Opinion
24A-CR-781
12-11-2024
Dwayne Allen Wright, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Talisha Renea Griffin Marion County Public Defender Agency Indianapolis, Indiana Timothy J. O'Connor O'Connor &Auersch Indianapolis, Indiana. ATTORNEYS FOR APPELLEE Theodore Edward Rokita Office of the Attorney General Indianapolis, Indiana Robert Martin Yoke Office of the 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Marion Superior Court The Honorable Jennifer Prinz Harrison, Judge Trial Court Cause No. 49D20-2207-MR-019954.
ATTORNEYS FOR APPELLANT Talisha Renea Griffin Marion County Public Defender Agency Indianapolis, Indiana Timothy J. O'Connor O'Connor &Auersch Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE Theodore Edward Rokita Office of the Attorney General Indianapolis, Indiana Robert Martin Yoke Office of the Attorney General Indianapolis, Indiana.
May and Tavitas, Judges concur.
MEMORANDUM DECISION
DeBoer, Judge.
Case Summary
[¶1] After being severely burned and shot multiple times and before she died, Laura Gentry identified her attacker as 'O.G. Wayne.' After investigating this nickname, police followed the trail to Dwayne A. Wright, whose DNA was at the scene, leading the State to charge him with the murder. Wright was found guilty of murder, a felony, and carrying a handgun without a license, a Class A misdemeanor. The trial court imposed an aggregate sentence of sixty years.
I.C. § 35-42-1-1(1)
I.C. § 35-47-2-1.
[¶2] Wright raises two issues:
(1) Whether the trial court abused its discretion when it admitted the victim's statement to police as a dying declaration under an exception to the general prohibition against hearsay.
(2) Whether the trial court abused its discretion when it denied Wright's request for a sur-rebuttal closing argument.
[¶3] We affirm.
Facts and Procedural History
[¶4] In the pre-dawn hours of July 9, 2021, Michael Daudy awoke to his dogs "going crazy" near his back door. Tr. Vol. 3 at 5. He noticed an orange glow to his window blinds that gave him the impression there was "definitely something on fire outside." Id. at 7. Almost simultaneously, Daudy "heard gunshots ring off" very close to the back of his house, "almost like it was right next to [him]." Id. Daudy then called 911. About 30 seconds after hanging up with the 911 operator, Daudy "peeked out of the blinds" of his window facing the alley behind his house and saw a "black male with a [ . . . ] light colored shirt," near the "trunk area" of a vehicle. The man "slammed the trunk door and walked over to the front of the vehicle, and then he was gone." Id. at 8-9.
[¶5] Officer Daniel Reed of the Indianapolis Metropolitan Police Department ("IMPD") responded to the 911 call. When he arrived at the scene, he found a woman, later identified as Laura Gentry, with extensive burns and gunshot wounds, on the back steps of a house on the other side of the alley from Daudy's house. Officer Reed noticed Gentry was alive but "burned to the point where her muscle [was] showing through the skin." Id. at 165. Gentry was "having a very hard time breathing" and "reeked of gasoline." Tr. Vol. 2 at 165, 174. Before paramedics arrived and because of his impression "that she was not going to live much longer," Officer Reed asked Gentry "who did this," to which she responded, "O.G. Wayne." Tr. Vol. 2 at 166, 168.
[¶6] At the scene, officers discovered that the alley where Gentry was found was commonly used for prostitution. They found Gentry's cell phone, a plastic bottle containing gasoline, a motel room key, 9mm shell casings, gasoline, and Gentry's blood. The mouth area of the plastic bottle contained Wright's DNA, while one of the shell casings contained DNA belonging to another man, Christopher Jackson.
Detective Travitz testified that she "investigate[d]" Jackson as a suspect "[b]ecause his DNA was found at the scene." Tr. Vol. 4 at 183-84. However, Detective Travitz ruled out Jackson as a suspect after interviewing him. Id. at 184.
