Opinion
23A-CR-3055
10-30-2024
Demaury M. Haywood, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Caroline G. Templeton Supervising Deputy Attorney Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Allen Superior Court The Honorable David M. Zent, Judge Trial Court Cause No. 02D06-2303-MR-8
ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Caroline G. Templeton Supervising Deputy Attorney Indianapolis, Indiana
MEMORANDUM DECISION
Pyle, Judge
Statement of the Case
[¶1] Demaury Haywood ("Haywood") appeals, following a jury trial, his conviction for murder He argues that: (1) the trial court erred in failing to hold a hearing when it learned that a State's witness was planning to assert his Fifth Amendment privilege; (2) the trial court abused its discretion in admitting evidence; and (3) the trial court erred in instructing the jury. Concluding that Haywood has waived all three issues and has either failed to allege or prove that fundamental error occurred, we affirm the trial court's judgment.
We held an oral argument in this appeal in the Court of Appeals Courtroom on September 30, 2024. We thank all counsel for their able advocacy.
Facts
[¶2] The facts most favorable to the verdict reveal that in February 2023, twenty-nine-year-old Haywood asked his friend, Trevon Giddens ("Giddens") to watch for Brandon Golden ("Golden"). Giddens did not know Golden but recognized him from a photograph that Haywood had shown him. Giddens had previously seen Golden at a charity casino night at the Fraternal Order of Eagles ("the Eagles") in Waynedale. Haywood told Giddens that Haywood and Golden had "personal problems[]" and directed Giddens to let him know when Giddens saw Golden again. (Tr. Vol. 2 at 132).
[¶3] On February 14, 2023, Giddens texted Haywood and told him that Golden was at the Eagles. Haywood directed Giddens to "keep eyes" on Golden and to send him a picture of Golden. (Ex. Vol. 1 at 23). In addition, Haywood told Giddens that he had a plan. Haywood directed Giddens to leave the Eagles when Golden left and to tell Haywood what kind of car Golden was driving. Haywood further directed Giddens to "delete all this now[.]" (Ex. Vol. 1 at 39). A few days later, Haywood told Giddens to let him know when he saw Golden again.
[¶4] On February 19, 2023, Golden and a friend, Diasha Fitts ("Fitts"), went to the Eagles. At 9:26 p.m., Giddens, who was at the Eagles with Adarius Jones ("Jones"), texted Haywood and told him that Golden had "just walked in[.]" (Ex. Vol. 1 at 65). Giddens also told Haywood what Golden was wearing. Haywood again told Giddens to "keep eyes" on Golden. (Tr. Vol. 2 at 133). Haywood and Giddens texted back and forth throughout the night.
[¶5] Shortly before the Eagles closed, Haywood directed Giddens to go outside, get into his car, and park in the back of the parking lot so that he could see all the cars. After Giddens had followed Haywood's instructions, Giddens saw Golden get into a minivan ("the minivan"). However, Giddens did not notice that Fitts had gotten into the minivan as well.
[¶6] At 11:25 p.m., Giddens texted Haywood that Golden was on Winchester Avenue. Giddens knew that Haywood and his close friend, Davonte Travier ("Travier"), were together in the vicinity of the Eagles. After texting Golden's location to Haywood, Giddens returned to his home.
[¶7] A few minutes later, when Golden and Fitts had reached the intersection of Winchester Avenue and Airport Expressway ("the intersection"), Golden realized that someone was shooting at the minivan. Golden did not see the person or people who were shooting at him, nor did he see their car. Golden tried to hide under the minivan's steering wheel, and Fitts jumped into the backseat.
[¶8] After several gunshots had blown out three windows on Golden's minivan, Golden heard Fitts say, "Get me to the hospital." (Tr. Vol. 2 at 172). Instead of driving to a hospital, Golden drove back to the Eagles because it was only a mile or so from the intersection, and Golden thought there was usually an ambulance in the parking lot.
[¶9] Golden arrived at the Eagles, jumped out of his minivan, and ran into the building yelling that Fitts had been shot. A security officer at the Eagles went out to Golden's van and noticed the severity of Fitts' injuries. The security officer specifically noticed that even if there had "been a team of doctors right then and there[,] . . . there just wasn't a whole lot anyone could have done." (Tr. Vol. 2 at 190). Fitts died from her injuries.
