Opinion
23A-CR-2761
06-05-2024
Derice K. Wilson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Talisha R. Griffin Indianapolis, Indiana Joel M. Schumm Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Jennifer Prinz Harrison, Judge Trial Court Cause No. 49D20-2108-MR-025670
ATTORNEYS FOR APPELLANT
Talisha R. Griffin Indianapolis, Indiana
Joel M. Schumm Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Indiana Attorney General
Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
FELIX, JUDGE
Statement of the Case
[¶1] In 2023, a jury convicted Derice Wilson of murder and carrying a handgun without a license, and the trial court found Wilson used a firearm when committing the murder. The trial court sentenced Wilson to a total of 68 years at the Indiana Department of Correction. Although Wilson was convicted of carrying a handgun without a license as a Class A misdemeanor, the sentencing order, abstract of judgment, and Chronological Case Summary (the "CCS") show that Wilson was convicted of that offense as a Level 5 felony. Wilson now appeals his murder conviction and raises two issues for our review:
1. Whether the trial court abused its discretion by admitting evidence of Wilson's flight to and attempt to evade law enforcement in Florida; and
2. Whether the case should be remanded for correction of the sentencing order, abstract of judgment, and CCS regarding Wilson's conviction for carrying a handgun without a license.
[¶2] We affirm Wilson's murder conviction and remand for correction of the sentencing order, abstract of judgment, and CCS.
Facts and Procedural History
[¶3] On the evening of August 10, 2021, 17-year-old Michael Simmons was at a gas station on the west side of Indianapolis. While Simmons was sitting in his vehicle, Wilson and his girlfriend Yashika Clowers arrived. When Wilson got out of his car, Simmons called out to him. Wilson and Simmons spoke through the open window of Simmons's vehicle before Wilson pulled something out of his pocket, leaned through the open window, and grabbed for something in Simmons's car. According to Wilson, Simmons was selling marijuana during this exchange, and once Wilson got cash out of his pocket and began to hand Simmons ten dollars for one gram of marijuana, Simmons pulled a gun out of the center console of his car and kept ahold of it in his lap. Within a few seconds, Wilson reached into Simmons's car and took the gun from Simmons. Simmons began to drive away. Wilson fired one shot in the direction of Simmons. The shot hit Simmons in the head, causing him to drive into a nearby ditch and crash into a rock. Wilson immediately got back in his vehicle and left the scene.
[¶4] On August 11, 2021, Simmons died from the gunshot wound to his head. Through an investigation, the Indianapolis Metropolitan Police Department ("IMPD") learned the identity of Wilson and his passenger, Yashika, and learned that Wilson traveled to Jacksonville, Florida the day after the shooting. On August 18, 2021, the State charged Wilson with murder and carrying a handgun without a license as a Class A misdemeanor. The State later sought an enhancement for Wilson's use of a firearm during the commission of Simmons's murder.
Id. §§ 35-47-2-1 (2021), 35-47-2-1(e)(2) (2021).
Id. §§ 35-50-2-11(b)(1), (d).
[¶5] IMPD coordinated with the Jacksonville Sheriff's Office ("JSO") and the U.S. Marshals to secure Wilson's apprehension and return to Indiana. On August 19, 2021, two IMPD detectives travelled to Jacksonville where U.S. Marshals had located Wilson inside a ten-unit apartment building. Law enforcement was able to take Yashika into custody but not Wilson. It was determined that JSO's SWAT team was to take over to secure Wilson's apprehension.
[¶6] The SWAT team first made public announcements requesting Wilson to exit the apartment building, but he did not surrender. Later, the SWAT team flew a drone into the apartment they believed Wilson was in, but the SWAT team was unable to locate Wilson. The SWAT team then deployed nonlethal gas in that apartment to see if they could hear him coughing or otherwise get a reaction from him to determine where he was, which was also unsuccessful. The SWAT team determined that Wilson was in the attic over the apartment they believed he was in, and they discovered that the attic lacked firewalls such that Wilson could use the attic to travel from one end of the apartment building to the other over multiple apartment units. In order to enter the attic, the SWAT team removed part of the siding from one end of the apartment building. Once they obtained access to the attic, the officers used nonlethal gas to flush out Wilson.
