Court of Appeals of Indiana | Opinion 53A04-1402-CR-61 | April 29, 2015 Page 1 of 13

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ATTORNEYS FOR APPELLANT

Noah T. Williams

Monroe County Public Defender

Stuart K. Baggerly

Monroe County Public Defender

Bloomington, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Jodi Kathryn Stein

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Andre C.T. Wells,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 29, 2015

Court of Appeals Cause No.

53A04-1402-CR-61

Appeal from the Monroe Circuit 

Court; The Honorable Teresa D. 

Harper, Judge;

53C09-1209-MR-857

May, Judge.
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[1] Andre C.T. Wells appeals his conviction of murder. He raises three issues for 

our review:

1. Whether the trial court abused its discretion when it admitted recordings 

of Wells’ statements to Brian Thompson;

2. Whether the trial court abused its discretion when it admitted evidence 

regarding Wells’ alleged plot to kill Brian Thompson; and 

3. Whether the trial court abused its discretion when it admitted testimony 

concerning cell phone towers and the potential locations of cell phones relevant 

to the crime.

[2] We affirm.

Facts and Procedural History1

[3] In October, 2010, Wells lived with his mother, Melissa, his brother, A., and his 

stepfather, Robin Sowders. Melissa worked at a resort in Bloomington. On 

October 23, Melissa left to go to work and noted Robin was intoxicated. She 

called Wells and asked him to spend time with Robin, but not to bring Robin to 

her place of employment.

[4] After Wells and Robin drank wine and smoked marijuana, Wells, Robin, and 

Wells’ girlfriend Tristiny, went to Melissa’s place of employment. Robin and 

 

1 We held oral argument on this matter on April 1, 2015, at the University of Southern Indiana. We thank 

the students, faculty, and staff of the University for their hospitality and counsel for their excellent advocacy.
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Melissa argued, and Wells took Robin home. Wells then went with Tristiny to 

his father’s house. 

[5] After he arrived home, Robin texted and called Melissa multiple times. At one 

point, Robin told Melissa he was going to kill A., who was at the house with 

Robin. Melissa then went home and retrieved A., and the two spent the night 

in a hotel. Melissa called Wells and told him to “handle the situation.” (Tr. at 

553.) Wells went to Robin’s house, wrapped his own hands in duct tape, and 

beat Robin and stomped on him. 

[6] The next morning a friend discovered Robin, who was still alive, in the house. 

The friend called the police. At the same time the police surveyed the scene, 

Melissa and A. arrived at the police station to file a protective order against 

Robin. Robin was transported to Methodist Hospital and died a short time 

later. The police interviewed Wells, who denied involvement in the crime. 

[7] A few days later, Wells told his friend, Brian Thompson, that he had killed 

Robin. A few days after that conversation, Thompson went home with Wells, 

so Wells could retrieve money and clothes to leave for Florida. Wells also took 

some tools, a red metal toolbox, and a clarinet from the residence, and he sold 

those items to Jeremy Kopp. Wells told Kopp he was moving to Florida 

because “he’d been in an altercation . . . [and] the guy was in the hospital.” (Id. 

at 611.) Wells ultimately did not leave for Florida because Melissa told him it 

would make him look guilty.
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[8] By early 2011, police began to focus on Wells as a suspect in Robin’s murder 

based on cell phone records and Wells’ Facebook post which read, “I’m still 

free.” (Id. at 440.) Around the same time, police stopped Thompson for 

driving with a suspended license. In order to escape prosecution, Thompson 

told police Wells told him Wells killed Robin, and Thompson offered to wear a 

wire to record Wells’ confession. In September and October 2011, Thompson 

recorded three conversations during which Wells made inculpatory statements.

[9] In January 2012, Thompson told Kopp that the tools and clarinet Kopp bought 

from Wells came from Robin’s house. Kopp then went to the police and told 

them about his transaction with Wells. The police arrested Wells for murder in 

September 2012.

[10] Later in the fall of 2012, Wells was incarcerated with Jamaal Jefferson. Wells 

told Jefferson he killed Robin. He told Jefferson the only reason he had been 

charged with murder is because Thompson wore a wire and recorded his 

statements. Wells asked Jefferson if Jefferson could have a man killed, and 

Jefferson indicated he could. Wells then gave Jefferson Tristiny’s phone 

number and said to contact Wells through her. On his release from 

incarceration, Jefferson told police about Wells’ statements.

[11] Prior to trial, Wells filed a motion to suppress the recordings of his 

conversations with Thompson, which was denied. He contemporaneously 

objected to their admission during trial. Wells also objected during trial to 
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Jefferson’s testimony and to the testimony regarding the location of different 

cell phones relevant to the case. The jury found Wells guilty of murder.