[¶10] Forensic pathologist Dr. Scott Wagner ("Dr. Wagner") performed Fitts' autopsy. During the autopsy, Dr. Wagner removed a bullet from Fitts ("the bullet collected from Fitts' body"). According to Dr. Wagner, the autopsy had revealed that Fitts had been shot twice, once in the neck and once in the chest. The shot to her neck hit a jugular vein. Because of the tearing to Fitts' jugular vein, it would have been difficult to save her even if a surgeon had been right there when she had gotten shot. According to Dr. Wagner, Fitts' cause of death was a gunshot wound to the head and her manner of death was a homicide.
[¶11] Immediately after the shooting, Fort Wayne Police Department Homicide Detective Liza Anglin ("Detective Anglin") responded to a dispatch to the Eagles. Because the shooting had occurred just minutes after Golden and Fitts had left the Eagles and appeared to have been targeted, Detective Anglin asked to review the Eagles' surveillance videos. Specifically, Detective Anglin wanted to see what Golden and Fitts had been doing at the Eagles and with whom they had interacted.
[¶12] Also, immediately following the shooting, Fort Wayne Police Department Detective Alan Garriott ("Detective Garriott"), who was assigned to the crime scene management section of the police department, arrived at the Eagles. Detective Garriott examined the minivan and noticed that three of the minivan's windows, including the front passenger window and both windows from the sliding rear doors had been shot out. Detective Garriott collected a bullet from the left rear passenger floor of the minivan ("the bullet collected from the minivan"). In addition, Detective Garriott went to the intersection, where he observed and collected clear automotive glass shards, dark tinted automotive glass shards, and two 9 mm shell casings.
[¶13] In the meantime, Detective Anglin reviewed the surveillance videos from the Eagles and noticed that, throughout the evening, Giddens appeared to be using his cell phone to take photographs of Golden. Giddens also appeared to be sending text messages. Based on the information that Detective Anglin gathered from the surveillance videos, she obtained a search warrant for Giddens' cell phone.
[¶14] The morning after the shooting, Haywood contacted Giddens via FaceTime and told him that "someone had got hit, but . . . it wasn't the target." (Tr. Vol. 2 at 137). Haywood asked Giddens why he had not told Haywood that there was another person in the minivan. During the FaceTime call, Haywood told Giddens that Travier had "shot first but it jammed[.]" (Tr. Vol. 2 at 138). Haywood further told Giddens that his firearm had also "jammed up on him" and that he had to get rid of it. (Tr. Vol. 2 at 138).
[¶15] Also, during the FaceTime call, Haywood told Giddens that he and Travier had been in a rental car and that as "they was rolling away, he thought they was shooting back, and he shot through the [car's] door." (Tr. Vol. 2 at 138). Before Haywood and Giddens had ended their FaceTime call, Haywood instructed Giddens "to stay quiet and get rid of [his] phone." (Tr. Vol. 2 at 142).
[¶16] Four days later, on February 23, 2023, law enforcement officers stopped Giddens and seized his cell phone pursuant to a search warrant. Fort Wayne Police Department Homicide Detective Brian Martin ("Detective Martin") told Giddens that while watching surveillance videos from the Eagles, law enforcement officers had observed Giddens taking photographs and sending text messages shortly before a homicide had occurred. Detective Anglin, who was also on the scene, gave Giddens her business card and asked him to contact her if he wanted to talk.
[¶17] After Detective Martin had seized Giddens' cell phone, Giddens contacted Haywood and told him that law enforcement officers had stopped him, asked him questions about the murder, and taken his phone. Haywood told Giddens to "stay quiet[.]" (Tr. Vol. 2 at 142). Giddens, however, contacted Detective Anglin later that day and told her that he would like to speak with her the following day.
[¶18] After analyzing Giddens' phone that same day, it was evident to law enforcement officers that Giddens had been communicating with someone who was most likely the perpetrator in Fitts' homicide. Specifically, law enforcement officers noticed that Giddens had been communicating with a person that he had referred to by the nickname of "kuz" at a telephone number that had a 602 Arizona area code. (Ex. Vol. 1, State's Ex. 2). Law enforcement officers further realized that Giddens and kuz had set up the shooting that had led to Fitts' murder.
