Joe E. Jackson, Jr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 30 2018, 8:10 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ryan M. Gardner Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joe E. Jackson, Jr., April 30, 2018 Appellant-Defendant, Court of Appeals Case No. 02A03-1709-CR-2179 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Frances C. Gull, Judge Trial Court Cause No. 02D05-1612-F4-90

Kirsch, Judge. Court of Appeals of Indiana | Memorandum Decision 02A03-1709-CR-2179 | April 30, 2018 Page 1 of 12 [1] Following a jury trial, Joe E. Jackson, Jr. (“Jackson”) was convicted of Level 4

felony unlawful possession of a firearm by a serious violent felon,1 and he now

appeals raising the following restated issued: whether the trial court abused its

discretion when it admitted, over Jackson’s objection, recorded phone calls that

Jackson made from jail. [2] We affirm.

Facts and Procedural History [3] At around 6:15 a.m. on December 19, 2016, multiple law enforcement

agencies, including officers from the Indiana State Police (“ISP”) Emergency

Response Team, executed a search warrant at a certain Fort Wayne, Indiana

residence (“the residence”) that was owned or leased by a man named William

Pope (“Pope”). The warrant was issued and executed following a narcotics

investigation by ISP officers assigned to the Bureau of Alcohol, Tobacco, and

Firearms (“ATF”) Task Force. The investigation included surveillance and

began on November 3, 2016. During the investigation and surveillance of the

residence, Jackson’s vehicle was seen there on six occasions, and he was

observed at the residence on three occasions. [4] When officers entered the residence, five individuals, including Jackson, were

in the residence, with some in the living room and others in the kitchen. Tr.

1 See Ind. Code § 35-47-4-5(c).

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Vol. 2 at 85. ISP Detective Caleb Anderson (“Detective Anderson”), who had

participated in the ATF Task Force surveillance, searched a bedroom in the

northeast part of the residence and, specifically, the closet. Half of it contained

men’s clothing and the other half was women’s. As is relevant here, Detective

Anderson found on the floor of the men’s side of the closet a Ruger nine-

millimeter pistol. It was behind a book bag and on top of a pair of men’s shoes.

There was one live round in the chamber, and the safety was off; the magazine

was loaded with sixteen rounds, and on the floor near the shoes was a fired

nine-millimeter shell casing. In the closet, he also found clothing consistent

with Jackson’s size, including some shirts and hats embroidered with the name

of Jackson’s motorcycle club, and a Menard’s receipt with Jackson’s name on

it. On the top shelf of the closet, police found a Ruger pistol box, matching the

make, model and serial number of the found firearm, a box of ammunition in

the Ruger box, and a receipt for purchase of the Ruger in the name of Bree

Jackson (“Bree”). Bree was later determined to be Jackson’s brother’s wife. [5] Jackson was arrested and transported to the police station. Detective Anderson

and another ISP officer interviewed Jackson. After receiving and waiving his

Miranda rights, Jackson admitted that he had been staying “on and off” at the

residence since around October 2016, that he was staying there for free, and

that his bedroom was the one in the northeast corner. Tr. Vol. 2 at 113, 117;

State’s Ex. 42. He acknowledged having some shoes and clothing in the room,

including some that reflected the name of his motorcycle club. Jackson initially

denied owning the gun, but then admitted that, in September or October of

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2016, he purchased the gun for $150 from an individual named Chris Walker

(“Walker”), who was a friend or family member of Bree’s. Tr. Vol. 2 at 114.

Jackson said the firearm came with the box and ammunition. Jackson told

officers that, at some point after buying it from Walker, he realized that the

firearm had been stolen from Bree or her husband, Jackson’s brother, but that

Jackson’s brother did not want the gun back, so Jackson kept it in the bedroom

and off the streets. [6] On December 27, 2016, the State charged Jackson with Count I, unlawful

possession of a firearm by a serious violent felon, Count II, possession of

marijuana, and Count III, possession of paraphernalia. Appellant’s App. Vol. II

at 18-23. [7] From the time of his arrest in December 2016 through June 2017, Jackson

made at least eleven phone calls from the Allen County Jail (“the jail”) using

the jail’s GTL Client telephone equipment system (“GTL system”). At the

beginning of each call, there is an announcement advising that the call is being

made from a correctional facility and that the telephone call is subject to

monitoring and recording. State’s Ex. 43. Every inmate has a personal

identification number (“PIN”) assigned to him or her, and each phone has a

corresponding video camera that records the inmate as he or she is on the

phone. Jackson used his PIN for ten of the eleven calls. In every call, Jackson

was documented on video. Some of Jackson’s calls were to Pope, others to

Bree, and others were to unidentified individuals.

