NEAL v. STATE (2024)

MEMORANDUM DECISION

Case Summary

[1] Dustin Neal was convicted of two counts of murder and two counts of robbery. He now appeals, arguing the trial court erred in excluding his mother as a defense witness as a sanction for violating the separation-of-witnesses order and the evidence is insufficient to prove that he is the one who robbed and killed the victims. We affirm.

Facts and Procedural History

[2] In June 2017, Noele Trice, Bryan Lash, and their two-year-old son, K., lived in a house on Weisser Park Avenue in Fort Wayne. Noele and Bryan sold marijuana, and Noele was known to keep her money in a small blue pouch attached to a lanyard that she wore. On June 8, Noele's drug supplier gave her two pounds of “[h]igh quality” marijuana worth around $5,000 to sell. Tr. Vol. II p. 195.

[3] The next day, June 9, Noele and Bryan invited some friends and family over to watch Game 4 of the NBA Finals. The party started in the afternoon and didn't end until around 4:00 a.m. the next day, June 10. Around 10-15 people attended throughout the party, including Noele's sister, Audrey Trice, and her boyfriend; Noele's mother, Kimberly Gomez; and Neal, who had known Noele and Audrey since elementary school. While at the party, Neal purchased marijuana from Noele. Noele's mother left the party early and took K. with her to spend the night. Neal left the party around halftime of the game. When the party ended around 4:00 a.m., Noele and Bryan drove Audrey and her boyfriend home.

[4] Later that morning, Audrey and her mother both tried calling Noele and Bryan because they had plans to go to a parade, but neither answered their phones. Shortly before 10:00 a.m., Audrey went to Noele and Bryan's house to check on them. Audrey knocked on the front door, but no one answered. She then went around to the side door, which led to the kitchen. As she approached, she observed that the side door was cracked open and there was blood on the doorknob. Audrey went inside and found Noele and Bryan lying dead on the floor in their bedroom. Noele had been stabbed 40 times, and Bryan had been stabbed 12 times. Blood was everywhere in the room. Audrey called 911 at 9:51 a.m. She also called her mother, who came to the house.

[5] Officers from the Fort Wayne Police Department arrived and started processing the crime scene. Noele's lanyard was found in the backyard, but it was missing the blue money pouch. The police found two 20-gram packages of marijuana in the living room, though they didn't find any other marijuana or money. Noele's cell phone was found lying in a hallway between the bedroom and the kitchen. Neal's palm print was found on the screen of the phone. The police tried to recover other fingerprints from the crime scene, but none of the “lifts [were] successful in identifying a suspect.” Tr. Vol. III p. 40. The police also swabbed several items for DNA, and while “a number of the results” revealed DNA from Noele and Bryan, they “were not useful in identifying a suspect.” Id.

[6] The police interviewed Neal a few days after the homicides, and he said that he left Noele and Bryan's house around halftime of the basketball game, went to his mother's house (who lived nearby) for a little bit, and then went to his friend Heath Wood's house in New Haven, where he spent the night. See Ex. 129. Neal maintained that once he left Noele and Bryan's house, he did not return. When the interviewer asked Neal if his cell-phone records would show that he returned to Noele and Bryan's house after he left, Neal said no.

[7] A year later, in June 2018, the police interviewed Neal again. During that interview, Neal again said he left Noele and Bryan's house around halftime, went to his mother's house for a little bit, and then went to Heath's house, where he spent the night. The interviewer asked Neal if his cell-phone records would show that he was “anywhere close” to Noele and Bryan's house after he left, and Neal said no. Ex. 130.

[8] The case then went cold. In October 2022, the police received a tip from Crime Stoppers. See Tr. Vol. III p. 155. That same month, the police contacted Nicole Robertson, a special agent with the FBI and a member of the Cellular Analysis Survey Team (CAST), to perform a historical cell-site analysis of Neal's phone records. Her analysis revealed that Neal's cell phone was in the area of the homicides between 6:20 a.m. and 7:04 a.m. on June 10.