[¶7] Detective Kimberly Travitz, the IMPD detective assigned to the case, sent an "information email" to the entire department to ask if anyone had information on a person with the "street nickname," "O.G. Wayne." Tr. Vol. 3 at 162. Detective Travitz searched Gentry's phone and discovered a Facebook Messenger conversation between Gentry and a person with a profile name of "Allen Belcher," in the days leading up to Gentry's attack. In this conversation, Gentry replied to a message from Belcher at 4:31 p.m. on July 8, 2021, "who is this ol g wayne." Ex. Vol. 1 at 158. Belcher replied, "Yep . . ." Id. at 159. At 10:40 p.m., Gentry informed Belcher that she is about "to be at gateway room 121." Id.
"Gateway" refers to an Indianapolis motel. Tr. Vol 3 at 207.
[¶8] Over the next few hours, Gentry and Belcher exchanged messages to set up a meeting in the motel room. At 12:20 a.m., Belcher messaged, "I'm close is it cool," to which Gentry responded between 12:23 a.m. and 12:28 a.m. with several messages about a man named Johnny, who had to "leave before u pull up," because Gentry did not "want him to see u when u come inside." Id. at 163. Gentry followed up with messages asking Belcher's whereabouts between 1:06 a.m. and 3:13 a.m., and told Belcher at 3:16 a.m., "Johnny ia [sic throughout] here laying down dont feel well. so we may have to go in the restroom." Id. at 163-66. Gentry missed two calls from Belcher at 4:13 a.m. and 4:14 a.m. The Allen Belcher Facebook account had several posts from Belcher's "friends" wishing him a happy birthday on the same date as Wright's birthday. Tr. Vol. 3 at 197. Detective Travitz also discovered Wright's middle name was "Allen," and he had relatives with the last name "Belcher." Tr. Vol. 3 at 197-198.
[¶9] About 20 minutes after Daudy's 911 call, paramedics transported Gentry to Eskenazi Hospital's emergency department. Gentry suffered from multiple gunshot wounds to the abdomen and back, severe burns, and she had a blood pressure reading of 40/0. Hospital staff immediately gave her blood and intubated her, which increased her blood pressure to 80. Eleven minutes after arriving to the E.R., she was taken to the operating room, where surgeons found extensive abdominal injuries. During Gentry's five-hour operation, surgeons found "massive bleeding," along with "a liver laceration, multiple intestinal lacerations, two gunshot injuries to her bladder, a gunshot injury to her uterus and cervix," "multiple spinal fractures and a left hip fracture." Id. at 111. Two days later, Gentry had another operation to address injuries to her intestine, followed by three surgeries over the next five days to address "full thickness burns" on sixty-four percent of her body. Id. at 113. After her final burn surgery, Gentry developed multisystem organ failure and passed away on July 19, 2021.
The trauma rounding and resource nurse testified at trial that a "full thickness burn" is a burn that "burns all the way through the multiple layers of skin and tissue underneath." Tr. Vol. 3 at 113. Gentry suffered burns to her face, head, neck, both arms, hands, chest, back, and legs.
[¶10] The State charged Wright with Count I: Murder, a felony, and Count II: Felon Carrying a Handgun, as a Level 5 felony due to a prior felony conviction within 15 years.
[¶11] Before trial, Wright filed a Motion in Limine to exclude Gentry's statements on hearsay grounds, which the trial court denied. At trial, Wright objected to Officer Reed's testimony that Gentry told him O.G. Wayne "did it." Tr. Vol. 2 at 166. Appellant's App. Vol. 2 at 155. He renewed his hearsay objection and the trial court "show[ed Wright's] continuing objection to any future discussion of statements of the decedent." Tr. Vol. 2 at 166-67.
[¶12] In its closing argument, the State argued that the evidence showed Wright was known as 'O.G. Wayne,' Wright learned from Gentry that she was staying at the Gateway Motel, Wright's DNA was present at the scene of the attack, and Wright was the one who shot Gentry and lit her on fire. Tr. Vol. 4 at 221.
