Opinion
21A-CR-2236
06-22-2022
Darrick D. Price, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
Attorneys for Appellant Valerie Kent Boots Darren D. Bedwell Indianapolis, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this 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.
Appeal from the Marion Superior Court The Honorable Cynthia L. Oetjen, Judge Trial Court Cause No. 49D30-1909-MR-34821
Attorneys for Appellant Valerie Kent Boots Darren D. Bedwell Indianapolis, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
RILEY, JUDGE
STATEMENT OF THE CASE
[¶1] Appellant-Defendant, Darrick D. Price (Price), appeals his conviction for murder, a felony, Ind. Code § 35-42-1-1; and carrying a handgun without a license, a Level 5 felony, I.C. § 35-47-2-1.
[¶2] We affirm.
ISSUES
[¶3] Price presents this court with two issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion when it admitted the victim's statement at trial as a dying declaration exception to the hearsay rules; and
(2) Whether the trial court abused its discretion by admitting a witness' deposition statement at trial after finding the witness to be unavailable based on the witness' invocation of his Fifth Amendment right against self-incrimination.
FACTS AND PROCEDURAL HISTORY
[¶4] On September 14, 2018, at approximately 2:45 a.m., Sylvester Collins (Collins) called 911 with a report that he had been "shot three times in [his] chest" and was unable to move. (Transcript Vol. I, p. 179). At first, Collins informed the dispatcher that he did not know the identity of the shooter, but by the time police officers arrived at his residence, he told them that someone named Darrick had shot him. Approximately twenty-four hours after the shooting, Detective James Hurt with the Indianapolis Metropolitan Police Department (Detective Hurt) visited Collins in the hospital. Collins was in "the equivalent of the ICU," was lying flat in a medical bed, and was attached to numerous machines. (Tr. Vol. II, p. 45). Detective Hurt noticed that Collins "was in bad enough shape," he had "agonizing pain, and [was] uncomfortable." (Tr. Vol. II, p. 45). After consulting with Collins' medical team, Detective Hurt determined that it was important to speak with Collins. Collins told Detective Hurt that "Darrick came by" around 2:00 a.m. the night before and immediately started shooting at him. (State's Exh. 81). He described Darrick as about twenty-eight years old, black, skinny, about 5'6", hair "cut low," and a goatee. (State's Exh. 81).
[¶5] Collins passed away twelve days later, on September 26, 2018. An autopsy revealed that he had suffered a gunshot wound on the right side of his back that exited on the left side of his body, near the base of his neck. As a result, his spinal cord was injured, and he would have been paralyzed. A second gunshot wound was found in his left thigh, with the bullet having fractured Collins' femur. Collins' cause of death was determined to be complications resulting from the gunshot wounds.
[¶6] A search of Collins' house revealed, besides fired cartridge cases, a Hennessy bottle which, after DNA testing, confirmed the presence of Jeffrey Whitsey's (Whitsey) DNA on the bottle. Because Whitsey was wearing a GPS ankle monitor in 2018, officers were able to put him inside Collins' residence on September 14, 2018, at 2:22 a.m.
[¶7] On December 7, 2018, an undercover vice detective was approached by Amanda Small (Small), who volunteered that she had information about Price killing someone. Small had been dating Price's brother, Henry Price (Henry), for about five years. She explained that on September 14, 2018, Price was supposed to get crack for Henry. Henry and Small rode in the backseat of a car Price was driving. First, they stopped at the house of a friend of Price's, known as Jeff, and described as a tall dark-skinned black male, wearing long dreads. From there, Price followed his friend's car to Collins' house. At the residence, Price exited the car while the friend knocked on the door and they both entered the house. While Price and the friend were in the house, Small heard two gunshots. She saw Price run out of the house but then he re-entered and she heard two more shots. When Price returned to the car, Small noticed that he was carrying a gun. Henry asked Price if he had killed someone, to which Price responded, "yeah, I shot him two times in the chest." (State's Exh. 7). After the shooting, Price drove to Small's apartment where he wiped the gun with his t-shirt. Price later told Henry that he had thrown the gun in a sewer. After searching the sewers based on information received from Henry, Detective Hurt located a firearm with four unfired cartridges in the magazine and an unfired cartridge in the chamber. Forensic testing confirmed that the gun had fired the cartridges found in Collins' house.
[¶8] On September 3, 2019, the State filed an Information, charging Price with murder, a felony, and carrying a handgun without a license, a Level 5 felony. At a pretrial hearing, the State requested the trial court to admit Collins' statement given at the hospital as an exception to the hearsay rules, either as a dying declaration or as an excited utterance. Over Price's objection, the trial court admitted the statement as a dying declaration.
