James Henry Stewart, Jr. v. State of Indiana

Anderson, IN - Criminal defense lawyer represented defendant James Stewart with appealing and presents two issues for our review: (1) whether the trial court abused its discretion in admitting certain evidence at trial; and (2) whether the trial court erred in denying Stewart’s motion to recuse the lead deputy prosecutor.

[2] The facts most favorable to the verdict are as follows. In May 2017, Montez

McCloud and Cheyanne Gosler had been dating for approximately five years.

Gosler’s best friend, Hailey Carr, had been in a long-term relationship with

Stewart. Stewart and Carr lived in a house at 1717 Jefferson Street in Anderson

with their children.

1

On May 9, after Gosler picked up McCloud’s lost

cellphone, she and McCloud got into a disagreement. Gosler drove to Carr and

Stewart’s house, parked in their driveway, and went inside. McCloud later

drove a moped to the house. Gosler walked outside and she and McCloud then

walked back into the house where Gosler got her keys and phone. Carr testified

that McCloud began hitting Gosler, prompting Carr to yell for Stewart, who

1

Stewart and Carr shared one son together but Stewart helped raise Carr’s other children.

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had been sleeping in a room in the back of the house. Carr told them to “get

out.” Transcript of Evidence, Volume IV at 126. McCloud and Gosler left the

house and Carr and Stewart followed. The four began arguing.

[3] David Lennen lived across the street and witnessed “an argument going on”

between Stewart, Carr, and another man and woman. Id. at 180. Lennen

heard Stewart say, “[I]f you’re still out here when I come back I got something

for you.” Id. at 181. Stewart then went inside. McCloud got into Gosler’s

vehicle and began to drive away when Gosler pushed the moped over, which

“[h]it the back corner of the car.” Id. McCloud jumped out of the car and hit

Gosler “one time, [and] went to hit her again” at which time Stewart “was

standing [outside the front door] with a rifle.” Id. at 181-82. Stewart pointed

the rifle at McCloud’s chest and began shooting. Lennen believed Stewart shot

McCloud nine or ten times. After McCloud fell to the ground, Stewart fired an

additional round. See id. at 130-31, 216. Stewart “leaned over [McCloud] . . .

and said I hope I killed your a**. Somebody call 911.” Id. at 182. Lennen

asked Stewart if “everything is ok” to which Stewart responded, “[H]e came in

my house and hit my girl.” Id. at 185. Stewart then went back into the house

until police arrived.

[4] Police and paramedics arrived on scene. The paramedics immediately began to

render aid to McCloud, who was “unconscious, not breathing, and . . . did not

have a pulse.” Id., Vol. II at 169. Paramedics applied a monitor to assess

McCloud’s heart rhythm, which revealed his heart was no longer beating.

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Paramedics pronounced McCloud dead at the scene. Stewart surrendered and

was arrested by police.

[5] Later, Stewart was interviewed by police2 and stated, “I didn’t do anything

wrong. I was just protecting my family.” Id., Vol. V at 184. He explained that

he was sleeping in the back room when Carr woke him up and told him “this

guy’s in the house, and he’s . . . beating the hell out of her friend[,]” Gosler. Id.

at 189. He got up and witnessed McCloud beating the friend and then “he

turn[ed] around and attack[ed]” Carr, who was holding their baby son. Id. at

189-90. He also stated that when they were all outside, McCloud attacked

Gosler and Carr; he went inside, got his .22 rifle, and went back outside. He

told McCloud to get off his property and described McCloud’s attitude toward

him as “I don’t give a f***, like shoot me” to which Stewart responded, “you

just broke in my house[,] scared the s*** out of my kids. . . . I got babies in

here.” Id. at 202. He claimed McCloud threatened to “spray this

motherf*****” and “that’s when he lunged at me and I fired off a shot[,]” which

hit McCloud in the shoulder. Id. Stewart told police the shot “didn’t really

phase him. . . . And then he . . . kind of like lunged a little bit at me, and I shot

him again . . . . [T]hen he went to like fall back, and then I . . . squeezed off

probably like six (6) times[.]” Id. When police asked whether McCloud had a

gun, Stewart acknowledged that he “didn’t say [McCloud] had a gun.” Id. at

2 Detectives read Stewart his Miranda rights and he agreed to be interviewed.

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211. When asked why he shot McCloud, Stewart responded, “I shot him after

he was already attacking my baby momma and them. He had already seen the

rifle [and] wasn’t worried about it.” Id. at 230. The State subsequently charged

Stewart with murder.

