Jaqueline B. Walters v. State of Indiana , 120 N.E.3d 1145 ( 2019 )

FILED
Mar 22 2019, 7:52 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ryan P. Dillon Curtis T. Hill, Jr.
Dillon Legal Group, P.C. Attorney General of Indiana
Franklin, Indiana
Evan M. Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jaqueline B. Walters, March 22, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1021
v. Appeal from the Morgan Superior
Court
State of Indiana, The Honorable Brian Williams,
Appellee-Plaintiff Judge
Trial Court Cause No.
55D02-1511-F3-1653
May, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019 Page 1 of 20
[1] Jaqueline B. Walters appeals her conviction for Level 3 felony aiding,
inducing, or causing armed robbery.1 She presents two issues for our review
that we restate as:
1. Whether the trial court abused its discretion in admitting
phone records from Verizon; and
2. Whether the State presented sufficient evidence Walters
aided, induced, or caused an armed robbery.
We reverse.
Facts and Procedural History 2
[2] Walters started working at the deli in the Morgantown IGA in June 2015. On
August 30, 2015, Walters and store manager Wilma Floyd were scheduled to
open the store. This required both to be at the store an hour before the store
opened to customers. Floyd had the keys to get into the building and to access
the safe.
[3] Walters’ long-term boyfriend, Randall Shane Slaten, dropped her off at the
store. As Walters approached the door, Floyd unlocked and opened the door
for her, disarming the alarm in the process. However, as Walters proceeded
1
Ind. Code §§ 35-42-5-1 (2015) (elements for robbery) & 35-41-2-4 (1977) (elements for “Aiding, inducing or
causing an offense”).
2
We note the font used in Appellant’s brief does not conform with the approved fonts or sizes listed in
Indiana Appellate Rule 43(D).
Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019 Page 2 of 20
through the door, a male with a gun (hereinafter, “the Robber”) pushed Walters
and entered the store. Floyd attempted to push the Robber back through the
door but was unsuccessful. Floyd and the Robber scuffled. Eventually, the
Robber’s gun went off. No one was shot, but Floyd then stopped resisting.
[4] The Robber instructed Floyd and Walters to take him to the safe. The store
surveillance system was able to record much of the interaction. Floyd led the
Robber to the room in which the safe was. However, during the scuffle, she
had dropped her keys and could not enter the room. The Robber instructed
Walters to retrieve the keys. Walters complied.
[5] Floyd opened the room to the safe and, subsequently, the safe and cabinets in
that room. The Robber stole approximately $6,000.00. Before he left, the
Robber had Walters put zip ties around Floyd’s wrists. The Robber tightened
Floyd’s zip ties and then put zip ties around Walters’ wrists, too. The Robber
patted Floyd down for a cell phone and ripped the land line phone from the
wall. The Robber then left.
[6] Floyd had Walters cut her zip ties from her wrists and then Floyd freed
Walters. Floyd had secreted a small flip phone in her pocket that the Robber
did not find. Floyd called 911 and officers quickly arrived. She also called the
owner of the store, Randy Wood.
[7] Morgantown Police Officer Jeffrey Jackson arrived at the scene first. He found
a hat worn by the Robber and a magazine for a gun. Morgan County Sheriff’s
Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019 Page 3 of 20
Department Detective Mark Anderson arrived and interviewed the women
separately.
[8] On September 1, 2015, Detective Anderson requested Walters give a more
detailed interview. When she did not arrive at the station on time, both
Morgantown Police Marshal Marvin McGregor and Detective Anderson called
to verify she was still planning to attend. Walters explained she was running
late but would be there soon.
[9] After Walters gave the detailed interview, Detective Anderson believed
Walters’ account of the events was inconsistent with what she had previously
reported and with the video surveillance. He noted the video showed Walters
was frequently not under direct control of the Robber. In the second interview,
Walters said she “saw the robber cock the gun as they were going down the
hallway[,]” (Tr. Vol. 3 at 122), but she had not indicated she had seen that in
the first interview.