[¶9] On August 23, 2021, the trial court presided over Price's jury trial. Prior to the commencement of voir dire, the trial court conducted a hearing on Henry's availability as a witness. After being sworn in, Henry indicated that he did not intend to testify. His counsel informed the trial court that Henry would invoke his Fifth Amendment right against self-incrimination as there were "indications" that "would implicate him." (Tr. Vol. I, p. 63). His attorney detailed that Henry was seeking drugs, erased the contacts off his phone after Small divulged his involvement to the undercover vice detective, wore the black hoodie that Price wore during the murder, and dropped Price off at an apartment complex after the shooting. Henry's counsel clarified that even if the State would offer him immunity, Henry would still refuse to testify. The trial court questioned Henry that "if I ordered you to testify[,] would you obey my order, or would you disobey my order[?]" (Tr. Vol. I, p. 66). Henry responded that he would disobey the order and not testify. The trial court found Henry unavailable to testify. During the trial, the State moved to admit Henry's deposition statement based on the trial court's determination of unavailability. Over Price's objection, the trial court admitted Henry's deposition. At the close of the evidence, the jury found Price guilty as charged. On September 29, 2021, the trial court sentenced Price to fifty-five years for murder, with fifty years executed and five years suspended, and to a concurrent term of three years executed for carrying a handgun without a license.
[¶10] Price now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
I. Dying Declaration
[¶11] Price contends that the trial court abused its discretion when it admitted Collins' statement, given in the hospital and identifying Price as the gunman, as a dying declaration because the foundational evidence failed to establish that Collins believed he was dying when making the statement. Our standard of review in this area is well-settled. We review the admission or exclusion of evidence for an abuse of discretion. Hackner v. State, 161 N.E.3d 1287, 1289 (Ind.Ct.App. 2021), trans. denied. An abuse of discretion occurs when a trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Id.
[¶12] Out-of-court statements offered in court for the truth of the matter asserted are generally inadmissible hearsay. Ind. Evidence Rule 802. However, one among many exceptions to the inadmissibility of hearsay is an out-of-court statement which "the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances." Ind. Evidence Rule 804(b)(2). The admissibility of such a "dying declaration" is based on "the belief that persons making such statements are highly unlikely to lie." Idaho v. Wright, 497 U.S. 805, 820, 110 S.Ct. 3139, 3149, 111 L.Ed.2d 638 (1990). "Under the dying declaration exception, the fact that a victim ultimately dies from her injuries does not make her statement admissible." Beverly v. State, 801 N.E.2d 1254, 1259 (Ind.Ct.App. 2004) (citing Anderson v. State, 471 N.E.2d 291, 292 (Ind. 1984)), trans denied. Rather, to be admissible, "[t]he declaration must be made by a person who knew death was imminent and had abandoned all hope of recovery." Anderson, 471 N.E.2d at 292.
[¶13] Challenging the evidence supporting the finding of a dying declaration, Price contends that "[i]f Collins believed he would die from his injuries when Detective Hurt interviewed him at the hospital, he did not say so." (Appellant's Br. p. 19). Focusing on the absence of "a clear statement" by Collins that he believed death to be imminent, Price asserts that "there is little else in the record to show that Collins believed he would die from his injuries when Detective Hurt interviewed him on September 14, 2018." (Appellant's Br. p. 19). However, to determine if a declarant's statements were made with the belief that death was imminent and the declarant had abandoned all hope of recovery, the trial court may consider the general statements, conduct, manner, symptoms, and condition of the declarant, which flow as the reasonable and natural results from the extent and character of his wound or state of his illness. Beverly, 801 N.E.2d at 1260; see also Gipe v. State, 75 N.E. 881, 882 (1905) ("[I]f a dying person either declare[s] that he knows his danger, or it is reasonably to be inferred from the wound or state of illness that he was sensible of his danger, the declarations are good evidence. That the character of the wound may of itself warrant the inference that the declarant was under a sense of certain and speedy death is settled upon the authorities[.]"). "The time between the declarant's statement and death does not normally affect its admissibility." Thompson v. State, 796 N.E.2d 834, 839 (Ind.Ct.App. 2003) (citing Jones v. State, 71 Ind. 66, 73 (1880) (written statement of victim identifying shooter was admissible even though victim died fourteen days after shooting)), trans. denied.
[¶14] The evidence reflects that, after he was shot in the chest, Collins called 911 and told the dispatcher "I can't move, I can't get up" as the police were on the way. (State's Exh. 2). Collins had suffered a gunshot wound to his back, which had injured his spinal cord, and which, according to the pathologist, had paralyzed him. Another gunshot wound had fractured his femur. When Detective Hurt visited Collins at the hospital approximately twenty-four hours after the shooting, he was in a medical bed in the ICU, lying flat, and hooked up to numerous machines. A consultation with Collins' medical team impressed on Detective Hurt that it was important to speak with Collins. During this conversation, it was clear that Collins "was in bad enough shape," he had "agonizing pain, and [was] uncomfortable." (Tr. Vol. II, p. 45). Considering all the circumstances surrounding the making of the statement, the evidence is sufficient to infer Collins might have believed death to be imminent, which, in turn, supports the trial court's ruling that Collins' statement to detective Hurt, identifying Price as the shooter, was admissible under the dying declaration exception to the hearsay rules. See Dean v. State, 432 N.E.2d 40, 45 (Ind. 1982) ("It is within the discretion of a trial court to determine whether or not the declarant believed his death was certain.").
