TThis post examines a recent opinion from the Court of
Appeals of Indiana: Richardson v. State, 2017 WL 2872300 (2017). The court began the
opinion by explaining that “Appellant-Defendant, Terrance L. Richardson (Richardson), appeals his conviction for murder, a felony, Ind. Code § 35-42-1-1.” Richardson v. State, supra.
The Court goes on to explain that
Richardson raises two issues for our
review, which we restate as:
(1)
Whether the trial court abused its discretion when it excluded a Facebook message from the
evidence presented at trial; and
(2) Whether the State presented
sufficient evidence beyond a reasonable doubt to rebut Richardson's claim of
self-defense.
Richardson v. State,
supra.
The Court of Appeals then began explaining how, and why,
this prosecution arose:
On the afternoon of October 4, 2015,
Richardson, and his three friends, Jalen Heffner (Heffner), Kaylend Gilbert
(Gilbert), and Steven Kendall (Kendall)—all approximately seventeen years
old—walked together to the New York Express convenience store, located at 2801
East New York Street—on the corner of Rural Street and New York Street—in
Indianapolis, Indiana. Richardson and Gilbert entered the store, while Heffner
and Kendall waited outside. After a short while, Kendall walked around the
corner of the store, while Heffner sat on the curb in front of the store's
entrance. A couple of seconds after Kendall walked around the corner,
Richardson exited the store and joined Heffner on the curb; Gilbert remained
inside, waiting in line at the cash register. When his purchase was complete,
Gilbert joined Richardson and Heffner at the curb, just as Kendall turned the
corner and walked towards them.
About a minute later, the group turned
their attention to Rural Street as a black car pulled up. Richardson, Heffner,
and Gilbert moved toward the vehicle and leaned into the passenger side window
to start conversing with the occupant. Kendall hung back, remaining on the
curb. Eventually, Kendall walked towards the vehicle and appeared to speak with
the occupant. Then, Richardson, Gilbert, and Kendall moved away and began
talking amongst themselves on the curb; Heffner remained at the vehicle. During
the conversation, Kendall lifted his shirt with both hands and showed the other
two a black item—appearing to be a gun—in the waistband of his pants. A couple
of seconds later, Heffner shook hands with the occupant of the vehicle, which
then drove away. All four talked briefly in front of the store, before walking
away. Approximately thirty seconds later, Heffner and Richardson returned to
the store. Upon entering, they immediately walked toward the back where Heffner
reached in his right-hand pocket and handed Richardson a black object, which
Richardson quickly pocketed in his jacket. The two then exited the store
without making a purchase.
Richardson v. State,
supra.
The court goes on to explain that the
four boys walked together to the
parking lot behind the convenience store. Behind the store, Kendall stopped
first. Richardson turned and walked back to Kendall, leaning down briefly with
his hands on his knees. Richardson then faced Kendall and put his hand in his
jacket. Heffner faced Kendall at the opposite side of Richardson. Richardson
pulled out a gun and abruptly lunged at Kendall. Kendall put his left hand out
to ward off the attack, and Richardson fired a single shot into Kendall's
chest.
Heffner immediately sprinted back to
the front parking lot of the New York Express. Richardson and Gilbert ran into
each other as they fled towards Rural Street, causing Gilbert to drop his
cellphone. Richardson, Gilbert, and Heffner met up after crossing the street
and started walking as if nothing had happened. Although shot, Kendall managed
to run in the opposite direction. As he ran, he dropped his gun. Seconds after
he picked up the gun, he collapsed on the sidewalk and died.
When law enforcement arrived, they
discovered Kendall face-first on the concrete, showing no signs of life. They
recovered a handgun a few feet from Kendall's body. The handgun was fully
loaded but did not have a bullet in the chamber. Forensic testing of the
firearm revealed that it was not the weapon that had fired the fatal shot. A
cellphone was recovered from Kendall's body. Another cellphone, later
determined to belong to Gilbert, was found in the parking lot where Richardson
and Gilbert had bumped into each other as they fled. Police officers obtained
the surveillance footage from the New York Express and from the remodeling
business, which allowed the officers to quickly identify the individuals
involved.
Richardson v. State,
supra.
The court concludes the introductory portion of the opinion
by explaining that on
October 5, 2015, the State filed an
Information charging Richardson with murder, a felony. On November 14 through
16, 2016, the trial court conducted a joint bench trial for Richardson,
Heffner, and Gilbert. At the
close of the evidence, the trial court found Richardson guilty as charged, but found
Gilbert and Heffner not guilty.
On December 1, 2016, the trial court sentenced Richardson to fifty-five years
executed in the Indiana Department of Correction.
Richardson now appeals. Additional
facts will be provided if necessary.