[¶7] As Wilson exited the attic feet first through an apartment at the opposite end of the building from where officers entered the attic, he momentarily got stuck before falling through the attic entrance. Members of the SWAT team, including JSO detective Ryan McGee and a K-9, were waiting in that apartment for Wilson. The K-9 attempted to seize Wilson as he came out of the attic, but the K-9 bit an officer instead. When Wilson fell, he landed in a position that did not allow officers to see his hands, and he refused to show officers his hands "despite multiple loud verbal commands" to do so. Tr. Vol. IV at 42. Detective McGee then kicked Wilson in the "chest and face region," and Wilson was taken into custody. Id. At first, officers handcuffed Wilson's hands in front of his body, but once they got Wilson out of the apartment building, they attempted to re-handcuff Wilson with his hands behind his back. It took four to five members of the SWAT team to accomplish this because Wilson struggled the entire time. Wilson was then cleared by medics and placed in a patrol car. In total, it took JSO 10 to 12 hours to apprehend Wilson.
[¶8] After law enforcement removed Wilson from the apartment building, officers searched Wilson's vehicle and the apartment in which he had been staying. In the apartment, officers found a black backpack that held a Glock handgun with 1 live round in the chamber, a magazine with 20 live rounds, and a box containing 32 live rounds. In both the driver side door panel compartment and center console of Wilson's car, officers found two more magazines.
[¶9] Prior to trial, the parties conducted video depositions of Detective McGee and JSO deputy C.D. Roerink. Detective McGee testified about JSO's efforts to apprehend Wilson, and Deputy Roerink testified about the search of Wilson's vehicle and the apartment he stayed in while in Jacksonville. On February 16, 2023, the trial court held a hearing to address the admissibility of evidence about Wilson's flight from Indianapolis to Jacksonville, his subsequent apprehension, and law enforcement's efforts to take him into custody. Wilson did not object to the State presenting evidence that he went to Florida and was apprehended there; instead, Wilson sought only to restrict the State from going into the details of his resistance, including but not limited to the multi-hour delay, the SWAT team's removal of siding from the apartment building and use of nonlethal gas, and Wilson's resistance to being handcuffed. Wilson argued that any evidence concerning the details of his resistance to apprehension were irrelevant and unfairly prejudicial. The trial court ruled that evidence of Wilson's flight to Florida, apprehension there, as well as the measures law enforcement officers took to effect that apprehension were admissible at trial.
In the transcript, Deputy Roerink seems to be referred to as Deputy Chad Rowing. Tr. Vol. IV at 52-73. The parties do not explain the discrepancy. From our review of the record, it appears that Deputy Roerink's last name was simply misspelled in the transcript. We assume they are the same person for the purposes of this appeal.
[¶10] Wilson's jury trial commenced on September 25, 2023. On the morning of the second day of trial, Wilson anticipatorily objected to the admission of redacted copies of Detective McGee's and Deputy Roerink's video depositions. Wilson incorporated all his arguments from the February 2023 hearing, again asserting that the details of his apprehension in Florida were irrelevant and unfairly prejudicial. The trial court overruled those objections. Wilson then made a continuing objection to the depositions and all exhibits from the depositions that detailed JSO's apprehension efforts. Before the depositions were admitted during trial, the parties read into the record stipulations concerning the depositions' foundations.
[¶11] Wilson testified in his own defense. Wilson claimed he shot Simmons in sudden heat because he believed Simmons was going to rob or kill him. Wilson testified that Simmons did not expressly indicate any intent to rob or kill him, but he did say "you know what time it is?" Tr. Vol. IV at 123. Wilson stated that he "was scared" and that when Simmons began driving away, Wilson "[s]ent a warning shot." Id. at 105. When questioned about this on cross examination, the following exchange occurred:
Q And you say you shot as a warning shot, a warning of what?
