Hendricks v. State

162 N.E.3d 1123

Daveon L. HENDRICKS, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 20A-CR-690

Court of Appeals of Indiana.

FILED January 14, 2021

Rehearing Denied March 10, 2021

Attorneys for Appellant: Marietto V. Massillamany, Erica L.S. Guernsey, Massillamany Jeter & Carson LLP, Fishers, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Sierra A. Murray, Deputy Attorney General, Indianapolis, Indiana

Sharpnack, Senior Judge.

Statement of the Case

[1] Daveon L. Hendricks agreed to join his cousin and several friends in robbing two acquaintances who dealt in marijuana. One of the victims was fatally shot during the attempted robbery. Hendricks appeals his convictions of murder, a felony,¹ and conspiracy to commit robbery resulting in serious bodily injury, a Level 2 felony.² We affirm in part, reverse in part, and remand.

Issues

[2] Hendricks raises four issues, which we expand and restate as:

I. Whether the trial court erred in allowing a witness to testify about a co-conspirator's confession.

II. Whether the trial court erred in admitting into evidence recordings of Hendricks' jail telephone conversations.

III. Whether the trial court erred in admitting into evidence witness identifications of Hendricks.

IV. Whether there is sufficient evidence to sustain Hendricks' convictions.

V. Whether Hendricks' convictions violate Indiana's constitutional prohibition of double jeopardy.

Facts and Procedural History

[3] C.O. and S.J. were longtime friends,³ and in the summer of 2015 they lived together in a house in Muncie, Indiana. A mutual friend, Andre Wells, slept in the house's garage. C.O. and S.J. both sold marijuana at the house.

[4] S.J. knew Hendricks, William Balfour, Darius Covington, and Artie Thomas from school and from encountering them in Muncie on several different occasions.⁴ Hendricks and Balfour were cousins.

[5] In June 2015, Hendricks purchased marijuana from C.O. at C.O. and S.J.'s house. During the last week of June 2015, Balfour went to the house on a separate occasion, as part of a group that sold a rifle to C.O. Balfour had jointly owned the rifle with Jonathan Kerr and another person, and C.O. paid $300 to Balfour for his share of the rifle. A few days later, Balfour called Kerr to express dissatisfaction with the amount of money C.O. had paid him.

[6] On June 30, 2015, Balfour texted C.O. to ask if he had any marijuana, to which C.O. responded that he did not. On July 1, 2015, Balfour texted C.O. to say that he needed "some licks." Tr. Ex. Vol., State's Ex. 51. A "lick" is slang for a robbery. Balfour further stated he was interested in "[a]nything that got [sic] money involved." Id.

[7] On July 2, 2015, at around 6 p.m., Thomas, Covington, and Jamel Barnes (who was also under the age of eighteen) were playing basketball at a Muncie apartment complex when Hendricks and Balfour arrived. Hendricks is approximately six feet tall, and on that day he styled his hair in dreadlocks. The five young men stayed at the basketball court until nightfall, when they left in Barnes' car.

[8] Hendricks and Balfour suggested going to C.O. and S.J.'s house to buy marijuana. At some point during the drive, Covington borrowed Thomas' phone and kept it. Also, the group discussed robbing C.O. instead of buying drugs.

[9] Upon arriving at the house at around 10:30 p.m., Covington, Thomas, Hendricks, and Balfour agreed that Covington and Thomas would go into the house while Hendricks, Balfour, and Barnes stayed in the car. Covington and Thomas rarely smoked marijuana, and, unlike Hendricks and Balfour, neither of them had been to C.O. and S.J.'s house before. Covington later testified that as he approached the house, he believed that he and some or all of his companions had agreed to rob the occupants.

[10] C.O. allowed Covington and Thomas to enter. S.J. was present, but Wells was absent. Covington went with C.O. to C.O.'s bedroom to look at a rifle and a handgun while S.J. and Thomas discussed a marijuana deal in the living room.

[11] Next, Covington went to the restroom, leaving C.O., S.J., and Thomas in the living room. Telephone company records for Thomas' phone, which was in Covington's possession during this time, demonstrate that a person using Barnes' phone called Thomas' phone at 10:40 p.m., and the call lasted until approximately 10:51 p.m. After the call ended, two men entered the house, wearing hooded jackets with the hoods up, and wielding handguns. One of the intruders was about six feet tall, and his hair was in dreadlocks. S.J. later stated:

I'd say [Hendricks] entered the house. I didn't know who it was. Whenever someone came into the house, I thought it was – like I didn't know who it was. I just said someone with dreads, about 5'11, black. But I'd say [Hendricks] entered the house.