Richardson v. State,
supra.
The court appended a footnote after the second sentence in
the passage quoted above, in which it explained that
[a]ll three defendants were charged
with murder, but only Richardson was found guilty. The trial court did not find sufficient evidence to prove
beyond a reasonable doubt that Heffner and Gilbert were knowing accomplices in
Kendall's murder.
Richardson
v. State, supra.
As noted above, Richardson raised two
issues in his appeal: one of which was that the court “abused its discretion”
when it excluded “a Facebook message” from the evidence that was introduced at
trial. Richardson v. State, supra.
The other issue was whether the prosecution “presented sufficient evidence
beyond a reasonable doubt to rebut Richardson's claim of self-defense.” Richardson v. State, supra.
The Court of Appeals then began its
analysis of the arguments and facts outlined above in a section of the opinion
that is entitled “discussion and decision.” Richardson
v. State, supra. This post examines those issues in the order that the
Court of Appeals followed.
The court therefore began its analysis
with Richardson’s argument concerning the trial judge’s excluding the Facebook
message:
Richardson contends that the trial
court abused its discretion when it excluded a Facebook message between Kendall
and a third party from the evidence admitted at trial. The trial court has
inherent discretionary power over the admission of evidence, and its decisions
are reviewed only for an abuse of that discretion. Bowman v. State,
73 N.E.3d 731, 734 (Ind. Ct. App. 2017), trans. denied.
Accordingly, we will reverse the trial court's decision only when it is clearly
against the facts and circumstances before the court. Id. Even
if the trial court abused its discretion in admitting evidence, the judgment
will be undisturbed if the decision to admit evidence is harmless error. Id. `Harmless
error occurs “when the conviction is supported by such substantial independent
evidence of guilt as to satisfy the reviewing court that there is no
substantial likelihood that the questioned evidence contributed to the
conviction.”’ Id. (quoting Lafayette v. State, 917
N.E.2d 660, 666 (Ind. 2009)).
During his case-in-chief, Kendall
called Detective Grant Melton of the Indianapolis Metropolitan Police
Department (Detective Melton). Detective Melton testified about his examination
of the password-protected cellphone that had been recovered from Kendall's
body. During his examination, Detective Melton retrieved a Facebook profile under the name
`Bandman Trapp.’ (Transcript Vol. III, p. 63). Through Facebook's Messenger application,
Detective Melton discovered a conversation between Bandman Trapp and another
account with the name `Little L Mike Brookside’ from a couple days prior to the
shooting. (Tr. Vol. III, p. 64). Richardson moved to admit the message and the
State objected on grounds of improper foundation, relevance, and hearsay.
After the trial court expressed
concerns about the evidentiary foundation of the message, Richardson questioned
Detective Melton about the author of the message and the recovery of the data
during follow-up questioning. Upon being interrogated by the State, Detective
Melton noted that the Facebook account could not only be accessed through the
cellphone that was recovered at the scene, but could also be accessed through
any computer or any
other telephone. `Other than [ ] having seen Bandman Trapp on that message,’
Detective Melton had `no idea who made that statement or who composed that
message.’ (Tr. Vol. III, p. 72). He clarified that he did not know who composed
the message because anyone could sign into that account on a computer and compose the message
which `would then sync to that phone if it's signed into the account.’ (Tr.
Vol. III, p. 72). After the trial court denied the admission of the message
based on foundation grounds, Richardson made an offer to prove. In his offer to
prove, Richardson indicated that the exhibit would show that on October 1,
2015, Kendall, under his Facebook account of Bandman Trapp, messaged Little L
Mike Brookside, `Nah I'm boutta finesse hoodie for this strap but I need
you[,]’ which Richardson represented to mean, `I'm about to rob somebody for a
black gun.’ (Tr. Vol. III, pp. 83, 84).
Richardson v. State,
supra.
The Court of Appeals then explained that to
lay a foundation for the admission of
evidence, the proponent of the evidence must show that it has been
authenticated.” Hape v. State, 903 N.E.2d 977, 989 (Ind. Ct. App.
2009), trans. denied. Indiana Rule of Evidence 901(a) provides
that `[t]o satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding
that the item is what the proponent claims it is.’ Absolute proof of
authenticity is not required. M.T.V. v. State, 66 N.E.3d 960, 963
(Ind. Ct. App. 2016), trans. denied. Rather, the proponent of the
evidence must establish only a reasonable probability that the evidence is what
it is claimed to be, and may use direct or circumstantial evidence to do
so. Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans.
denied. Once this reasonable probability is shown, any inconclusiveness of
the evidence's connection with the events at issue goes to evidential weight,
not admissibility. Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App.
2008), trans. denied.