A I didn't know if he had another gun, it was --or --or any weapon.
Q Did you have a reason to think he had another gun?
A He just pulled one out of nowhere.
Q And you took that one, right?
A Yes.
Q So when you shot, you had unarmed the threat; is that correct?
A Yes.
Q Okay. And you h[a]d no reason to think he had another gun, right?
A I had no reason not to.
Q Did you see another gun?
A No.
Q Did he make commentary about having another gun?
A No.
Q After you took the gun from him and now had it in your possession, is that when he drove off?
A Yes.Id. at 118-19. Wilson asserted that he was not "thinking clearly" once Simmons pulled out the gun and that he "was scared" and "was just . . . reacting." Id. at 127. Wilson further testified that he did not know the shot he fired hit and killed Simmons until after he was already in Florida, where he claimed to have moved a week before the shooting.
[¶12] The jury found Wilson guilty of murder and carrying a handgun without a license as a Class A misdemeanor. Wilson waived his right to a jury trial on the use of a firearm enhancement, and the trial court found that Wilson used a firearm while committing murder. The trial court sentenced Wilson to a total aggregate sentence of 68 years executed at the Indiana Department of Correction. In the trial court's sentencing order and abstract of judgment, it listed Wilson's conviction for carrying a handgun without a license as a Level 5 felony; the CCS included the same information. This appeal ensued.
Discussion and Decision
1. Any Error in Admitting Evidence of Wilson's Apprehension Was Harmless
[¶13] Wilson argues the trial court abused its discretion by permitting the State to present evidence, over his objection, that law enforcement officials apprehended him in Jacksonville, Florida after a multi-hour standoff. "The trial court has broad discretion to rule on the admissibility of evidence." Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017). We review evidentiary rulings for an abuse of discretion, Hall v. State, 177 N.E.3d 1183, 1193 (Ind. 2021) (citing Lewis v. State, 34 N.E.3d 240, 247 (Ind. 2015)), and we "will reverse only if the trial court's ruling was clearly against the logic and effect of the facts and circumstances before it and the errors affect a party's substantial rights," id. (citing Hall v. State, 36 N.E.3d 459, 467 (Ind. 2015)). Moreover, we may affirm an evidentiary ruling on any theory supported by the evidence. Satterfield v. State, 33 N.E.3d 344, 352 (Ind. 2015).
[¶14] Wilson challenges the trial court's admission of "extensive evidence about the circumstances of Wilson's arrest in Jacksonville," Appellant's Br. at 10, because that evidence "was not relevant and posed a significant risk of prejudice in making the determination of sudden heat," id. at 11. Wilson argues that it was error to admit evidence of the following: (1) the SWAT team's arrival in heavily armored vehicles, (2) the use of "CS" and "handheld gas," (3) the removal of siding from the apartment building, (4) the systematic search of the attics above multiple apartments, (5) a K-9 attacking a police officer "instead of helping to apprehend Wilson," and (6) the discovery and photographic collection of a "large amount of ammunition." While not expressly stated, we assume Wilson contends that the admission of photographs related to the listed items was error, too.
The State contends that Wilson waived his objections to the video depositions "because he stipulated that they were admissible evidence." Appellee's Br. at 12. However, "a stipulation of facts will not be construed to admit facts which were obviously intended to be controverted." Clark v. State, 562 N.E.2d 11, 17 (Ind. 1990) (emphasis added) (quoting Lewis v. State, 482 N.E.2d 487, 492 (Ind.Ct.App. 1985)). Before the stipulations were read into the record, Wilson made a continuing objection to the depositions and all exhibits included therein. Wilson then stated that he signed the stipulations "based on the Court's ruling of what evidence comes in. They are signed over the objections already noted ...." Tr. Vol. IV at 9. The trial court observed that Wilson stipulated to only the foundation of the depositions, still objected to the admissibility thereof, and entered into the stipulation "with the knowledge of the Court's ruling that these would be allowed in and to provide a judicial economy." Id. at 9-10. The record here is clear that Wilson continually objected to the admissibility of the depositions. Therefore, we cannot say that Wilson waived his objections to the admissibility of the depositions by entering into the stipulations. See Clark, 562 N.E.2d at 17 (quoting Lewis, 482 N.E.2d at 492).
