Opinion
24A-CR-700
10-22-2024
Da'Quavion M. Wiley, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
Attorney for Appellant Marielena Duerring South Bend, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Michelle Hawk Kazmierczak Deputy Attorney General 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Elkhart Circuit Court The Honorable Michael A. Christofeno, Judge Trial Court Cause No. 20C01-2207-MR-6
Attorney for Appellant Marielena Duerring South Bend, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana
Michelle Hawk Kazmierczak Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
TAVITAS, JUDGE
Case Summary
[¶1] Da'Quavion Wiley was convicted of murder as an accomplice and sentenced to sixty-two years in the Department of Correction ("DOC"). Wiley appeals and argues that insufficient evidence supports his conviction. We disagree and affirm.
Issue
[¶2] Wiley raises one issue on appeal, which we restate as whether sufficient evidence supports Wiley's conviction.
Facts
[¶3] In the afternoon of May 1, 2021, three teenagers, W.L., L.W., and T.M., were playing basketball at Tolson Park in Elkhart. T.M. was wearing a red hoodie. Around the same time, Wiley was at his house with his friend, Alvin Sanders, who was known as "L.A." Wiley, in turn, went by "Quavie." Tr. Vol. V p. 68.
[¶4] At the house, Sanders filmed a video on his cell phone that depicted him, Wiley, and their friend, Keondre Baker, posing with guns. Sanders posed with a tan Glock-17 handgun in his waistband. Wiley wore a white and black shirt with the number 93 on it. Soon after filming the video, Sanders and several individuals, including Wiley, left the residence in Sanders' dark grey Dodge Charger.
[¶5] At approximately 4:00 p.m., after playing basketball at the park, W.L., L.W., and T.M. were walking toward downtown when Sanders and the others pulled up near them in Sanders' Charger. A round of gunshots was fired, and the boys ran down an alley between McKinley Avenue and Benham Court. A second round of gunshots followed, and W.L. sustained a fatal shot to the back. The bullet hit his spine and exited through his neck. Sanders and the others then fled to South Bend. In total, over twenty-five shots were fired, and the bullets penetrated several houses in the neighborhood.
[¶6] According to Robert Davis, who lived in a house facing McKinley Avenue, the gunshots were fired at the boys from three individuals in the Charger. The individual in the passenger seat was "hanging out" through the open window to shoot and was wearing a "jersey [with] bright colors"; Davis could see "half of two numbers" on the shirt. Tr. Vol. II p. 181. The individual in the driver's seat had "an arm sticking up and [was] shooting from there," and the individual in the back passenger side seat was also shooting. Id. at 190.
Davis also claimed that W.L. turned and fired at the Charger before he was shot. Law enforcement later recovered a toy gun near W.L.'s body.
[¶7] Also around the time of the shooting, Jennifer Fox, who was working at a nearby thrift store, saw three individuals, one of whom was wearing a red hoodie, walking down Benham Court. Several other individuals then appeared to exit a vehicle parked on Park Avenue; one raised his arm, and Fox heard a gunshot. The vehicle then drove down Park Avenue, and the individuals who exited the vehicle ran in that direction. All six individuals disappeared from Fox's view, but she heard a second round of gunfire, and the vehicle then "pull[ed] out of the alley really fast." Tr. Vol. III p. 20.
[¶8] After the shooting, law enforcement began efforts to locate the Charger. On May 5, 2021, Elkhart Police Department Officer Larry Brooks located the Charger on Eden Street in Elkhart. Officer Brooks recalled that he had cited the Charger for a noise violation less than two weeks prior. Whereas the Charger previously had a metal license plate, this time, the Charger had a temporary license plate, which was registered to a different vehicle. Officer Brooks observed Sanders enter the Charger, but when Officer Brooks activated his emergency lights, Sanders fled in the vehicle. Sanders eventually crashed, and a spent shell casing was found near the crashed Charger.
[¶9] Inside the Charger, law enforcement located a Glock-17 handgun in the front passenger door; a tan drum with a fifty-bullet capacity on the front passenger floor; a Glock-23 handgun containing one round of ammunition in the center console; ammunition magazines in both driver's side doors; and marijuana. DNA results from the Glock-17 showed "very strong support" that Sanders' DNA was included along with "the possibility of three other contributors," who could not be identified. Tr. Vol. III p. 202. The DNA results from the Glock-23 showed a mixture of DNA and were inconclusive regarding specific contributors. Ballistic testing revealed that the spent casing recovered from the crash was fired from the Glock-17. The Glock-17 and Glock-23 were traced to many of the casings recovered from the scene of the shooting; however, law enforcement officers were unable to recover the bullet that struck W.L. The remainder of the casings from the scene of the shooting were traced to two different, unrecovered firearms.