[¶19] When Giddens failed to contact Detective Anglin the following day, February 24, 2023, law enforcement officers located Giddens and brought him to the police station for questioning. Giddens was reluctant to cooperate with Detective Anglin until she showed him the text messages that law enforcement officers had retrieved from his cell phone. Giddens eventually told the officers that the person with whom he had been texting the night of the shooting was Haywood. Giddens further told the officers that Haywood had been with Travier that night. In addition, Giddens told Detective Anglin that law enforcement officers should be looking for a silver or gray Nissan ("the Nissan") rental car that had bullet holes on the passenger side of the vehicle.
[¶20] Law enforcement officers immediately began looking for Haywood and determined that he was at a casino in Michigan. On February 25, 2023, Fort Wayne Police Department Detective Derrick Demorest ("Detective Demorest"), who is assigned to a United States Marshals Service task force, arrested Haywood on a felony federal warrant for drugs out of the State of Oklahoma. Haywood was subsequently booked into the Noble County Jail on a federal warrant.
[¶21] While incarcerated in the Noble County Jail, Haywood made several telephone calls ("the jail telephone calls") to Travier. In these calls, Haywood instructed Travier to contact specific people. Haywood gave Travier telephone numbers and directions and told Travier specifically what to say to each person. In one call, Haywood told Travier to go to a specific person's house and to tell the person that "somebody want to talk to you, don't do too much talking." (Supp. Ex. Vol., State's Ex. 66, Track 6). In addition, in another call, Haywood stated that "this shit is crazy" and that he was soon going to learn how long he would be "[t]here until [he was] transferred to Oklahoma. (Supp. Ex. Vol., State's Ex. 66, Track 4).
[¶22] In a February 27, 2023, telephone call ("the February 27, 2023, telephone call"), Haywood stated that he would "wear the fuck out of" someone. (Supp. Ex. Vol., State's Ex. 66, Track 7). In that same call, Haywood told Travier that people had come to question him about something that he had not done. Haywood further told Travier that people would be asking questions about what kind of car he was driving, where he was living, and what phone numbers he had been using. Haywood instructed Travier to tell others not to answer any questions and to request a lawyer.
[¶23] Also, on February 27, 2023, Allen County Sheriff's Department Deputy Zachary Murphy ("Deputy Murphy") was dispatched to the scene of an automobile accident. When Deputy Murphy arrived at the scene, he encountered Travier, who was on his cell phone, standing at the side of the road. The black SUV ("the black SUV") that Travier had been driving was in a ditch submerged in water. Travier subsequently left the scene with a friend.
[¶24] That same day, Detective Anglin received a tip that Travier had been involved in an automobile accident and had thrown a firearm in the ditch. Detective Anglin went to the scene of the crash and found the black SUV submerged in water. After the water had been removed from the ditch, law enforcement officers found in the ditch a set of keys to the Nissan and a Smith and Wesson 9mm firearm ("the Smith and Wesson").
[¶25] On March 6, 2023, the State charged Haywood with Fitts' murder and alleged that he had used a firearm in the commission of the offense. Later in March 2023, the State filed an amended charging information alleging that Haywood had killed Fitts while acting in concert with Travier. The State also filed an amended information for the use of a firearm alleging that Haywood, while acting in concert with Travier, had used a firearm in the commission of a felony that had resulted in death.
[¶26] On March 20, 2023, a Fort Wayne Police Department officer located the Nissan in a parking lot in a Fort Wayne apartment complex A search of the vehicle revealed two bullet holes on the passenger's side of the vehicle. Based on the use of a trajectory rod, Detective Garriott determined that the shots that had left the bullet holes would have been fired from inside the Nissan.
Law enforcement officers determined that the Nissan had been rented on February 17, 2023, by a person who was not involved in the shooting.
[¶27] Detective Garriott also found both clear and dark automotive glass shards in the Nissan. However, none of the Nissan's windows were broken. Glass shards in a vehicle without broken windows stuck out to Detective Garriott. According to Detective Garriott, when a bullet hits a window, a divot is created at the point of impact and the window's glass is propelled away from the window in the direction of the bullet. Thus, if the shooter's vehicle had its window down at the time of impact of the bullet against the victim's vehicle, the glass shards from the victim's vehicle could be propelled into the shooter's vehicle. Therefore, according to Detective Garriott, the automotive glass shards found in the Nissan could have come from the minivan.