II. Unavailability
[¶15] Price contends that the trial court abused its discretion by finding Henry unavailable for trial after he invoked his right against self-incrimination pursuant to the Fifth Amendment of the United States Constitution.
[¶16] A declarant is considered to be unavailable as a witness if the declarant "is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies." Evid. R. 804(a)(1). If the declarant is determined to be unavailable, "a lawful deposition, whether given during the current proceeding or a different one," may be admitted as testimony. Evid. R. 804(b)(1). Here, Henry invoked the privilege of the Fifth Amendment in his refusal to testify. The Fifth Amendment's right against self-incrimination provides that "no person shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. This protection extends to state cases by virtue of the Fourteenth Amendment. See Withrow v. Williams, 507 U.S. 680, 688-89, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993). "[T]his prohibition not only permits a person to refuse to testify against himself at a criminal trial . . . but also 'privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.'" Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973)).
[¶17] For the potential for self-incrimination to be present, there must be "reasonable cause to apprehend danger from a direct answer." Bleeke v. Leemon, 6 N.E.3d 907, 925 (Ind. 2014) (citing Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951)). "The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself-his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified." Id. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Id. Answers are incriminating not only when they "would in themselves support a conviction," but also when they would "furnish a link in the chain of evidence" necessary to prosecute the claimant for a crime. Id.
[¶18] In support of his claim that the trial court mistakenly declared Henry to be unavailable, Price specifically asserts that "Henry's blanket refusal to testify was not a legitimate assertion of the privilege against self-incrimination under Ind. Evidence Rule 804(a)(1)" and the trial court did not "make an express finding that his assertion of privilege had merit." (Appellant's Br. pp. 16, 24-25). We disagree.
[¶19] During the hearing on Henry's unavailability, Henry's counsel informed the trial court that he was not going to testify and that instead he would invoke his Fifth Amendment right to remain silent as "there are indications for his testimony that would implicate him." (Tr. Vol. I, p. 63). Counsel advised the court that Henry's deposition made it clear that on the night Price killed Collins, Henry was seeking cocaine, "he wiped contacts on his phone, he took a black hoodie that [Price] wore, and held onto it, and wore it everyday after the murder. It's possible he dropped his brother at an apartment complex." (Tr. Vol. I, p. 63). Accordingly, as Henry's answers during his trial testimony could potentially incriminate him as an accomplice to the murder or, at least, furnish a link to evidence sufficient to prosecute him for a crime separate from Collins' murder, the trial court found Henry to be "unavailable" as he, "specifically through his attorney was asserting his Fifth Amendment not to testify." (Tr. Vol. I, p. 69). Consequently, the trial court properly admitted Henry's deposition testimony. See Evid. R. 804(b)(1); Diggs v. State, 531 N.E.2d 461, 464 (Ind. 1988) (Witness who invoked Fifth Amendment and refused to testify at trial should have been deemed unavailable permitting use of a deposition at trial[.]").
We disagree with Price that the trial court should have imposed a sanction or "threaten[ed] [Henry] with contempt proceedings" prior to finding him unavailable pursuant to Evid. R. 804(a)(2). (Appellant's Br. p. 25). Although we agree with Price that Evid. R. 804(a)(2) mandates a "court order" requiring a witness to testify when a witness "refuses to testify about the subject matter" prior to declaring the witness to be unavailable, here, the trial court proceeded under Evid. R. 804(a)(1)-the privilege exception-which does not carry such a mandate and merely requires a ruling that a privilege applies.
[¶20] However, Price now seeks the application of Evidence Rule 501(b) to find that Henry's decision to participate in the deposition waived his privilege against self-incrimination at trial. Evidence Rule 501(b) provides that "a person with a privilege against disclosure waived the privilege if the person . . . voluntarily and intentionally discloses or consents to the disclosure of any significant part of the privileged matter." Because Henry asserted his privilege based on the Fifth Amendment of the United States Constitution, we find that Evid. R. 501(b) is not applicable to the cause before us. See Evid. R. 101(b) (The Indiana Rule of Evidence "apply in all proceedings . . . except as otherwise required by the Constitution of the United States[.]"). Accordingly, we conclude that the trial court did not abuse its discretion in finding Henry to be unavailable as a witness after asserting his Fifth Amendment right against self-incrimination and by admitting Henry's deposition at trial.
CONCLUSION
[¶21] Based on the foregoing, we hold that the trial court did not abuse its discretion when it admitted Collins' statement at trial as a dying declaration and it properly admitted Henry's deposition after finding him to be unavailable.
[¶22] Affirmed.
[¶23] May, J. and Tavitas, J. concur.