[6] Detective Scott Sanderson of the Anderson Police Department (“APD”)

responded to the scene and noticed a camera on a nearby warehouse he knew

belonged to Ken Kocinski, the owner of KT Pawn.3

At the time, Detective

Sanderson did not know whether the cameras were pointed toward the crime

scene, so he contacted Kocinski, who contacted his out-of-state IT team for

assistance. Kocinski reviewed the footage and discovered that one of the

cameras recorded the shooting. The same day, APD Detective Norman

Rayford went to the warehouse and watched the video which showed the

shooting at 1717 Jefferson Street with Kocinski. Detective Rayford recorded

the footage using his cellphone and subsequently uploaded the cellphone

footage onto APD’s “digital phone dump for evidence.” Id., Vol. III at 33. On

May 17, APD Detective Larry Crenshaw met with Kocinski’s wife at the

warehouse to obtain the security camera footage. Detective Crenshaw watched

her put the footage onto a thumb drive, which she then gave to him and he then

3 Detective Sanderson was familiar with Kocinski from working in the burglary and theft unit.

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uploaded onto APD’s digital phone dump. Detective Crenshaw subsequently

lost track of the thumb drive Kocinski’s wife originally gave him.4



[7] In August 2019, Deputy Prosecutor Dan Kopp gave APD Detective Doug

Stanton a thumb drive of unknown origin and asked him to slow down the

video footage on the drive, which “was twice as fast as real time.” Id. at 180.

Deputy Prosecutor Andrew Hanna was also present when Kopp made this

request. Using software, Detective Stanton successfully slowed the footage to

half speed. A disc containing the original security camera footage was prepared

for admission at trial as State’s Exhibit 36 and a disc with the edited version

was prepared for admission as State’s Exhibit 37.

[8] Before trial, Stewart filed a motion to recuse Deputy Prosecutor Dan Kopp

from the case alleging Kopp was a necessary witness in the chain of custody of

the original and modified versions of the security footage (Exhibits 36 and 37).

See Appellant’s Appendix, Volume III at 136-37. Specifically, Stewart claimed:

3. The security footage came from the [APD] property room.

Whether Mr. Kopp withdrew the evidence from the property

room personally or received it from another individual, he is now

a witness necessary to maintain the chain of custody of the

security footage, as well as to establish the initial chain of

custody of any modified version of the security footage prepared

by Detective Stanton at his request.

4 Later, another officer, Detective Stanton, reviewed the “phone dump” and could not locate this footage.

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4. Allowing Deputy Prosecuting Attorney Kopp to combine

the roles of advocate and witness would pose a substantial risk of

confusing and misleading the jury, as well as enhancing the

importance and credibility of . . . Kopp, (and by inference the

State’s entire case), at the expense of [Stewart]’s right to a fair

and impartial trial.

Id. at 136-37 (citation omitted). The trial court denied the motion.

[9] A jury trial commenced on September 3, 2019. At trial, the State offered

Exhibit 36 during Kocinski’s testimony. Kocinski had testified that he has a

security camera at his business at 19th and Jefferson Streets; he requested

assistance from his IT team to access and view the footage; he reviewed the

video at APD’s request, which showed the shooting that occurred on May 9;

and the exhibit is a true and accurate copy of the security footage from May 9

as it pertains to the shooting at 1717 Jefferson Street. See Tr., Vol. II at 235-36.

The State moved to admit the exhibit and Stewart objected on the basis that the

exhibit had not been properly authenticated pursuant to the silent witness

theory. The trial court sustained the objection because there were “some holes

as to what occurred between the recording . . . and it being viewed” but allowed

the State to present additional foundational evidence. Id. at 242.

[10] Kocinski further testified that the cameras are motion activated, run

continuously, and record onto a hard drive that can store about twenty-three

hours of footage before “it loops” and begins to record over existing footage.

Id. at 247. He also stated that the recording system was working properly on

May 9, he is unable to alter the recordings, and the recording system records the

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time and date but he was unaware as to whether it adjusted for daylight savings

time. Kocinski testified that he watched the security camera footage with

Detective Rayford on May 9, 2017; reviewed Exhibit 36 in August 2019; and

agreed the exhibit is a true and accurate copy of the video he watched with

Detective Rayford and is in the same or substantially the same condition as the

copy he watched with Detective Rayford. The State again moved to admit

Exhibit 36 and the trial court admitted it over Stewart’s objection.

