Deryan Oneil Cook v. State of Indiana

FILED

Feb 18 2019, 5:57 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Matthew J. McGovern Curtis T. Hill, Jr.

Anderson, Indiana Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Deryan Oneil Cook, February 18, 2019

Appellant-Defendant, Court of Appeals Case No.

18A-CR-348

v. Appeal from the Vanderburgh

Superior Court

State of Indiana, The Honorable Robert J. Pigman,

Appellee-Plaintiff. Judge

Trial Court Cause No.

82D03-1706-MR-3487

Pyle, Judge.

Court of Appeals of Indiana |Opinion 18A-CR-348 | February 18, 2019 Page 1 of 11

Statement of the Case

[1] Deryan Cook (“Cook”) appeals his conviction by jury of murder. 1 He argues

that the trial court abused its discretion in excluding evidence and that his sixty-

five (65) year sentence is inappropriate in light of the nature of the offense and

his character. Concluding that the trial court did not abuse its discretion and

that Cook’s sentence is not inappropriate, we affirm the trial court’s judgment

and sentence.

[2] We affirm.

Issues

1. Whether the trial court abused its discretion in excluding

evidence.

2. Whether Cook’s sentence is inappropriate in light of

the nature of the offense and his character.

Facts

[3] On June 4, 2017, Michael Turpin’s (“Turpin”) truck broke down. After

unsuccessfully attempting to find someone to pick him up, he and Jamie Baker

(“Baker”) decided to walk to a friend’s house on the other side of town. As

they walked across a Walgreen’s parking lot at approximately 12:30 a.m. the

following morning, Turpin noticed twenty-year-old Cook approach them from

1

IND. CODE § 35-42-1-1.

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a nearby gas station. Cook gave Turpin a “fucked up look,” and Turpin told

Baker to walk faster. (Tr. Vol. 2 at 89). As Turpin and Baker began to walk

down a residential street, Turpin turned around and noticed that Cook was

standing in front of the Walgreen’s and staring at them. Turpin told Baker to

“pick up the pace.” (Tr. Vol. 2 at 89-90). A few minutes later, Turpin heard

Cook’s footsteps behind them. Cook yelled at Turpin and Baker to “get on the

fucking ground” and began shooting at them. (Tr. Vol. 2 at 94). Turpin turned

around and got a clear view of Cook, whose face was illuminated by a street

light. Turpin grabbed Baker and heard “like three more shots” and then a click.

(Tr. Vol. 2 at 97). Cook took off running, and Turpin realized that Baker had

been shot in the center of her back. Baker died before emergency personnel

arrived at the scene.

[4] Cook returned to his nearby apartment where several of his roommates were

listening to a police scanner. Cook told roommate Alexander Southard

(“Southard”) that he “had to do it” and that he had “shot four and saved five.”

(Tr. Vol. 2 at 212, 213). Cook later told Southard that he had gone out to rob

somebody and that he had seen Turpin and Baker walking down the street.

According to Cook, Baker was carrying a purse and “if she wasn’t going to give

it up [I] was going to shoot her and that’s what happened.” (Tr. Vol. 2 at 214).

Cook further explained to Southard that he had told Turpin and Baker “to lay

down or whatever and they took off running.” (Tr. Vol. 2 at 214). According

to Cook, he had then shot them. Cook also told Southard that he had used a

.40 caliber handgun.

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[5] A few days later, Southard told the police what Cook had told him about

Baker’s murder. Turpin then identified Cook in a photo array, and Cook was

brought in for questioning by Detective Peter DeYoung (“Detective

DeYoung”). Cook told Detective DeYoung that he had been with Jerome

Height (“Height”) when Height had attempted to rob and had then shot Baker.

Cook told the detective that he, Cook, had run back to his apartment after the

shooting and cried. Cook also stated that he did not “mess around with guns.”

(Tr. Vol. 3 at 62). Cook later admitted to the detective that he had had

possession of the murder weapon a week before the murder and that he had

given it to Height. Cook also admitted that he had stood at the Walgreen’s, had

watched Turpin and Baker, and had then followed them. While Cook was

following the couple, he had heard gunshots and had taken off running. Cook

was sure that Height had fired the shots.

[6] Cook was arrested and charged with murder and felony murder. The State also

requested that Cook’s sentence be enhanced pursuant to INDIANA CODE § 35-

50-2-11 because he had knowingly used a firearm in the commission of the

crime.

[7] At trial, Turpin identified Cook as the shooter. When defense counsel

challenged Turpin’s identification and suggested that Cook happened to

“magically [be] standing under that street light,” Turpin responded as follows:

It’s not magically standing under that street light. That’s where

he told us to stop and pointed a gun at me and shoot and I seen

his face, I seen the smirk on his face. The same smirk he had at

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the Walgreens doors and the same one I seen in that picture and I

will never forget it. I dream about it every night.

