considered by a jury in determining a

defendant’s guilt”). Jones directs our attention to alleged discrepancies in

Moore’s testimony, as well as discrepancies between Moore’s testimony and

other evidence in the record. This amounts, however, to a request that we

reweigh the evidence, which we may not do. It was for the jury to weigh the

evidence and assess Moore’s credibility, and nothing in this record leads us to

second-guess the jury’s ultimate determination in this case.3

[13] The judgment of the trial court is affirmed.

Bailey, J., and Altice, J., concur.

3 Jones makes an offhand suggestion of an argument that the photo array that police showed to Moore and Massey was unduly suggestive. Jones does not develop a cogent argument, failing even to recite the rules or standard of review regarding photo arrays, so he has waived it. Waiver notwithstanding, the photo array contained six photos; five of the photos were booking photos while Jones’s was a BMV photo. No other features of Jones’s image distinguish it from the other five in appearance and nothing else about the array or behavior of law enforcement is alleged to be unduly suggestive. Therefore, the photo array was not problematic. Furthermore, Moore also identified Jones in court as the shooter. Moore was able to describe Jones accurately, including the type of vehicle he drove, and had an unobstructed and clear view of the shooting and Jones’s entire face. Consequently, his identification of Jones in court was sufficiently reliable that even if the array had been problematic, any error was harmless. Therefore, this argument is unavailing.

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