[9] In December 2022, the State charged Neal with two counts of murder, two counts of felony murder, and two counts of Level 2 felony robbery. A jury trial was held in February 2024. At the start of the trial, defense counsel requested a separation of witnesses, which the trial court granted. Eighteen witnesses testified and over 100 exhibits were admitted into evidence at trial. Noele's mother testified that she saw Neal's mother at Noele and Bryan's house after their bodies were discovered. She thought it was “strange” that Neal's mother knew about the homicides and was there. Tr. Vol. II p. 137. Noele's mother also said that Neal came to the house “later.” Id.

[10] Fingerprint expert Pamela Callahan testified that the palm print on Noele's cell phone matched Neal. Tr. Vol. III pp. 99-100. Detective Alan Garriott, who worked in the crime-scene division, testified that the palm print found on Noele's phone was made by blood transfer. See id. at 38-42, 166.

[11] Special Agent Robertson testified that her analysis revealed that Neal's cell phone was in the area of Heath's house between 3:05 a.m. and 5:12 a.m. on June 10, that his phone was in the area of the homicides between 6:20 a.m. and 7:04 a.m., and that his phone was back in the area of Heath's house at 8:03 a.m. Id. at 192-95. Her analysis also showed that Neal's phone called Brandon Bennett's phone at 8:03 a.m. and 8:04 a.m. Id. at 194.

[12] Brandon, who lived down the street from Heath and was friends with both Heath and Neal, testified that Neal called him around 8:00 a.m. or earlier on June 10 and was “disturbed” because his friends “just got killed.” Tr. Vol. II pp. 203, 214. Brandon said he went to Heath's house and Neal was there with around one to two pounds of marijuana that he was trying to “quickly” sell. Id. at 204.

[13] Heath testified that he got off work at 3:00 a.m. on June 10 and that Neal was at his house when he went to bed around 4:45 a.m. and when he woke up around 8:00-9:00 a.m. Heath acknowledged that he told the police in October 2018 that Neal was “upset about two people he knew being killed at 7:00 or 8:00 in the morning” on June 10. Id. at 246. On cross-examination, Heath testified that on the morning of June 10, Neal had no visible wounds, there was no blood on his clothes, and he was dressed normally. See id. at 248-49.

[14] After the second day of trial, Neal called his mother, Wendy Robinson, from jail and told her how he thought the trial was going. He said there was some “good sh*t” and “bad sh*t” and that he thought his chances were 50-50. Ex. 134. He told his mother that the State would finish its case soon and that she would probably testify for the defense the next day. Neal explained that the key evidence against him was his palm print, which one witness said was made in blood, on Noele's cell phone and the cell-phone analysis, which showed that his phone was in the area of Noele and Bryan's house. He said the police didn't find any of his DNA or other fingerprints at the crime scene and that the photos of the injuries to Noele and Bryan were “gruesome.” Id. Finally, he said he was not going to take the stand and that he was scared.

[15] The next day, after the State rested its case, it told the trial court that Neal had called his mother the night before. The State then summarized the phone call. Defense counsel responded that he had told Neal's mother about the separation-of-witnesses order, as she was a defense witness, and agreed with the State that Neal's phone call to his mother was “clearly” a violation of that order. Tr. Vol. III pp. 206-07. However, defense counsel believed that Neal's mother should still be allowed to testify because her testimony was for “such a limited purpose.” Id. at 206. The State asked the trial court to exclude Neal's mother as a witness as a sanction, and the court agreed. Defense counsel then made the following offer of proof:

[I]f Wendy Robinson would testify, she would testify that on the day of the murder, in the morning, she was at the crime scene, that she saw Dustin there and he had no visible injuries or marks. Nothing else.

Id. at 207.

[16] The jury found Neal guilty as charged. The trial court entered judgment of conviction for two counts of murder and two counts of Level 5 felony robbery and sentenced him to an aggregate term of 142 years.

[17] Neal now appeals.