[¶13] In response, Wright argued Daudy's testimony was defective, and the police failed to thoroughly vet each of the many potential suspects, including Wright. Wright claimed the State did not establish that he went by 'O.G. Wayne.' Wright also focused on Daudy's testimony that he saw the alleged perpetrator close the trunk of a car before driving off in it. Specifically, Wright's attorney argued:
What was in that trunk? I don't know. Was it the gas can that he dumped on Laura Gentry? Maybe. Was it Laura Gentry? I mean, is that how she got from the Gateway Motel, which we otherwise have absolutely no evidence of?
[ . . . ]
Was she kidnapped and dumped in that alley? I don't know because let's keep in mind there is no evidence, zero, zip, nothing, no evidence of Dwayne Wright arranging to meet her in that alley, soliciting a meet up in that alley. None. The last communication from Dwayne Wright to her, the last completed communication, is at 3:12, a Facebook message, and then there is an unanswered phone call, and then all the other communications are from her to him. How did he arrange to meet her? We know there weren't calls. You didn't hear any testimony that there was any evidence of phone calls or text messages between him and Laura Gentry's phone.
How did they arrange-how did they meet in this dark alley if we know she was over at a hotel? How did they get there? How did they know where to go? Did they just wander in the dark? We have no idea, but they sure didn't use their phones.
Why was Laura Gentry's phone not submitted for mapping? Why don't we know when she left the Gateway and how she went and what route she took? I don't know because they didn't bother. Again, another dark alley in this case. Was that conversation on Facebook the only conversation she had that night? We don't know. There was no testimony about that. She could have talked to five other guys and they didn't tell you about it. I-we don't know. There was no testimony about that.Tr. Vol. 4 at 234.
In its rebuttal closing argument, the State responded:
There's no evidence [Gentry] had a car. Let's be honest. He drove over there. He knew where she was at. It was in the messages. He got her in the vehicle. She offered to take him to an alleyway because she's a prostitute. She thought she was going to give him a blow job. They get to the alley. They get out. She starts doing -- all of the gasoline is on the top of her body. She gets down, he pours the gasoline on her, and he lights her on fire. But she thinks he's going to die [sic]. She runs, he panics. He opens up his truck, he grabs his gun. She thought -- he thought she was going to die immediately but she didn't. He chases after
her. She's banging on a neighbor's door and he put three in the back of her. He runs back, he puts the gun in the trunk, and he slams it.Id. at 238.
[¶14] After the State finished its rebuttal, Wright objected, argued the State presented a new theory of the killing during rebuttal closing argument that had not been presented in its initial closing argument, and requested at least three minutes of sur-rebuttal. Wright argued:
The trial rules say that anything that is used in rebuttal must be something that was brought up in their opening closing, their beginning closing, that you cannot introduce entirely new lines of argument in your rebuttal. They did not have anything about this theory that he went over to the Gateway, got her, and came back. So I had no opportunity to address it in my response. I mean, that is sandbagging if I am not allowed to respond to that and point out that there are many pieces of evidence which directly contradict that theory about what happened.Id. at 240.
[¶15] The trial court disagreed, stating that "[the State] is making new points of things that were referenced in [its] opening final argument," and denied Wright the opportunity to present a sur-rebuttal closing argument. Id. at 241. The jury found Wright guilty as charged. The trial court sentenced Wright to sixty years in the Indiana Department of Corrections on the murder conviction and one year on the possession of a firearm conviction, with the sentences to be served concurrently.
Discussion and Decision
1. Dying Declaration
[¶16] Wright contends the trial court abused its discretion when it admitted Gentry's accusatory statement into evidence as it is inadmissible hearsay and does not fall under the dying declaration exception.