Court of Appeals of Indiana | Memorandum Decision 02A03-1709-CR-2179 | April 30, 2018 Page 4 of 12 [8] On July 12, 2017, the trial court granted the State’s request to dismiss the two

misdemeanor charges, Counts II and III. On July 19, 2017, the case proceeded

to jury trial. At trial, Detective Anderson testified that his interview with

Jackson was video recorded, and the disk of that recorded interview was

admitted into evidence and played for the jury. State’s Ex. 42; Tr. Vol. 2 at 117.

Detective Anderson described that during the interview Jackson “gave . . . a full

confession, including where he bought [the firearm], from who, for how much,

he described the gun case and the ammunition.” Tr. Vol. 2 at 117. [9] On cross-examination, Detective Anderson agreed that the Menard’s receipt

with Jackson’s name on it, dated in December 2016, had a different address

than that of the residence. State’s Ex. 21. He also acknowledged that at some

point during the execution of the warrant, Jackson advised someone that he

was diabetic, so ATF Special Agent Kristin Pyle, who was a medic, checked on

Jackson to make sure he was alright. She testified that she spoke to him,

checked his blood sugar, and was with him as he administered his own insulin.

She said he was coherent and did not exhibit symptoms associated with having

a diabetic incident, such as he was not nauseous, confused, or shaky, and she

noted that he had normal manual dexterity to administer his insulin. Detective

Anderson gave him some food in the police car while being transported to the

police station, and Jackson was eating a piece of fruit during the recorded police

interview. [10] Allen County Sheriff’s Department Officer Jeffrey Kroemer (“Officer

Kroemer”), who was the administrator of the jail’s GTL system, testified that

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he accessed the ten phone calls made using Jackson’s PIN. He also accessed a

phone call made on June 29, 2017 on the PIN of another inmate, who was

housed in the same block as Jackson, noting that it was “common” for inmates

to borrow the PIN of another inmate when making a call. Officer Kroemer

stated that he watched the corresponding video recordings of the phone calls,

including the June 29, 2017 phone call and testified, “[Y]ou can clearly see Mr.

Joe Jackson using the phone.” Tr. Vol. 2 at 143-44. At trial, he identified

Jackson as the person that had made all eleven of the phone calls in question.

Id. at 144. Officer Kroemer stated that he pulled audio recordings of Jackson’s

calls from the GTL system and put them on a disk, which he marked with his

“CO number and initials,” as he does “in the same place on every CD that I

do.” Id. at 146. At trial, Officer Kroemer identified the disk of the recorded

calls, said he listened to it three times, and stated the disk was a fair and

accurate recording of the eleven jail calls that were on the GTL system. Id. [11] The State sought to admit the disk containing the recording of the eleven phone

calls into evidence, and counsel for Jackson asked whether Officer Kroemer

could identify the individuals on the other end of the phone call. Officer

Kroemer replied, “No, not really. I heard a couple brief names, but you know,

it’s not part of my job to identify who’s on the other line.” Id. Jackson’s

counsel objected to the admission of the disk “because the officer cannot

identify the individuals who are allegedly speaking to Mr. Jackson.” Id. at 147.

