Court of Appeals of Indiana | Memorandum Decision 49A05

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### MEMORANDUM DECISION 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.
A TTORNEY FOR A PPELLANT Mark Small Marion County Public Defender Agency Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana


### I N T H E 

# COURT OF APPEALS OF INDIANA
Jordan Gray , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff September 11, 2015 Court of Appeals Ca se No. 49A05

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- 424 Appeal from the Marion Superior Court The Honorable Kurt Eisgruber, Judge Trial Court Cause No. 49G01

- 1306

- MR

- 41202


### Robb, Judge . 

# Case Summary and Issues
[1] Jordan Gray appeals following his jury trial for murder, a felony; attempted murder, a Class A felony ; and carrying a handgun without a license, a Class ACourt of Appeals of Indiana | Memorandum Decision 49A05

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misdemeanor

. Gray argues that statements made by a witness to police were admissible as present sense impressions and statements against interest, the jury was not properly instructed that it m ust find a specific intent to kill in order to convict Gray of attempted murder as an accomplice, and the trial court improperly denied his criminal recklessness instruction as an inherently lesser

included offense of attempted murder. Concluding that the trial court properly excluded inadmissible hearsay , any error in its attempted murder as an accomplice instruction s was harmless , and the trial court properly rejected Gray’s proffered criminal recklessness instruction, we affirm

.



# Facts and Procedural His tory
[2] On June 11, 2013 , eleven

- year - old “Punney” Williams and ten

- year - old “Bam ,” a member of the Tate family, argued over an i Pod that Bam felt Punney had stolen from him. Punney mainta ined that Bam had lost the device in a bet. Two female members of the Tate famil y and two of their female friends went to the Williams home to retrieve the i Pod. Several members of the Willi ams family were present , including Damien Williams, Dazion Dulin, and Tron Harris . The members of the Tate and William s families all knew one an other from having grown up in the neighborhood together.

[3] Punney refused to return the i Pod. A verbal altercation broke out which escalated into a physical fight. Male members of the Williams family fought with the females of the Tate group

. Damien attempted to break up the fighting. A crowd of around thirty

- five youths filled the street in front of the WilliamsCourt of Appeals of Indiana | Memorandum Decision 49A05

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home. The police arrived, and the crowd dispersed. No one involved in the fight wished to p ress charges , so th e police left

.
[4] The Tate group went to a nearby home located on 24 th Street between Guilford and Winthrop Avenues. The Tate home sat on the corner of 24 th Street and the alley that went through the block . One of the girls called her step

- brother, Jamar Minor , and told h im about the fight

. Minor asked his friend Gray to give him a ride to the Tate home. Minor and Gray both armed themselves with handguns. Gray borrowed his mother’s car an d drove Minor to the Tate home , where they parked across the street in front of a w hite van. Gray and Minor sat in the ir car for a short time before driving away. They returned to the same parking spot five minutes later and spoke to the girls about the fight. Gray and Minor remained seated in the ir car after speaking to the girls

.
[5] Da mien, Damien’s cousin Leo, Dulin, and Harris learned of a rum or that someone was being sent by the Tates to “shoot up” the Williams home. Transcript at 483. The Williams boys decided to go to the Tate h ome to talk to the girls, hoping to prevent any furt her violence. The boys were joined on the way by their friend Er ic Taylor. None of the Williams boys w as armed. They walked along the southern portion of the same alle y that abutted the Tate home. As t hey exited the alley on 24 th Street, they could see the Tate home across the street on the west corner of the alley. The boys did not see Gray and Minor seated in the ir car because Gray and Minor had ducked down inside. None of the boys knew Gray or Minor

.Court of Appeals of Indiana | Memorandum Decision 49A05

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[6] The boys approached the Tate home and asked on e of the gir ls outside if the iPod fight was truly settled . The girl assured the boys that the fight was over and that no one was coming over to shoot at the Williams home. The boys then started to walk west down 24 th Street towards Guilford. The boys had all passed Gray and Minor’s car when someone in the car spoke. The group of boys turned to look at the car. Gray and Minor jumped from their car and began shooting at Damien and Taylor. Damien, who was in the middle of the street, was hit immediatel y and fell on his hands. Damien was shot in his back, abdomen, and left thigh.