Discussion and Decision

[12] We typically review allegations of error in the admission of evidence for an 

abuse of discretion, which occurs only when the trial court’s ruling is “clearly 

against the logic, facts, and circumstances presented.” Kindred v. State, 973 

N.E.2d 1245, 1252 (Ind. Ct. App. 2012), trans. denied. We consider only the 

evidence in favor of the trial court’s ruling, Sallee v. State, 777 N.E.2d 1204, 

1210 (Ind. Ct. App. 2002), trans. denied, and we will not reverse the decision to 

admit or exclude evidence if that decision is sustainable on any ground.

Crawford v. State, 770 N.E.2d 775, 780 (Ind. 2002).

1. Recordings

[13] During Wells’ trial, the State introduced into evidence recordings of Thompson 

and Wells discussing the details of Robin’s murder. Wells filed a pre-trial 

motion to suppress the recordings, which was denied, and he 

contemporaneously objected at trial. The trial court ruled the recordings were 

admissible under Ind. Evidence Rule 403. On appeal, Wells attacks the trial 

court’s decisions with four different arguments, which were also presented 

before the trial court and are discussed below.

A. Fifth Amendment, Section 1, Article 14, and Miranda Warning

Under the Fifth Amendment to the United States Constitution and 

Article 1, Section 14 of the Indiana Constitution, persons shall be free 
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from being compelled to make disclosures which might subject them to 

criminal prosecution or aid in their conviction. Hastings v. State, 560 

N.E.2d 664, 667 (Ind. Ct. App. 1990), trans. denied. In protection of 

the right against self-incrimination, the United States Supreme Court’s 

opinion in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 

L.Ed.2d 694 (1966) established that “the prosecution may not use 

statements, whether exculpatory or inculpatory, stemming from 

custodial interrogation of the defendant unless it demonstrates the use 

of procedural safeguards effective to secure the privilege against selfincrimination.” Such procedural safeguards include an advisement to 

the accused that he has the right to remain silent, that anything he says 

can be used against him, that he has the right to an attorney, and that 

if he cannot afford an attorney one will be appointed for him. Id. at 

479. Miranda warnings are only required, however, where a suspect is 

both in custody and subjected to interrogation. Rhode Island v. Innis, 

446 U.S. 291, 300, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

P.M. v. State, 861 N.E.2d 710, 713 (Ind. Ct. App. 2007). 

[14] Miranda warnings are meant to preserve the Fifth Amendment rights of a 

person during “incommunicado interrogation of individuals in a policedominated atmosphere.” Miranda v. Arizona, 384 U.S. 436, 445 (1966). The 

“police dominated atmosphere” has been found to generate “inherently 

compelling pressures which work to undermine the individual’s will to resist 

and to compel him to speak where he would not otherwise do so freely.” Id. at 

467. The requirement to administer a Miranda warning attaches only when 

“there has been such a restriction on a person’s freedom as to render him ‘in 

custody.’” Stansbury v. California, 511 U.S. 318, 322 (1994). 

[15] In analyzing whether a person was “in custody,” we must “examine all of the 

circumstances surrounding the interrogation,” but ultimately we must 

determine whether there was a “‘formal arrest or restraint on freedom of 
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movement’ of the degree associated with a formal arrest.” Id. (quoting Oregon v. 

Mathiason, 429 U.S. 492, 495 (1977)). Interrogation under Miranda refers not 

only to express questioning but “also to any words or actions on the part of the 

police (other than those normally attendant to arrest and custody) that the 

police should know are reasonably likely to elicit an incriminating response 

from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). “Coercion is 

determined from the perspective of the suspect.” Illinois v. Perkins, 496 U.S. 

292, 296 (1990).

[16] Wells argues his recorded conversations with Thompson violated his Fifth 

Amendment and Section 1, Article 142rights against self-incrimination because

Thompson was an agent of the police and, thus, Wells should have been given a 

Miranda warning before speaking with Thompson. Wells contends, because he 

was on house arrest at the time of his conversations with Thompson, he 

“should be deemed to have been in custody” because his “movements were 

monitored by agents of the State, he was forbidden from leaving his home 

without authorization, and he was under the threat of incarceration for 

violation of the rules of home detention.” (Br. of Appellant at 13.) Therefore, 

 

2 Wells mentions the admission of the wiretap recordings violates his rights under Article 1, Section 14 of the 

Indiana Constitution, however, he makes no argument to that effect. Thus he has waived any such 

argument. See Indiana Appellate Rule 46(A)(8)(a) (appellate argument must be a cogent argument supported 

by citations to authority [and] statutes); and see West v. State, 755 N.E.2d 173, 181 (Ind. 2001) (failure to make 

a cogent argument waives issue from appellate court’s consideration).
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Wells asserts, the trial court abused its discretion when it admitted the 

recordings.