[¶10] Wiley's fingerprint was located on the front passenger's side door of the Charger, and Baker's fingerprints were located on beverage bottles inside the vehicle. Location data from Sanders', Wiley's, and Baker's cell phones showed that the three were in the same general area in South Bend during the hours after the shooting. In custodial interviews after his arrest, Sanders admitted that the Glock-17 and Glock-23 belonged to him.
[¶11] After Sanders' arrest, his sister, Kimani Jones, participated in an interview with law enforcement. She stated that Sanders and Wiley left her house together in the Charger shortly before the shooting; there were rumors that Sanders and Wiley shot W.L.; she sent a text message to Sanders stating, "the kid that [Wiley] shot died"; Sanders and Wiley had "beef" with a lot of people; and, since the shooting, Wiley had been "missing in action" and "might be in Mississippi." State's Ex. 81 at 13:30, 14:45, 17:15, 18:30, 22:40. While incarcerated, Sanders made phone calls to Jones and told her that, despite her subpoena as a witness, she did not have to testify at trial and instructed her, if she did testify, to "tell them [she does not] remember nothing." State's Ex. 131, 9/13/2021 Call, at 3:20.
[¶12] L.W. initially told law enforcement that he could not identify the shooters "because [he] didn't want to be a snitch." Tr. Vol. II p. 122. Several months later, however, L.W. participated in another interview, during which a resource officer whom L.W. knew from school was present. This time, L.W. informed law enforcement that Sanders, Wiley, and Baker were the shooters.
[¶13] On July 21, 2022, the State charged Sanders and Wiley with murder, a felony, under the theory of accomplice liability. Sanders and Wiley were tried together before the bench in September 2023. At the prosecutor's office, on the Friday before trial, L.W. again identified Sanders, Wiley, and Baker as the shooters. At trial, however, L.W. testified that he lied regarding his previous identifications and that he could not identify the shooters. L.W. admitted that his mother told him not to testify. T.M. testified that he likewise could not identify the shooters.
[¶14] Davis and Fox testified regarding their recollections of the shooting. A surveillance video capturing Fox's view of the shooting was admitted as State's Exhibit 78. Michael Sutton, W.L.'s friend, testified that, approximately one month before the shooting, he was hanging out with W.L. and T.M., and the latter two boys were attempting to sell marijuana. A group of individuals wearing ski masks, including Sanders and another individual named Deshawn Gates, met the boys to purchase the marijuana. Gates was friends with Sanders and Wiley. Instead of purchasing the marijuana, Gates took it and ran, and when W.L. tried to chase after him, Sanders displayed a gun under his shirt and said, "Don't do that." Tr. Vol. III p. 59. Sometime later, a fight broke out in the area, and W.L. beat up Gates.
The transcript suggests Gates' name could also be spelled "Dashon." Tr. Vol. IV p. 139.
[¶15] Ma'Khyia Allen, W.L.'s cousin, testified that shortly before the day of the shooting, Sutton, W.L., L.W., and T.M. were at her house, left for a few minutes, and then returned upset. The boys had encountered "[Wiley] and a couple of his friends," and she overheard W.L. ask T.M., "Why would you give him the whole thing." Tr. Vol. III pp. 48-49.
[¶16] Jones testified that she could not recall her statements from her interview with law enforcement. The State presented the audio recording of the jail phone call between Sanders and Jones in which Sanders told Jones that she could "throw . . . away" her subpoena and testify that she did not remember anything. State's Ex. 131 9/13/21 Call at 4:45. The State argued that Jones' statements from the interview, although hearsay, should be admitted for substantive purposes because Sanders instructed Jones not to testify, and the trial court admitted the statements for substantive purposes.