[10] When the interview was complete, Detective Anderson asked Walters for her
phone and whether he could look through it. Walters told Detective Anderson
that Slaten had lost it. Slaten indicated Walters still had it. The phone was
never produced. Detective Anderson “sent a preservation letter[,]” (Tr. Vol. 3
at 129), to put a hold on the Verizon phone records for the number Walters said
she shared with her boyfriend (hereinafter, “6065 Phone”). Detective Anderson
explained this action preserves “all of the phone records that they have up to
that point, text messages, and everything[.]” (Id.)
Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019 Page 4 of 20
[11] Detective Anderson sought and received a search warrant for the Verizon
records for the phone. Because he had requested Verizon preserve the account,
Detective Anderson also received the text message records for the time frame
surrounding the robbery date. 3 Therein, one number was repeatedly texted.
The text of the messages between 6065 Phone and that number discussed a plan
to rob the IGA. Officer Jackson determined the phone number belonged to
John Nocito. Nocito was the long-term boyfriend of Slaten’s sister. Detective
Anderson obtained a DNA swab from Nocito, and his DNA matched the DNA
found on the cap dropped by the Robber at the store.
[12] The State charged Walters with aiding, inducing, or causing an armed robbery.
A jury trial held in July 2016 resulted in a hung jury. A second jury trial was
scheduled for March 6-8, 2018. Prior to the second jury trial, the State filed a
motion for an evidentiary hearing as they planned on advancing a theory of
conspiracy between Walters, Slaten, and Nocito. The State wished the text
messages to be deemed statements of coconspirators so the statements would
not be hearsay.
[13] On July 13, 2017, at the evidentiary hearing, the State requested the trial court
take judicial notice of the evidence presented during Slaten and Nocito’s trials
i.e., the cell phone records from Verizon. Walters objected because she had not
been present during those trials to “make any objections of her own[.]” (Tr.
3
Detective Anderson explained that not all text messages are recoverable from Verizon phone records
because texts sent or received by a computer are not always preserved in Verizon’s records.
Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019 Page 5 of 20
Vol. 2 at 4.) She conceded the trial court could “take judicial notice that that
trial occurred and certain evidence was presented” but not as to whether it was
admissible against her. (Id.) The trial court agreed regarding the admissibility
but said, “I think we’re talking about whether or not and how evidence is
presented here to me today regarding the existence or nonexistence of
conspiracy.” (Id. at 5.) The trial court took judicial notice of the Verizon cell
phone records containing the text messages.
[14] When Detective Anderson started to testify regarding the contents of the text
messages, Walters objected as no foundation had been laid regarding the
inception of the text message records. The trial court, reading from the
evidence rules, indicated the “rules are inapplicable to other than respect to
privileges[,]” (id. at 7), and do not apply to “preliminary, questions of fact, the
determination of questions of fact preliminary to the admissibility of evidence
and the issues to be determined by the Court under rule 104 A [sic].” (Id.)
Walters withdrew her objection.
[15] In support of its conspiracy theory, the State presented evidence the text
messages referenced stealing a sum of money that was “consistent with the
amount of money taken[.]” (Id. at 8.) The text messages indicate Nocito would
be “working with my girl named Jackie.” (Id.) The messages indicate the days
Walters worked and that the robbery needed to occur on a day she was
working. The messages indicate the writer of the messages would need to get
more information from Walters about the best day to rob the store.
Additionally, the State presented evidence Walters’ statements to the police had
Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019 Page 6 of 20
been inconsistent with what was shown on the video and Walters had been
complicit in hiding the 6065 Phone from the police. Finally, the State argued
Walters’ insistence that Slaten was not the getaway driver, when she was not
present to see the Robber leave the store, were indicative of her knowledge
Nocito had his own driver—a fact that was referenced in the text messages.