Discussion and Decision

I. The trial court did not abuse its discretion in excluding Neal's mother as a witness

[18] Neal contends the trial court erred in excluding his mother as a witness as a sanction for violating the separation-of-witnesses order. Indiana Evidence Rule 615 allows litigants to move for separation of witnesses so they cannot hear each other's testimony. Spinks v. State, 122 N.E.3d 950, 955 (Ind. Ct. App. 2019). When a separation-of-witnesses order is violated, trial courts have many tools to address the violation, including exclusion of the witness, and the selection of the appropriate remedy is left to the trial court's discretion. Id. at 955-56; Jiosa v. State, 755 N.E.2d 605, 608 (Ind. 2001). “The trial court may exclude witnesses if the party is at fault or the testimony does not directly affect the party's ability to present its case.” Spinks, 122 N.E.3d at 955 (emphasis added).

[19] The State claims the trial court did not abuse its discretion in excluding Neal's mother as a witness because Neal was at fault and his mother's testimony was not critical to the case. We agree. As defense counsel acknowledged below, Neal's phone call to his mother “clearly” violated the separation-of-witnesses order, as both knew about the order. In addition, defense counsel planned to present Neal's mother's testimony for the “limited” purpose of establishing that Neal had no “visible injuries or marks” when she saw him at the crime scene later in the morning on June 10. In other words, Neal's mother was not going to present eyewitness or alibi testimony, which would have been critical. And her proffered testimony was cumulative of evidence Neal had already put in front of the jury. That is, Heath testified on cross-examination that on the morning of June 10, Neal had no visible wounds, there was no blood on his clothes, and he was dressed normally. See Smiley v. State, 649 N.E.2d 697, 700 (Ind. Ct. App. 1995) (upholding the exclusion of a witness as a sanction for violating a separation-of-witnesses order where the witness's testimony would have been cumulative), trans. denied. The court did not abuse its discretion in excluding Neal's mother as a witness.¹

II. The evidence is sufficient to support Neal's convictions

[20] Neal contends the evidence is insufficient to prove that he is the one who robbed and killed Noele and Bryan. When reviewing sufficiency-of-the-evidence claims, we neither reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). We will only consider the evidence supporting the conviction and any reasonable inferences that can be drawn from the evidence. Id. A conviction will be affirmed if there is substantial evidence of probative value to support each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.

[21] The State acknowledges that the case against Neal was circumstantial. “In a circumstantial case, no single piece of evidence in isolation—no ‘smoking gun’—is offered to persuade the jury to convict.” Young v. State, 198 N.E.3d 1172, 1176 (Ind. 2022). “Yet a jury may be convinced, beyond a reasonable doubt, by looking at a web of facts in which no single strand may be dispositive.” Id. (quotation omitted). “Indeed, the evidence in the aggregate may point to guilt where individual elements of the State's case might not.” Id. (quotation omitted).

[22] The web of facts here was sufficient to convince the jury beyond a reasonable doubt that Neal committed the murders and robberies. First, Neal's palm print was on Noele's phone. Moreover, the palm print was in blood, meaning Neal had “blood on [his] palm, held the phone ․, and transferred the blood onto the phone in the form of the print.” Tr. Vol. III p. 166. Second, Special Agent Robertson's analysis revealed that Neal's phone was in the area of the homicides between 6:20 and 7:04 a.m. on June 10, which was during the window of time that the murders occurred. Neal had twice told police that he did not return to that area until later in the day on June 10. Third, Neal was in possession of a large quantity of marijuana that he was trying to quickly sell in the hours right after the homicides. Notably, Noele had received two pounds of marijuana from her supplier on June 8, and only a small amount was found in her house. Fourth, according to Brandon and Heath, Neal knew about the homicides around 8:00 a.m. or earlier on June 10, which was before Audrey discovered the bodies and called 911 at 9:51 a.m.

[23] Neal doesn't dispute this evidence. He makes other arguments, such as his DNA was not found at the crime scene; only his palm print and not any other fingerprints were found at the crime scene; his mother lived near the crime scene; the murder weapon and Noele's blue pouch were never found; and the police didn't fully investigate other suspects. These arguments, however, are merely requests for us to reweigh the evidence. The evidence is sufficient to support Neal's convictions.

[24] Affirmed.

FOOTNOTES

1.   To the extent Neal argues that the exclusion of his mother as a witness violated his federal and state constitutional rights, that claim is waived for failure to make a cogent argument. See Ind. Appellate Rule 46(A)(8)(a).

Vaidik, Judge.

Altice, C.J., and Crone, J., concur.