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A 911 call placed by a witness who didn’t actually testify was properly admitted, the Court of Appeals of Indiana has affirmed, also finding sufficient evidence.
In October 2019, Morgan Flanagan called 911 to report a man in front of her house in Indianapolis. When Flanagan went outside, the man exited his black SUV and began asking about a man he believed lived in her house who was texting his girlfriend. She said he was talking about shooting her house up.
The 911 operator asked if the man had threatened her, and Flanagan said he pulled out a gun and indicated he had more in his car. The man had told Flanagan that he had been watching her go in and out of her house for days and had tried to speak to her neighbors about who lived in her house.
While the police were on their way, the man began to drive away. Flanagan described how he looked like and what he was wearing to the operator.
Officer Mitchel Farnsley responded to the initial dispatch that incorrectly reported the driver as white. He had stopped a black SUV, but the driver was Black, so he let the man go.
Then when he heard the updated dispatch, he reinitiated the traffic stop because he realized the description matched the man he stopped.
By then, two other officers had arrived, and they worked together to conduct a “felony stop.” The officers drew their firearms and ordered the driver to turn off the vehicle, show his hands and exit the SUV.
The driver, identified as Elijah Cruz, didn’t initially comply with the commands. Farnsley saw Cruz reaching around in both the center console and passenger side of the SUV and commanded him to stop reaching.
After the commands got louder, Cruz exited the SUV. He was ordered to crawl toward the officers and was placed in handcuffs.
The officers opened the SUV’s doors to make sure no one was hiding inside the vehicle. Officer Lane Cooper noticed a clear knotted plastic baggie containing an orange pill on the front of the passenger seat.
Suspecting it was illegal drugs, the officers called Andrew Girt, a narcotics detective, who suspected narcotics. Girt had Cruz Mirandized and applied for a search warrant.
Cruz asked what was going on and if it was over an ecstasy pill. Meanwhile, his girlfriend, Laquisa Sinclair, arrived wanting to remove her things from the SUV. The officers didn’t allow her to because they had not finished processing the scene.
Cruz had at first been argumentative, stopped responding to questions and began exhibiting signs of an overdose, so the officers called an ambulance. While the officers were dealing with Cruz’s medical episode, Sinclair tried to enter the SUV.
Officers grabbed her and placed her in handcuffs.
Medical personnel transported Cruz to a nearby hospital.
A warrant was issued, and the officers began the search of the SUV. In the rear seat area on the driver’s side, beneath a seat cushion, officers discovered a black Smith & Wesson M&P .40 Shield semiautomatic handgun.
The state charged Cruz with Level 4 felony unlawful possession of a firearm by a serious violent felon and Level 6 possession of a controlled substance.
Due to Flanagan failing to appear for several hearings and depositions, the Marion Superior Court granted a defense motion to exclude her testimony. The state filed a motion for a pretrial ruling on the admissibility of the 911 call, and Cruz filed a motion requesting the exclusion of the call.
After a hearing on the motions, the trial court denied Cruz’s motion and determined that the 911 call was nontestimonial.
Cruz was found guilty of the Level 4 felony firearm charge and was sentenced to six years, with four years suspended and one of those years served on probation, plus two years of executed home detention.
Cruz’s appeal of his conviction then ensued.
Cruz argued that the trial court abused its discretion when it admitted evidence concerning Flanagan’s 911 call, which he said violated the Confrontation Clause of the Sixth Amendment and Article 1, Section 13 of the Indiana Constitution.
The appellate court disagreed.
“The trial court denied the defense’s motion and explained that the 911 call was admissible because when Flanagan made the call, there was an ‘ongoing emergency,’” Judge Terry Crone wrote.
Cruz also claimed there was insufficient evidence to support his conviction. The court again disagreed, finding the state presented sufficient evidence.
“No other occupants were in the SUV,” Crone wrote. “Given the aforementioned properly admitted evidence, the jury could easily determine that Cruz had direct physical control over the handgun and therefore actually possessed it.”
The case is Elijah Colon Cruz v. State of Indiana, 22A-CR-383.
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