[16] Walters argued the text messages actually tell Nocito he was doing the job “on
Jackie[,]” (id. at 14) (emphasis added) (see also Exhibit Index at 70 (Exhibit 45
containing text message records)), 4 rather than with her and that the State could
not prove who wrote the messages on the 6065 Phone. Additionally, Walters
argued the State did not present independent evidence of a conspiracy other
than the text messages.
[17] The trial court found “the State ha[d] met its threshold to show the existence of
a conspiracy[,]” (Tr. Vol. 2 at 23), and the phone records were admissible as
non-hearsay under that theory. 5 At the beginning of the jury trial, regarding the
admission of the text message records, the trial court stated it “d[id]n’t intend to
relitigate that[.]” (Id. at 30.) Walters objected to the lack of foundation and
trustworthiness of those records. The trial court said:
4
The exhibit volume is not independently paginated. As the exhibits at issue are lengthy, we reference the
page numbers as indicated in the digital PDF.
5
Although the trial court requested the State prepare an order memorializing this ruling, no such order is in
the record before us. We cannot confirm whether such an order was put in writing because Walters did not
provide us with a chronological case summary as required by Indiana Appellate Rule 50(A)(2)(a); therefore,
we proceed based on the statements made in the transcript.
Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019 Page 7 of 20
It would be my intention as to the foundational testimony for
that evidence to incorporate by reference the foundational
hearing that was conducted outside the presence of the jury at the
last hearing, unless there’s a new and different arguments [sic] to
be addressed, I don’t see any benefit in having the jury waiting in
the wings while we relitigate that to the same evidence to the
same arguments and to the same conclusion. So I think
incorporation of that would be appropriate.
(Id. at 31.)
[18] When the State presented the first set of text messages as Exhibit 45, 6 it also
presented an affidavit of certification from Verizon. The records were procured
“about a month after [Detective Anderson] submitted the search warrant . . .
2015[,]” (Tr. Vol. 3 at 136), but the certification was dated February 27, 2017.
6
The State introduced the disc of what was in Exhibit 45 as Exhibit 62. Walters objected to the admission of
Exhibit 62 “as to the lack of certification again[.]” (Tr. Vol. 3 at 149.) As the same certification served for
both exhibits, we address them both as the same issue.
Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019 Page 8 of 20
(Exhibit Index at 67.)
[19] Walters objected to the introduction of the phone records “on hearsay
grounds.” (Tr. Vol. 3 at 137). She argued they were not self-authenticating and
did not “comply with Indiana Rule 803(d).” (Id.) She asserted the certification
was not specific and “could apply to anything [as it did not] state what phone
Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019 Page 9 of 20
number it applies to . . . what search warrant it is responding to. It’s just what
dates the records that it is attached cover.” 7 (Id.)
[20] The State asked additional questions and Detective Anderson explained
Verizon “create[d] a cause number of their own, or a case number of their own,
and everything that comes in for that phone number from that search warrant
or any other, it goes into that case number and is delivered out through that
case number.” (Id. at 138.) If Verizon “find[s] additional stuff[,]” (id. at 139),
“[i]t goes into that case file[.]” (Id.) He then explained Verizon’s encryption
technique and the procedure to retrieve the documentation online. As to the
gap between the records and the certification, Detective Anderson explained
they were supposed to be together but Verizon had failed to send it originally,
so he had to contact them again in 2017 and they “fixed it[.]” (Id. at 140.)
Walters objected to Detective Anderson’s testimony as it was not clear “that
this witness can know what Verizon is doing to these records and anything
about that.” (Id.) The State responded Detective Anderson had talked to
Verizon and then asked a follow up question as to how Detective Anderson had
that information. Detective Anderson said:
Yeah, we’re in contact with . . they have a team that’s all they do
is search warrants and subpoenas, and I call them frequently and
ask them questions, and I asked them about this, and he said that
what they do is they just . . they can’t modify the records, all they
7
We note Walters was incorrect in her statement the certification listed the dates to which the records
applied. The certification merely listed the date of Detective Anderson’s request. (See Exhibit Index at 67.)
Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019 Page 10 of 20
can do is take those records, put them in that file and send them
to us, and they certified that that’s what they did. So the
certification is just where they had sent those files from back in
2015 to me and that nothing has changed from it.
(Id. at 141.)
[21] Walters still objected to the exhibit
based on the previous argument, as well as Detective Anderson
just stated that Verizon keeps this open and keeps adding records
to it as it goes along, so there is absolutely no indication as to the
dates and whether or not this complies with the original search
warrant, or if it has gone outside the scope of previously
traditionally authorized search warrants. So I do not think that
this authorization provides trustworthiness as to the records
being proposed entered into evidence.
(Id.) However, the trial court found:
Well, this is one of those things where the paper age and the
digital age have not yet quite caught up with one another. Given
my understanding of things, this is their method of delivery of
certified documents, there’s a certification from a business
records custodian. Objection is overruled, records are allowed in
evidence.
(Id. at 142.)
[22] Detective Anderson also obtained the phone records for Nocito’s phone.
Therein, Verizon provided the certification with the records. That certification
was different from the certification of the 6065 Phone records as it included the
phone number the records purported to represent.
Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019 Page 11 of 20
(Exhibit Index at 102, Exhibit 70) (full phone number redacted here but
provided in the exhibit). 8
8
Exhibit 70 is merely a disc without the corresponding printout of the certificate. Therefore, we reference the
PDF pagination listing the disc.
Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019 Page 12 of 20
[23] The jury found Walters guilty. The trial court sentenced her to eight years.
Discussion and Decision
Admission of Evidence
[24] The trial court has broad discretion when deciding whether to admit evidence.
Gaby v. State, 949 N.E.2d 870, 877 (Ind. Ct. App. 2011). We will not reverse
the trial court’s decision absent a showing of a manifest abuse of that discretion
resulting in the denial of a fair trial. Id. An abuse of discretion occurs when the
trial court’s decision is clearly against the logic and effect of the facts and
circumstances before the court. Id. “[F]oundational requirements to
admissibility often require factual determinations by the trial court[.]” Ground
v. State, 702 N.E.2d 728, 730 (Ind. Ct. App. 1998). These findings are entitled
to the same deference, i.e. an abuse of discretion standard. Id. When the
review involves the interpretation of a rule of evidence, that is a question of law
for this court. Id.
[25] Walters argues the certification used to authenticate the 6065 Phone records
was not self-authenticating, reliable, or trustworthy because it was executed
approximately eighteen months after production of the records, it was not
notarized, the affidavit did not include the number of pages certified, and it did
not “include any identification information by which anyone outside of
possibly the proponent, Verizon, could tie the records to the phone number
listed on the search warrant.” (Br. of Appellant at 10.) The State counters that
the certificate is a proper authentication for the phone records to be considered
Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019 Page 13 of 20
business records and, thus, be admissible under that exception to the rule
against hearsay. See Ind. Evidence Rule 803(6) (business record exception). 9
However, the State argues, the records are not hearsay because they were
statements made by coconspirators. See Ind. Evidence Rule 801(d)(2)(E) (co-
conspirator statements).
[26] Hearsay is any statement made out of court and offered to prove the truth of the
matter asserted in court. Evid. R. 801(c). Some statements that otherwise
would be hearsay are defined as non-hearsay, such as statements made by
coconspirators, when offered into evidence by an opposing party. Evid. R.
801(d)(2)(E). To be admissible under this rule, the State must establish a
conspiracy exists without using the statements at issue. M.T.V. v. State, 66
N.E.3d 960, 964 (Ind. Ct. App. 2016), trans. denied. However, before reaching
the subject of whether the statements were made pursuant to a conspiracy,
because the “statements” consist of business records, those records must be
authenticated. 10
9
Indiana Evidence Rule 803 was amended by 2019 Indiana Court Order 0004. This amendment consisted of
the removal of a clause from Indiana Evidence Rule 803(3) and does not affect our analysis herein. C.O.