[¶15] Evidence is relevant if "(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Ind. Evidence Rule 401. A trial court "may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice ...." Id. 403. Additionally, a jury may consider a defendant's flight and related conduct when determining the defendant's guilt. Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001). "Absenting oneself from the community in which a crime has been committed may imply guilty knowledge even though it does not evince the planning of an experienced criminal." Bruce v. State, 268 Ind. 180, 248, 375 N.E.2d 1042, 1078 (1978), cert. denied, 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662 (1978). However, "evidence of flight is not probative unless tied to other evidence that is strongly corroborative of the actor's intent to commit a specific felony." Anderson v. State, 774 N.E.2d 906, 910 (Ind.Ct.App. 2002) (citing Desloover v. State, 734 N.E.2d 633, 635 (Ind.Ct.App. 2000)). This other evidence "must provide a solid basis to support a reasonable inference that the defendant intended to commit the underlying, specifically charged felony." Id. (citing Desloover, 734 N.E.2d at 635).
[¶16] Assuming arguendo that evidence of the details of JSO's efforts to apprehend Wilson was irrelevant and unfairly prejudicial, any error in admitting that evidence would be harmless. See Ind. Appellate Rule 66(A). As our Supreme Court has explained:
An error is harmless when it results in no prejudice to the "substantial rights" of a party. Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018). The harmless-error analysis is a practical one, embodying "the principle that courts should exercise judgment in preference to the automatic reversal for error and ignore errors that do not affect the essential fairness of the trial." Id. (quoting United States v. Harbin, 250 F.3d 532, 546 (7th Cir. 2001)). Factors considered in a harmless error analysis "include the presence or absence of other, corroborating evidence on material points; whether the impermissibly admitted evidence was cumulative; the overall strength of the prosecution's case; the importance of the impermissible evidence in the prosecution's case; and the extent of cross-examination or questioning on the
impermissibly admitted evidence." Zanders v. State, 118 N.E.3d 736, 745-46 (Ind. 2019).Hall, 177 N.E.3d at 1197.
[¶17] Here, the details of JSO's efforts to apprehend Wilson were not important in the prosecution's case or for the purpose of proving or disproving whether Wilson acted in sudden heat. The primary evidence concerning whether Wilson acted in sudden heat consisted of Wilson's testimony and the gas station video. Wilson testified that he shot at Simmons while Simmons was driving away from Wilson, and the surveillance footage from the gas station corroborates this part of Wilson's testimony. The jury was able to compare Wilson's testimony about being scared of Simmons with Wilson's behavior as shown in the surveillance video. The jury also saw photos of Simmons's car with a bullet hole through the rear driver side window, further demonstrating that Wilson shot Simmons from behind. Accordingly, even if we assume there was error in the admission of Wilson's apprehension, it was harmless.
2. Remand Is Appropriate for the Trial Court to Clarify the Sentencing Order, Abstract of Judgment, and CCS
[¶18] The parties agree that the sentencing order, abstract of judgment, and CCS erroneously list Wilson's conviction for carrying a handgun without a license as Level 5 felony and should instead list that conviction as a Class A misdemeanor. We agree with the parties that this case needs remanded to correct these clerical errors. See App. R. 66(C)(7).
Conclusion
[¶19] In sum, any error in the admission of Detective McGee's and Deputy Roerink's video depositions was harmless, and remand is appropriate to correct the description of Wilson's conviction for carrying a handgun without a license in the sentencing order, abstract of judgment, and CCS. We therefore affirm Wilson's murder conviction and remand for the trial court to list Wilson's conviction for carrying a handgun without a license as Class A misdemeanor instead of as a Level 5 felony.
[¶20] Affirmed and remanded.
Riley, J., and Kenworthy, J., concur.