Smoots v. State

172 N.E.3d 1279

Terrance Leroy SMOOTS, Jr., Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 20A-CR-2101

Court of Appeals of Indiana.

FILED July 27, 2021

Attorney for Appellant: Paul J. Podlejski, Anderson, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Justin F. Roebel, Supervising Deputy Attorney, General, Indianapolis, Indiana

Altice, Judge.

Case Summary

[1] Terrance Smoots appeals his convictions for battery resulting in serious bodily injury, a level 5 felony, criminal confinement resulting in moderate bodily injury, a level 4 felony, obstruction of justice, a level 6 felony, attempted obstruction of justice, a level 6 felony, and the finding that he was a habitual offender. Smoots argues that he was denied his right to confrontation under the Sixth Amendment to the United States Constitution and claims that the trial court abused its discretion in sentencing him. Smoots also challenges the appropriateness of the twenty-four-year aggregate sentence that the trial court imposed.

[2] We affirm.

Facts and Procedural History

[3] On September 24, 2019, Robert Simmons, an inmate at the Indiana Department of Correction (DOC), was transported to the Madison County Jail pursuant to a DOC directive. At approximately 2:17 p.m., Simmons carried his bedding and some personal effects to his cell block. As Simmons unpacked his belongings, Smoots—also a prisoner at the jail—was watching from the upper level.

[4] At some point, the jail's video surveillance camera showed Smoots pull his hair back and remove his long-sleeved shirt. Moments later, Smoots and his cellmate and another inmate walked down to Simmons's cell block. Someone shut the door from the inside, thus locking the four men in the same cell. The door remained shut for the next several minutes.

[5] At 2:30 p.m., the jail's surveillance video showed two of the inmates dragging Simmons from the cell with his pants around his ankles. The two men then pushed and kicked Simmons down some concrete stairs as Smoots exited the cell. Following a report of the attack, several correctional officers went to the cell block and observed Simmons lying unconscious at the bottom of the stairs. Simmons's face was puffy and bruised, there was feces on his pants, and he was unable to respond to questioning. Simmons was handcuffed and underwent a medical check. After determining that Simmons had facial cuts, bruises, swelling, an involuntary bowel movement, and was "coming in and out of consciousness," jail personnel transported him to an Anderson Hospital. Transcript Vol. IV at 198.

[6] Simmons told medical personnel that he had been in a fight that involved "4 on 1" over a "street beef." Id. at 94. Simmons stated that he had been struck several times and felt pain "all over." Id. Simmons's left eye was swollen shut and he claimed that his involuntary bowel movement had resulted from being "choked out" by "Squirt"—which was Smoots's nickname. Exhibit 24 at 46. Simmons was released from the hospital later that evening and transported back to the jail.

[7] Smoots was "written up" because he was observed "acting suspiciously" in the cell block before and after the attack on Simmons. Transcript Vol. V at 134-35. When jail personnel provided Smoots with a copy of the report, he denied striking Simmons and repeatedly stated to the officers, "you didn't see me hit him." Id. at 136.

[8] Three days after the attack, an investigator questioned Simmons about the incident. At that time, Simmons's eyes were swollen, he was moving slowly, groaning, and complaining of pain. Simmons told the investigator that "he was jumped by three dudes because they thought he was a snitch." Transcript Vol. IV at 21. Although Simmons claimed that he was not a "snitch," he did not want to make a statement because that would "make things worse." Id.

[9] On September 28, 2019, Simmons participated in a recorded jail visit with his mother. Simmons told his mother that although he was able to see out of his eye, something was still "wrong" because he thought some of his ribs were broken. Id. at 95-96. During that conversation, Simmons identified Smoots as the attacker and described the incident as follows:

It was like he was just like—he just just jealous. You feel me? I don't even know this ni**er like that. Know what I'm saying? His name is Squirt. He ain't nobody. He ain't even got no car out there. It ... was three people. Three, yeah. Anyways, they waited until I went in the room and they all ran in there in the room and locked the door. That's why I look like this because they had their way with me. But I don't even know this ni**er though. You know what mean? I don't know nothing about him. He told the two some bullsh*it. But he caught me good, though.

Id. at 16.