[11] During Detective Stanton’s testimony, the State introduced Exhibit 37 and laid

the foundation for it by eliciting testimony regarding Exhibit 36. Detective

Stanton testified that Exhibit 36 was the original video footage he had been

asked to review in the case. He reviewed the exhibit on August 15, 2019,

initialed the disc indicating that he reviewed it, and agreed it was an accurate

representation of the footage he originally saw. In addition, he viewed both the

cellphone footage taken as Detective Rayford initially watched the security

camera footage and Exhibit 36 and agreed the two were the same video “with

the exception that [the] Detective was not holding his phone and recording it

off the screen” on Exhibit 36. Id., Vol. III at 226. He stated he had been asked

to slow down the footage he was given, which he did using a computer

program. When presented with Exhibit 37, Detective Stanton identified it as

“my half speed video[,]” which he had reviewed earlier that day and initialed.

Id. at 184. He stated that the video is a true and accurate representation of the

original video, and aside from slowing down the video by using a program, he

did not alter, add, or omit anything from the video. In fact, Detective Stanton

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stated he could view the file’s properties, which revealed the file had been

created on May 9, 2017. See id. at 196, 228.

[12] The State then moved to admit Exhibit 37 as a demonstrative exhibit. Stewart

objected based on lack of foundation for Exhibit 36 and therefore, for Exhibit

37. The trial court overruled the objection and admitted the exhibit, stating:

At this point in the evidentiary record, I have two (2) witnesses

that looked at the video footage on [May 9, 2017]. Both have

looked at that video and looked at . . . Exhibit . . . 36 and say[ ]

that they’re the same[.] I have . . . Detective Stanton, also

reviewing Exhibit [36] saying [it] is the same as Exhibit [37] other

than it’s half speed, that there are no other changes that he can

note between Exhibit [36] and [37], which he’s the one that

created. . . . I have witnesses that are saying that the scene is

depicted in Exhibit [36] are the same herein that’s an issue in this

case. I have the owner of the equipment indicating that it was

operating without issue on [May 9, 2017], that he uses it at

multiple locations at his businesses. And so, based on all of that,

I am assured of Exhibit [36’s] competence and authenticity, and

by extension, I’m also assured of the authenticity and

competence of Exhibit [37]. . . . [Exhibit 37] is only

demonstrative, but I am granting it.

Id. at 205-06. During the trial, Stewart filed a Motion for Jury View to allow

the jury to view the scene on Jefferson Street. The trial court granted the

motion and the jury traveled to the scene.

[13] Ultimately, the jury found Stewart guilty as charged and the trial court

sentenced him to fifty-seven years. Stewart now appeals. Additional facts will

be supplied as necessary.

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Discussion and Decision

I. Admission of Evidence

[14] Stewart argues that the trial court erred in admitting Exhibits 36 and 37 because

the State failed to establish a sufficient foundation under the “silent witness”

theory. We conclude the trial court did not abuse its discretion in admitting

these exhibits.

A. Standard of Review

[15] Our standard of review in this area is well-settled. The admission and exclusion

of evidence falls within the sound discretion of the trial court, and we review

the trial court’s decision for an abuse of that discretion. Baker v. State, 997

N.E.2d 67, 70 (Ind. Ct. App. 2013). An abuse of discretion occurs when the

trial court’s decision is clearly against the logic and effect of the facts and

circumstances before it. Morrison v. State, 824 N.E.2d 734, 739 (Ind. Ct. App.

2005), trans. denied. We do not reweigh the evidence and consider only the

evidence most favorable to the trial court’s ruling. Scott v. State, 883 N.E.2d

147, 152 (Ind. Ct. App. 2008).

B. Authentication and the “Silent Witness” Theory

[16] Indiana Evidence Rule 901(a) provides that “[t]o satisfy the requirement of

authenticating or identifying an item of evidence, the proponent must produce

evidence sufficient to support a finding that the item is what the proponent

claims it is.” Videos can be authenticated via witness testimony or, in instances

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in which no witness observed what the video portrays, the silent-witness theory.

McFall v. State, 71 N.E.3d 383, 388 (Ind. Ct. App. 2017).

[17] The “silent witness” theory permits the admission of photographs as substantive

evidence, rather than merely as demonstrative evidence, so long as the

photographic evidence is also relevant. Wise v. State, 26 N.E.3d 137, 141 (Ind.

Ct. App. 2015), trans. denied. This theory has been extended to the use of video

recordings. Id.

[U]nder a silent witness theory, videotapes may be admitted as

substantive evidence, but there must be a strong showing of

authenticity and competency and . . . when automatic cameras

are involved, there should be evidence as to how and when the

camera was loaded, how frequently the camera was activated,

when the photographs were taken, and the processing and

changing of custody of the film after its removal from the camera.

