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ATTORNEY FOR APPELLANT John F. Crawford Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

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Indiana Supreme Court
_________________________________ No. 29S00-0911-CR-531 ANTHONY D. DELAROSA,

In the

FILED
Dec 21 2010, 10:38 am
of the supreme court, court of appeals and tax court

CLERK

Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the Hamilton Superior Court, No. 29D01-0704-MR-52 The Honorable Steven R. Nation, Judge _________________________________ On Direct Appeal _________________________________ December 21, 2010 David, Justice. In this direct appeal, Anthony Delarosa seeks reversal of his convictions for two counts of murder and one count of conspiracy to commit murder, for which he received two sentences of life imprisonment without parole and one sentence of fifty years. Delarosa argues that the trial court`s admission of alleged hearsay statements and the prosecutor`s closing arguments independently constituted fundamental error, and that the evidence at trial was insufficient to sustain his convictions. We affirm the trial court.

Facts and Procedural History The bodies of Rebecca Payne and her boyfriend, George Benner, were discovered in her bedroom at her house in Home Place, Indiana, around noon of April 5, 2007. Police investigation quickly focused on Toby Payne, Rebecca`s estranged husband against whom she had obtained a protective order a month earlier. Rebecca, who was in the final stages of divorcing Payne, had been living apart from him with their six-year-old son. Phone records led the police to arrest Juan Lucio, Kyle Duckworth, and Anthony Delarosa within two weeks of the murders. Lucio and Duckworth lived in Frankfort, and Delarosa lived in Zionsville. A search of Delarosa`s bedroom uncovered dark-colored clothing, dark gloves, a letter purportedly from Payne,1 a rag that smelled of a solvent often used to clean guns, and two keys. A search of Lucio`s person and vehicle uncovered two keys. All four keys locked and unlocked Rebecca`s front door. Delarosa was charged with two counts of murder and one count of conspiracy to commit murder, all Class A felonies. The State requested life sentences without parole for the two murder charges. Duckworth testified at Delarosa`s trial pursuant to a plea agreement.2 Tara Cassada, Lucio`s girlfriend, and Erica Tamayo, Duckworth`s girlfriend, also testified. Lucio, Duckworth, Cassada, and Tamayo socialized together frequently, and the two boyfriends often confided in their girlfriends. Cassada was granted use immunity to testify.3 Cassada testified that sometimes in the fall of 2006, Payne began making plans with Lucio to kill Rebecca to get full custody of their son, and he gave Lucio a key and a map to Rebecca`s house. Lucio originally planned to do the shooting himself, but hired Delarosa

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At trial, the handwriting expert opined that it was highly probable that Payne had written the letter found in Delarosa`s bedroom. In the letter, Payne said he had been trying to get in contact with Delarosa, asked him to look him up, because they need[ed] to talk. Lucio and Lucio`s cell ph one number were written on the letter in a different handwriting and color ink. 2 Duckworth pleaded guilty to assisting a criminal and received a four year sentence for his role in the murders. This sentence was to be served concurrently with another sentence for assisting a criminal arising from his role in an unrelated crime. The investigating officer testified at trial that when she approached Duckworth about a plea, the information she had did not indicate his involvement in the conspiracy, but only that he knew about the murders after they happened. 3 Cassada agreed to testify to avoid any charges that may have arisen out of her knowledge of and minimal involvement in the conspiracy.

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because he would go in and be out quick. Lucio and Delarosa would then split Rebecca`s $100,000 life insurance policy. Duckworth testified that in late March or early April of 2007, Lucio asked him to help with the shooting. They were not to harm Payne`s son, but would kill George if he was there. Duckworth would be the driver, and he would receive $200 or a quarter pound of weed for his involvement. On the evening of April 2, 2007, Duckworth picked up Lucio and Delarosa, and the trio drove to a parking lot behind Rebecca`s house. Lucio gave a gun to Delarosa and instructed him where to go. Delarosa left the car, returned about 20 minutes later, said nobody was home, and gave the gun back to Lucio. Two days later, on April 4, the trio tried again. Duckworth picked up Lucio from his home in Frankfort and Delarosa from his home in Zionville.4 Duckworth drove to the same parking lot, and Lucio again gave the gun to Delarosa, who left the car around 9:00PM. Duckworth moved his car to a different spot, prompting a cell phone call from Delarosa about 20 minutes later asking where they were. When Delarosa returned to the car, he said, they`re done, and recounted how he walked in on George performing oral sex on Rebecca in her bedroom. Delarosa said he emptied his clip, shot them both, and left her body on the bed and his body on the floor. Cassada and Tamayo both testified as to what their respective boyfriends said Delarosa said that evening. On the way home, at 9:41PM, Duckworth was pulled over because his license plate light was out. The officer knew and recognized Delarosa, who was sitting in the back seat of the car, and testified that Delarosa was wearing dark-colored clothing. Forensics experts confirmed that Rebecca died from a gunshot wound to the head and that George died from a gunshot wound to the chest. They opined that the smearing and pooling of blood on the bed and on the floor, as well as the characteristics of the entry and exit wounds, were consistent with George performing oral sex on Rebecca when they were shot.

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At trial, Duckworth misidentified Delarosa as living in Whitestown. The police recovered Rebecca`s keys at Delarosa`s residence in Zionsville. On the night of the shooting, Lucio placed a call to Payne`s cell phone and a call to Delarosa`s cell phone while hitting on a tower in Brownsburg located less than two miles away from Delarosa`s residence, from 8:52 to 8:53PM. While receiving Lucio`s call, Delarosa`s cell phone hit on the same tower.

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Phone records confirmed a large amount of communication between Payne, Lucio, Duckworth, and Delarosa leading up to and following the murder, and allowed the officers to track the movements of the cell phones. The three days before the protective order was served on Payne, February 26

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