Dewayne Harris v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be FILED

regarded as precedent or cited before any Dec 15 2020, 9:08 am

court except for the purpose of establishing

the defense of res judicata, collateral CLERK

Indiana Supreme Court

Court of Appeals

estoppel, or the law of the case. and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Valerie K. Boots Curtis T. Hill, Jr.

Matthew D. Anglemeyer Attorney General of Indiana

Indianapolis, Indiana

Tiffany A. McCoy

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Dewayne Harris, December 15, 2020

Appellant-Defendant, Court of Appeals Case No.

19A-CR-2681

v. Appeal from the Marion Superior

Court

State of Indiana, The Honorable Barbara Crawford,

Appellee-Plaintiff. Judge

Trial Court Cause No.

49G01-1710-MR-38458

Altice, Judge.

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Case Summary

[1] Dewayne Harris appeals his conviction for Murder, a felony, claiming that the

trial court abused its discretion in excluding the victim’s toxicology report from

evidence, and that it erred in admitting photographs of items that police officers

seized during the search of a residence. Harris also argues that the fifty-five

year sentence for murder and the twenty-year enhancement for the use of a

firearm in the crime amounted to cruel and unusual punishment in violation of

the Eighth Amendment to the United States Constitution because it was a de

facto life sentence. Harris further contends that the seventy-five-year aggregate

sentence was inappropriate when considering the nature of the offense and his

character.

[2] We affirm the trial court’s judgment but remand for a correction of the

sentencing order because the trial court’s oral statement at sentencing conflicted

with the written sentencing order and abstract of judgment.

Facts and Procedural History

[3] On September 29, 2017, several individuals were playing a dice game outside a

residence on 28th Street in Indianapolis. Ebony Holifield was watching the

game and noticed that seventeen-year-old Harris, a/k/a “Bruh Bruh,” was one

of the participants. Transcript Vol. II at 139-40.

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[4] Shortly after 6:00 p.m., James Butler approached the area and sold some

marijuana to one of the residents at the 28th Street house. Thereafter, several

of the dice players urged Butler to join the game. Some of them chided Butler

for refusing to play and accused him of being “broke.” Id. at 146. In response,

Butler pulled out “a lot of money,” waved it at the group, and responded,

“who’s broke?” Id. at 146.

[5] After Butler displayed the money, Holifield saw Harris look at his brother to

“get [his] attention.” Id. at 148-49. Butler started to walk away, and Harris

followed. Holifield thought she observed the outline of a gun through Butler’s

clothing but did not actually see a weapon. Holifield then saw Harris draw a

gun, point it at Butler’s back, and demand his money. Holifield never saw

whether Butler drew a gun, as she was scared and began to run from the scene.

She then heard several gunshots and upon returning a few minutes later, she

saw Butler lying face down on the ground.

[6] A short time later, IMPD officers and detectives responded to a 911 dispatch

about the shooting. Upon their arrival, the officers found the owner of the 28th

Street residence standing over Butler, who was bleeding from the chest and

throat area. They also noticed a .44 caliber revolver on the ground next to

Butler. The EMTs arrived and pronounced Butler dead shortly thereafter.

[7] The police officers secured the area and observed five spent 9 mm shell casings

near Butler’s body. Butler had sustained five gunshot wounds, including one

shot to the corner of his mouth, shots to the right and left sides of his chest, and

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shots to his right and left thigh. A 9mm bullet remained lodged in Butler’s

chest.

[8] When the officers initially spoke to Holifield, she provided an incorrect last

name because there was an outstanding warrant for her arrest. Holifield also

denied any knowledge of the shooting, claiming that she had been watching

television with a friend inside the 28th Street residence. Holifield later told the

detectives what she had seen and identified Harris as the only shooter.

[9] The day after the shooting, Harris saw Butler’s mother sitting on the porch of

her residence. Harris approached her, pointed a gun in her direction, and stated

that he did not have anything to do with the shooting.