McHenry v. State, 820 N.E.2d 124, 128 (Ind. 2005) (quotations and footnote

omitted). This standard is applicable when “there is no one who can testify as

to [the recording’s] accuracy and authenticity because [it] must ‘speak for itself’

and because such a ‘silent witness’ cannot be cross-examined.” Wise, 26

N.E.3d at 141 (quotation omitted).

For this “silent witness” purpose, “the foundational requirements

. . . are vastly different than the foundational requirements for

demonstrative evidence.” In such cases, “the witness is not

required to testify that the photograph [or recording] is an

accurate representation of the scene as it appeared” – and indeed,

often could not “so testify since he or she was not necessarily

there to observe the scene on that day.” Instead, the witness

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“must give identifying testimony of the scene that appears in the

photographs” sufficient to persuade “the trial court . . . of their

competency and authenticity to a relative certainty.”

Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014) (citations and alterations

omitted), cert. denied, 574 U.S. 1091 (2015). If a foundational requirement is

missing, then the surrounding circumstances can be used. McFall, 71 N.E.3d at

388.

[18] Here, Exhibit 36 was admitted as substantive evidence. We conclude that the

following foundational testimony supports the competency and authenticity of

Exhibit 36 to a relative certainty:

• Kocinski testified that one of his warehouse security cameras, located on

the corner of 19th and Jefferson Streets, recorded the shooting at 1717

Jefferson Street on May 9, 2017, which resulted in McCloud’s murder;

and his out-of-state IT team assisted him in accessing or viewing the

footage.

• Kocinski stated that the cameras are motion activated, run continuously,

and record onto a hard drive that stores up to twenty three hours of

footage; the recording system was working properly on May 9; the

system records the time and date, although he did not know whether the

system adjusted for daylight savings time; and he had the ability to burn

the footage onto a disc but did not have the ability to alter the footage.

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• Kocinski watched the footage with Detective Rayford on May 9, 2017;

he reviewed Exhibit 36 before trial and agreed it was a true and accurate

copy of the video he watched with Detective Rayford.

In sum, Kocinski’s testimony explains when the security camera captures

footage, how much footage it records, the date and time of the recording, and

how he obtained the footage at issue in the case. We conclude this is a strong

showing of authenticity and competency.

[19] Stewart also claims the exhibits lacked foundation due to an inadequate chain

of custody. However, under the “silent witness” theory, “the State is not

required to exclude every reasonable possibility of tampering, but rather must

only provide reasonable assurance that an exhibit has passed through various

hands in an undisturbed condition.” Mays v. State, 907 N.E.2d 128, 132 (Ind.

Ct. App. 2009) (quotation omitted), trans. denied. Although we acknowledge, as

does the State, there was inconsistent testimony as to whether the footage

contained in Exhibit 36 was uploaded to APD’s digital dump drive,

5 multiple

witnesses at trial testified to Exhibit 36’s authenticity – stating they viewed the

exhibit prior to trial and it was a true and accurate copy of the footage they had

previously watched. Kocinski and Detective Rayford watched the footage of

the shooting on May 9, 2017; Detective Crenshaw watched the footage on May

5 As noted above, Detective Rayford took a video of the footage with his cellphone as he watched it with

Kocinski on May 9, 2017, and Detective Crenshaw obtained a thumb drive with the footage from Kocinski’s

wife on May 17. Both detectives claimed to have uploaded the footage they received to APD’s database;

however, Detective Stanton testified that he could not locate the footage Detective Crenshaw uploaded.

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17 and observed Kocinski’s wife put the footage onto a thumb drive; and

Detective Stanton watched the footage in August 2019 when he was asked by

Deputy Prosecutor Kopp to slow down the footage. Each witness also watched

Exhibit 36 prior to trial and testified the footage was the same or substantially

the same as the footage they initially watched which depicted the May 9

shooting. See Tr., Vol. II at 250; id. Vol. III at 3, 29-30, 62-63, 177-78. And we

note that Stewart does not allege that the footage contained in Exhibit 36 does

not show what happened. This is sufficient to establish Exhibit 36’s

authenticity to a relative certainty and therefore, the trial court did not abuse its

discretion in admitting this exhibit.

