Brown v. State

160 N.E.3d 205

Javan D. BROWN, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 20A-CR-125

Court of Appeals of Indiana.

November 19, 2020

Attorney for Appellant Jennifer L. Koethe, Navarre, Florida

Attorneys for Appellee Curtis T. Hill, Jr., Attorney General of Indiana, Courtney Staton, Deputy Attorney General, Indianapolis, Indiana

Tavitas, Judge.

Case Summary

[1] Javan Brown appeals his convictions for reckless homicide, a Level 5 felony, and dangerous possession of a firearm, a Class A misdemeanor. We affirm.

Issues

[2] Brown raises five issues, which we revise and restate as:

I. Whether fundamental error occurred because Brown's mother was subject to the trial court's separation of witnesses order.

II. Whether the trial court properly allowed the jury to examine the firearm during deliberations.

III. Whether the evidence is sufficient to sustain Brown's conviction for reckless homicide.

IV. Whether Brown's convictions violate the prohibition against double jeopardy.

V. Whether the trial court abused its discretion when it sentenced Brown.

VI. Whether Brown's sentence is inappropriate in light of the nature of the offenses and the character of the offender.

Facts

[3] Dareon¹ Brown, the brother of sixteen-year-old Brown, dated Aubree Kolasa for approximately three years. Kolasa's cousin, eighteen-year-old Justin Garner, and Dareon were "close friends." Tr. Vol. II p. 230. Dareon was "shot and killed" in December 2018. Id. At the time of Dareon's funeral, Brown was in the juvenile detention center and, therefore, missed his brother's funeral.

[4] After Brown was released from detention, on January 13, 2019, Brown illegally purchased a black Taurus semi-automatic 9 mm caliber handgun "for his protection." Tr. Vol. IV p. 179. On Dareon's birthday, Brown shot the handgun four times in honor of Dareon. Brown was familiar with the handgun and its safety mechanisms, but Brown did not take any safety courses regarding the use of firearms.

[5] Additionally, after Brown was released from detention, Brown, Garner, Kolasa, and Kenya Atterberry often "hung out" and smoked marijuana together. Id. at 90. On the evening of January 16, 2019, Atterberry and Brown made arrangements to hang out together. Garner borrowed his mother's car, and Garner and Kolasa picked up Brown. Kolasa observed that Brown had his handgun in the waistband of his pants, but Brown later put the gun in the pocket on the back of the driver's seat. Garner was driving. The three eventually drove to pick up Atterberry at Danielle McLachlan's house on Jackson Street in Michigan City. Kolasa was in the passenger seat, and Brown was in the back seat behind Garner, the driver. Garner stopped the vehicle in front of McLachlan's house, and Brown called Atterberry and told her to come outside.

[6] While waiting on Atterberry, Brown pulled the gun out of the pocket on the back of the seat. Although Brown is right-handed, he pulled the gun out with his left hand and pulled the trigger. The bullet entered the bottom portion of the driver's seat headrest. The bullet then entered the back of Garner's head on the left side and exited Garner's forehead on the right side, resulting in a "massive subarachnoid hemorrhage and tissue destruction [in the brain] from the path of the bullet" and causing Garner's death. Ex. Vol. II p. 57. The bullet lodged in the sun visor on the driver's side of the vehicle.

[7] Brown told Kolasa "not to tell nobody." Tr. Vol. IV p. 194. Brown also told Kolasa to tell the police that "it was a drive-by" shooting and that the shots came from a black car. Id. at 199. When Atterberry went outside, she found Kolasa and Brown on the porch. Kolasa was crying, and Brown had his arm around Kolasa. Brown called 911 to report a drive-by shooting. Shortly before 8:00 p.m., police were dispatched to the location due to a report of "shots fired." Tr. Vol. II p. 248.

[8] After Atterberry observed that Garner was dead, she invited Kolasa and Brown inside the house. Brown kept telling everyone it was a drive-by shooting, but Kolasa knew that the shot was fired inside the car and that it was not the result of a drive-by shooting. According to Atterberry, Brown gave Atterberry some marijuana, which she hid inside the dryer. According to Brown, however, he gave Atterberry marijuana, money, and his gun, and Atterberry hid the items.