[10] On October 4, 2017, Harris was arrested at a residence on Boulevard Place in

Indianapolis. While executing a search warrant at the house, the police seized

several new pairs of shoes and various new clothing items that were still in

shopping bags. Three phones were seized, including a silver iPhone and a

white iPhone on a bed next to a school ID card that belonged to Harris’s

girlfriend.

[11] After obtaining search warrants to extract data from the phones, the white

iPhone showed a video of Harris “flashing money” in the back of a vehicle.

Transcript Vol. III at 102; State’s Ex. 83. That phone also revealed that someone

had used the phone to visit Butler’s Facebook profile at approximately 11:00

p.m. on the evening of the shooting and had viewed two news videos regarding

the 28th Street shooting.

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[12] At some point, the police interviewed Harris in the presence of his parents.

Although Harris initially denied being at the 28th Street residence when Butler

was killed, he later admitted that he was there but had nothing to do with the

shooting. The State charged Harris with murder on October 6, 2017.

Thereafter, the State amended the charging information to include a sentence

enhancement count for Harris’s use of a firearm during the commission of the

offense.

[13] While awaiting trial, Harris called his girlfriend from the jail and the two

discussed the iPhone video. Harris told his girlfriend that others would see him

in the video holding a lot of cash. Harris also talked with other friends about

the witnesses who would testify against him, and Harris told them that he had a

copy of the probable cause affidavit that listed the names of the “snitches.” Id.

at 174.

[14] At Harris’s jury trial that commenced on September 23, 2019, several police

officers testified about the items of clothing that were seized during the search

of the Boulevard Place residence. The trial court denied Harris’s relevancy

objection and admitted photos of those items into evidence.

[15] A firearms examiner testified for the State that five of the spent cartridge casings

found near Butler’s body were fired from the same 9 mm firearm, and not from

the revolver found next to Butler. The trial court admitted a drawing into

evidence that showed the location of Butler’s gunshot wounds. That diagram

was prepared by Dr. Christopher Poulos who conducted Butler’s autopsy. Dr.

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Poulos concluded that Butler’s death was a homicide and that the multiple

gunshot wounds were the cause of death.

[16] Also attached to the autopsy report were toxicology test results that showed the

presence of Xanax and THC in Butler’s system. Harris sought to have the

toxicology results admitted into evidence, along with the autopsy report on the

grounds that those documents were part of a business record. The State

objected to the admission of the toxicology report, whereupon the trial court

conducted a hearing outside the jury’s presence.

[17] During the hearing, Dr. Poulos testified that while it is standard protocol for the

coroner’s officer to collect and provide blood samples for toxicology analysis,

he is not personally involved in the testing or the preparation of the toxicology

report. Dr. Poulos explained that the toxicology findings are routinely included

with the autopsy report. Dr. Poulos further testified that while the substances in

Butler’s system might have affected Butler’s state of mind at the time of the

shooting, he could not testify about the precise effects they may have had on

Butler because he is not a toxicologist or pharmacologist. Dr. Poulos stated

that he could provide only “generalities as to what a given compound would

have done to an individual,” noting the “studies” cited in the toxicology report.

Id. at 77–78.

[18] The trial court excluded the toxicology report from evidence, finding that it was

not relevant to establishing Butler’s state of mind at the time of the shooting.

The trial court expressed concern about Dr. Poulos being placed in a position of

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testifying outside his area of expertise, and the possibility that the jury could be

misled and confused about the central issues in the case.

[19] After the evidence was presented, the jury found Harris guilty as charged.

Harris waived his right to a jury trial on the sentence enhancement count and

requested the trial court to issue its finding at sentencing. At the sentencing

hearing on October 17, 2019, the trial court noted that Harris was first

adjudicated a delinquent at the age of twelve and has since accumulated four

misdemeanor and four felony delinquency adjudications. Harris was also on

pretrial release for armed robbery when he committed the instant offense.

While awaiting trial for Butler’s murder, Harris accumulated over twenty

misconduct violations for breaking jail and Indiana Department of Correction

(DOC) rules.