[20] Exhibit 37 was admitted as demonstrative evidence and therefore, the “silent

witness” theory is inapplicable. See Wise, 26 N.E.3d at 141. Demonstrative

evidence is a “visual aid[ ] that assist[s] in the presentation and interpretation of

testimony[.]” Knapp, 9 N.E.3d at 1282. And an adequate foundation for

demonstrative evidence requires testimony that the video accurately depicts the

scene or occurrence as it appeared at the time in question. Id. Exhibit 37 was

introduced during Detective Stanton’s testimony, who explained that the

exhibit was a slowed down version of Exhibit 36 and it was an accurate

representation of the original aside from slowing down the video via software.

He stated he did not alter, add, or omit anything from the video; it was only

slowed down to half-speed, which was more accurate than the original double

speed video. During Gosler’s testimony, the State moved to publish Exhibit 37

and the trial court granted the request. See Tr., Vol. IV at 135-37. As the video

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played, Gosler testified that the scene depicted Stewart and Carr’s house, her

car, the individuals present, and described the events that occurred. See id. at

138-49. Gosler’s testimony constitutes an adequate foundation for the

admission of Exhibit 37.

[21] In sum, Exhibits 36 and 37 were properly authenticated. Therefore, the trial

court did not abuse its discretion when it admitted these exhibits.

C. Harmless Error

[22] Even if the video footage was admitted improperly, any error would have been

harmless as it was cumulative of other evidence properly admitted. “The

improper admission of evidence is harmless error when the erroneously

admitted evidence is merely cumulative of other evidence before the trier of

fact.” Hunter v. State, 72 N.E.3d 928, 932 (Ind. Ct. App. 2017), trans. denied.

[23] In closing arguments, the defense argued Stewart acted in self-defense in

shooting McCloud, stating that McCloud was “aggressive [and] posed a threat”

and Stewart was protecting himself and his family. Tr., Vol. VI at 192, 194-95.

However, Stewart admitted he shot McCloud multiple times, including after

McCloud fell to the ground, a fact to which multiple witnesses also testified.

He also acknowledged shooting McCloud because McCloud had been in his

house and had allegedly attacked Carr. In light of this evidence, we conclude

that Exhibits 36 and 37, the video footage of what transpired, was merely

cumulative of other evidence properly admitted. Therefore, assuming arguendo

that the exhibits were improperly admitted, any error was harmless.

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II. Motion to Recuse

[24] Stewart also challenges the trial court’s denial of his motion to recuse Deputy

Prosecutor Kopp as prosecuting attorney on the case. Because Kopp delivered

a thumb drive of unknown origin containing what became Exhibit 36 to

Detective Stanton and requested a half speed version, Stewart contends Kopp

“was an essential link in the chain of custody for State’s Exhibits 36 and 37”

and should have been “barred from acting as an advocate for the State.” Brief

of the Appellant at 16. We disagree.

[25] Rule 3.7(a) of Indiana’s Rules of Professional Conduct provides:

A lawyer shall not act as advocate at a trial in which the lawyer is

likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services

rendered in the case; or

(3) disqualification of the lawyer would work substantial

hardship on the client.

[26] A witness is not necessary where the information a party seeks is available from

other sources. Willner v. State, 612 N.E.2d 162, 165 (Ind. Ct. App. 1993), trans.

denied. It is undisputed that Deputy Prosecutor Kopp did not testify at trial.

The fact that Exhibit 36 was admitted under the “silent witness” theory obviates

the need for Kopp’s testimony as to that exhibit. See McFall, 71 N.E.3d at 388.

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And therefore, we cannot conclude he was a necessary witness warranting

recusal from the case based on his involvement with Exhibit 37, which shows

the same thing but at a reduced speed. See Thompson v. State, 671 N.E.2d 1165,

1169 n.3 (Ind. 1996) (rejecting the defendant’s argument that the prosecutor

should have recused, pursuant to Rule 3.7 of Indiana’s Rules of Professional

Conduct, because the prosecutor was not a necessary witness and did not

testify). Exhibit 37 was admitted as demonstrative evidence; therefore, all that

the State was required to show to authenticate Exhibit 37 was that the footage

accurately depicted the scene at the time in question. Knapp, 9 N.E.3d at 1282.

The State did not need to prove chain of custody. And, as the State points out,

Deputy Prosecutor Hanna was also present when Deputy Prosecutor Kopp

approached Detective Stanton about creating Exhibit 37, meaning “at least one

other witness was available who could provide the foundation for the exhibit

other than Kopp.” Brief of Appellee at 32. Therefore, we conclude the trial

court did not err in denying Stewart’s motion to recuse Deputy Prosecutor

Kopp.6

The trial court did not abuse its discretion in admitting Exhibits 36 and 37 or in

denying Stewart’s motion to recuse the lead deputy prosecutor. Therefore, we

affirm.



Affirmed.