The State responded that the recorded calls are statements of a party opponent

and an exception to the hearsay rule, and, additionally argued, “[I]t is

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admissible subject to the rule of completeness. This gives context as to the

conversation that [Jackson]’s having.” Id. The trial court admitted the disk

over Jackson’s objection. State’s Ex. 43. [12] The recorded calls were played for the jury. In the calls, Jackson indicated that

Bree needed to make a statement that the firearm was hers and that she left it in

the room. Jackson told one person, “[W]e need to be discreet,” and in another

call he told an individual that he needed to get in touch with Bree to give her

information about the layout of the room. Tr. Vol. 2 at 159; State’s Ex. 43. In a

different call, Jackson stated that he had learned from another source that he

could recant his statement on the basis that he was incoherent due to his blood

sugar being low. State’s Ex. 43. [13] Jackson testified that he was only visiting the residence, was not living or

staying there, and had gone to bed in one of the bedrooms that Pope had told

him he could lay down in. He testified that “not all items” in the bedroom were

his, explaining that he had only brought a few articles of clothing into the room

from his vehicle. Tr. Vol. 2. At 169. He said he was awakened to law

enforcement with guns in his face and escorted to the living room. He

described that, due to his blood sugar level, he was “a little bit incoherent,” and

he did not remember “signing waivers or anything.” Id. at 155-56. He denied

that the firearm was his and explained that he confessed to having purchased

and possessing it because the officers threatened to pursue his fiancée, so to

“defend or protect” her, he “confessed and made a statement that was

necessary, not true.” Id. at 157, 165. He testified that he did not know whether

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the gun was Bree’s or not and that he made phone calls “to see if this is Bree’s

gun[.]” Id. at 158. He explained that in some calls he was trying to have

someone reach Bree “to tell her to come and claim her gun.” Id. He stated that

in one call he asked Pope to “holler” to Bree and “get her to confess it’s her gun

. . . and to show that I didn’t have nothing to do with it.” Id. at 159. In his

testimony, Jackson identified that one or more calls were to Pope and one or

more were to Bree. Jackson wanted Bree to “admit to her gun” and “get it off

of me because I was being charged with it.” Id. at 161. [14] The jury found Jackson guilty of Level 4 felony possessing a firearm as a

serious violent felon, and the trial court subsequently sentenced him to ten years

of imprisonment. He filed a motion to correct error, which the trial court

denied. Jackson now appeals.

Discussion and Decision [15] Jackson contends that the trial court erred when it admitted into evidence the

recordings of phone calls he made from jail to unidentified individuals. A trial

court has broad discretion in ruling on the admissibility of evidence. Packer v.

State, 800 N.E.2d 574, 578 (Ind. Ct. App. 2003), trans. denied. We will reverse a

trial court’s ruling on the admissibility of evidence only when the trial court

abused its discretion. Id. An abuse of discretion occurs when a decision is

clearly against the logic and effect of the facts and circumstances before the trial

court. Id. We may affirm a trial court’s admissibility ruling on any theory

supported by the record. Steinberg v. State, 941 N.E.2d 515, 522 (Ind. Ct. App.

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2011), trans. denied. Errors in the admission or exclusion of evidence are to be

disregarded as harmless unless they affect the substantial rights of a party. King

v. State, 985 N.E.2d 755, 757 (Ind. Ct. App. 2013) (citing Ind. Trial Rule 61),

trans. denied. [16] On appeal, Jackson does not assert that he did not make the calls or that he did

not know that the calls were being recorded. Rather, his claim is that the trial

court abused its discretion when it admitted the phone calls from jail because

the State “fail[ed] to lay the proper and necessary foundation and

authentication” of the recorded phone calls. Appellant’s Br. at 4. Specifically,

his contention is that it was error to admit the calls because the State did not

identify the persons to whom Jackson was speaking in the phone calls. [17] The requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a finding that the

matter in question is what its proponent claims. Ind. Evidence Rule 901(a);

Davenport v. State, 749 N.E.2d 1144, 1148 (Ind. 2001). Here, Officer Kroemer,

the GTL jail call system administrator, testified that he retrieved ten calls that

were made with Jackson’s assigned PIN and another call made with the PIN of

another inmate. He saved the eleven phone calls from the system on a disk,

which he marked with his “CO number and initials” and which he identified as

his at trial. Tr. Vol. 2 at 146. He also obtained the corresponding video

recordings, and he identified Jackson in the video recordings as the person that

made the eleven telephone calls in question. This testimony was sufficient to

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establish the CD as an authentic recording of the recorded jail calls made by

Jackson. [18] Nevertheless, Jackson contends on appeal that “[t]he identities of both parties

must be authenticated before admitting a telephone call into evidence,” and

because the other person on the receiving end of some of Jackson’s phone calls

was not identified, they should have not been admitted. Appellant’s Br. at 12. In

support of his position, Jackson cites to King v. State, 560 N.E.2d 491, 496 (Ind.