`Letters and words set down by
electronic recording and other forms of data compilation are included
within Rule 901(a).’ Wilson v. State, 30 N.E.3d 1264,
1268 (Ind. Ct. App. 2015), trans. denied. Moreover, Evidence Rule 901(b)
provides a non-exhaustive list of evidence that satisfies the authentication
requirement. One example is where there is evidence describing a process or
system and showing that it produces an accurate result. Evid. R. 901(b)(9).
Another example, provided in Evidence Rule 901(b)(4), is where, taken
together with all the circumstances, the evidence has distinctive
characteristics in appearance, contents, or substance. Federal Rule of Evidence 901(b)(4) uses language identical to that of Indiana Rule of
Evidence 901(b)(4). `We have previously acknowledged that federal courts have
recognized Federal Rule of Evidence 901(B)(4) as one of the most
frequently used means to authenticate electronic data, including text messages
and emails.’ Wilson,
30 N.E.3d at 1268.
Richardson v. State,
supra.
The Court of Appeals goes on to explain that in Wilson,
we addressed whether messages sent
through a Twitter social
media account were properly authenticated as having been authored by the
defendant. Id. at 1268. During trial, a witness testified that she
often communicated with Wilson on Twitter
and had general knowledge of the account by its `@Nell_FearNoMan’
header. Id. at 1268-69. The contents of the account included
pictures depicting Wilson holding guns that matched the description of those
used in the crime. Id. at 1269. Moreover, there was testimony that
Wilson was affiliated with two gangs, and the @Neil_FearNoMan Twitter account frequently used
terms referring to those gangs, showing that the author of the messages was
affiliated with them. Id. We concluded that “`taken together,
the witness testimony identifying the Twitter account as belonging to Wilson and the content posted
on the account, including pictures and gang references, are more than
sufficient to authenticate the Twitter posts
as being authored by Wilson.’ Id.
In M.T.V., M.T.V.
admitted, in an interview with law enforcement officers, to having had Facebook conversations with B.E.,
in which B.E. threatened to shoot up the school on April 20, 2018. M.T.V.,
66 N.E.3d at 963-64. The Facebook records
introduced at the hearing contained the content M.T.V. admitted to. Id.
at 964. Furthermore, in addition to having distinctive characteristics in
content, the Facebook records
were also supported by an affidavit from Facebook's authorized records custodian, which
specified, inter alia, that the records were made and kept by Facebook's automated systems and
were made at or near the time the Facebook user
transmitted the information. Id. At the hearing, law
enforcement testified that the procedure used to obtain the Facebook records was an ordinary
procedure, previously used for criminal investigations involving Facebook. Id. Concluding
that, collectively, the State had established the requisite reasonable
probability that the Facebook records
corresponded to M.T.V.'s and B.E.'s accounts and that M.T.V. and B.E. authored
the conversations therein, we found the records properly authenticated. Id.
Richardson v. State,
supra.
The court goes on to point out that
[h]ere, Detective Melton described the
procedure used to unlock the password-protected cellphone and after opening up
the Facebook application,
he located an account under the name of Bandman Trapp. Upon preliminary
questioning by the State, Detective Melton explained that there are several
ways a Facebook account
could be accessed. He clarified that anyone who signed into the Facebook account, through a computer or cellphone, could
compose messages that would then sync to the Facebook application on the recovered cellphone. In other
words, Detective Melton had `no idea who made that statement or who composed
that message.’ (Tr. Vol. III, p. 72). Unlike the defendants in Wilson and M.T.V., Richardson did not present any evidence describing
distinctive characteristics that could connect the particular statement to
Kendall, nor did he present any other indicia of reliability establishing
Kendall as the author of the contested statement. Accordingly, the trial court
did not abuse its discretion when it refused to admit the Facebook message.
Richardson v. State,
supra.
The Court of Appeals then took up Richardson’s next
argument, i.e., “that the State failed to present sufficient evidence beyond a
reasonable doubt to rebut his claim of self-defense.” Richardson v. State, supra. The court began this analysis by
explaining that the standard for
reviewing a challenge to
the sufficiency of evidence to rebut a claim of self-defense is the same
standard used for any claim of insufficient evidence. Wilson v. State,
770 N.E.2d 799, 801 (Ind. 2002). We neither reweigh the evidence nor judge the
credibility of witnesses. Id. If there is sufficient evidence of
probative value to support the conclusion of the trier of fact, the judgment
will not be disturbed. Id.