[7] Taylor and Leo ran west down 24 th Street away from the shooting. Taylor was shot in the leg as he ran on the north sidewalk of 24 th Street . Taylor crawled around the cor ner to his former wrestling coach ’ s house on Guilford and was dragged inside to safety. Harris and Dulin ran around the southwest corner of 24 th Street and went southbound on Guilford

. Gray and Minor shot at least sixteen bullets before fleeing in their car . The wrestling coach and Harris independently call ed 9

- 1

- 1. Damien died from the fatal wounds he received to his abdomen and back. Forensic testing later revealed that the fatal wounds were each inflic ted by a different gun. Taylor required surgery to place a metal rod in his leg from his kneecap to his ankle.

[8] Investigators found a fully

- loaded, but not fired, pistol underne ath the white van that was parked behind Gray and Minor. No DNA or fingerpr i nts were found on the pistol. Investigators also found bullet holes on the side of the wrestling coach’s home that faced 24 th Street. A bullet hole was found in a carCourt of Appeals of Indiana | Memorandum Decision 49A05

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parked along the southwesterly path of Harris and Dulin’s flight down 24 th Street . Clu sters of spent bullets and cartridge casings were found in the immediate proximity of where Gray and Minor had been parked and to the east of where they had been parked.

[9] The State charged Gray and Minor with murder for the death of Damien , attempted murd er for the shooting of Taylor , and carrying a handgun without a license. The State also charged Gray and Minor with a sentence enhancement for using firearms in the commission of the offenses. Gray and Minor were tried together. Through motions before t rial and during trial, the co

- defendants sought the admission of Dulin ’s statement to police that Dulin knew Damien “had a gun on him” and that the reason Dul in knew this was that “he said it.” Defendant’s Exhibit AA at 9 . The trial court excluded the ev idence as inadmissible hearsay. The trial court did not instruct the jury that it must find that the co

- defendants had the specific intent to ki ll Taylor in order to find either defendant guilty of attempted murder as an accomplice. The trial co urt also refused to give defendants’ proffered instruction on criminal recklessness as a lesser

- included offense of attempted murder.

[10] The jury found Gray and Minor guilty of murder, attempted murder, and the
car rying charge s . The co

- defendant s waived t rial by jury on the enhancement, and the trial court found that the State proved the elements of the enhancem ent beyond a reasonable doubt. The trial court sentenced Gray to an aggregateCourt of Appeals of Indiana | Memorandum Decision 49A05

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sentence of seventy years. Gray now appeals his convictions for murder and attempted murder. 1 Additional facts will be added as necessary.



# Discussion and Decision 2 

## I. Exclusion of Dulin’s Statement s A. Standard of Review
[11] “The trial court has inherent discretionary power on the admission of evidence, and its decisions are reviewed only for an abuse of that discretion.” Jones v. State , 780 N.E.2d 373, 376 (Ind. 2002) . An abuse of discretion occurs if the trial court’s ruli ng is against the logic and effect of the facts and circumstances before the court. Amos v. State , 896 N.E.2d 1163, 1168 (Ind. Ct. App. 2008) , trans. denied

. 

### B. Hearsay
[12] Dulin reported to police after the shootings that he knew Damien “had a gun on him” because “ [Damien] said it .” Def. Ex. AA at 9. Gray sought the admission of these statements to further his self

- defense theory and for impeachment purposes

. Gray argues that the trial court abused its discretion

1 Minor also appealed, raising the same issues raised by Gray here. On June 10, 2015, another panel of this court issued its o pinion affirming Minor’s convictions

. Minor v. State , No. 49A02

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- 628, slip op. at *7 (Ind. Ct. App. June 10, 2015). 2 N either party’s brief was particularly helpful to our review of this case. We expect both parties to tender briefs that are commensurate with the gravity of this murder and attempted murder case.Court of Appeals of Indiana | Memorandum Decision 49A05

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when it deemed Dulin’s statement s to police to be inadmissible hearsay

. Hearsay is a statement not made by the declarant while testifying at the trial or hearing that is offered into evidence to prove the truth of the matter asserted. Ind. Evidence Rule 801(c). Hearsay is generally ina dm issible. Evid. R. 802. However , hearsay may be admissible if it qualifies for an exception to the hearsay rule. Evid. R. 803 , 804. If a hearsay statement itself contains hearsay, each layer of hearsay must qualify for an exception to the hearsay rule in order to be admissible. Amos , 896 N.E.2d at 1168; see also Evid. R. 805.