0004.
10
The trial court’s refusal to address the authenticity of the records during the evidentiary hearing prior to
trial has led to confusion. The trial court found, based on Indiana Evidence Rule 104(a), that preliminary
questions did not require the court to be bound by the evidence rules. (See Tr. Vol. 2 at 7.) Walters then
stopped arguing about foundation. Thus, the records were not authenticated at the pre-trial evidentiary
hearing; rather, the foundational argument was delayed until the trial, contrary to the trial court’s statements
at the beginning of the trial that it was incorporating the evidence from the “foundational hearing that was
conducted . . . at the last hearing[.]” (Tr. Vol. 2 at 31.)
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[27] “To 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.” Ind. Evidence Rule 901(a). Without
being required to provide absolute proof of authenticity, the proponent must
present “[e]vidence that establishes a reasonable probability that the document
is what it is claimed to be[.]” Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App.
2008), trans. denied. Records found to be business records under Indiana
Evidence Rule 803(6), such as these, may be self-authenticating and an
exception to the rule against hearsay, if they are accompanied by “a
certification under oath of the custodian[.]” Ind. Evidence Rule 902(11).
However, for the self-authentication to be valid, the records must be shown to
be trustworthy. Id; see also Evid. R. 803(6)(E) (business records are not excluded
by the rule against hearsay when “neither the source of information nor the
method or circumstances of preparation indicate a lack of trustworthiness”).
[28] Here, the certificate offered to authenticate the phone records for the 6065
Phone was issued approximately eighteen months after the records were
obtained, does not contain the phone number for which the search warrant
requested records, does not contain the number of pages it purports to
authenticate, and does not contain the dates the records encompass. The State
only had the testimony of Detective Anderson, not a Verizon employee, to
explain how Verizon explained to him their handling of search warrants and
subpoenas and why the certificate was not sent with the records originally.
Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019 Page 15 of 20
[29] Over Walters’ objection based on hearsay, Detective Anderson testified Verizon
“create[d] a case number of their own, and everything that comes in for that
phone number from that search warrant or any other, it goes into that case
number and is delivered out through that case number.” (Tr. Vol. 3 at 138.)
Detective Anderson explained he accessed the information via a password
protected file he received from Verizon. When asked “what happens if they
update it,” (id. at 139), Detective Anderson responded: “It goes into that case
file . . . and everything is there that they’ve put in [and his] password is still
good for that[.]” (Id.) When Detective Anderson testified about the phone
records retrieved from Nocito’s phone, Walters noted the certification affidavit
listed the phone number for which it purported to authenticate but the affidavit
for 6065 Phone did not contain that information.
[30] Walters argues this affidavit is similar to the affidavit presented in Speybroeck v.
State, 875 N.E.2d 813 (Ind. Ct. App. 2007), reh’g denied. In Speybroeck, the
affidavit presented to the trial court did not specify “the number of pages nor
identif[y] the documents it purports to authenticate.” Id. at 820. The text of the
affidavit appeared to be “merely a boilerplate recitation unconnected to the
underlying documents.” Id. Additionally, the affidavit was signed and dated
one day before the records were created. Id. Because of these problems, we
held the affidavit was “insufficient to authenticate the . . . documents under
Rule 902(9).” Id. The State argues Walters’ reliance on Speybroeck is misplaced
because the affidavit in Speybroeck was pre-dated and “little more than a form
letter.” (Br. of Appellee at 19.)
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[31] Even if an affidavit purports to authenticate a business document, that evidence
still may be excluded if “the circumstances of the record’s preparation indicate a
lack of trustworthiness.” Speybroeck, 875 N.E.2d at 819. Although a valid
certificate of authenticity may not need everything Walters complains this
certificate is lacking, it does require some level of trustworthiness. By its
tardiness and lack of conformity with the other Verizon certification used in this
trial, this certificate lacks indicia of reliability. This certificate contains no other
identifying characteristics, aside from Verizon’s internal case number. See supra
¶18. Without a timeframe reference and identification of the records in some
way separate from the Verizon case number, it is unclear what documents this
certificate purports to certify.