[¶17] Wiley did not testify; however, Sanders testified in his own defense. According to Sanders, before the shooting, he was at Wiley's house with Wiley, Baker, and two other individuals: Taiquan Page, who went by "Red," and an individual named C.J. The group smoked marijuana and posed with guns. Sanders, Baker, Red, and C.J. left in Sanders' Charger to get food, and Sanders let Red hold one of his guns along the way. As they drove toward downtown, they saw "three dudes walking," and Baker told Sanders to pull over so Baker could talk to one of them. Tr. Vol. V p. 24. Sanders pulled over on Park Avenue, which intersects with McKinley Avenue and Benham Court. Baker, Red, and C.J. exited the car and headed north, and Sanders "pulled forward." Id. at 26. Sanders then heard gunshots and saw the "three dudes running in front of [his] car," one of whom was shooting toward his car. Id. at 28. Sanders then put his head in his lap. Baker, Red, and C.J. returned to the car and instructed Sanders to drive, and Sanders drove to South Bend. Sanders claimed that he had no knowledge of a planned shooting but admitted that he assisted the others in fleeing.
The name is spelled "Taiquan" in the trial court's order but spelled "Tyquan" in the trial transcript.
[¶18] On cross-examination, Sanders acknowledged that Baker, Red, and C.J. had all died before trial. Sanders admitted that he lied to law enforcement during custodial interviews regarding his location at the time of the shooting; that he told law enforcement he was not known as "L.A.," although "some people call [him] that"; and that, following Jones' testimony at trial, Sanders violated the no-contact order by calling her nine times. Id. at 68. On rebuttal, the State presented video evidence showing that Red was in a different location during the shooting.
[¶19] On January 23, 2024, the trial court issued a detailed order finding Sanders and Wiley guilty as charged. The trial court found that L.W. "was in a position to see the shooters, identified three shooters, and then changed his story in order to protect his mother and himself." Appellant's App. Vol. II p. 114. Accordingly, the trial court credited L.W.'s prior statements identifying Sanders, Wiley, and Baker as the shooters. The trial court further found that Sanders, Wiley, Baker, and C.J. were present together at the scene of the shooting; Sanders and Wiley had "companionship with those at the scene"; that neither Sanders nor Wiley "did anything to oppose or stop the murder"; that Sanders drove with the others to South Bend; and that "the course of conduct of [Sanders and Wiley] before, during, and after the murder of [W.L.] establish[es] that [Sanders and Wiley] acted under accomplice liability in the murder of [W.L.] under Indiana law." Id. at 140.
[¶20] The trial court held a sentencing hearing on February 22, 2024, at which Wiley did not appear. The trial court sentenced Wiley to sixty-two years in the DOC. Wiley now appeals.
Discussion and Decision
[¶21] Wiley challenges the sufficiency of the evidence to support his conviction. Sufficiency of evidence claims "warrant a deferential standard, in which we neither reweigh the evidence nor judge witness credibility." Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020) (citing Perry v. State, 638 N.E.2d 1236, 1242 (Ind. 1994)). When there are conflicts in the evidence, the fact-finder must resolve them. Young v. State, 198 N.E.3d 1172, 1176 (Ind. 2022). We consider only the evidence supporting the judgment and any reasonable inferences drawn from that evidence. Powell, 151 N.E.3d at 262 (citing Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018)). "We will affirm a conviction if there is substantial evidence of probative value that would lead a reasonable trier of fact to conclude that the defendant was guilty beyond a reasonable doubt." Id. at 263. We affirm the conviction "'unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.'" Sutton v. State, 167 N.E.3d 800, 801 (Ind.Ct.App. 2021) (quoting Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)).
[¶22] Pursuant to Indiana Code Section 35-42-1-1(1), a person who "knowingly or intentionally kills another human being . . . commits murder." Under our accomplice liability statute, Indiana Code Section 35-41-2-4, however, "[a] person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense."
[¶23] Discussing the proof required to demonstrate that a person acted as an accomplice, our Supreme Court has explained:
Generally there is no distinction between the criminal liability of an accomplice and a principal, Wise [v. State], 719 N.E.2d [1192, ]1198 (Ind. 1999), although evidence that the defendant participated in every element of the underlying offense is not necessary to convict a defendant as an accomplice. Vitek v. State, 750 N.E.2d 346, 352 (Ind. 2001). "There is no bright line rule in determining accomplice liability; the particular facts and circumstances of each case determine whether a person was an accomplice." Id. at 353. We consider four factors to determine whether a defendant acted as an accomplice: (1) presence at the scene of the crime; (2) companionship with
another at scene of crime; (3) failure to oppose commission of crime; and (4) course of conduct before, during, and after occurrence of crime. That a defendant was present during the commission of a crime and failed to oppose the crime is not sufficient to convict [him or] her. Id. But, "presence at and acquiescence to a crime, along with other facts and circumstances" may be considered. Id. at 352-53.Castillo v. State, 974 N.E.2d 458, 466 (Ind. 2012). Additionally, in seeking to convict a defendant as an accomplice, the State need not show that the defendant "'was a party to a preconceived scheme; it must merely demonstrate concerted action or participation in an illegal act.'" Griffin v. State, 16 N.E.3d 997, 1003-04 (Ind.Ct.App. 2014) (quoting Rainey v. State, 572 N.E.2d 517, 518 (Ind.Ct.App. 1991)).
