Matthew R. Effner
Daniel L. Weber
Terre Haute, IN
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Andrew L. Hedges
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
This Court has jurisdiction over this direct appeal because the longest single sentence
exceeds 50 years. Ind. Const. art. 7,
' 4; Ind. Appellate Rule
Shortly after 5:00 a.m., while driving on Sanford Road just east of State
Road 63, Mark Barrett observed Horton
=s car parked in the middle of the
road. Concerned that he would be unable to bypass the car without
hitting it, Barrett slowed down briefly and then stopped his car. He
observed Defendant bent over along the side of the road as if he
were searching for an item. Defendant approached Barrett=s vehicle, then turned and
walked away. At this time, Defendant was wearing a black jacket.
Later that morning, Chris Newhart saw Defendant trying to hitchhike a few hundred
feet north of Sanford Road. Now Defendant was not wearing a shirt
or jacket despite the cold weather.
Around 6:00 a.m., at the intersection of State Road 63 and Sanford Road,
Defendant approached Stephen Gariepy
=s truck as Gariepy stopped at a stop sign.
Defendant solicited Gariepy=s help, telling him that he and a friend had been
attacked, that he believed his attackers killed his friend, and that he needed
a ride into Terre Haute to notify police. Because Defendant was shirtless,
Gariepy gave him a plaid shirt to wear. At approximately 6:15 a.m.,
Defendant exited Gariepy=s truck at a railroad crossing in Terre Haute within the
proximity of McCullough=s residence. Defendant and Gariepy parted without ever having notified
the police of the alleged attack.
At 6:50 a.m., while asleep at her residence, McCullough was awakened by a
Anervous and scared@ Defendant. Defendant, who had been wearing black sweatpants and
a black Adidas jacket that morning, was now wearing black sweatpants and a
plaid shirt. He had mud all over his sweatpants and red stains
on his thermal boxer shorts. As Defendant requested, McCullough gave him a
shirt to wear. As he changed clothes, she saw him remove a
bundle of money from his sweatpants. Before leaving, Defendant told McCullough that
he had done something wrong, that he was in trouble, and to tell
people that he never owned a black Adidas jacket.
At 9:30 a.m., Vigo County Police Officer Steve Barnhart discovered Horton =s abandoned car on Sanford Road just east of State Road 63. Officer Barnhart observed blood in the car and on the road outside of the car. Looking in the nearby wooded area, Officer Barnhart found Horton=s body. Horton had been stabbed twenty-eight times with an ice-pick. Horton received a final stab wound through his right eye that entered his brain. Officer Barnhart discovered the body with the ice-pick still in Horton=s eye.
Three days after discovering Horton
=s body, police found Defendant=s Adidas jacket near the
intersection of Sanford Road and State Road 63. After obtaining a search
warrant for Defendant=s apartment, officials uncovered a pair of black sweatpants and thermal
boxer shorts in the kitchen trash container.
The State charged Defendant with Murder.
The jury found Defendant guilty as
charged. The trial court sentenced Defendant to 65 years of incarceration.
Additional facts will be provided as necessary.
We evaluate Sixth Amendment claims of ineffective assistance of counsel by applying the
two-part test established in
Strickland v. Washington, 466 U.S. 668 (1984). See,
e.g., Canaan v. State, 683 N.E.2d 227, 229 (Ind. 1997), cert. denied, 524
U.S. 906 (1998); Lowery v. State, 640 N.E.2d 1031, 1041 (1994), cert. denied,
516 U.S. 992 (1995). To prevail on an ineffective assistance of counsel
claim, a defendant must demonstrate that counsel=s performance fell below an objective standard
of reasonableness. See id. The defendant must also show adverse prejudice
as a result of the deficient performance. See Brown v. State, 698
N.E.2d 1132, 1139-40 (Ind. 1998), cert. denied, 119 S. Ct. 1367 (1999).