[32] We cannot say the State provided proper authentication of these records to
breach the threshold question of admissibility. See Speybroeck, 876 N.E.2d at
820 (an affidavit containing neither number of pages nor document
identification lacks trustworthiness). Without authentication, we do not reach
the question of whether the statements made therein were admissible as
coconspirator statements. The trial court abused its discretion when it admitted
the evidence of the phone records for 6065 Phone without proper
authentication. See id.
Sufficiency of Evidence
[33] When reviewing sufficiency of the evidence in support of a conviction, we will
consider only probative evidence in the light most favorable to the trial court’s
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judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh’g denied. The
decision comes before us with a presumption of legitimacy, and we will not
substitute our judgment for that of the fact-finder. Id. We do not assess the
credibility of the witnesses or reweigh the evidence in determining whether the
evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal
is appropriate only when no reasonable fact-finder could find the elements of
the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not
required to overcome every reasonable hypothesis of innocence and is sufficient
if an inference reasonably may be drawn from it to support the verdict. Id. at
147.
[34] To prove Walters aided, induced or caused armed robbery, the State had to
prove Walters “knowingly aid[ed], induce[d], or cause[d] John A. Nocito to
commit the offense of Armed Robbery, to-wit: John A. Nocito did knowingly
by force, take the property belonging to Morgantown IGA, Morgantown,
Indiana, from the presence of Wilma Floyd, while armed with a deadly
weapon, to-wit: Handgun.” (App. Vol. 2 at 3); see also Ind. Code §§ 35-42-5-1 &
35-41-2-4 (elements of robbery and aiding, inducing or causing an offense).
[35] Walters argues the State, without the phone records, did not present sufficient
evidence she aided Nocito in committing armed robbery. The State’s evidence
of conspiracy was based almost solely on the records for 6065 Phone. Evidence
independent of the phone records to support the State’s theory of conspiracy
consisted of: 1) Walters’ statements to police were internally inconsistent; 2)
Walters’ statements conflicted with the evidence shown on the store
Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019 Page 18 of 20
surveillance video; 3) Walters complicity in hiding the 6065 Phone from the
police; and 4) Walters’ assurance that Slaten was not the getaway driver.
[36] None of these discrepancies, however, were what the State relied on to support
its argument. The State relied almost solely on the evidence from the
unauthenticated phone records to support its theory of a conspiracy between
Walters, Slaten, and Nocito. There is not sufficient evidence, independent of
the phone records, to support the State’s case against Walters. Therefore, we
reverse her conviction.
Double Jeopardy
[37] Here, the admission of the 6065 Phone records was error. See supra ¶32.
Without the admission of those records, the State did not present sufficient
evidence to convince Walters of aiding, inducing, or causing armed robbery.
See supra ¶36. When a conviction is reversed due to an error in the admission of
evidence, double jeopardy concerns usually do not apply. Thompson v. State,
690 N.E.2d 224, 237 (Ind. 1997). While “double jeopardy forbids a retrial . . . if
the reviewing court concludes that the evidence is legally insufficient to support
the conviction[,]” id., if the State were able to authenticate the phone records
for 6065 Phone, the jury could have found Walters had conspired with Nocito.
Therefore, the Double Jeopardy Clause does not preclude a retrial. See id.
Conclusion
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[38] The trial court abused its discretion when it admitted the unauthenticated
phone records for 6065 Phone in the form of Exhibit 45 and 62. Without those
exhibits, the State did not present sufficient evidence to prove Walters aided,
caused, or induced Nocito to rob the grocery store with a gun. Accordingly, we
reverse. However, as the jury could have found Walters guilty if those records
were properly presented, double jeopardy does not attach and the State is
allowed to retry Walters.
[39] Reversed.
Baker, J., and Robb, J., concur.
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