[20] The trial court identified Harris’s lack of remorse and lack of respect, his

significant juvenile delinquency history, and the fact that he committed the

instant offense while on pretrial release, as aggravating factors. It then found

Harris’s age as a mitigating circumstance and determined that the aggravators

outweighed any mitigating factors. The trial court stated on the record that it

was sentencing Harris to fifty-five years for murder and enhancing that term by

twenty years for use of a firearm during the commission of that offense.

However, the abstract of judgment and written sentencing order omitted the

twenty-year enhancement.

[21] Harris now appeals.

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Discussion and Decision

I. Evidentiary Rulings

[22] Harris first claims that the trial court abused its discretion in excluding the

toxicology results because the presence of Xanax and THC in Butler’s system at

the time of the shooting was relevant to establish Butler’s state of mind. Harris

argues that the exclusion of this evidence necessarily precluded him from

raising a self-defense claim.

[23] We initially observe that evidence is relevant “if: (a) it has any tendency to

make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.” Indiana Evid. R. 401.

The decision to admit or exclude evidence falls within the trial court’s

discretion and is reviewed for an abuse of that discretion. Dycus v. State, 108

N.E.3d 301, 303 (Ind. 2018). The ruling on the admission or exclusion of

evidence warrants reversal only if the decision was clearly against the logic and

effect of the facts and circumstances before it. Id. Furthermore, a claim that the

trial court erred in the admission or exclusion of evidence will not prevail on

appeal unless the error affects the substantial rights of the defendant. Nicholson

v. State, 963 N.E.2d 1096, 1099 (Ind. 2012). There is a strong presumption that

the trial court properly exercised its discretion when ruling on the admissibility

of evidence. Warner v. State, 773 N.E.2d 239, 247 (Ind. 2002). Thus, we will

affirm the trial court’s decision on any basis apparent in the record, whether or

not relied on by the trial court. Jeter v. State, 888 N.E.2d 1257, 1267 (Ind. 2008).

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[24] In this case, Harris sought to have the entire autopsy report admitted into

evidence that included the attached toxicology results. Harris claimed that

those results would establish Butler’s state of mind during the confrontation.

And because the evidence showed that Xanax and THC both have depressant

and reality distorting effects, Harris asserts that Dr. Poulos was qualified to

testify as to how Butler might have behaved or acted under the influence of

those drugs.

[25] Notwithstanding Harris’s claim, Dr. Poulos testified that he was not able to

testify about how an individual might react to a given drug. Dr. Poulos also

could not state when Butler ingested the drugs or how much he had consumed.

When Harris sought to have the toxicology results admitted, no prior testimony

had been offered as to Butler’s behavior at the time of the shooting, or whether

Butler might have become violent or aggressive when under the influence of the

drugs.

[26] In the absence of evidence that Butler provoked Harris or that Butler was likely

to become aggressive when intoxicated, we agree with the trial court that the

toxicology results might very well have confused the issues and misled the jury.

Butler may have taken the drugs several days before the shooting, and it is not

known what impact the Xanax and THC would have had on Butler.

[27] Moreover, Harris has failed to demonstrate that the exclusion of this evidence

prevented him from advancing an alleged self-defense claim. Harris has not

demonstrated that excluding the toxicology results limited his ability to present

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evidence of Butler’s behavior. For all these reasons, we conclude that the trial

court did not abuse its discretion in excluding Butler’s toxicology results from

the evidence.

[28] Harris also contends that the trial court erred in admitting photographs of the

clothing and shoes that were seized from the Boulevard Place residence. Harris

argues that this evidence was irrelevant as to whether he shot and killed Butler

and that it was offered only for the purpose of portraying him “as a hardened

criminal who couldn’t wait to selfishly spend [the stolen money].” Appellant’s

Brief at 25.