[¶28] Indiana State Police Laboratory forensic scientist John Chester ("Forensic Scientist Chester"), who has received training in the analysis and comparison of glass fragments, analyzed the automotive glass fragments collected from the Nissan and the automotive glass fragments collected from the intersection. Forensic Scientist Chester determined that it was possible that the dark automotive glass shards found in the intersection and the dark automotive glass shards found in the Nissan could have come from the same window.
[¶29] Another Indiana State Police Laboratory forensic scientist, Serafina Salamo ("Forensic Scientist Salamo") analyzed DNA swabs taken from the Nissan's steering wheel, gear shift knob, and interior front passenger door. Regarding the DNA swab taken from the Nissan's steering wheel, Forensic Scientist Salamo determined that there was very strong support that the DNA profile developed from the DNA swab originated from Haywood, Travier, and two unknown individuals. Regarding the DNA swab taken from the Nissan's gear shift knob, Forensic Scientist Salamo determined that there was very strong support that the DNA profile developed from the DNA swab originated from Travier and three unknown individuals. Lastly, regarding the DNA swab taken from the interior front passenger door, Forensic Scientist Salamon determined that there was very strong support that the DNA profile developed from the DNA swab originated from Haywood, Travier, and an unknown individual.
[¶30] A third Indiana State Police Laboratory Forensic Scientist, Hannah Dygert ("Forensic Scientist Dygert") analyzed the Smith and Wesson, the two 9 mm shell casings found in the intersection, and two bullets, including the bullet collected from the minivan and the bullet collected from Fitts' body. Forensic Scientist Dygert was unable to determine whether the two 9 mm shell casings had been fired from the same gun. She was able to conclude that the Smith and Wesson had not fired the two 9 mm shell casings or the bullet collected from Fitts' body. However, Forensic Scientist Dygert could not exclude the bullet found in the minivan as having been fired from the Smith and Wesson. Forensic Scientist Dygert further determined that the bullet collected from the minivan and the bullet collected from Fitts' body had different class characteristics, which indicated that multiple firearms had been used in the shooting.
[¶31] In addition, Fort Wayne Police Department Detective Lucas McDonald ("Detective McDonald"), who is certified to conduct historical cell site analysis, analyzed the cell phone provider records for both Haywood's cell phone, which had the 602 Arizona area code, and Giddens' cell phone. Detective McDonald determined that, on February 19, 2023, Haywood's cell phone had been in the vicinity of the Eagles from 10:30 p.m. until 11:24 p.m., when the cell phone began moving in the direction of the intersection. Detective McDonald further determined that from 11:27 p.m. until 11:36 p.m., Haywood's cell phone had gone silent, indicating that the cell phone had either been turned off or placed in airplane mode. According to Detective McDonald, at 11:36 p.m., Haywood's cell phone had become active again and was located in the vicinity of Brittany Lutz's ("Lutz") apartment, where Haywood had been staying. Lutz's apartment was located six to seven minutes from the intersection. Haywood's phone remained in the vicinity of Lutz's apartment until 8:00 p.m. the following night.
[¶32] Regarding Giddens' cell phone provider records, Detective McDonald determined that at 11:30 p.m., Giddens' cell phone began "ping[ing] on . . . towers as it follow[ed] up towards [Giddens'] house." (Tr. Vol. 3 at 92). Detective McDonald further determined that there was no data to suggest that Giddens' cell phone had ever gone in the direction of the intersection.
[¶33] On June 2, 2023, Haywood's counsel deposed Jones. During the deposition, Jones stated that he frequently went to the Eagles because gambling was his hobby. Jones further stated that on the night of February 19, 2023, Giddens had asked him to meet at the Eagles to gamble. According to Jones, he and Giddens usually gambled together and the only reason he had gone to the Eagles that night was to gamble. Jones further stated that he had not known that Giddens had been watching Golden and that Giddens had not asked him to help Giddens watch Golden. In addition, Jones stated that if Giddens had asked him to help Giddens watch Golden, Jones would have refused Giddens' request. Jones also stated that had he known what Giddens had been doing that night, Jones would not have been there.
[¶34] During Haywood's four-day trial in October 2023, the jury heard the facts as set forth above At the beginning of the second day of trial, outside the presence of the jury, the prosecutor told the trial court that she wanted to make a brief record about a subpoenaed witness, Jones, who she planned to call to testify later in the trial. The prosecutor specifically told the trial court that Jones had sent her a multitude of texts because he was very concerned about his safety if he were to testify. According to the prosecutor, Jones had told her that he was at his lawyer's office that morning to obtain legal advice. The prosecutor further told the trial court that Jones had told her that he intended "to take the fifth if he should testify." (Tr. Vol. 2 at 195).
