Martin v. State

138 N.E.3d 990 (Table)

Earl B. MARTIN, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 19A-CR-627

Court of Appeals of Indiana.

Filed November 27, 2019

Attorney for Appellant: Matthew J. McGovern, Anderson, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney General, Indianapolis, Indiana

MEMORANDUM DECISION

Brown, Judge.

[1] Earl B. Martin appeals his convictions for murder, attempted murder, two counts of robbery, and conspiracy to commit robbery. We consolidate the issues he raises as whether the trial court abused its discretion or erred in admitting certain evidence. We affirm.

Facts and Procedural History

[2] In December 2017, Martin communicated with his co-worker, Jalil Fellows, via text messages. Martin asked Fellows if he knew someone they could rob, and Fellows gave Martin the phone number for his marijuana supplier, Brandon Waldroup. Fellows believed that Martin was going to rob Waldroup of a half-pound of marijuana and they would split it in some way.

[3] On December 18, 2017, Miranda Grissom, Martin's friend, picked him up from his mother's house around 4:00 or 5:00 p.m. and took him to her apartment located across the street from Rick's Sports Bar. Grissom observed that Martin had a gun. A couple of hours later, Martin left with the gun and said he was going to Rick's to meet his girlfriend.

[4] That same day, Waldroup exchanged text messages with a person calling himself Jeremiah. They decided to meet at Rick's Bar, and Waldroup drove to the bar with Christopher Hoefling. Waldroup heard a tap on the rear passenger door, unlocked the car, and Martin opened the door and pointed a gun at Waldroup's head and a second gun at Hoefling's head. Waldroup turned his head back around, heard a gunshot, and was then struck by a second shot. A few seconds later, Waldroup saw his car door open, and Martin pulled him out of the car and threw him face down on the concrete. Waldroup laid in pain for awhile before turning his head to see that his car and Hoefling were gone.

[5] A passerby approached Waldroup, and officers arrived at the scene. Waldroup was able to give the officers a description of his vehicle and the person who shot him as an older black male with a tan jacket. Waldroup was unable to tell the police if Hoefling had been shot.

[6] Evansville Police Detective David Smith sent officers to speak with Hoefling's father and then to Waldroup's apartment to look for Hoefling. Detective Smith went through the process with Blue Link to locate Waldroup's car but was unsuccessful.¹ He then contacted AT&T regarding Waldroup's phone, received an emergency disclosure, discovered that the phone had been turned off moments after the incident, and learned that two phone numbers were of interest and belonged to Fellows and Martin.

[7] Waldroup was transported to the hospital and had a bullet removed from his jaw. While he was in the hospital, he identified Martin from a photo array as the person who shot him. Evansville Police Detective Peter DeYoung spoke with Waldroup and learned that Waldroup's phone was likely in the vehicle and that there was a second victim. He contacted the phone carrier and asked for an exigent circumstances tracking of the phone so he could locate the second victim.

[8] Meanwhile, at some point that evening, Martin's girlfriend, Heather Wilson, called him, and he asked her for a ride but did not seem to know where he was and gave her the names of the intersecting streets. Wilson picked him up in a red PT Cruiser, noticed he smelled of marijuana, and dropped him off at his mother's home.

[9] Martin called Fellows and said it "turned out bad" and Fellows would "see it on the news." Transcript Volume II at 120. That night, Fellows went to Martin's house and obtained three ounces of marijuana.

[10] Around 10:00 or 11:00 p.m., Martin called Grissom and asked her to pick him up at his mother's house. She picked him up, noticed that he had marijuana with him, and returned him to his mother's house around 7:30 a.m. the following morning.

[11] On December 19, 2017, Detective Smith told Evansville Police Detective Brad Evrard that he had a number for one of the victim's phones. They contacted the cell provider and obtained information regarding two phone numbers that were communicating with Waldroup's phone. Detective Evrard entered the phone numbers into Facebook and discovered that one number belonged to Fellows and the other belonged to Martin. He took the numbers for Fellows and Martin and "did an exigent warrant to Verizon." Id. at 246.