[29] The evidence established, among other things, that Harris took a substantial

amount of cash from Butler and was in possession of new and expensive items

shortly after the shooting. This evidence, along with the other evidence

presented at trial that included Holifield’s eyewitness testimony that Harris

pointed the gun at Butler and demanded his money just before Butler was shot

and killed, was relevant and admissible to show that Harris committed the

charged offense. See, e.g., Murray v. State, 479 N.E.2d 1283, 1289 (Ind. 1985)

(evidence of a large quantity of drugs, scales, and a substantial amount of cash

seized from an apartment where the defendant had previously sold drugs, was

relevant and material to show that the defendant was involved in possessing

and dealing in illegal drugs). Thus, Harris’s claim that the trial court abused its

discretion in admitting this evidence, fails.

II. Sentencing

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A. De Facto Life Sentence

[30] Harris argues that the aggregate seventy-five-year sentence constitutes cruel and

unusual punishment in violation of the Eighth Amendment to the United States

Constitution. Harris maintains that the sentence cannot stand because the trial

court imposed a de facto life sentence, and no evidence was presented regarding

the “significance of [Harris’s] youth and [the] attendant characteristics.”

Appellant’s Brief at 18.

[31] Our Supreme Court recently considered the issue of de facto life sentences, along

with a sentencing court’s duty to address a defendant’s youth and its attendant

circumstances prior to sentencing a child to life in prison, in Wilson v. State, No.

19S-PC-548 (Ind. Nov. 17, 2020). 1

[32] In Wilson, the sixteen-year-old defendant was sentenced to 183 years following

his convictions for two counts of murder and armed robbery and an

enhancement for criminal gang activity. When imposing the sentence, the trial

1

Our Supreme Court also decided State v. Stidham, No. 20S-PC-634 (Ind. Nov. 17, 2020), that same day. In

Stidham, the defendant committed murder and several other crimes when he was a juvenile and was

ultimately sentenced to 138 years of incarceration—the maximum that could be imposed at the time. After

several appeals, our Supreme Court ultimately determined that this sentence was inappropriate under

Indiana Appellate Rule 7(B) and reduced Stidham’s sentence to an aggregate term of eighty-eight years. Slip

op. at 18. Because the Stidham Court found the defendant’s argument under App. R. 7(B) dispositive, it

declined to address the additional claim that the sentence amounted to “an impermissible discretionary de

facto life-without-parole sentence.” Slip op. at 7.

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court cited several aggravating factors, and identified Wilson’s youth as a

mitigating factor.

[33] Thereafter, Wilson petitioned for post-conviction relief, alleging ineffective

assistance of both trial and appellate counsel. The post-conviction court denied

Wilson’s request for relief, and a panel of this court reversed. Our Supreme

Court granted the State’s petition for transfer, and first addressed Wilson’s

claim that his sentence constituted cruel and unusual punishment under the

Eighth Amendment. Id., slip op. at 7. In determining that it did not, the Court

discussed the recent evolution in juvenile sentencing requirements. More

particularly, it noted that nearly ten years ago, Miller v. Alabama, 567 U.S. 460

(2012) determined that the Eighth Amendment “forbids a sentencing scheme

that mandates life in prison without possibility of parole for juvenile

[murderers].” Id. at 479. As a result, Miller provides that the sentencing court

in such cases “[a]t the least, . . . should look at” the “hallmark features” of

youth, the defendant’s background, and “the circumstances of the homicide

offense” before imposing a “discretionary life without parole sentence.” Id. at

477–78.

[34] The Wilson Court observed that since Miller, a split of authority has developed

as to whether a term of years sentence constitutes a “de facto” life without parole

sentence that implicates heightened fact-finding sentencing requirements. Slip

op. at 11. More specifically, the Court observed that some jurisdictions have

held that Miller’s requirements apply to term-of-years-sentences that are lengthy

enough to be considered de facto life sentences, while a handful of others find

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Miller inapplicable to aggregate sentences that exceed the juvenile’s life

expectancy. Id. at 12. There are also jurisdictions that apply the Miller

requirements only to de jure life-without-parole sentences and not to other

discretionary sentences, including life with the possibility of parole. Id. at 13.