The jury was not told that Haywood had been arrested on a federal warrant.
[¶35] In addition, the prosecutor told the trial court that she planned to use Jones' June 2nd deposition if he refused to appear at the trial or invoked his Fifth Amendment privilege. Haywood objected to the State's use of Jones' deposition because it "was not a trial deposition." (Tr. Vol. 2 at 195).
[¶36] During a break near the end of the second day of the trial, the prosecutor told the trial court that she planned to call a witness from the Noble County Jail and play the jail telephone calls that Haywood had made to Travier while he was incarcerated in the jail. Haywood objected to the prosecutor playing the jail telephone calls. Specifically, Haywood argued that the jail telephone calls were not relevant because there was nothing in the telephone calls that appeared to have anything to do with this case.
[¶37] Thereafter, the prosecutor called a Noble County Sheriff's Department confinement officer to the witness stand and then moved to admit the jail telephone calls into evidence as State's Exhibit 66. Haywood stated that he would "lodge the same objection for relevance." (Tr. Vol. 3 at 140). The trial court admitted the jail telephone calls into evidence over Haywood's relevance objection, and the prosecutor played the jail telephone calls for the jury.
[¶38] On the morning of the third day of the trial, the trial court met in its chambers with Jones, Jones' counsel, the prosecutor, and Haywood's attorney. Jones told the trial court that he was in fear for his life, and he invoked his Fifth Amendment privilege.
[¶39] When the parties returned to the courtroom, outside the presence of the jury, the trial court stated as follows:
For the record, out of the presence of the jury and candidly in my chambers, a witness for the State, whose specific name was . . . Jones. He told me with counsel present that he was in fear for his life to be here, and that if called to the stand, he would take the Fifth. So, as we are not [to] have people in front of a jury take the Fifth, he will not be in court in front of the jury taking the Fifth. He has already asserted his Fifth Amendment privilege, so he will not be testifying.(Tr. Vol. 3 at 147). The prosecutor asked the trial court to find that Jones was unavailable to the State as a witness and to allow the State to read Jones' June 2nd deposition to the jury.
[¶40] In response, Haywood argued that Jones was not unavailable. Rather, according to Haywood, Jones was simply unwilling to testify. Haywood further argued that he had a right to face his accusers, he had not had an opportunity to cross-examine him at his deposition, and his constitutional right to confront witnesses was being violated. Haywood asked the trial court to tell the jury that Jones was refusing to testify.
[¶41] After the parties and the trial court had discussed the situation with Jones, Haywood told the trial court that he wanted to make a brief record regarding the jail telephone calls that had been admitted into evidence the previous day. Haywood specifically explained that although he had previously argued that the jail telephone calls were irrelevant, he was now arguing that when he made the first six telephone calls, he had not yet been arrested for Fitts' murder and had not even known that he was being investigated for that murder.
[¶42] The prosecutor responded as follows: "Those jail calls have been discovered since probably February or March of last year to the defense. Never has he lodge[d] any of these arguments. And then yesterday he objects to relevancy[.] Today he objects they're prejudicial and shouldn't have been played." (Tr. Vol. 3 at 155).
[¶43] Thereafter, the trial court told the parties that "everything today is an untimely objection." (Tr. Vol. 3 at 155). When Haywood asked the trial court if his mistrial motion had been denied, the trial court responded, "Yes. Show your motion for mistrial denied." (Tr. Vol. 3 at 159).
[¶44] Later that day, before the prosecutor had someone from the prosecutor's office and Haywood's counsel read Jones' deposition into the record, the trial court asked the parties if they had agreed on what to tell the jury about the deposition. The State suggested that the trial court tell the jury that Jones was unavailable, and Haywood asked the trial court to tell the jury that Jones had refused to testify. The trial court responded that because Jones had asserted his Fifth Amendment privilege, the trial court was going to tell the jury that Jones was unavailable. When the jurors returned to the courtroom, the trial court told them that a witness who the State was going to call was unavailable and that someone was going to read that witness' deposition to them. Thereafter, defense counsel and someone from the prosecutor's office read Jones' deposition to the jury.