[12] The police searched for Waldroup's vehicle that day but did not find it. That afternoon, they executed a search warrant on the home of Martin's mother. Police discovered a .380 caliber Cobra handgun and a .22 caliber Ruger pistol. They discovered a velvet Crown Royal bag containing eighteen rounds of federal .380 caliber ammunition, a firearm, a Carhartt jacket, and marijuana in a bag in a trash can of a neighboring home. Police collected jeans from a bedroom with blood on the seat, a pair of work boots, two .380 caliber spent shell casings, and a box of .25 caliber ammunition from the northeast bedroom.

[13] Evansville Police Detective Jeffrey Allen Hands informed FBI Special Agent Kevin Horan of the missing vehicle and that there was another victim. Agent Horan created a report for the Verizon phone number believed to belong to Martin.

[14] On December 19, 2017, the police recovered Waldroup's vehicle and discovered Hoefling's body inside. After a search warrant was obtained for the vehicle, the police discovered a spent .380 caliber shell casing, a small baggie of suspected marijuana, and a .22 caliber shell casing. An autopsy revealed Hoefling suffered four gunshot wounds to his back and died as a result of a large accumulation of blood in the right chest cavity caused by one of the gunshot wounds.

[15] On December 26, 2017, the State charged Martin with Count I, murder; Count II, murder; Count III, attempted murder as a level 1 felony; Count IV, robbery resulting in serious bodily injury as a level 2 felony; Count V, robbery resulting in serious bodily injury as a level 2 felony; and Count VI, conspiracy to commit robbery as a level 5 felony. The State also alleged a sentencing enhancement for a person committing a felony offense while using a firearm as to Counts I, II, IV, and V, and that he was an habitual offender.

[16] Martin sent a letter dated March 13, 2018, to Grissom in which he stated "the only reason your [sic] not wrapped up in this is because of me," that he needed her to move a package, if she ignored him then "I swear to God your [sic] done!," and "So make your next move your best move my Queen. Lol One more thing. Check mate." State's Exhibit 28.

[17] On December 3, 2018, Martin filed a motion to suppress alleging that the Evansville Police Department requested and received his cell phone records from Verizon Wireless pursuant to an "Emergency Disclosure" request and that this demand violated his rights. Appellant's Appendix Volume II at 169. The trial court held a hearing on the motion to suppress and denied the motion.

[18] In January 2019, the court held a jury trial. Fellows testified about his communications with Martin and that Martin called him and said it "turned out bad" and he would "see it on the news." Transcript Volume II at 120. Waldroup testified that Martin entered the car with guns drawn, shot him in the face, and pulled him out of the car. He immediately identified Martin as the shooter in the photo array on the day after the shooting and with a "hundred percent" certainty during his testimony in court. Id. at 167. Heather Wilson, Martin's girlfriend until the time of the robbery, testified that she did not discuss with Martin about going to Rick's Sports Bar that day. The court admitted a surveillance video recording from a liquor store near the scene of the shooting which showed a male walking through a parking lot wearing a tan jacket at approximately 8:51 p.m.

[19] Erin Gabor, an IT Specialist Computer Forensic Examiner employed by the FBI, prepared a report regarding Martin's phone titled Extraction Report and refers to the Federal Bureau of Investigation Computer Analysis Response Team. The court admitted the 2,770-page report as State's Exhibit 31 over Martin's objection. Gabor testified that the report included information from the cell phone given to her in the investigation.

[20] Evansville Police Officer Douglas Hamner testified that he used a chemical known as bluestar on the PT Cruiser which reacts to the presence of hemoglobin and blood. He observed a reaction on the front passenger seat, the outside front passenger door handle area, and the front passenger inside door handle.

[21] Outside the jury's presence, Agent Horan testified he is a cell phone expert and that he provided a report to the Evansville Police Department containing an expert opinion about the movement of Martin's phone on the evening of the crime. He explained that the report is generated from inputting the Verizon records into a software program. Martin's counsel argued that Verizon did not provide a business records affidavit or certify the records. Agent Horan testified that he was a member of the cellular analysis survey team and had been trained "in almost all things, cell phone ...." Transcript Volume III at 159. Martin's counsel later stated: "I'm not contesting whether he's qualified. I'm contesting that the data he relied upon, which is in substance his map, is not authenticated." Id. at 166. He also objected under Ind. Evidence Rules 803 and 901.

[22] In the presence of the jury, Agent Horan testified that he received specialized training and was assigned to the Cellular Analysis Survey Team, which is a group of experts in the field of cellular technology and cellular tracking. During Agent Horan's testimony, Martin's counsel...