Wilson observed that “[the] courts . . . are split approximately evenly on

whether Miller . . . should be extended to at least some de facto life sentences.”

Slip op. at 13 (emphasis added).

[35] In its thoughtful analysis of the differing rationales, the Court noted that Miller

and at least one other United States Supreme Court case explicitly stated that

their holdings are limited to the “particular” penalty of “life without parole.” Id.

at 14. See Miller, 567 U.S. at 83; Graham v. Florida, 560 U.S. 48, 50 (2010).

Thus, the Wilson Court reasoned that the “implication from this distinction is

that the Miller holding was “not meant to extend to . . . other types of

sentences.” Wilson, slip op. at 14. The Court observed that an attempt at

determining what constitutes a de facto life sentence would be a “line drawing

exercise” that can end up “creating requirements that would vastly alter

sentencing procedures for a large swath of juveniles.” Id. at 16. Hence, the

Court commented that “‘while we are duty-bound to enforce the Eighth

Amendment consistent with the Supreme Court’s directives’ we must interpret

this precedent based ‘upon case-specific holdings rather than general

expressions in an opinion that exceed the scope of any particular holding.’”

Wilson, slip op. at 16 (quoting State v. Slocumb, 827 S.E.2d 148, 153 (S.C. 2019)).

The Court concluded that the enhanced protections in Miller did not apply to

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the defendant’s 181-year “term of years sentence” and thus, such sentence did

not violate the Eighth Amendment “because [the] Miller [holding] . . . applies

only to life-without-parole sentences.” Slip op at 16-17 (emphasis added).

[36] And so it is here. Harris was sentenced to an aggregate seventy-five-year term

of incarceration. That sentence does not violate the Eighth Amendment

because, as our Supreme Court has held, the protections outlined in Miller for

juvenile life-without-parole sentences do not apply to Harris’s “term of years

sentence.” See Wilson, slip op. at 29. We thus proceed to address Harris’s

argument that his sentence was inappropriate under App. R. 7(B).

B. Inappropriate Sentence

[37] Harris claims that the eighty-five-year-sentence was inappropriate when

considering the nature of the offense and his character. See App. R. 7(B).

Harris argues that his sentence should be revised to a term of forty-five years for

murder and enhanced by five years based on his possession of a firearm.

[38] App. R. 7(B) provides the standard by which we exercise our constitutional

authority to review and revise sentences. We “may revise a sentence

authorized by statute if, after due consideration of the trial court’s decision,

[this] Court finds that the sentence is inappropriate in light of the nature of the

offense and the character of the offender.” App. R. 7(B). Whether we find a

sentence inappropriate “turns on myriad factors that come to light in a given

case” and ultimately “boils down to our collective sense of what is

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appropriate.” Taylor v. State, 86 N.E.3d 157, 165 (Ind. 2017). The trial court’s

findings of aggravators and mitigators does not limit our review under

Appellate Rule 7(B). Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014).

[39] The “principal role of our review is to leaven outliers rather than achieving a

perceived correct sentence.” Gibson v. State, 51 N.E.3d 204, 215 (Ind. 2016).

The question under App. R. 7(B) analysis is “not whether another sentence is

more appropriate” but rather “whether the sentence imposed is inappropriate.”

Merriweather v. State, 151 N.E.3d 1281, 1286 (Ind. Ct. App. 2020). It is the

defendant’s burden to persuade us that the sentence is inappropriate. Crabtree v.

State, 152 N.E.3d 687, 704 (Ind. Ct. App. 2020). In determining whether a

sentence is inappropriate, the advisory sentence is the starting point the

legislature has selected as an appropriate sentence for the crime committed.

Flowers v. State, 154 N.E.3d 854, 873 (Ind. Ct. App. 2020).

[40] Harris was convicted of murder, which carries a sentencing range of between

forty-five years and sixty-five years, with an advisory term of fifty-five years.

Ind. Code § 35-50-2-3(a). The firearm enhancement has a sentencing range of

between five years and twenty years. I. C. § 35-50-2-11(g). With this general

guidance in mind, we consider whether Harris’s aggregate seventy-five-year

sentence is inappropriate in light of the nature of his offenses and his character.