When an ineffective assistance of counsel claim is based on a failure to
object to the admission of evidence, the defendant must first demonstrate that the
objection would have been sustained had defense counsel objected at trial. See
Lowery v. State, 640 N.E.2d at 1042.
Here, we do not find that an objection to the DNA expert
would have been sustained, nor has Defendant made such a showing. Defendant
merely asserts that the trial court should have excluded the DNA expert=s testimony
due to the untimely submission of the DNA detailed report.
In ruling the evidence admissible, the trial court relied on our holding in Woodcox v. State, 591 N.E.2d 1019 (Ind. 1992), overruled on other grounds, Richardson v. State, 717 N.E.2d 32 (Ind. 1999). In Woodcox, we held that permitting the DNA expert to testify was not an abuse of discretion. While the DNA report was not available until the day of trial, the defendant had been notified sixteen days prior to trial of the identity of the expert who would testify. Id. at 1026. We concluded that the defendant had had ample time to interview or depose the expert but had made no attempt to do so. Id. Nor had the defendant sought a continuance to take additional measures to prepare to meet the DNA evidence presented by state. Id. As the trial court here pointed out, defense counsel in Woodcox had less time to prepare than Defendant did in this case. See footnote
Considering the adequate amount of preparation available to Defendant, and applying
our holding in Woodcox, we do not find that the trial court would
have sustained defense counsel=s objection had he objected to the DNA expert=s testimony
at trial. Because Defendant failed to establish that his objection would have
been sustained, his ineffective assistance of counsel claim fails.
FBI agent Melissa Smrz, a forensic DNA and serology examiner, testified as to
the standard protocol employed in the receipt of evidence within the FBI laboratory.
eceiving an evidence package in the FBI control room, a clerk
opens and retrieves corresponding paperwork and delivers the evidence package to the assigned
analysis unit. Should the evidence package arrive damaged or otherwise compromised, the
clerk would so note; protocol does not require a similar notation for an
undamaged package. Smrz further testified that Allen Justice received the evidence package
into Smrz=s unit and refrigerated it. Later in the day, Smrz removed
the evidence package from the refrigerator and inventoried its contents. All items
of evidence remained separately marked and sealed in containers with no apparent indication
We find that the State established a continuous chain of custody for the
serological evidence within the FBI laboratory without requiring additional testimony from the receiving
clerk. Smrz sufficiently established the protocol employed by the control room in
receiving evidence packages. We have held that [t]here is a presumption of
regularity in the handling of exhibits by public officers, and a presumption that
public officers discharge their duties with due care.
Kennedy, 578 N.E.2d at
639 (holding that although the defendant challenged the exchange of evidence within the
FBI laboratory, the FBI=s customary procedures of handling exhibits sufficiently established a proper
chain of custody); Cliver, 666 N.E.2d at 63. Further, Smrz testified that
the samples were contained in a marked and sealed box that was in
tact at the time she examined and tested the evidence. Such a
Amarked-sealed procedure@ employed by FBI officials demonstrates sufficient precaution against tampering. See
Hughett v. State, 557 N.E.2d 1015, 1019 (Ind. 1990) (citing Schlabach v. State,
459 N.E.2d 740 (Ind. Ct. App. 1984)).
We are satisfied that the State provided reasonable assurances that the exhibit moved
through the hands of the FBI officials in an undisturbed condition.
However, the record does not support Defendant
=s claim that the State failed to
establish a continuous chain of custody for the victim=s blood sample. Detective
Steven Lewis testified that he was present when the blood was drawn from
the victim during the autopsy. Detective Lewis then secured the blood samples
and transported them to City Hall where he refrigerated them. He further
testified that the evidence remained in his possession unaltered until he mailed the
sample to the FBI. Detective Lewis= testimony strongly suggests the whereabouts of
the serological evidence at all times. The record adequately establishes the chain
of custody with respect to this claim. There was no error, fundamental
or otherwise. Similarly, Defendant=s ineffective assistance of counsel claim fails.