[9] When police arrived, the vehicle was still in drive and was running. Both of Garner's feet were on the brake. Brown repeatedly claimed at the scene that Garner was shot in a drive-by shooting. The officers, however, observed no bullet holes on the outside of the vehicle. Later that evening, Brown confessed to his mother that he accidentally shot Garner and that Garner was not killed in a drive-by shooting.

[10] McLachlan's mother consented to a search of her residence. Two small bags of a green leafy substance believed to be marijuana and a black Taurus semi-automatic 9 mm caliber handgun were found hidden in the washing machine under folded towels. A spent 9mm shell casing was located on the ground near the vehicle.

[11] The State charged Brown with murder. The State later filed a motion to amend the charging information to add a charge of dangerous possession of a firearm, a Class A misdemeanor, which the trial court granted. At the jury trial, Brown testified and admitted to accidentally shooting Garner.

[12] The jury found Brown guilty of reckless homicide, a Level 5 felony, and dangerous possession of a firearm, a Class A misdemeanor. At the sentencing hearing, the trial court found no double jeopardy violation regarding the entry of both convictions and entered judgment of conviction on both counts. When sentencing Brown, the trial court found one mitigating factor—the fact that Brown was sixteen years old at the time of the offense. The trial court found the following aggravators: (1) Brown's significant juvenile adjudications, which "reflect a fundamental disdain for authority and an acceptance of violence as a viable option"; (2) Brown's lack of remorse; (3) the imposition of the advisory sentence would depreciate the seriousness of the crime; (4) nine prior attempts at rehabilitation failed; and (5) Brown's character and "apparent affinity for and possible affiliation with" a gang. Appellant's App. Vol. III pp. 15-16. The trial court sentenced Brown to five and one-half years for the reckless homicide conviction and one year for the dangerous possession of a firearm conviction. The trial court ordered the sentences to be served consecutively, for an aggregate sentence of six and one-half years. Brown now appeals.

Analysis

I. Mother's Presence During Trial

[13] Brown argues that the trial court erred and violated his due process rights by failing to allow his mother to remain in the courtroom during the trial.² Brown and the State both requested a separation of witnesses order, which the trial court granted. In general, a separation of witnesses order is governed by Indiana Evidence Rule 615. "The basic premise of Rule 615 is that, upon request of any party, witnesses should be insulated from the testimony of other witnesses." Long v. State , 743 N.E.2d 253, 256 (Ind. 2001). Evidence Rule 615 provides:

At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party's representative by its attorney; or

(c) a person whose presence a party shows to be essential to presenting the party's claim or defense.

[14] Because Brown's mother was on the witness list, she was subject to a separation of witnesses order and was not allowed in the courtroom during testimony. Brown's mother was present only during jury selection and, thereafter, she remained outside of courtroom until she was called to testify for the defense. Brown, however, did not raise an objection to the separation of witnesses order. In fact, Brown requested the separation of witnesses order and did not request an exception for Brown's mother.

[15] Our Supreme Court has held that "[a] party's failure to object to, and thus preserve, an alleged trial error results in waiver of that claim on appeal." Batchelor v. State , 119 N.E.3d 550, 556 (Ind. 2019). "[W]hen the failure to object accompanies the party's affirmative requests of the court, it becomes a question of invited error." Id. "The distinction in these two doctrines is an important one: whereas waiver generally leaves open an appellant's claim to fundamental-error review, invited error typically forecloses appellate review altogether." Id.

[16] Here, Brown invited the alleged error by affirmatively requesting the separation of witnesses order that he now contests. Accordingly, appellate review of this issue is foreclosed altogether. See id. Moreover, even if Brown did not invite the error, he waived any alleged error by failing to object. See id. On appeal, Brown makes no argument that fundamental error occurred. Accordingly, Brown's argument that the trial court erred by excluding his mother from the courtroom fails.

II. Jury's Examination of Firearm

[17] Next, Brown argues that the trial court erred by allowing the jury to pull the trigger on the firearm during deliberations. According to Brown, allowing the jury to pull the trigger on the firearm during deliberations "was an improper experiment because it may have led to supplemental evidence." Appellant's Br. p. 20.

[18] Ray Wolfenbarger, a firearms examiner, testified regarding the Taurus handgun. Wolfenbarger explained the safety features in place on the handgun and testified that the trigger required four and three-quarters pounds of pressure to pull the trigger. The State requested that the jury be allowed to examine the firearm. The trial court then instructed the jury: "we...