### 1. Present S

en se I mpression
[13] Gra y conten ds that the evidence at issue was admissible as a present sense impression. Indiana Evidence Rule 803(1 ) provides for the admission of h earsay if the statement describe s or explain s an event or condition during or im mediately after its occurrence and if the statement is based upon the declarant’s perception of the event. Amos , 896 N.E.2d at 1168. The admissibility of suc h statements “ is based on the assumption that the lack of time for deli beration provides reliability.” Mack v. State , 23 N.E.3d 742, 755 (Ind. Ct. App. 2014) (quoting 13 Robert Lowell Miller, Jr., Ind. Prac. Ser. § 803.101 at 802 (3d ed. 2007) ), trans. denied

.
[14] The facts of Mack are instructi ve for our analysis . P olice were conducting an investigation of a counterfeit currency operation run by Mack. 23 N.E.2d at 747

- 48. A confidential informant wore a transmitting and recording device into Mack’s home. The informant conversed with Mack and left. The informant returned to the police and “a few minutes later” described a conversation heCourt of Appeals of Indiana | Memorandum Decision 49A05

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had with Mack regarding the purchase of a material required for counterfeiting currency. Id

. Apparently, this conversation was not recorded or received by the officers contemporaneously through the transmitting device. All in all, up to thirteen minutes had elapsed between Mack speaking with the informant and the informant sharing Mack’s statements with the polic e. This c ourt held that the informant’s statements to police were not admissible as a present sense impression because they were not made contemporaneously with the event described or immediately thereafter. This c ourt noted that thirteen minutes “ is amp le time for a declarant to deliberate and possibly fabricate a statement, especially where the declarant knows officers are looking for evidence of a particular type of crime and the declarant himself has been implicated in the commission of that crime. ” Id . at 755.

[15] Initially, we note that, contrary to Gray’s argument on a ppeal, the evi dence at issue is hearsay w ithin hearsay. The first layer of hearsay is Damien’s conversation with Dulin . The second layer of hearsay is Dulin’s statements to police about what Damien told him. Thus, it is necessary for each layer of hearsay to qualify for an exception in order to be admissible. Amos , 896 N.E.2d at 1168.

[16] Here, Dulin told police that he knew Damien “had a gun on him” because “he said it.” D ef. Ex. AA at 9

. Even if these vague statements sufficiently described a condition or event, there is nothing in the record to indicate when Dulin had his conversation with Damien. Thus, there is no foundation for concluding that Damien’s statements were made contemporan eously with orCourt of Appeals of Indiana | Memorandum Decision 49A05

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immediately after Damien’s possession of the gun. Furthermore, police were dispatched to the scene of the shooting at around 8:30 p.m. Dulin’s interview with pol ice began at around 2:00 a.m., or more than five and one

- half hours after Dulin had been with Damien. Even if Damien’s statements to Dulin were contemporaneous with the condition they described and were made right before the shooting , following Mack , too much time had passed between Damien’s conversati on with Dulin and Dulin’s interview with police for Dulin’s statements to qualify as a present sense impression.

[17] The case cited by Gray on appeal, Amos , is readily distinguishable. 3 In that case, Amos’ girlfriend, Keyonia, was speaking on the telephone to Lavonn when Keyonia received a call from Amos

. Keyonia put Lavonn on hold to speak to Amos, who told Keyonia that he would kill her if she did not give him some money. After Keyonia ended her call with Amos, she immediately returned to her call with L avonn and told Lavonn what Amos had said. This
c ourt held that Keyonia’s statements to Lavonn were made immediately after her conversation with Amos and, therefore, qualified as a present sense impression. Unlike Amos , h ere, we do not know when Damien sp oke to Dulin, but we do know that Dulin did not speak to police imm ediately after speaking to Damien

. Because neither Damien’s conversation with Dulin nor Dulin’s

3 In as much as Gray argues that Amos shows that the evide nce at issue here is not d ouble hearsay, he is mistaken. The first layer of hearsay in Amos was Amos’ statements to Keyonia. Those statements were offered against Amos at his trial for murder and, thus, were admissible as the statements of a party oppone nt under Evidence Rule 801(d)(2)(A). Damien and Dulin were not party opponents.Court of Appeals of Indiana | Memorandum Decision 49A05

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statements to police were present sense impressio n s, the trial court did not abuse its discr etion when it excluded them.