[41] The “nature of the offense is found in the details and circumstances of the

commission of the offense.” Townsend v. State, 45 N.E.3d 821, 831 (Ind. Ct.

App. 2015), trans. denied. Harris admits the “seriousness of this crime and its

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atrocity . . . and does not seek to minimize its gravity.” Appellant’s Brief at 26.

Hence, he does not claim that the nature of the offense warrants a revision of

his sentence. Thus, we proceed to address Harris’s claim that the sentence was

inappropriate when considering his character.

[42] We note that “the character of the offender is found in what [is learned] of the

offender’s life and conduct.” Washington v. State, 940 N.E.2d 1220, 1222 (Ind.

Ct. App. 2011), trans. denied. A defendant’s criminal history and willingness to

continue committing crimes is relevant for analysis of character under App. R.

7(B). Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied.

[43] Although Harris was only seventeen years old when he shot and killed Butler,

his life of crime began at the age of twelve. By the time Harris was eighteen

years old, he had accumulated four misdemeanor and four felony delinquency

adjudications. Two of those adjudications involved the dangerous possession

of a firearm. Harris had also been waived to adult court on a pending armed

robbery charge.

[44] Harris participated in some court-ordered services, but his successful

completions of those programs occurred early in his juvenile history. As a

juvenile, Harris failed probation, violated supervised release, and was

eventually sentenced to the DOC as a juvenile.

[45] When Harris was on pre-trial release for the pending armed robbery charge that

had been waived to adult court, he committed the instant offense. From the

time that Harris was incarcerated for this offense until the time that the

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Presentence Investigation Report was filed, Harris had committed over twenty

prison and county jail violations. Harris’s escalating criminal history at a

relatively young age demonstrates his unwillingness and inability to reform his

behavior. His actions show that he has a clear disregard for the law, authority,

and rehabilitation objectives.

[46] Harris’s poor character is further exhibited by his actions after he committed

this offense, including his lies to the police, the lack of remorse, and his failure

to accept responsibility for his actions. Harris approached Butler’s mother the

day after the murder, pointed a gun in her direction, and denied committing the

murder. During phone calls from the jail, Harris sought to prevent Holifield

and others from testifying against him. All of these circumstances reflect poorly

on Harris’s character.

[47] In sum, Harris has failed to show that his sentence is inappropriate when

considering the nature of his offense and his character.

C. Remand for Correction of Sentencing Order

[48] On cross-appeal, the State contends, and we agree, that this case must be

remanded for a correction of the trial court’s sentencing order. The State points

out that the sentence the trial court announced at the hearing included the

twenty years on the firearm enhancement, while the written sentencing order

and abstract of judgment do not.

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[49] When oral and written sentencing statements conflict, we will examine them

together to discern the intent of the sentencing court. Walker v. State, 932

N.E.2d 733, 738 (Ind. Ct. App. 2010). When such a conflict is apparent, we

may remand the case for the correction of clerical errors. Willey v. State, 712

N.E.2d 434, 445 n.8 (Ind. 1999); Walker, 932 N.E.2d at 738.

[50] At the sentencing hearing, the trial court announced on the record that he was

sentencing Harris to fifty-five years for murder, plus a twenty-year enhancement

for the use of a firearm in committing that offense. But the trial court’s written

sentencing order and the abstract of judgement omit the twenty-year

enhancement.

[51] Harris acknowledges that the trial court’s oral sentencing order is correct, in

that he concedes that the aggregate sentence imposed was seventy-five years.

Based on the unambiguous nature of the trial court’s oral sentencing

pronouncement, we conclude that the abstract of judgment and sentencing

order contain an obvious clerical error. Thus, we remand this case for a

correction of that error to include the twenty-year enhancement. In all other

respects, the judgment of the trial court is affirmed.

[52] Affirmed and remanded.

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Riley, J. and May, J., concur.

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