Although Detective Lewis testified that he was present for the withdrawal of the
ctim=s blood, no such testimony was elicited to support a similar chain of
custody for Defendant=s blood samples. The record only supports the transfer of
Defendant=s blood samples from Sheriff Gossett to Detective Lewis. The record is
silent as to the presence of an official at the time Defendant=s blood
We have previously held that it is incumbent upon the State to present
evidence of the physician, nurse or someone in authority who was present at
the taking of the blood esta
blishing a chain of custody of the specimen
to the laboratory where the testing is conducted. See Baker v. State,
449 N.E.2d 1085, 1087 (Ind. 1983) (citing Rinard v State, 265 Ind. 56,
351 N.E.2d 20 (1976)). Accord Robinett, 563 N.E.2d at 100. Such
a stringent chain of custody for serological evidence allows a trial court to
conclude that the specimen tested was indeed taken from the defendant. See
Baker, 449 N.E.2d at 1087. Because the State failed to present evidence
establishing that this indeed was the blood drawn from Defendant, we find that
had Defendant objected to the admission of this evidence, the objection would have
been sustained. Accord id. at 1085 (holding that the trial court erroneously
admitted serological evidence where the State attempted to establish its authenticity through hospital
records instead of with the testimony of a person in authority present at
the taking of the serological evidence); cf. Wrinkles, 690 N.E.2d at 1161 (holding
that no break in the chain of custody of serological evidence occurred where
an officer testified as to his presence during acquisition of serological evidence as
well as its location thereafter); Robinett, 563 N.E.2d at 100 (ruling that no
gaps in the chain of custody of serological evidence occurred where an officer
was present when the blood was drawn and he testified as to its
However, we do not find that the admission of this evidence rises to
the level nece
ssary to satisfy the prejudice prong of Strickland.
this test, the defendant must show that the deficient performance was so prejudicial
as to deny defendant a fair trial. See Brown, 698 N.E.2d at
1139-40. A defendant is denied a fair trial only when a conviction
occurs as the result of a breakdown in the adversarial process rendering the
trial result unreliable. See Cooper v. State, 687 N.E.2d 350, 353 (Ind.
1997); Marshall v. State, 621 N.E.2d 308, 321 (Ind. 1993).
The jury had overwhelming evidence to convict Defendant without the challenged s
Testimony of four separate witnesses placed Defendant at the crime scene. One
of these witnesses, Stephen Gariepy gave a bare-chested Defendant a plaid shirt and
drove Defendant from the scene of the crime to Terre Haute. Defendant
told him that he and a Afriend@ had been attacked by hitchhikers and
he believed Athey@ killed his friend, so he needed a ride to the
police station. However, once in the car, Defendant=s pursuit of the nearest
police station ceased. Gariepy had ample opportunity to observe and later positively
After Gariepy left Defendant at a railroad crossing, Defendant apparently walked to his
=s home where he arrived Anervous and scared.@ (R. at 695.)
There he told his girlfriend that he had Adone something bad@ and for
her to forget that he ever owned a black Adidas jacket. (R.
at 696-97.) She also took notice of the large sum of
money Defendant removed from his sweatpants.
Additionally, she observed that Defendant=s sweatpants
were covered with mud and that his thermal boxer shorts had red stains.
These items of clothing were later located in Defendant=s trash can at
his apartment while the Adidas jacket was found near the crime scene.
The DNA expert testified that the red stains on Defendant=s clothing matched the
victim=s blood. In fact, the DNA expert testified that the probability that
the victim was the contributor of this DNA to the exclusion of all
others was approximately 37 million to one.
Finally, the ice pick removed from the victim
=s right eye was identified as
one belonging to Defendant. Two other witnesses testified that on several occasions
Defendant told them that should he get into another fight, he would use
an ice pick as his weapon of choice making sure to stab his
opponent in the eye.