### 2. Statement Against Interest
[18] Gray also argu es that the evidence is admissible as a statement against interest. That exception to the hearsay rule requires that the declarant be unavailable and that the statement be one that

a rea sonable person in the declarant’ s position would have made only if the person believed it to be true because, when made, it was so contr ary to the declarant’ s proprietary or pecuniary intere st or had so great a tende ncy to invalidate the declarant’ s claim against someone else or to expose the declarant to civil or criminal liability. E vid. R. 804(b)(3). In order to qualify under the exception, the statemen t must be incriminating on its face

. Jervis v. State , 679 N.E.2d 875, 878 (Ind. 1997).

[19] Gray argues that Damien’s statement to Dulin about a gun was a statement against interest because it exposed Damien to prosecution for possession of a handgun without a license. However, there is noth ing facially incriminating about Damien’s statements to Du l in. It is necessary to go outside of the statement in order to make any argument that Damien implicated himself. The statement itself does not inform as to Damien’s age, felony status, license st atus, or other fact that would render Damien’s possession of a handgun unlawful.

[20] In addition, as noted above, each layer of hearsay at issue here must qualify for an exception to the hearsay rule in order for it to be admissible

. Amos , 896 N.E.2d at 116 8. Dulin’s statement to police does not qualify as a statement against interest because, although Damien was not available to testify at trial,Court of Appeals of Indiana | Memorandum Decision 49A05

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Dulin was available 4 and, in fact, did testify. Apart from Dulin’s lack of unavailability, Dulin’ s statement to police was not incriminating on its face. Dulin’s report to police that he knew that Damien was armed does not incriminate Dulin in any criminal enterprise . Even if it did, there is no indication that Dulin was aware that his statements to police pote ntially exposed him to any criminal charges, something that would have been necessary to render his statement reliable. Beasley v. State , 30 N.E.3d 56, 66

- 67 (Ind. Ct. App. 2015) (noting that the rationale for this exception “fails if the declarant did no t believe the statement was against his or her interest

. ” (emphasis in original)). Because the hearsay evidence at issue did not qualify as a statement against intere st, the trial court did not abuse its discretion when it excluded it

. 

## II. Jury Instructions

A. Standard of Review
[21] Our standard of review for jury instructions is well

- settled: we review a trial court’s instructions to the jury for an abuse of discretion. Isom v. State , 31 N.E.3d 469, 484 (Ind. 2015). “ An abuse of discretion arises wh en the instruction is erroneous and the instructions taken as a whole misstate the law or otherwise mislead the jury. ” Id. at 484

- 85. In addition , not all instructional

4 Evidence Rule 804(a)(3) provides that a witness is “unavailable” if he testifies that he does not remember making the statements. However, at trial, Dulin categorically d enied ever having made the statement at issue. The trial court allowed defense counsel to impeach Dulin extensively regarding the fact that Dulin denied making certain statements that appeared in the transcript of his interview with police.Court of Appeals of Indiana | Memorandum Decision 49A05

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error is reversible error. Before a defendant is en titled to reversal, he must affirmatively show that the erroneous instruction prejudiced his substantial rights. Vaughn v. State , 13 N.E.3d 873, 886 (Ind. Ct. App. 2014), trans. denied

.



## B. Attempted Murder
[22] The trial court’s inst ructions did not specify that the jur y must find that Gray acted with the specific intent to kill Taylor in order to convict Gray of attempted murder as an accomplice

. Gray contends that the trial court’s failure to properly instruct the jury regarding the mens rea required to convict him of attempted murder as an accomplice was reversible error. 5 We do not agree.