(Tr. Vol. 2 at 117).

[8] In addition, forensic pathologist Dr. Christopher Kiefer (“Dr. Kiefer”) testified

that Baker had died from the gunshot wound to her back. According to Dr.

Kiefer, Baker’s pulmonary artery was injured “such that blood was not

effectively being pumped to the lungs. It was spilling out into the chest so this

[led] to both [exsanguination] within the body and the lack of heart to function

because it [was] not moving fluid properly.” (Tr. Vol. 3 at 27). Indiana State

Police Firearms Examiner Angela Kilmon further testified that the bullet that

had killed Baker had been fired from a .40 caliber gun.

[9] Detective DeYoung testified that he had followed up on his interview with

Cook by questioning Height, who had denied shooting Baker. During cross-

examination of Detective DeYoung, defense counsel requested a hearing

outside the presence of the jury and asked the trial court to allow her to ask the

detective “if he had received information from Karen Montgomery [(”Detective

Montgomery”)] that Jerome Height [had] allegedly confessed to committing the

shooting.” (Tr. Vol. 3 at 169). Defense counsel further explained as follows:

My rational[e] for that is not to introduce it for the truth of the

matter asserted but to show the steps that Detective DeYoung

took in his investigation. I believed that at the time he received

this information he did not do anything with it and I want to

show the jury that at that point he had developed a bias or a

belief that [Cook] was the shooter, that he took no steps to

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establish that there’s any other possibility. I also think it goes to

the quality and thoroughness of his investigation.

(Tr. Vol. 3 at 169-70).

[10] The State pointed out that the statement that Cook sought to admit was a jail

house conversation in which Height had allegedly told Geonovan Bailey

(“Bailey”) that he had shot Baker. Bailey had then allegedly told Detective

Montgomery what Height had told him, and Detective Montgomery had

allegedly told Detective DeYoung what Bailey had told her. According to the

State, defense counsel wanted “to get three layers of hearsay in. She want[ed]

to get that out there for the truth of the matter asserted. . . . She [was]

attempting to go around – to do an end round- end run around the hearsay rule

to gain exactly what is not permitted under the hearsay rule.” (Tr. Vol. 3 at

172-73). The State further pointed out that defense counsel could have

subpoenaed Bailey or requested a continuance to look for Height, who had a

warrant out for his arrest. The trial court concluded that Cook’s proffered

evidence was hearsay and excluded it.

[11] The jury convicted Cook of murder and felony murder, and Cook admitted to

the firearm enhancement.2 At the sentencing hearing, the State pointed out that

the crime was an “outrageous senseless act of shooting someone in the back as

they are trying to flee, trying to avoid this.” (Tr. Vol. 4 at 10). Cook’s Pre-

2

The trial court vacated Cook’s felony murder conviction.

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Sentence Investigation Report revealed that although Cook had no prior felony

convictions, he had a history of delinquent behavior as a juvenile and had been

adjudicated to be a delinquent child for possession of marijuana, conversion,

and failure to stop. He had also been unsuccessfully discharged from probation

as a juvenile. In addition, Cook had been using marijuana daily since he was

seventeen or eighteen years old, and at the time of his arrest, he had been

smoking approximately three to six marijuana blunts per day.

[12] Before imposing Cook’s sentence, the trial court found Cook’s youth and

relative lack of a prior criminal history to be mitigating factors and the nature

and circumstances of the crime as pointed out by the State to be an aggravating

factor. The trial court sentenced Cook to fifty-five (55) years for murder and

enhanced the sentence by ten (10) years because he had knowingly used a

firearm in his commission of the offense, for a total sentence of sixty-five (65)

years.

[13] Cook now appeals his conviction and sentence.

Decision

1. Exclusion of Evidence

[14] We review the trial court’s decision to admit or exclude evidence for an abuse

of discretion. Teague v. State, 978 N.E.2d 1183, 1187 (Ind. Ct. App. 2012). An

abuse of discretion occurs if the trial court’s decision is clearly against the logic

and effect of the facts and circumstances before the court, or if the court had

misinterpreted the law. Id.

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[15] Cook first argues that the trial court abused its discretion when it excluded

evidence that: (1) Height had allegedly told Bailey that he had shot Baker; (2)

Bailey had allegedly told Detective Montgomery what Height had told him;

and (3) Detective Montgomery had allegedly told Detective DeYoung what

Bailey had told her. Cook refers to this evidence as “Height’s Confession.”

(Cook’s Reply Br. at 5). The State responds that the trial court properly

excluded this evidence because it was inadmissible hearsay.