[¶17] "A trial court has broad discretion to admit or exclude evidence, including purported hearsay." Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014). Evidentiary rulings are reviewed for an abuse of discretion, which occurs when "the court's decision is clearly against the logic and effect of the facts and circumstances or it is a misinterpretation of the law." Id. "Hearsay" is a statement that (1) is not made by the declarant while testifying at the trial or hearing; and (2) is offered in evidence to prove the truth of the matter asserted. Ind. Evid. Rule 801(c). As a general matter, "[h]earsay is not admissible unless [the Indiana Rules of Evidence] or other law provides otherwise." Ind. Evid. Rule 802. One such exception to the rule against hearsay is reflected in Indiana Evidence Rule 804(b)(2), which allows the admission of a hearsay statement if it is "[a] statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances." Ind. Evid. Rule 804(b)(2).Such statements are admissible only if the declarant is unavailable to be a witness at trial. "A declarant is considered to be unavailable as a witness if the declarant . . . cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness." Ind. Evid. Rule 804(a)(4).
Wright objected to Gentry's statement because the State used Gentry's statement to prove the truth of the matter asserted-that Wright was her attacker.
The existence of [the dying declaration] exception as a general rule of criminal hearsay law cannot be disputed. Crawford v. Washington, 541 U.S. 36, 56 n.6 (2004); see, e.g., Mattox v. United States, 156 U.S. 237, 243-244 (1895); King v. Reason, 16 How. St. Tr. 1, 24-38 (K.B.1722); 1 D. Jardine, Criminal Trials 435 (1832); Cooley, Constitutional Limitations, at *318; 1 G. Gilbert, Evidence 211 (C. Lofft ed. 1791); see also F. Heller, The Sixth Amendment 105 (1951) (asserting that this was the only recognized criminal hearsay exception at common law).
[¶18] A dying declaration exception exists for two reasons:
(1) to bring to justice murderers who otherwise might escape the penalty of the law because the victims of their crimes are not available to testify; and (2) the dying declaration is reliable because of the belief that a person about to die is less likely to fabricate the guilt of an innocent person than one who would stand to derive some benefit from his falsehood.Smith v. State, 190 N.E.3d 462, 465 (Ind.Ct.App. 2022) (quoting Beverly v. State, 801 N.E.2d 1254, 1259 (Ind.Ct.App. 2004), trans. denied), trans. Denied. "Under the dying declaration exception, the fact that a victim ultimately dies from her injuries does not make her statement admissible; rather, the victim must have known death was imminent and had abandoned all hope of recovery." Beverly, 801 N.E.2d at 1259.
To determine whether a victim believed death was imminent and had "abandoned all hope of recovery," a trial court may consider "'the general statements, conduct, manner, symptoms, and condition of the declarant, which flow as the reasonable and natural results from the extent and character of [her] wound[s], or state of [] illness.'" Wallace v. State, 836 N.E.2d 985, 991 (Ind.Ct.App. 2005) (quoting Beverly v. State, 801 N.E.2d at 1260, trans. denied). Wright argues there is no evidence that Gentry believed her death was imminent or that she had abandoned hope of recovery. Appellant's Br. at 10. The State argues that based on the nature of Gentry's condition, she "knew that her death was imminent." Appellee's Br. at 15. In support of their respective arguments, both parties cited to Bishop v. State, 40 N.E.3d 935 (Ind.Ct.App. 2015), trans. denied. In Bishop, the victim had been shot five times and died less than six hours later in surgery. See id. at 939. Witnesses found the victim on a porch propped up against a front doorway yelling "oh my God, oh my God," and "help." Id. at 938. As the victim was being loaded into the ambulance and the paramedics fought to raise his nonexistent blood pressure to "only 80 which is pretty low," the victim repeatedly asked paramedics if he would die and they reassured him that he "was going to be okay." Id. Other than the victim's question as to his mortality, there was no indication as to the victim's subjective state of mind. However, in line with Beverly and Wallace, this Court considered the "general statements, conduct, manner, symptoms, and condition of the declarant." Id. at 944. In support of the trial court's admission of the victim's declaration, our Court focused on the extent of the victim's injuries, which included a tear to the victim's liver, a hole in the victim's lung, and "tremendous bleeding," and rejected that the paramedic's reassurance to the victim was enough for the victim to re-gain hope of recovery, considering his condition, "as well as the reasonable and natural results from the extent and character of his extensive wounds." Id. at 944-45.