1990). In King, the defendant sought to introduce at trial the testimony of the

former receptionist at the law firm that represented defendant; she was going to

testify that she received a phone call from someone purporting to be the victim,

who told the receptionist that she had lied about defendant’s actions. Id. at 494.

The State objected at trial on the basis of hearsay, and the trial court sustained

it. On appeal, our Supreme Court affirmed the trial court’s exclusion of the

receptionist’s testimony, stating, “This Court has long required that a caller’s

identity be established as a foundation for the admission of the content of the

telephone call.” Id. at 495. Jackson argues that, in his case, “similar to King . .

. the State failed to lay the necessary foundation for the introduction of the jail

telephone call recordings[.]” Appellant’s Br. at 13. We disagree and find that

King is both distinguishable and not applicable. [19] In contrast to King, where a witness was attempting to testify about a call he or

she received, here the State sought to introduce phone calls made by Jackson.

He was identified at trial as the person making the calls by his PIN and by the

corresponding video recordings of him on the phone. Our court has held that

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“[g]enerally recordings of telephone calls made from jail are admissible when

the defendant discusses the crime for which he is incarcerated.” King, 985

N.E.2d at 759 (rejecting defendant’s claim the calls were inadmissible hearsay);

see also Baer v. State, 866 N.E.2d 752, 763 (Ind. 2007) (excerpts of recorded calls

made by defendant to sister from jail complied with Indiana Wiretap Act and

were admissible). Thus, we find that Jackson’s recorded phone calls were

properly admitted into evidence. [20] Furthermore, even if, as Jackson claims, it was error to admit the recorded

phone calls, any error was harmless. “‘The improper admission of evidence is

harmless error when the conviction is supported by substantial independent

evidence of guilt as to satisfy the reviewing court that there is no substantial

likelihood that the questioned evidence contributed to the conviction.’”

Steinberg, 941 N.E.2d at 527 (quoting Cook v. State, 734 N.E.2d 563, 569 (Ind.

2000)). Although Jackson suggests that the recorded calls “were virtually the

only evidence supporting the State’s theory that Jackson possessed the

Firearm,” the record provides otherwise. Appellant’s Br. at 10. Here, the parties

stipulated that Jackson had a prior qualifying conviction and could not lawfully

possess a firearm. Tr. Vol. 2 at 75; State’s Ex. 1. Jackson admitted to police that

he stayed “on and off” at the residence and that that his bedroom was in the

northeast corner of the home. Tr. Vol. 2 at 113. The Ruger was found in the

closet of that bedroom, among items of clothing reflecting Jackson’s motorcycle

club name. Jackson admitted in his police interview that he bought the firearm

in the fall of 2016, stating that he bought it in a park from Walker and paid

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$150. He described the gun as being silver and black, which it was. He said

that he later learned that Walker had stolen the gun from his brother or from

Bree, which matched the receipt found in the bedroom reflecting that Bree

purchased it from a firearms store. State’s Ex. 22. Thus, what Jackson told

Detective Anderson in the interview was consistent with the evidence found

during the search. Although Jackson later stated at trial that what he had told

police in the interview was not true, and that at the time of the search and

interview he was having a diabetic episode and was not coherent, this was

contrary to other evidence presented, and it was for the jury to assess witness

credibility. See Causey v. State, 808 N.E.2d 139, 143 (Ind. Ct. App. 2004) (this

court does not assess credibility of witnesses). Jackson’s conviction was

supported by independent evidence of guilt, and we are satisfied that that there

is no substantial likelihood that the questioned evidence contributed to the

conviction. [21] Affirmed.

Baker, J., and Bradford, J., concur.

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