Jackson v. State

32 N.E.3d 845 (Table)

Darin JACKSON, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1404–CR–230.

Court of Appeals of Indiana.

May 13, 2015.

Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

BROWN, Judge.

[1] Darin Jackson appeals his conviction for conspiracy to commit criminal confinement as a class B felony. Jackson raises four issues which we consolidate and restate as:

I. Whether the trial court abused its discretion in replacing one of the original jurors with an alternate;

II. Whether the trial court abused its discretion in admitting certain testimony; and

III. Whether the evidence is sufficient to sustain Jackson's conviction for conspiracy to commit criminal confinement as a class B felony.

We affirm.

Facts and Procedural History

[2] Jackson and Carlton Hart were good friends, and Jackson knew Hart since Jackson was seven years old. Hart owned a music studio located at 46th Street and Evanston in Indianapolis. Shortly before November 15, 2012, Hart's cousin, who was a local rapper known as Bango, was shot and killed. Jackson knew Bango's mother “back in the day” and also knew Dwayne McDuffy (“Dwayne”), the father of James McDuffy (“McDuffy”), since Jackson was a teenager. Transcript at 408.

[3] On November 15, 2012, Jackson, Dwayne, and Hart went to the residence of Bango's mother. Hart and Jackson then dropped off Dwayne and picked up McDuffy. At approximately 3:00 p.m., Jackson, McDuffy, and Hart entered the Lowe's at 62nd Street and Keystone in Indianapolis. One of the men picked up a box cutter. McDuffy picked up a package of zip ties, and Jackson held his arms together in front of him crossed at the wrist and placed a package of zip ties in the cart. At 3:18 p.m., McDuffy purchased a 2x4 stud of lumber, cable zip ties, washers, a coax cable connector, a box cutter, lip balm, duct tape, and zinc open bar holders. The men then drove to Hart's studio, and Hart later drove Jackson to a Wendy's restaurant where Jackson began work at 5:58 p.m. and worked until 2:53 a.m.

[4] Meanwhile, also on November 15, 2012, Marvin Finney, II, spoke with his cousin, Thomas Keys, a DJ, around 4:00 p.m. Finney drove his mother's minivan, picked up Keys, and drove to the music studio owned by Hart to work on a project honoring Bango. Finney was expecting to pick up music, probably listen to a couple of songs, accept money, and go home and work on the project. Dontee Robinson, known to Finney as D–Rob, let Finney and Keys into the studio. Finney knew Robinson from seeing rap videos on YouTube. McDuffy, whom Finney had met a week earlier at a concert, was also in the studio. Finney observed that they had a piece of wood across the door to block it.

[5] Robinson was “kind of tense” and asked Keys who killed Bango and what he knew about it, and Keys said that he knew just as much as Robinson and McDuffy knew. Id. at 127. Robinson and McDuffy kept insisting that Keys knew who did it and that he needed to tell them. Finney was on his phone texting one of his friends, and McDuffy asked him who he was texting. Finney said: “Why would I call anybody over to the studio?” Id. at 128. McDuffy responded: “We don't need nobody else coming over here and you all are not leaving until we find out what we need to know.” Id. McDuffy asked Finney for his phone, and Finney gave it to him. McDuffy said: “Thomas needs to tell us what we need to know or you are not going home.” Id.

[6] At some point, McDuffy pulled a gun out and sat it on his lap “like he was not happy about Bango getting killed and he needed to know what was going on.” Id. at 129. Robinson had an assault rifle. Keys said: “Who was telling you all this so I can confront them?” Id. at 131. McDuffy asked Keys and Finney if they had any weapons and started going through Finney's pockets and told him to empty his pockets. Finney gave McDuffy his phone, keys, and cash. There was a third person with McDuffy and Robinson, but the third person was hanging more toward the back so Finney could not identify him other than being black with a light-skinned complexion, braids, and “Asian-style eyes.” Id. at 132. Finney said: “You all called us to work on a project and that is what we are here to do. We are not here to talk about no murders or none of that.” Id. at 133. McDuffy said: “You all going to die here tonight if you don't tell us what we need to know.” Id. McDuffy then called the third person and had him put a gun on Finney. The third person pointed a revolver at Finney and told him that he needed to back up and go back to his seat.

[7] McDuffy told Finney and Keys that they needed to strip, and Finney kicked off his shoes to let them know that he did not have a gun in his shoes. At some point, the third person let Dominique Hamler, known to Finney as Scooter, into the studio. Hamler was mad, pulled an assault rifle out of his pants, pointed it at Finney and Keys, and said: “Who killed Bango?” Id. at 137. Finney said that he was Keys's cousin and that they came over to work on some music, and Hamler said: “You all need to tell us who killed Bango.” Id. at 138. Keys said that they were questioning the wrong people. McDuffy said: “You all supposed to be tied up anyway,” and “Why ain't they tied up yet?” Id.