[¶19] Wright concedes that Gentry was "badly injured" but attempts to distinguish Bishop by pointing out that Gentry lived for ten days after the attack, had the ability to speak to responding officers, and had a measurable blood pressure reading of "40 over 0," which increased after arrival at the hospital. Appellant's Br. at 10; Tr. Vol. 3 at 111.
[¶20] We are unpersuaded by Wright's argument that Gentry's ability to provide police with "some details regarding her injuries" rules out Gentry's statement as a dying declaration. Appellant's Br. at 10. In the 2009 case, Wright v. State, after the victim had been stabbed, he, like Gentry, called for help and "dragged himself across the street to seek [help] out." 916 N.E.2d 269, 276 (Ind.Ct.App. 2009); see also Bishop, 40 N.E.3d at 944. However, when the admissibility of the victim's statements at the scene was challenged, this Court found:
[The victim's] extraordinary efforts in the face of such trauma do not serve to undermine the precarious nature of his condition. The trial court was well within its discretion to conclude from the above facts that [the victim] was in extremis and that his statements to [police] were made with the belief that death was imminent and that he had abandoned all hope of recovery.Wright, 916 N.E.2d at 276.
Gentry moved with the assistance of Officer Reed but, as he testified, "[e]very time that I tried to move her, her skin [wa]s sloughing off." Tr. Vol. 2 at 165. Officer Reed's testimony about the severity of Gentry's injuries is affirmed by the trauma nurse's testimony describing Gentry's injuries, surgeries, and assessment that if the ambulance had arrived any later, Gentry would not have made it. In light of Wright and Bishop, although Gentry was able to speak and move after being severely burned and shot numerous times, her condition was precarious and it was reasonable for the trial court to find that Gentry identified Wright believing her death was imminent.
[¶21] We are equally unpersuaded that Gentry's survival "for ten days after her injuries were inflicted" and Detective Travitz's testimony that she was "uncertain" whether Gentry would "make it," are dispositive factors here. Appellant's Br. at 10. Detective Travitz arrived on scene after Gentry was taken to the hospital. Officer Reed, however, was at the scene and noted that Gentry's skin was burned down to the muscle and Gentry said she couldn't breathe. Officer Reed believed that Gentry "was not going to live much longer." Tr. Vol. 2 at 168. Although Gentry managed to live for ten days after her injuries, she spent most of that time unconscious, with burns to sixty-four percent of her body, and severe damage to several organs. In these circumstances, the fact that Gentry lived for ten days, rather than dying on the day of the attack, does not influence whether Gentry believed her death was imminent or that she had abandoned all hope of recovery at the time she identified O.G. Wayne as her attacker.
[¶22] In light of Gentry's multiple gunshot wounds, including damage to several major organs and burns to sixty-four percent of her body, the trial court did not abuse its discretion by admitting Gentry's statement, identifying Wright as her attacker, as a dying declaration.
The State raises the issue of an "excited utterance," arguing that even if Gentry's hearsay statement is not a dying declaration, it falls under the excited utterance exception to the hearsay rule and should be admissible. Appellee's Br. at 13-14. Given that this issue was not raised by Wright on appeal, the trial court did not rule on this issue, and we found the statement admissible as a dying declaration, we do not consider whether Gentry's statement falls under the excited utterance exception to the hearsay rule.
2. Sur-Rebuttal Closing Argument
[¶23] Wright also contends that the trial court abused its discretion by denying his request for a sur-rebuttal closing argument. Conduct during closing argument "'is a matter within the sound discretion of the trial court, and a conviction will not be reversed unless there has been a clear abuse of discretion resulting in prejudice to the accused.'" Hall v. State, 177 N.E.3d 1183, 1195 (Ind. 2021) (quoting Bowles v. State, 737 N.E.2d 1150, 1154 (Ind. 2000)). An abuse of discretion will be found only if the trial court's decision was "clearly against the logic and effect of the facts and circumstances before it." Thevenot v. State, 121 N.E.3d 679, 687 (Ind.Ct.App. 2019) (quoting Walls v. State, 993 N.E.2d 262, 269 (Ind.Ct.App. 2013), trans. denied).