Tr. Vol. 2, p. 98. Thomas also later identified Hendricks as one of the intruders and further stated Balfour was his companion.

[12] One of the intruders pointed his gun at S.J. and ordered everyone to get on the floor. S.J. jumped into his bedroom and heard a gunshot. Similarly, Thomas jumped into C.O.'s bedroom and heard a gunshot. Covington, still in the restroom, also heard a gunshot.

[13] Meanwhile, Hendricks and Balfour had left Barnes' car. When they returned after ten minutes, Barnes asked about Covington and Thomas. Hendricks and Balfour indicated Covington and Thomas were at the same place they had come from. Barnes drove off with Hendricks and Balfour, leaving Covington and Thomas behind.

[14] Next, Covington left the restroom and did not see anyone in the living room, so he ran out of the house. Thomas exited C.O.'s bedroom and also left the house.

[15] S.J. texted Wells at 10:53 p.m. to say that he was being robbed. In response, Wells called S.J. who, after staying on the floor of his bedroom for several minutes, got up and walked through the house as he spoke with Wells. No one else was there, but S.J. found C.O. in a utility room at the back of the house. C.O. was on the ground, nonresponsive and bleeding from a gunshot wound. S.J. hung up on Wells and called 911.

[16] 911 records show S.J.'s call was received at 10:57 p.m. Officers from the Muncie Police Department arrived within minutes. They determined no one other than S.J. was in the house. C.O. did not appear to be breathing and was later pronounced dead.

[17] Meanwhile, upon leaving the house, Covington saw that Barnes' car was gone, so he ran away, traveling several miles on foot. He still had Thomas' phone, and he eventually called his sister's boyfriend to pick him up and take him home. During this time period, Covington also called Hendricks, and Barnes called Covington.

[18] When Thomas exited the house, he also saw that Barnes' car was gone. He went to a nearby bar to use the phone, but he was denied service because he was underage. Next, Thomas went to a nearby house and used the resident's phone to call Barnes. Barnes came back and picked him up. Hendricks and Balfour were in the car with Barnes.

[19] Barnes drove to Hendricks and Balfour's grandfather's house. On the way there, Barnes heard Balfour ask Hendricks "why [C.O.] ran." Tr. Vol. 4, p. 85. He also heard Balfour ask Hendricks if "they got anything from the house." Id. at 86. Balfour and Hendricks got out of the car at their grandfather's house. Barnes and Thomas then went to Covington's home, where Thomas retrieved his phone. Thomas discovered that his phone's call logs and text logs had been deleted.

[20] A crime scene technician examined C.O. and S.J.'s house. He found a .9 mm shell casing on the living room floor, near the front door. The technician also discovered a bullet on the floor in the kitchen in a doorway to the utility room where C.O.'s body was found. A subsequent autopsy revealed C.O. had died from a gunshot wound to the back. The round went through his spine, aorta, and heart before exiting his chest.

[21] On July 4, Barnes encountered Hendricks, Balfour, and Covington at a fireworks event. Balfour stated that he had heard Thomas had talked to the police, and he threatened to kill anyone else who talked to the police.

[22] In 2017, the State charged Hendricks with murder, a felony, alleging that Hendricks and/or Balfour robbed or attempted to rob C.O. and that C.O. was killed in the commission of the robbery or attempted robbery. The State also charged Hendricks with conspiracy to commit robbery resulting in serious bodily injury, a Level 3 felony, alleging that C.O. suffered serious bodily injury as a result of the conspiracy.⁵

[23] In early 2019, Hendricks asked Covington to contact Balfour. Balfour was in jail, so Covington used a jail-managed app to speak with him. Covington was aware the calls were recorded, so when he set up an account on the app, he used a false name to hinder the authorities from finding the recordings of the calls in the app's database. Covington and Balfour talked about Thomas, Barnes, and other people using code names to hinder any attempts to decipher their conversations.

[24] In May and June of 2019, Hendricks had three recorded calls with Balfour. They discussed other people using code names such as "J.B.," "D.C.," and "Lacy." Tr. Ex. Vol., State's Ex. 86, 92. Balfour told Hendricks he had contacted various people. Balfour urged him to keep speaking with an unidentified person to keep him "on the team." Id. at State's Ex. 92. On another call, Hendricks said he had spoken with someone about an unspecified task Hendricks and Balfour had apparently discussed in the past, but Hendricks refused to provide details on the phone, saying: "he doing [sic] it. You feel me? It still ain't got to be explained." Id. at State's Ex. 90.

[25] The trial court presided over a jury trial on October 28 through 31, 2019. The jury determined Hendricks was guilty of murder and conspiracy to commit robbery resulting in serious bodily injury. The trial court imposed concurrent sentences of fifty-five years and...