[8] Hamler told Finney to “get on the ground,” and the third person “kind of pushed [him] and kicked [him] to the ground.” Id . Finney and Keys were eventually tied up with zip ties around their wrists and legs. At some point, Nathaniel Armstrong, also known as Little Nate, entered the studio “really amped up, hyped up,” and asked who killed Bango and said he was ready to kill somebody. Id. at 141. Armstrong said: “You all better be glad they won't let me get a gun or you all would have been dead.” Id. Armstrong grabbed a knife that looked like a box cutter and cut Keys on the leg. Armstrong said: “We doing this for Bango. He was about to blow. He was about to make it. Somebody took his life now and you all got to die.” Id. at 142.

[9] At some point, someone placed duct tape on Keys's mouth. Someone suggested “somebody go get some gloves” to “finish off” Keys and Finney. Id. at 143. An older bald man entered through the back door, and said: “Is that him? Is that him?” Id. at 144. Robinson, Hamler, Armstrong, and the bald man left the studio. Finney, Keys, McDuffy, “and the guy with the Asian-style eyes” remained in the studio. Id. at 145. McDuffy told Finney: “Tell your cousin to tell us what we need to know.” Id. at 146. McDuffy also told Finney: “Tell us something or you are not going home.” Id.

[10] After probably twenty minutes, Hamler, Robinson, Armstrong, and the bald man returned. McDuffy told Robinson to clean the guns, and everyone except Keys and Finney started putting on gloves. McDuffy, Armstrong, and Hamler were still interrogating Finney and Keys and said: “You about to die.” Id. at 147. The bald man suggested that they drown Keys and Finney, electrocute them, burn them alive, shoot them, and dump their bodies. The men turned off the lights and huddled together. McDuffy said: “This ain't getting nowhere. We should just let them go because they don't know nothing.” Id. at 149. Armstrong then said: “How you going to just let somebody kill your cousin and get away with it? We got to do something about this.” Id.

[11] The men huddled up a couple more times and returned, and Armstrong said: “We can strangle them. Put the zip ties around their neck.” Id. Duct tape was placed around the wrists and faces of Keys and Finney. Finney resisted, and they kicked and punched him. The men placed a zip tie around Finney's neck and the tie was “real tight.” Id. at 150. The men then played one of Bango's songs and were “dancing around like pumping themselves up.” Id. Hamler said: “They was doing this for Bango.” Id. The men left the room, and someone with dreadlocks returned and fired a gun multiple times. Finney was shot near the right wrist and “played dead.” Id. at 151.

[12] Finney eventually found a screwdriver and freed himself from the tape and some of the zip ties and told Keys, “Let's go, let's go,” but Keys did not respond. Id. at 152. Finney exited the studio and went to 46th Street to seek help. Finney ended up at CVS and screamed: “I am going to die. I am going to die. I am going to die.” Id. at 34. Gayle Young, Jr., attempted to remove the tie but it was so tight on Finney's neck that Young “probably couldn't get [his] index finger between the wire tie and his neck....” Id. at 35.

[13] Meanwhile, around 8:00 p.m., Adam Root was helping a friend, Alan Alas, carry groceries into a house on the corner of 46th Street and Caroline in Indianapolis. Root and Alas heard four of five gunshots coming from the west. Root then saw five, six, or seven panicked black males run out of the alley just north of where the house was located and into three separate cars.

[14] Shortly after 8:00 p.m. on November 15, 2012, Indianapolis Metropolitan Police Officer James Trythall was dispatched to the CVS store located at 4602 North Keystone for a person who had been shot. Officer Trythall found Finney shot in both arms with a zip tie around his neck and duct tape in his hair. Finney was very excited and “a little bit hysterical.” Id. at 15. Finney told Officer Trythall that he and a friend were at a studio on 46th Street and that there was a blue minivan behind the studio, and Officer Trythall broadcast the information on the radio.

[15] Keys suffered six gunshot wounds, a cut, and “binding and ligature strangulation,” and he died. Id. at 83. The autopsy later revealed that his death was a result of multiple gunshot wounds to the chest.

[16] At the studio, Indianapolis Metropolitan Police Detective Brian Schemenaur observed some packages of zip ties opened and unopened and determined via the UPC code on the packaging that the...