Andre C.T. Wells v. State of Indiana , 30 N.E.3d 1256 ( 2015 )

Apr 29 2015, 9:49 am
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ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Noah T. Williams Gregory F. Zoeller
Monroe County Public Defender Attorney General of Indiana
Stuart K. Baggerly Jodi Kathryn Stein
Monroe County Public Defender Deputy Attorney General
Bloomington, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Andre C.T. Wells, April 29, 2015
Appellant-Defendant, Court of Appeals Cause No.
53A04-1402-CR-61
v. Appeal from the Monroe Circuit
Court; The Honorable Teresa D.
Harper, Judge;
State of Indiana, 53C09-1209-MR-857
Appellee-Plaintiff.
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 self-
incrimination.” 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 police-
dominated 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 142 rights 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 police-
dominated 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.
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