[¶45] Before closing arguments, while the parties and the trial court were reviewing the final jury instructions, the following colloquy ensued:
[THE TRIAL COURT]: And I think you might also have copies of parts of the count - or part two if we get there, but - and actually, I slightly modified those, but [the] State's request for accomplice liability, [Defense Counsel]? They requested - this was a request from August 1.
[DEFENSE COUNSEL]: I mean, I just - I haven't - I will object. I just haven't heard evidence of these agreements and such, so I will object.
[THE STATE]: It's not a conspiracy count. This is not a conspiracy instruction. It literally is two defendants act in concert, the accomplice liability law on that. This is charged as acting in concert. The entire trial has been focused on [Haywood and Travier] acting in concert. So, I'm not sure what - there's no mental agreement required or anything like that. It literally is (inaudible) for the jury to consider whether they acted together, if they find that Mr. Haywood was one of those actors.
[THE TRIAL COURT]: I'll show that given over objection.(Tr. Vol. 4 at 83-84).
[¶46] Following deliberations, the jury convicted Haywood of murder. Thereafter, the trial court told the jurors that their duty had not ended and instructed them as follows:
The State may seek to have a person who committed murder sentenced to an additional fixed term of imprisonment if the State can prove beyond a reasonable doubt that the person knowingly or intentionally used a firearm in the commission of the offense. The defendant may be given an enhanced sentence under this additional count only if the State has proven beyond a reasonable doubt that 1.) The defendant, Demaury Haywood, while acting in concert with Davonte Travier; 2.) knowingly or intentionally used a firearm; 3.) when the defendant committed the offense charged in Count I, which the Court instructs you was an offense against the person which resulted in death or serious bodily injury. If the State fails to prove this beyond a reasonable doubt, you must find the defendant cannot receive an enhanced sentence for the alleged firearm use[.]("the firearm enhancement instruction") (Tr. Vol. 4 at 141-42).
[¶47] The jury determined that the State had proven beyond a reasonable doubt that Haywood, while acting in concert with Travier, had knowingly or intentionally used a firearm in the commission of Fitts' murder. Following a sentencing hearing, the trial court sentenced Haywood to sixty (60) years for murder, enhanced by twenty (20) years for his use of a firearm during the murder. The trial court further ordered Haywood to serve his eighty (80) year sentence in the Department of Correction.
[¶48] Haywood now appeals.
Decision
[¶49] Haywood argues that: (1) the trial court erred in failing to hold a hearing when it learned that Jones was planning to assert his Fifth Amendment privilege; (2) the trial court abused its discretion in admitting evidence; and (3) the trial court erred in instructing the jury. We address each of his contentions in turn.
1. Hearing Regarding Jones' Assertion of his Fifth Amendment Privilege
[¶50] Haywood first contends that the trial court erred in failing to hold a hearing when it learned that Jones was planning to assert his Fifth Amendment privilege. The Fifth Amendment to the United States Constitution prohibits a person from being "compelled in any criminal case to be a witness against himself[.]" When confronted with a witness' assertion of his Fifth Amendment privilege, a trial court must hold a hearing outside the presence of the jury. Duso v. State, 866 N.E.2d 321, 325 (Ind.Ct.App. 2007). See also IND. CODE § 35-37-3-1.
[¶51] The State responds that Haywood has waived appellate review of this issue because he "did not object to the trial court conducting the hearing with Jones in its chambers." (State's Br. 21). We agree with the State.
[¶52] "A party waives appellate review of an issue or argument unless the party raised that issue or argument before the trial court." Veerkamp v. State, 7 N.E.3d 390, 395 (Ind.Ct.App. 2014) (cleaned up), trans. denied. "This rule exists because trial courts have the authority to hear and weigh the evidence, to judge the credibility of witnesses, to apply the law to the facts found, and to decide questions raised by the parties." GKC Indiana Theatres, Inc. v Elk Retail Investors, LLC, 764 N.E.2d 647, 651 (Ind.Ct.App. 2002). "Appellate courts, on the other hand, have the authority to review questions of law and to judge the sufficiency of the evidence supporting a decision." Id. "The rule of waiver in part protects the integrity of the trial court; it cannot be found to have erred as to an issue or argument that it never had opportunity to consider." Id.