[¶24] Considering the factors listed above, we conclude that sufficient evidence supports Wiley's conviction for murder as an accomplice. First, the trier of fact could infer from the evidence that Wiley was present at the shooting and, in fact, participated in it. Before trial, L.W. identified Wiley as one of the shooters. An eyewitness described one of the shooters as a person wearing a bright-colored shirt with two numbers, which matches Wiley's clothing shown in the video in which he and Sanders posed with guns shortly before the shooting. Sanders admitted that he was present at the shooting in his Charger, and Wiley's fingerprint was located on the passenger side door of this vehicle.
[¶25] As for the other factors, Wiley was a friend of Sanders, and Sanders was present at the shooting. Wiley had at least one previous interaction with W.L. that left W.L. upset, and W.L. beat up Gates, who was Wiley's friend. On the day of the shooting, Sanders, Wiley, and Baker posed with guns for a video and then left in Sanders' Charger. After the shooting, cell phone data placed Wiley in South Bend, where Sanders admitted he fled after the shooting. Wiley later fled from Indiana. See Myers v. State, 27 N.E.3d 1069, 1077 (Ind. 2015) (noting that "[e]vidence of flight may be considered as circumstantial evidence of consciousness of guilt").
[¶26] Wiley argues that the evidence against him is circumstantial and that the evidence failed to "exclude every reasonable theory of innocence." Appellant's Br. p. 9. Wiley points out that Davis testified that one of the boys appeared to be shooting at the Charger and claims that W.L. could have been accidentally shot by L.W. or T.M.
[¶27] We are not persuaded by Wiley's argument. First, the evidence against Wiley was not entirely circumstantial; L.W. identified Wiley as one of the shooters before trial, and these statements were admitted as evidence. See Hampton v. State, 961 N.E.2d 480, 489 (Ind. 2012) ("'Direct evidence is '[e]vidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption.'") (quoting BLACK'S LAW DICTIONARY 636 (9th ed. 2009)). Wiley contends that none of L.W.'s statements regarding the identity of the shooters were admitted as "substantive evidence against Wiley." Appellant's Br. p. 9. The record, however, does not support this contention. L.W. testified that, before trial, he "named Alvin Sanders, Da'Quavion Wiley, and Keandre Baker as [his] shooters." Tr. Vol. II p. 119. Wiley's counsel did not object to the testimony on hearsay grounds nor move to strike the testimony. The evidence, thus, was admitted for substantive purposes.
Later during the trial, Wiley's counsel did object to Detective D'Andre Biller's testimony regarding L.W.'s previous statements, and Detective Biller's testimony on this score was not admitted for substantive purposes. See Tr. Vol. IV pp. 143-146.
[¶28] Moreover, a murder conviction may be sustained on circumstantial evidence alone. Sallee v. State, 51 N..3d 130, 134 (Ind. 2016). As for Wiley's claim that the circumstantial evidence must exclude every reasonable theory of evidence, this contravenes our appellate standard of review. See Ogle v. State, 698 N.E.2d 1146, 1149 (Ind. 1998) (explaining that, in cases where the evidence is entirely circumstantial, a defendant may be entitled to a jury instruction that the evidence must disprove every reasonable theory of innocence but that "this standard is not applicable to appellate review for sufficiency of evidence"). Rather, on appeal, we ask whether, "considering the probative evidence and reasonable inferences that support the judgment, and without weighing evidence or assessing witness credibility, . . . no reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." Id. That is not the case here. Accordingly, we conclude that sufficient evidence supports Wiley's conviction.
Conclusion
[¶29] Sufficient evidence supports Wiley's conviction. Accordingly, we affirm.
[¶30] Affirmed.
Crone, J., and Bradford, J., concur.