[17] In its response, the State cites Perkins, in which the United States Supreme 

Court rejected “the argument that Miranda warnings are required whenever a 

suspect is in custody in a technical sense and converses with someone who 

happens to be a government agent.” 496 U.S. at 297. The Perkins Court further 

held, “placing an undercover agent near a suspect in order to gather 

incriminating information” does not violate the Fifth Amendment. Id. at 298. 

[18] The State analogizes the facts in the instant case to those in State v. Ashley, 661 

N.E.2d 1208 (Ind. Ct. App. 1995). In Ashley, a confidential informant, Bell, 

visited Ashley while Ashley was in jail. Bell recorded a conversation during 

which Ashley “told Bell that there was a white bucket near a freezer in the 

basement with old rugs on it which needed to ‘disappear.’” Id. at 1210. In that 

bucket, Bell found the contents of a safe, which resulted in Ashley being 

charged with Class D felony receipt of a stolen safe. 

[19] Ashley argued admission of the statements to Bell violated his Fifth 

Amendment rights. We held Ashley’s Fifth Amendment rights were not 

violated based on the holding in Perkins and added, “Ashley voluntarily 

appealed to Bell to help remove the incriminating evidence. We find that Bell’s 

visit to the jail was a ‘mere strategic deception’ in which Ashley put his 

misplaced trust into one he believed to be a friend.” Id. at 1212. We agree with 

the State that Ashley and Perkins control the outcome in the instant case, as the 
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“situation in which Thompson visited [Wells] at his apartment was not a policedominated atmosphere, nor did Thompson in any way coerce [Wells] into 

giving the statement.” (Br. of Appellee at 17.)3

B. Indiana Evidence Rule 403

[20] Evid. R. 403 provides “[a]lthough relevant, evidence may be excluded if its 

probative value is substantially outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading the jury.” Wells argues the trial court 

abused its discretion when it admitted the recordings of his conversations with 

Thompson because “the probative value of the recordings was substantially 

outweighed by the danger of unfair prejudice.” (Br. of Appellant at 15.)

[21] Wells asserts the probative value of the recordings was reduced because the 

recordings were incomplete and “the procedure used to obtain the recordings 

was deficient.” (Id.) Wells points to Detective Karr’s testimony that the 

procedure by which the recordings were made was not typical, specifically 

concerning Thompson’s control over the recording device. Wells claims the 

record indicates, “Thompson was computer literate and had sufficient time 

between making the recordings and turning them in to Det. Karr to complete 

the simple procedure needed to access - and potentially alter or delete - Wells’ 

 

3 Wells also argues the recordings were inadmissible because he felt threatened by Thompson’s relation of 

threats from Robin’s family and his Fourteenth Amendment right to due process was violated. However, as 

we have concluded Thompson’s surveillance was not “police activity,” Wells’ argument fails. See Light v. 

State, 547 N.E.2d 1073, 1077 (Ind. 1989) (to hold a confession involuntary under the Fourteenth 

Amendment, a person must demonstrate coercive policy activity), reh’g denied. 
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recorded statements.” (Id. at 16.)4 However, during trial, Wells stipulated to 

the incompleteness of the recordings, acquiesced to the trial court’s procedure 

for dealing with gaps in the recordings, and acknowledged he was one of the 

voices on the recordings. Therefore, any error in the admission of the wiretap 

recordings based on Evid. R. 403 is invited error. See Barnett v. State, 24 N.E.3d 

1013, 1017 (Ind. Ct. App. 2015) (party is estopped from taking advantage of 

error he invited during trial).5

2. Plot to Kill Thompson

[22] During trial, the State introduced evidence Wells conspired with a fellow 

inmate, Jamal Jefferson, to kill Thompson. Wells argues the trial court abused 

its discretion when it admitted the evidence because the evidence violated Evid. 

R. 404(b), which states, in relevant part:

(1) Prohibited Uses: Evidence of a crime, wrong, or other act is not 

admissible to prove a person’s character in order to show that on a 

particular occasion the person acted in accordance with the character.

(2) Permitted Uses: . . . This evidence may be admissible for another 

purpose, such as proving motive, opportunity, intent, preparation, 

plan, knowledge, identity, absence of mistake, or lack of accident.

 

4 Thompson testified he was computer literate and understood how to use Microsoft Office products. (Tr. at 

604.) Detective Kerr testified Thompson would deliver the recording device to him after he recorded 

conversations with Wells, but there did not exist a set time schedule for making or delivering the recordings. 

(Id. at 443-44.)

