Artavius G. Richards v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 06 2017, 10:00 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald C. Swanson, Jr. Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Fort Wayne, Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Artavius G. Richards, December 6, 2017 Appellant-Defendant, Court of Appeals Case No. 02A04-1703-CR-646 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff Judge Trial Court Cause No. 02D05-1609-MR-9

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 02A04-1703-CR-646 | December 6, 2017 Page 1 of 5 [1] Artavius Richards appeals his convictions for three counts of Felony Murder,1 one of

which was enhanced by the use of a firearm.2 He argues that the trial court erred in

admitting statements under the co-conspirator exception to the hearsay rule. Finding

that the statements were properly admitted, we affirm the judgment of the trial court.

Facts [2] On February 24, 2016, Jasmine Griffin received a phone call from George Stiner. He

asked her to pick him up from his apartment. When she arrived, Stiner, Richards and

Darrell McDaniel got into her car. They discussed buying marijuana and Griffin

drove them to the east side of Fort Wayne. When they saw two people walking

through the neighborhood, Richards and McDaniel began talking about “lashing,” or

robbing, them. Tr. Vol. 1 p. 203. Griffin parked her car near an alley, and all three

men exited the vehicle. Richards, Stiner and McDaniel entered a home down the

street, and they returned approximately five minutes later. [3] After they returned to the car, Stiner said, “Artie f**king shot ‘em.” Tr. Vol. 1 p. 208.

Richards responded, “It’s the lash team, n**ga. N**ga, I sprayed them n***as. It’s

the lash team. I sprayed them n***as.” Id. Stiner asked, “Why did you shoot?” and

Richards answered, “After my brother shot, I couldn’t leave any witnesses.” Id.

Griffin drove away and Stiner said they needed to dispose of the guns. Stiner also

said, “You all are f**king stupid. You shot them n***as for no f**king reason.” Id. at

209. Richards replied, “I had to. My brother shot.” Id.

1 Ind. Code § 35-42-1-1(1). 2 Ind. Code § 35-50-2-11(b)(1).

Court of Appeals of Indiana | Memorandum Decision 02A04-1703-CR-646 | December 6, 2017 Page 2 of 5 [4] Later that day, Aboubakar Souleimane stopped by the house that Richards, Stiner,

and McDaniel had entered. Souleimane found three dead bodies inside and

immediately called 911. Police determined that each of the victims had suffered

multiple gunshot wounds. [5] On September 9, 2016, the State charged Richards with three counts of felony murder

and one count of use of a firearm in the commission of a felony. A jury trial took

place from January 30, 2017, through February 2, 2017; the jury found Richards guilty

as charged. On March 6, 2017, the trial court sentenced him to consecutive terms of

60 years for each murder and 10 years for the firearm enhancement, for an aggregate

sentence of 190 years imprisonment. Richards now appeals.

Discussion and Decision [6] Richards contends that the statements made by Stiner and McDaniel are hearsay and

were admitted in error under the co-conspirator exception. Specifically, Richards

argues that the statements were not made in furtherance of the alleged conspiracy. [7] In addressing this contention, we note that the admission and exclusion of evidence

falls within the trial court’s sound discretion, and we will reverse only if the decision is

clearly against the logic and effect of the facts and circumstances before it. Johnson v.

State, 6 N.E.3d 491, 498 (Ind. Ct. App. 2014). [8] Indiana Rule of Evidence 801(d)(2)(E) provides that a statement that would otherwise

qualify as hearsay is not hearsay if the statement is offered against an opposing party,3

3 It is not disputed that the statements were offered against an opposing party.

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the declarant was a co-conspirator of the defendant, and the statement was made

during the course and in furtherance of the conspiracy. Therefore, before a co-

conspirator’s statements can be admitted, the State must prove by a preponderance of

the evidence that (1) a conspiracy existed between the declarant and the party against

whom the statement is offered, and (2) the statement was made during the course and

in furtherance of the conspiracy. Barber v. State, 715 N.E.2d 852 (Ind. 1999). [9] Indiana Code section 35-41-5-2(a) provides that a person conspires to commit a felony

when, with intent to commit a felony, he agrees with another person to commit a

felony. There must also be proof that one of the agreeing persons performed an overt

act in furtherance of the agreement. I.C. § 35-41-5-2(b). Additionally, “we also require

that the State prove that there is ‘independent evidence’ of the conspiracy” apart from

the statements made by the declarant. Lander v. State, 762 N.E.2d 1208, 1213 (Ind.

2002) (quoting Lott v. State, 690 N.E.2d 204, 209 (Ind. 1997)). [10] Here, the statements made by both Stiner and McDaniel were being offered against

Richards. We must determine whether (1) a conspiracy existed between Richards,

Stiner, and McDaniel, and (2) the statements made by Stiner and McDaniel were

made during the course and in furtherance of the conspiracy. [11] Griffin testified that she received a phone call from McDaniel requesting that she pick

him up from his apartment. McDaniel, Stiner and Richards then got into her car with

the intention to buy marijuana. They gave her directions and told her to circle the

neighborhood, until they ultimately stopped on Lewis Street. Richards then said to

McDaniel, “We’re about to lash these n***as,” and all three men exited the car. Tr.

Vol. 1 p. 203. This testimony shows an intent to commit a felony, an agreement with

another person to commit a felony, and an overt act in furtherance of the agreement.

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In other words, this independent evidence establishes a conspiracy between Richards,

Stiner, and McDaniel. [12] We must also consider whether the statements were made during and in furtherance of

the conspiracy. “Generally, only those acts and declarations which transpired or were

made between the beginning and the ending of the conspiracy and in furtherance of its

objectives may be shown against the asserted coconspirator who did not make the

declaration.” Chinn v. State, 511 N.E.2d 1000, 1002 (Ind. 1987). We have little

difficulty concluding that the statements made in the car before the murders occurred

were made during and in furtherance of the conspiracy. As to the statements made

immediately after the murders, we note that they were made during the getaway,

meaning that they were made in furtherance of the conspiracy. Additionally, Stiner,

Richards, and McDaniel were discussing the need to dispose of their weapons, further

implying that the conspiracy was not over and was still ongoing. [13] Griffin’s testimony independently shows that there was a conspiracy between the

declarants and Richards and that the statements were made in furtherance of the

conspiracy. Under these circumstances, we find that the trial court did not err in

admitting the statements under the co-conspirator exception to the hearsay rule. [14] The judgment of the trial court is affirmed.

Bailey, J., and Altice, J., concur.

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