[16] Hearsay is “a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Ind. Evidence Rule 801(c). Hearsay is inadmissible unless it falls

within one of the exceptions to the rule against hearsay. Evid. R. 802.

[17] Here, Cook contends that Height’s confession is not hearsay because it was not

offered to prove the truth of the matter asserted. Rather, Cook argues that the

confession was admissible to show the course of the investigation. Specifically,

Cook contends that this evidence was admissible “to prove Detective

DeYoung’s bias toward Cook and refusal to look for another suspect.” (Cook’s

Br. at 18).

[18] An out-of-court statement introduced to explain why a particular course of

action was taken during a criminal investigation is not hearsay because it was

not offered to prove the truth of the matter asserted. Goodson v. State, 747

N.E.2d 1181, 1185 (Ind. Ct. App. 2001), trans. denied. Even so, we require a

reasonable level of assurance that such testimony was neither offered by the

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proponent nor received by the trier of fact as evidence of the truth of the third

party’s statement. Id.

[19] At the outset, we note that Detective DeYoung interviewed Height after

interviewing Cook, thus refuting Cook’s contention that the detective refused to

look for another suspect and was biased against Cook. The out-of-court

statements allegedly made by Height, Bailey, and Detective Montgomery have

little or no bearing on Detective DeYoung’s particular course of action during

the investigation and are therefore hearsay.

[20] In addition, because the out-of-court statements involve hearsay within hearsay,

which is also known as multiple or double hearsay, the statements are not

admissible unless each layer of hearsay qualifies under an exception to the

hearsay rule. See Teague, 978 N.E.2d at 1187; see also Evid. R. 805 (stating that

“Hearsay included within hearsay is not excluded under the hearsay rule if each

part of the combined statements conforms with an exception to the hearsay rule

provided in these rules.”). Here, Cook has failed to set forth how each layer of

the out-of-court statements allegedly made by Height, Bailey, and Detective

Montgomery qualifies as an exception to the hearsay rule. The trial court did

not abuse its discretion by excluding this evidence. 3

3

Cook also argues that the trial court violated his right to present a defense when it excluded Height’s

confession. However, Cook has waived this issue. Our review of the trial transcript reveals that Cook did

not raise this issue at trial. A trial court cannot be found to have erred as to an issue that it never had the

opportunity to consider. Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004). Accordingly, a party that

raises an issue for the first time on appeal has waived that issue. Id. Waiver notwithstanding, we find no

error. The facts of Hyser v. State, 996 N.E.2d 443 (Ind. Ct. App. 2013) and Allen v. State, 813 N.E.2d 349 (Ind.

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[21] 2. Inappropriate Sentence

[22] Cook also argues that his sixty-five (65) year sentence was inappropriate in light

of the nature of the offense and his character. Indiana Appellate Rule 7(B)

provides that we may revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, we find that the sentence is

inappropriate in light of the nature of the offense and the character of the

offender. The defendant bears the burden of persuading this Court that his

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

Whether we regard a sentence as inappropriate turns on the “culpability of the

defendant, the severity of the crime, the damage done to others, and myriad

other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d

1219, 1224 (Ind. 2008).

[23] When determining whether a sentence is inappropriate, we acknowledge that

the advisory sentence is the starting point the Legislature has selected as an

appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.

Here, Cook was convicted of murder. The sentencing range for murder is from

forty-five (45) to sixty-five (65) years, with an advisory sentence of fifty-five (55)

years. I.C. § 35-50-2-3. The trial court sentenced Cook to fifty-five (55) years

for murder, which is the advisory sentence. Cook also admitted that he had

used a firearm in the commission of the offense. The sentencing range for this

Ct. App. 2004), trans. denied, the cases to which Cook directs us, are distinguishable from the facts of this case

because the defendants in those cases were not attempting to admit hearsay evidence.

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sentencing enhancement is from five (5) to twenty (20) years. I.C. § 35-50-2-11.

The trial court enhanced Cook’s fifty-five (55) year advisory sentence by ten

(10) years, for a total sentence of sixty-five (65) years.

[24] With regard to the nature of the offense, Cook, who had never met Baker, shot

the woman in the back as she walked away and attempted to avoid any conflict

with him. With regard to his character, Cook had delinquency adjudications

and an unsuccessful discharge from probation as a juvenile. He had also used

marijuana daily for three to four years and, at the time of his arrest, had smoked

three to six blunts per day.

[25] Based on the nature of the offense and his character, Cook has failed to

persuade this Court that his sixty-five (65) year sentence, which includes a fifty-

five (55) year advisory sentence for murder as well as a ten (10) year

enhancement because he used a firearm in the commission of the offense, is

inappropriate.

[26] Affirmed.

Najam, J., and Crone, J., concur.

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