Danny Cherry v. State of Indiana
2016 Ind. App. LEXIS 265
| Ind. Ct. App. | 2016Background
- Victims in the Indianapolis Chin/Burmese community received threatening Facebook messages, pornographic images, and doxxing-type information; two shootings occurred (one victim severely injured) and a school received threatening calls that prompted lockdown.
- Investigators traced Facebook activity and IP/MEID data to a Samsung Illusion phone and an IP address located at an apartment in Huntsville, Alabama; detectives traveled to Alabama and interviewed Danny Cherry at the Madison County Sheriff’s Office.
- A portion (initial ~15–25 minutes) of Cherry’s custodial interview was not on the recorded DVD; detectives explained a toggle switch and possible malfunction; a later portion of the interview was recorded and introduced at trial, in which Cherry admitted involvement and referenced a ".25" gun and movements between Alabama and Indiana.
- Cherry moved to suppress his statements alleging physical and psychological coercion and complained about the unrecorded portion; the trial court reviewed video excerpts, denied suppression, and admitted the recorded interview under Indiana Evidence Rule 617(a)(3).
- The State also introduced records and returns from Facebook and cellular providers (MEID, IP address, rental car and hotel records) tying the phone/IP to Cherry and corroborating travel during the offense dates.
- Cherry was convicted on multiple counts including attempted murder, unlawful possession of a firearm by a serious violent felon (after stipulation), child exploitation, stalking, intimidation, and dissemination of matter harmful to a minor; aggregate sentence 80 years. The Court of Appeals affirmed.
Issues
| Issue | State's Argument | Cherry's Argument | Held |
|---|---|---|---|
| Admissibility of recorded police interview when initial portion was unrecorded under Ind. Evidence Rule 617 | The Rule 617(a)(3) exception applies: officers in good faith followed local procedures, the missing portion resulted from inadvertent failure/malfunction, and substantial recorded admissions remained | Admission violated Rule 617 because the waiver-signing and early custodial segment were not recorded and the State failed to show by clear and convincing evidence why the recording was incomplete; admission was thus prejudicial | Court held Rule 617(a)(3) applied (good-faith malfunction/inadvertent failure shown); trial court did not abuse discretion admitting recorded portions |
| Admissibility/authenticity of Internet/cellular provider documents and sufficiency of evidence tying Cherry to crimes | Provider records (MEID, IP, Facebook returns), hotel and rental-car records, voice comparison, and Cherry’s own recorded admissions supplied sufficient authentication and proof; identity may be shown by circumstantial evidence | Documents were unauthenticated under Evid. R. 901; absence of physical forensic evidence at scenes made conviction rely improperly on statements and provider records | Court found Cherry waived specific authentication challenge (failure to cite record) and held the combined evidence (records + admissions + travel corroboration) sufficient for conviction |
Key Cases Cited
- Roche v. State, 690 N.E.2d 1115 (Ind. 1997) (trial court evidentiary rulings reviewed for abuse of discretion)
- Joyner v. State, 678 N.E.2d 386 (Ind. 1997) (standard for reversing evidentiary rulings)
- Fox v. State, 717 N.E.2d 957 (Ind. Ct. App. 1999) (harmless error doctrine for evidentiary rulings)
- Jordan v. State, 656 N.E.2d 816 (Ind. 1995) (sufficiency review — do not reweigh evidence)
- Bustamante v. State, 557 N.E.2d 1313 (Ind. 1990) (identity may be proven by circumstantial evidence)
- Heeter v. State, 661 N.E.2d 612 (Ind. Ct. App. 1996) (identification testimony need not be unequivocal to sustain conviction)