[¶24] In its rebuttal closing argument, the State suggested that Wright met Gentry at her motel, "got her in the vehicle," and drove her to the alley where she was found. Tr. Vol. 4 at 238. The State continued with:
[h]e knew where she was, she went [sic] and got her, he drove her, and he killed her. There is nobody else. The evidence supports no other conclusion. I don't know why he did it. None of us know why he did it, but it was premeditated. He took her to that alley, he set her on fire, and he killed her.Id. at 239.
[¶25] Wright argues that the State raised new points in its rebuttal closing argument that it did not mention in its initial closing argument. Specifically, "[t]his whole new theory that he drove over to the Gateway." Id. at 239-40. In support of his argument, Wright relies on Indiana Code Section 35-37-2-2(4), which states:
If the case is not submitted without argument, the prosecuting attorney shall have the opening and closing of the argument. However, the prosecuting attorney shall disclose in the opening all the points relied on in the case, and if in the closing he refers to any new point or fact not disclosed in the opening, the defendant or his counsel may reply to that point or fact, and that reply shall close the argument of the case.See also Inman v. State, 4 N.E.3d 190, 202 (Ind. 2014).
[¶26] This statute is similar to the language of Indiana Jury Rule 27:
If the parties argue the case to the jury, the party with the burden of going forward shall open and close the argument. The party which opens the argument must disclose in the opening all the points relied on in the case. If, in the closing, the party which closes refers to any new point or fact not disclosed in the opening, the adverse party has the right to reply to the new point or fact.
Clarifying I.C. § 35-37-2-2, our Supreme Court in Goodman v. State, 588 N.E.2d 507 (Ind. 1992), concluded that "when the State's rebuttal is invited by comments made by defense counsel during closing arguments, the defense has no right under the statute to respond to the rebuttal." Id. at 508. See also Inman, 4 N.E.3d at 203 (applying Jury Rule 27, our Supreme Court found the trial court did not abuse its discretion when it denied Inman the opportunity to respond to the State's argument against self-defense, where Inman "repeatedly argued that the evidence supported Inman's claim of self-defense" in its final argument).
[¶27] In closing, Wright asserted there was "no evidence of Dwayne Wright arranging to meet her in that alley, soliciting a meet up in that alley. None." Tr. Vol. 4 at 234. Wright also argued that the evidence left unanswered questions about "how she got from the Gateway Motel," and "how did they meet in this dark alley if we know she was over at a hotel? How did they get there? How did they know where to go?" Id. Wright discussed the DNA found on the bottle and referenced "dumping gasoline on Laura Gentry." Id. During rebuttal, the State proffered answers to Wright's questions, arguing that he "drove over [to the Gateway Motel]" and "got [Gentry] in the vehicle." Id. at 238. The State argued that once Wright and Gentry arrived in the alley, Wright "pour[ed] [] gasoline on her, and [] [lit] her on fire," before Wright "put[] three in the back of her." Id. The State presented logical answers to the questions posed by Wright during closing. Because Wright posed a number of questions for the jury to consider, it was not improper for the State to respond to those questions during its rebuttal, and the trial court did not abuse its discretion in denying Wright's request for sur-rebuttal. Marshall v. State, 438 N.E.2d 986, 989 (Ind. 1982) (finding that the State is entitled to respond to allegations and inferences made by defense counsel during defense counsel's closing argument). The State's rebuttal was a direct response to questions posed by Wright during closing argument.
Conclusion
[¶28] The trial court did not abuse its discretion by admitting Gentry's statement as a dying declaration exception to the general rule against hearsay and properly denied Wright's request to present a sur-rebuttal final argument.
[¶29] Affirmed.
May, J., and Tavitas, J., concur.