Considering the overwhelming evidence of Defendant
=s guilt, independent of his blood samples, the
harm or potential for harm was not so prejudicial as to deny Defendant
a fair trial. Accordingly, Defendant=s ineffective assistance of counsel claim fails.
Establishing a claim of fundamental error requires a showing of at least as
much prejudice to the defendant as a claim of ineffective assistance of counsel.
As such, a finding that Defendant was not denied the effective assistance
of counsel also establishes that the a
lleged error was not so prejudicial as
to constitute fundamental error.
That is the case here.
When a defendant requests a lesser-included offense instruction, a trial court applies a
three-part analysis: (1) determine whether the lesser-included offense is inherently included in the
crime charged; if not, (2) determine whether the lesser-included offense is factually included
in the crime charged; and, if either, (3) determine whether a serious evidentiary
spute exists whereby the jury could conclude that the lesser offense was committed
but not the greater. See Wright v. State, 658 N.E.2d 563, 566-67
(Ind. 1995). If the final step is reached and answered affirmatively, then
the requested instruction for a lesser-included offense should be given. See id.
Voluntary manslaughter is simply murder mitigated by evidence of Asudden heat.@
See Griffin v. State, 644 N.E.2d 561, 562 (Ind. 1994). Because voluntary
manslaughter is inherently included in a murder charge, we turn to step three
of the Wright analysis to determine whether Defendant=s instruction should have been given
B that is, whether there was a serious evidentiary dispute as to the
existence of the mitigating factor of sudden heat. See Horan v. State,
682 N.E.2d 502, 507 (Ind. 1997) (ruling that voluntary manslaughter is a lesser-included
offense of murder), rehg denied. Accord Earl v. State, 715 N.E.2d 1265,
1267 (Ind. 1999).
To establish that a defendant acted in sudden heat, the defendant must show
icient provocation to engender . . . passion. Johnson v. State, 518
N.E.2d 1073, 1077 (Ind. 1988). Sufficient provocation is demonstrated by emotions such
as anger, rage, sudden resentment, or terror that is sufficient to obscure the
reason of an ordinary person, prevent deliberation and premeditation, and render the defendant
incapable of cool reflection. Horan, 682 N.E.2d at 507 (internal quotations and
citations omitted); Stevens v. State, 691 N.E.2d 412, 426 (Ind. 1997), cert. denied,
525 U.S. 1021 (1998); Wilson v. State, 697 N.E.2d 466, 474 (Ind. 1998),
rehg denied. Because the trial court made an explicit finding as to
the absence of sudden heat,
we review its refusal of the tendered voluntary
manslaughter instructions for an abuse of discretion. See Brown v. State, 703
N.E.2d 1010, 1019 (Ind. 1998); Charlton v. State, 702 N.E.2d 1045, 1048 (Ind.
1998), rehg denied; Champlain v. State, 681 N.E.2d 696, 700 (Ind. 1997).
We affirm the trial court
=s ruling. Defendant points to evidence that he
was angry with his girlfriend and her brother. We have consistently held
that simply establishing that the defendant was angry does not, standing alone, show
sudden heat; there must be evidence that someone provoked the defendant. See
Wilson, 697 N.E.2d at 473; Champlain, 681 N.E.2d at 702 (citing Matheney v.
State, 583 N.E.2d 1202, 1205 (Ind.), cert. denied, 504 U.S. 962 (1992)).
Defendant presented no evidence that he was angry with the victim nor did
he present evidence that he was in some way provoked by the victim.
The evidence Defendant singled out only described his state of mind and
not provocation. See Barker v. State, 695 N.E.2d 925, 933 (Ind. 1998)
(holding that the evidence that the defendant slept very little in the days
prior to the murders and was on Aspeed@ immediately before the murders described
defendant=s state of mind and not provocation), rehg denied.