[10] In October 2019, the State charged Smoots with battery resulting in serious bodily injury, criminal confinement, and with being a habitual offender. Simmons was initially cooperative with the prosecutor and engaged in several conversations with victim's assistance representatives in December 2019 and January 2020. At some point, however, Simmons told one of the staff that he would not participate in Smoots's prosecution because he was "concerned for his general safety and [was in] fear for his life." Id. at 113.

[11] In December 2019 and February 2020, Simmons received three subpoenas regarding the case. Simmons reported that he had received telephone calls from Smoots's brother, "Red," and a woman named Tiffany, who threatened to kill him and his family if he testified against Smoots. A case manager assigned to Simmons reviewed the relevant jail phone records and confirmed that Simmons had, in fact, received calls from phone numbers associated with Red and from two phone numbers associated with a woman named Tiffany Arnold. Arnold had been housed in the cell block directly above Smoots's cell block and was released from jail on February 15, 2020.¹

[12] Simmons failed to appear for a deposition in February 2020 and had no further contact with any representatives from the victim's assistance program. Simmons subsequently informed court and jail personnel that he skipped the deposition because he was concerned for the safety of his mother and children, as well as his own, because of the threats that had been made against him. A review of recorded jail calls and cellphone records showed that Smoots had conversations with Red, Arnold, and an another unidentified individual about Simmons's potential testimony against him.

[13] The evidence showed that Arnold located Simmons's telephone number on Facebook after she was released from jail. The two exchanged texts and phone calls and after the second call that lasted for about twenty minutes, Simmons sent Arnold a message explaining that he was being encouraged to testify by the prosecutor and his case manager but stated that "[he] was done talkin.’ " Exhibit 54. The records also established that Red contacted Simmons on two occasions, that Arnold texted Red on February 21, 2020, and that Red had called Arnold that same day.

[14] Smoots acknowledged that he was speaking in "code" during the recorded jail calls and was talking about contacting Simmons. Transcript Vol. V at 241, 248. Smoots was prohibited from communicating with Simmons because a no contact order had been issued at his initial hearing. Smoots asked the unknown recipient of the jail calls if he remembered talking to "that little bitch," finding out "what the motherfucker talking about ... and get his temperature." Exhibit 35. In a later call, the unknown call recipient said he talked to "buddy ass" about receiving a subpoena and that Simmons indicated he would not testify and "he shouldn't do sh*t." Id. at 85.

[15] Smoots asked Arnold during one of the calls if she had told Simmons "what I said?" Exhibit 41. Arnold responded that Simmons found her threatening and that Simmons had received an offer that was "hard to refuse." Id. In another call, Arnold again told Smoots that Simmons felt threatened, and assured Smoots that she was "doing [her] best." Transcript Vol. V at 76. Arnold told Smoots that another person identified as "Mary ... "backed [her]" by also calling Simmons, which prompted Smoots to tell Arnold "you keep doin’ too much on these phones." Exhibit 41. Arnold told Simmons in a different call that she had been in contact with Red and wanted advice on how to proceed. In response, Smoots instructed Arnold to "tell bro, have bro check it out." Id., Ex. 6. Smoots subsequently told Red in a recorded call to "take a motherfuc*er temperature" and instructed his brother to have someone in Simmons's work release program "check on him." Id. at 37.

[16] Thereafter, the State amended the charging information to include charges for obstruction of justice, attempted obstruction of justice, and invasion of privacy. The State then filed a motion requesting that it be allowed to present evidence pursuant to a "right of confrontation exception" that would allow evidence of Simmons's conversations with law enforcement and others without Simmons's presence at trial. Appendix Vol. II at 113. The motion alleged that the evidence should be admitted because Smoots and others "improperly influenced, threatened or coerced ... Simmons into absenting himself from testifying." Id.

[17] Following a hearing, the trial court granted the State's request to present such evidence and determined that "Smoots[’s] acts procured the absence of Simmons ..." and, therefore "Smoots forfeits his right to confront Simmons and to object to hearsay statements." Id. at 158. The trial court specifically found that Smoots had called Red and Arnold, who then contacted Simmons and "communicated threats of harm if Simmons chose to testify against" Smoots. Id. at 155.

[18] The State dismissed the invasion of privacy charge, and the matter proceeded to trial on September 14, 2020. When the State offered the exhibits...