`A valid claim of self-defense is a
legal justification for an otherwise criminal act.’ Henson v. State,
786 N.E.2d 274, 277 (Ind. 2003). To prevail on his self-defense claim,
Richardson must show that he: (1) was in a place where he had a right to be;
(2) acted without fault; and (3) was in reasonable fear of apprehension of
bodily harm. Indiana Code § 35-41-3-2; Henson v. State, 786 N.E.2d 274,
277 (Ind. 2003). A person who provokes, instigates, or participates willingly
in the violence does not act without fault for the purposes of
self-defense. Shoultz v. State, 995 N.E.2d 647, 660 (Ind. Ct. App.
2013), trans. denied. A mutual combatant, whether or not the
initial aggressor, must declare an armistice before he may claim
self-defense. Wilson, 770 N.E.2d at 801.
Richardson v. State,
supra.
The court goes on to explain that
[w]hen self-defense is
raised and finds support in the evidence, the State bears the burden of negating
at least one of the necessary elements. Id. at 800.
The State may meet this burden by offering evidence directly rebutting the
defense, by affirmatively showing that the defendant did not act in
self-defense, or by relying on the sufficiency of the evidence from its
case-in-chief. Miller v. State, 720
N.E.2d 696, 700 (Ind. 1999). If a defendant is convicted despite
his self-defense claims, we will reverse only if no reasonable person could say
that self-defense was negated beyond a reasonable doubt. Wilson, 770 N.E.2d at 801.
Richardson v. State,
supra.
The Court of Appeals goes on to analyze Richardson’s claim
of self-defense which It describes as resting
entirely on Gilbert's testimony and the
surveillance video of the incident. He presented a theory that he shot Kendall
in response to Kendall grabbing a gun from his waistband and clicking the
trigger, which failed to fire because there was no bullet in the chamber. Upon
rendering its guilty judgment,
the trial court discussed Richardson's self-defense claim as follows:
`The [c]ourt finds that first at
looking at this, and as I indicated, I looked at this, the tapes for about four
hours last night and I looked at, again, reviewed two critical parts of the
tape, one the part of the shooting, the second, the part of the grocery store
and whether or not there was a handoff of a weapon or not. Those to me were the
two critical points at issue.... The [c]ourt does not believe that this was
self-defense. It believes the State's case in chief proved beyond a reasonable
doubt, one, that [Richardson] did fire the shot and did knowingly killed
[Kendall], two, that it was not a matter of self-defense. The film does not
show the decedent in this case attacking anyone, raising his hands or doing
anything, even if he had his hand on the gun outside. [Gilbert] is simply not
credible on this point. [Gilbert's] testimony indicates he was standing not
near—that he was merely watching and not doing anything, the tape is pretty
clear to the [c]ourt that once [Richardson] shoots [Kendall], everybody is
moving and everybody is moving quickly. And so the [c]ourt doesn't find him
credible on that point and does find the tape to be pretty clear, that the
[three defendants] fled the area, they did not return to the area in terms of a
self-defense claim, in the common language of things, they didn't stand their
ground, wait for the police and tell them that it was a justified shooting.
They didn't do anything to aid [Kendall]. And, again, this is someone,
according to [Gilbert], they were all friends and had no beef against each
other and that they all got along ... This was a deliberate shooting. It was a
deliberate killing.’
(Tr. Vol. III, pp. 99-101).
Richardson v. State,
supra.
The opinion then goes on to explain that in his appeal,
Richardson urges us to re-interpret the
images captured by the surveillance video to find that Kendall made a movement
`which could have been a reach for his loaded weapon’ immediately before
Richardson pointed a gun and shot Kendall. (Appellant's Br. p. 20). He also
argues that the trial court `could not properly consider Gilbert's testimony,
and any lack of his credibility, as evidence against Richardson.’ (Appellant's
Br. p. 17). However, as there were no eyewitnesses to the killing and Gilbert
was the only defendant testifying, Richardson relied on Gilbert's version of
the facts in addition to his interpretation of the surveillance video to
bolster his claim of self-defense. In fact, during closing argument, Richardson
compared Gilbert's testimony and the images captured on the surveillance tapes
almost side-by-side, noting that `Gilbert got up there and told the truth.’
(Tr. Vol. III, p. 93). If any error existed in the trial court's consideration
of Gilbert's testimony when weighing its judgment against Richardson, it was
invited by Richardson and he cannot now be heard to complain. In other words,
Richardson's entire argument is an invitation to reweigh the evidence displayed
on the surveillance video and Gilbert's credibility. We decline to accept his
invitation. See Wilson, 770 N.E.2d at 801.
CONCLUSION
Based on the foregoing, we hold that
the trial court properly excluded a Facebook message from the evidence at trial; and the State
presented sufficient evidence beyond a reasonable doubt to rebut Richardson's
claim of self-defense.
Richardson v. State,
supra.
The Court of Appeals therefore affirmed Richardson’s
conviction for murder. Richardson v.
State, supra.
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