[¶53] Here, on the morning of the third day of the trial, the trial court met in its chambers with Jones, Jones' counsel, the prosecutor, and Haywood's attorney. Jones told the trial court that he was in fear for his life, and he invoked his Fifth Amendment privilege. When the parties returned to the courtroom, outside the presence of the jury, the trial court stated for the record what had happened during the meeting.
[¶54] Haywood did not object to the trial court holding the meeting in its chambers or ask the trial court to hold a hearing in the courtroom outside the presence of the jury Because Haywood failed to object to the meeting at trial, he has waived appellate review of this issue. See Veerkamp, 7 N.E.3d at 395. Haywood also failed to argue fundamental error in his appellate brief and has, therefore, entirely waived his claim on appeal. See Bowman v. State, 51 N.E.3d 1174, 1179 (Ind. 2016) (holding that failing to object at trial and failing to argue fundamental error on appeal entirely waives a claim).
It should be noted that Indiana Trial Rule 74(A) provides, "The judge of each circuit, superior, probate, city, town, and Marion County Small Claims court shall arrange for the audio recording of all hearings and trials in all cases types. The recordings shall include all oral evidence and testimony, including both questions and answers, all rulings of the judge in respect to the admission and rejection of evidence and objections thereto, and any other oral matters during the hearing."
[¶55] Haywood further contends that the trial court erred "in not informing the jury Jones had asserted his privilege, despite Haywood's request that the jury be so informed[.]" (Haywood's Br. 7). According to Haywood, "Jones should have been called to testify in the jury's presence. If he were asked a question that he believed could lead to him being forced to incriminate himself, he should have asserted his privilege against self-incrimination in front of the jury." (Haywood's Br. 33-34). However, our review of the record reveals that Haywood never asked the trial court to allow Jones to assert his Fifth Amendment privilege in front of the jury. Rather, Haywood simply argued that the trial court should tell the jury that Jones had refused to testify. It is well established that a party may not object on one ground at trial and raise a different ground on appeal. White v. State, 772 N.E.2d 408, 411 (Ind. 2002). This results in waiver of the issue on appeal. Id. Haywood also failed to argue fundamental error in his appellate brief and has, therefore, entirely waived his claim on appeal. See Bowman, 51 N.E.3d at 1179.
[¶56] Waiver notwithstanding, Haywood's argument fails. Our Indiana Supreme Court has specifically stated that "defendants do not have a right to force a witness to invoke the Fifth Amendment privilege before the jury." Stephenson v. State, 864 N.E.2d 1022, 1047 (Ind. 2007), cert. denied. In Martin v. State, 179 N.E.3d 1060, 1068 (Ind.Ct.App. 2021) trans. denied, this Court re-iterated that Stephenson recognizes that a defendant has no right to force a witness to take the stand solely to invoke a Fifth Amendment privilege. Accordingly, Haywood did not have the right to force Jones to take the stand to invoke his Fifth Amendment privilege before the jury, and we find no error.
2. Admission of Evidence
[¶57] Haywood also argues that the trial court abused its discretion in admitting evidence. He specifically contends that the trial court abused its discretion in admitting the jail telephone calls into evidence. According to Haywood, "given the highly prejudicial nature of the statements made during the calls, admission of the calls into evidence was an abuse of discretion." (Haywood's Br. 40).
[¶58] The admission of evidence is within the sound discretion of the trial court, and we will reverse only for an abuse of that discretion. Rogers v. State, 897 N.E.2d 955, 959 (Ind.Ct.App. 2008), trans. denied. A trial court abuses its discretion if its decision is clearly against the logic and the effect of the facts and circumstances before the court or if the court has misinterpreted the law. Id.
[¶59] The State argues that Haywood has waived this issue because he raised a different argument to the trial court before the jail telephone calls were admitted into evidence. We agree.
[¶60] A defendant may not object to the admission of evidence on one basis at trial and then raise a different basis on appeal. Irwin v. State, 229 N.E.3d 567, 571 (Ind.Ct.App. 2024), trans. denied. In such cases, the defendant has waived appellate review of his evidentiary argument. Id.
[¶61] Here, at trial, Haywood argued that the jail telephone calls were irrelevant. The day after the jail telephone calls had been admitted, Haywood made an oral motion for a mistrial and argued that the jail telephone calls were prejudicial. The trial court denied the motion for a mistrial and found that Haywood's objection was untimely. Haywood does not appeal the denial of his motion for a mistrial or address the trial court's finding that his subsequent objection was untimely. Haywood has waived appellate review of this issue. See id.