[23] Gray relies upon our s upreme c ourt’s decision in Rosales v. State , 23 N.E.3d 8 (Ind. 2015), in support of his argument. Rosales was charged with attempted murder. In its final in structions to the jury, the trial court properly instructed the jury on the elements of attempted murder. It also instructed the jury on accomplice liability but did not include in that instruction a recitation that the jury must find that Ro sales acted w ith specific intent to kill his victim in order to convict him of attempted murder as an accomplice. Because the jury was given general verdict forms, it was impossible to know whether Rosales had been convicted of attempted murder as a principal or as an accomplice. In

5 The State argues that Gray waived this claim by failing to tender his own accomplice liability instructions. However, because the State tendered the accomplice liability instruction, to which Gray objected, Gray was not required to tender his own instruction in ord er to preserve this issue for appeal. See Fry v. State , 748 N.E.2d 369, 373 (Ind. 2001)

. Accordingly, we address his claim as one of prejudicial error, not fundamental error.Court of Appeals of Indiana | Memorandum Decision 49A05

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addition, in its closing arguments the State argued both theories of liability and relied heavily on the improper instruction when it repeatedly told the jury that it could convict Rosales without finding a specific intent to kill. The supreme court held that, even though there was strong evidence of Rosales’ guilt as a principal and of his intent to kill , the instructional error was fundamental, reversible error because of the State’s repeated emphasis on the improper instruction.

[24] Here, the State made it clear in its closing arguments that specific intent was requir ed for the attempted murder charge and that it sought to convict both Gray and Minor as principals in the attempted murder of Taylor. F or example, the State argued, “ so the defendants

. . . intentionally attempted to commit the crime of murder against ano ther person

– Eric Taylor

. . . ,” tr. at 727, and “[l]et’s talk for a moment about the specific intent of attempt [ sic ] murder and how we know that it was both boys [ sic ] intentio n . . . , ” id. at 772. Defense counsel also emphasized to the jury that spe c ific intent was required when he asked the jury, “[w]as there a specific intent to kill Eric Taylor because that’s the attempt [ sic ] murder.” Id. at 761. Therefore, in contrast to Rosales , the State did not repeatedly inform the jury that no specific in tent was required for attempted murder.

[25] Furthermore, t here was ample evidence that Gray acted with the specific intent to kill Taylor. Gray shot either seven or nine times that day

. Taylor testified that Gray fired multiple shots at him. Bullet holes were found in the side of the house where Taylor sought refuge. Less evidence than this has been heldCourt of Appeals of Indiana | Memorandum Decision 49A05

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sufficient to show spe cific intent to kill for attempted murder. See , e.g. , Fuentes v. State , 10 N.E.3d 68, 75 (Ind. Ct. App. 2014) (finding specific intent to kill where officer testified that Fuentes pointed gun at him and that the officer heard a shot, even though officer did not see Fuentes fire at him), trans. denied

. Under the circumstances of this case, we are confident that the jury was not misled and that G r ay’s substantial rights were not prejudiced by the instructions given.



### C. Criminal Recklessness
[26] Gray’s second argument of instructional error is that the trial court improperly refused hi s instruction for criminal recklessness as an inherently 6 lesser

- included offense of attempted murder. However, our supreme court has consistently held that criminal recklessness is not an inherently lesser

- included offense of attempted murder. See

, e.g. , Ellis v. State , 736 N.E.2d 731, 734 (Ind. 2000); Wilson v. State , 697 N.E.2d 466, 477 (Ind. 1998); Goo lsby v. State , 517 N.E.2d 54, 62 (Ind. 1987). We will not disregard the long

- standing precedent of our supreme court, by which we are bound. See Culbertson v. State , 929 N.E.2d 900, 906 (Ind. Ct. App. 20 1 0) (quoting Horn v. Hendrickson , 824 N.E.2d 690, 694 (Ind. Ct. App. 2005), for the proposition that “it is not this court’ s role to reconsider or declare invalid decisions of our supreme court.” ) , trans. denied . As

6 Gray does not argue that criminal recklessness was a factually lesser

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such, the trial court acted within its discretion when it denied Gray’s criminal recklessness instruction. 

# Conclusion
[27] We conclude that the trial court properly excluded double hearsay evidence , which was neither a present sense impress ion nor a s tatement against interest, any error in the trial court’s attempted murder accomplice liability instruction did not result in reversible error, and the trial court did not abuse its discretion when it refused Gray’s criminal recklessness instruction

.
[28] Affirmed. May, J., and Mathias, J., concur

.