5

Similarly, Wells argues the wiretap recordings were inadmissible because portions of them were 

unintelligible. As he stipulated to the incompleteness and agreed with the trial court’s procedure for dealing 

with the gaps in the transcript, any error in their admission was invited. See Barnett, 24 N.E.3d at 1017 (party 

is estopped from taking advantage of error he invited during trial).
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In determining the admissibility of an act under Evid. R. 404(b), the trial court 

must:

First . . . “determine that the evidence of other crimes, wrongs, or acts 

is relevant to a matter at issue other than the defendant’s propensity to 

commit the charged act.” Second, the court must determine that the 

proponent has sufficient proof that the person who allegedly 

committed the act did, in fact, commit the act. And third, the court 

must “balance the probative value of the evidence against its 

prejudicial effect pursuant to Rule 403.”

Camm v. State, 908 N.E.2d 215, 223 (Ind. 2009), reh’g denied. 

[23] Wells argues the State did not present sufficient proof to support its claim that 

Wells conspired with Jefferson to have Thompson killed because it “presented 

only the testimony of Jamal Jefferson, a federal inmate who has previously 

worked as an informant in exchange for a reduction of his sentence.” (Br. of 

Appellant at 19-20.)

[24] Contrary to Wells’ assertions, the State presented evidence to corroborate 

Jefferson’s testimony that Wells attempted to conspire with him to kill 

Thompson, including:

1) Jefferson’s account of Defendant’s murder of Robin was almost 

exactly the same as Defendant’s statement to Thompson: Robin 

threatened [A.’s] life, Defendant drove to the residence, Defendant 

wrapped his hands in duct tape, and Defendant beat and stomped 

Robin; 2) Jefferson knew about Thompson and the secret recordings; 

3) Jefferson had Tristiny’s phone number in his possession as a means 

to communicate about killing Thompson. 

(Br. of Appellee at 27.) We hold the trial court did not abuse its discretion 

when it admitted the evidence of the murder for hire plot. See Matthews v. State, 
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866 N.E.2d 821, 825 (Ind. Ct. App. 2007) (Threats to kill a witness “are viewed 

as admissions of guilt and therefore are relevant to demonstrate an accused’s 

guilty knowledge.”), trans. denied.

6

3. Cell Phone Tower Data

[25] During trial, the State offered evidence regarding the location of certain cell 

phones relevant to Robin’s murder, including those used by Wells, Melissa, and 

Robin. The State offered the testimony of David Salyer, an AT&T network 

engineer, as a skilled lay witness under Evidence Rule 701.7 Wells objected to 

the testimony under Evid. R. 4038 and Evid. R. 701. Wells argues the evidence 

was highly prejudicial because the jury likely overestimated the value of 

Salyer’s testimony regarding the location of Well’s cell phone and Melissa’s cell 

phone and the inactivity of Robin’s cell phone after the time the police believed 

Wells attacked him. Wells also argues the evidence lacked probative value 

 

6 Wells also argues the evidence regarding the murder for hire plot was inadmissible under Evid. R. 403 

because it was more prejudicial than probative. However, as we noted in our analysis of Wells’ Evid. R. 

404(b) argument, the evidence was probative under Matthews and the State corroborated Jefferson’s testimony 

with additional evidence. Therefore, the trial court did not abuse its discretion when it admitted the evidence 

of the murder for hire plot.

7 Evid. R. 701 states, in relevant part:

If the witness is not testifying as an expert, the witness’s testimony in the form of opinions 

or inferences is limited to those opinions or inferences which are (a) rationally based on the 

perception of the witness and (b) helpful to a clear understanding of the witness’s testimony 

or the determination of a fact in issue.

8 Evid. R. 403 prohibits the admission of evidence when its probative value is substantially outweighed by its 

prejudice. 
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because “this type of location testimony has been recognized to have serious 

limitations.” (Br. of Appellant at 24) (footnote omitted). 

[26] We need not determine whether the evidence should have been admitted. “The 

improper admission of evidence is harmless error when the reviewing court is 

satisfied that the conviction is supported by substantial independent evidence of 

guilt so that there is no substantial likelihood that the challenged evidence 

contributed to the conviction.” Meadows v. State, 785 N.E.2d 1112, 1121 (Ind. 

Ct. App. 2003), trans. denied. In the instant case, the State presented evidence 

Wells discussed his involvement in Robin’s murder with three people -

Thompson, Jefferson, and Kopp. In addition, the State presented wiretap 

evidence where Wells admitted to killing Robin. As the State presented 

sufficient evidence to prove Wells committed murder, any error in the 

admission of the cell phone evidence was harmless error.

Conclusion

[27] The trial court did not abuse its discretion when it admitted the wiretap 

evidence and the evidence of a murder for hire plot. In addition, if the 

admission of the cell phone location information was error, it was harmless. 

Accordingly, we affirm the judgment of the trial court.

[28] Affirmed.

Baker, J., and Barteau, S.J., concur.