[¶62] In an attempt to avoid waiver, Haywood argues that fundamental error occurred. The fundamental error exception to the waiver rule is "extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or the potential for harm is substantial, and the resulting error denies the defendant fundamental due process." Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (cleaned up). "The error claimed must either make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process." Id. (cleaned up). "This exception is available only in egregious circumstances." Id. (cleaned up). Further, "[f]undamental error is meant to permit appellate courts a means to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred, not to provide a second bite at the apple for defense counsel who ignorantly, carelessly, or strategically fail to preserve an error." Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014).
In the Ryan case, our Indiana Supreme Court further noted that "[w]here the procedural posture of a claim is affected by counsel's failure to object at trial, an ineffective assistance of counsel claim may be more on point than a claim of fundamental error. Although fundamental-error and ineffective-assistance-of-counsel claims are different, they often yield the same result." Ryan, 9 N.E.3d at 668 n. 4 (cleaned up).
[¶63] Here, Haywood has failed to allege or show that the trial court's admission into evidence of the jailhouse telephone calls constituted an egregious and blatant error that otherwise would have been procedurally barred. Therefore, his fundamental error argument fails. See id.
3. Jury Instruction
[¶64] Haywood further argues that the trial court erred in instructing the jury. He specifically contends that the firearm enhancement instruction was an incorrect statement of the law. According to Haywood, "[t]he jury was incorrectly instructed that an additional sentencing penalty could be imposed on Haywood through accomplice liability[.]" (Haywood's Br. 42).
[¶65] We generally review a trial court's jury instruction for an abuse of discretion. Batchelor v. State, 119 N.E.3d 550, 554 (Ind. 2019). Under this standard, we look to whether the evidence presented at trial supports the instruction and to whether the substance of the instruction is covered by other instructions. Id. However, when the defendant challenges the instruction as an incorrect statement of the law, we apply a de novo standard of review. Id. "We reverse the trial court only if the instruction resulted in prejudice to the defendant's substantial rights." Id. (cleaned up).
[¶66] The State argues that Haywood has waived appellate review of this issue because he failed to raise this specific objection to the trial court. We agree with the State.
[¶67] "It is well-established in both common law and rule that a party wishing to preserve instructional error for appeal must identify the specific grounds for objection at the time of trial." Kane v. State, 976 N.E.2d 1228, 1231 (Ind. 2012). See Childers v. State, 719 N.E.2d 1227, 1232 (Ind. 1999); Ind. Trial Rule 51(C) ("No party may claim as error the giving of an instruction unless he objects thereto . . . stating distinctly the matter to which he objects and the grounds of his objection."). "We require such a specific and timely objection to ensure that the trial court has every opportunity to avoid error that might otherwise require reversal and result in a miscarriage of justice and a waste of time and resources." Kane, 976 N.E.2d at 1231 (cleaned up). This Court has explained that "[t]his rule is no mere procedural technicality; instead, its purpose is to allow the trial judge to consider the issue in light of any fresh developments and also to correct any errors." Shoda v. State, 132 N.E.3d 454, 461 (Ind.Ct.App. 2019). A defendant waives his argument when he presents one challenge to an instruction at trial and raises a different argument on appeal. Phillips v. State, 22 N.E.3d 749, 762 (Ind.Ct.App. 2014), trans. denied.
[¶68] Here, at trial, Haywood objected to the instruction because he "just ha[d]n't heard evidence of these agreements[.]" (Tr. Vol. 4 at 83). The State responded that this was not a conspiracy instruction. Rather, where the entire trial had been focused on Haywood and Travier working in concert, it was an accomplice liability instruction. Haywood now argues that the instruction is an incorrect statement of the law "because it permitted the jury to allow application of the firearm enhancement statute based solely on Travier's use of a firearm during the murder." (Haywood's Br. 44). Because Haywood presented one challenge to the instruction at trial and now raises a different argument on appeal, he has waived appellate review of this issue. See Phillips, 2 N.E.3d at 762. Haywood also failed to argue fundamental error in his appellate brief and has, therefore, entirely waived his claim on appeal. See Bowman, 51 N.E.3d at 1179.
[¶69] Affirmed.
May, J., and Brown, J., concur.