Given the lack of evidence suggesting that Defendant acted in sudden heat, the
trial court did not abuse its discretion by denying Defendant
=s tendered voluntary manslaughter
In general, the legislature has prescribed standard sentences for each crime, allowing the
sentencing court limited discretion to enhance each sentence to reflect aggravating ci
reduce the sentence to reflect mitigating circumstances. When the trial court imposes
a sentence other than the presumptive sentence, this Court will examine the record
to insure that the court explained its reasons for selecting the sentence it
imposed. See Archer v. State, 689 N.E.2d 678, 683 (Ind. 1997) (citing
Hammons v. State, 493 N.E.2d 1250, 1254 (Ind. 1986), rehg denied.), rehg denied.
The trial court=s statement of reasons must include the following components:
(1) identification of all significant aggravating and mitigating circumstances; (2)
the specific facts and reasons that lead the court to find the existence
of each such circumstance; and (3) an articulation demonstrating that the mitigating and
aggravating circumstances have been evaluated and balanced in determining the sentence. See
Mitchem v. State, 685 N.E.2d 671, 678 (Ind. 1997) (citing Jones v. State,
675 N.E.2d 1084, 1086 (Ind. 1996)).
With respect to aggravating circumstances, the trial court explicitly identified Defendant=s criminal history and his need for correctional treatment that could best be provided by his commitment to a penal facility as aggravating circumstances. See footnote Although not explicitly identified as an aggravating circumstance in the sentencing statement, the trial court also emphasized the particularly disturbing facts concerning the nature of the crime: Not only did you stab this man twenty-eight times, but according to your own theory, you made sure he died by stabbing him in the eye. I can=t imagine a more intentional murder, or a more brutal. (R. at 1352-53.) This demonstrates that the trial court also relied on the nature and circumstances of the crime as an aggravating circumstance to justify the enhanced sentence. See Ind. Code ' 35-38-1-7.1(a)(2) (Supp. 1996) (The nature and circumstances of a crime shall be considered in determining what sentence to impose.); see also Miller v. State, 720 N.E.2d 696, 706 (Ind. 1999) (holding that the nature and circumstances of crime are used to justify enhanced sentence even though they are not neatly packaged in the sentencing statement); Taylor v. State, 695 N.E.2d 117, 120 (Ind. 1998) (recognizing that a court considers the nature and circumstances of a crime to determine what sentence to impose); Scheckel v. State, 620 N.E.2d 681, 684 (Ind. 1993) (considering particular heinous nature and circumstances of the crime as aggravating circumstances). The trial court identified no mitigating circumstances. Although we find that the trial court=s application of one aggravating factor was improper, the remaining aggravating circumstances serve to justify an enhanced sentence.
The trial court did improperly invoke the correctional and rehabilitative treatment a
See Ind. Code ' 35-38-1-7.1(b)(3) (Supp.1996). We have consistently held that
for this aggravating circumstance to justify in part an enhanced sentence, it must
be understood to mean that the defendant is in need of correctional and
rehabilitative treatment that can best be provided by a period of incarceration in
a penal facility in excess of the presumptive sentence term. Mayberry v.
State, 670 N.E.2d 1262, 1271 (Ind. 1996), rehg denied; Taylor, 695 N.E.2d at
122. Here, however, the trial court did not articulate how such rehabilitation
could be achieved through imposition of an enhanced sentence rather than the presumptive
sentence. As such, we conclude that the trial court improperly applied this
This discrepancy notwithstanding, the propriety of Defendant
=s sentence remains intact. Defendant incorrectly
states that a trial court cannot rely solely on a defendant=s criminal history
when determining what sentence to impose. We have consistently held that a
defendant=s history of criminal activity is sufficient to support an enhanced sentence.
See Ind. Code ' 35-38-1-7.1(b)(2) (Supp. 1996) (A person=s criminal history may be
used to support the finding of an aggravating circumstance to enhance a sentence.);
Porter v. State, 715 N.E.2d 868, 872 (Ind. 1999); Ellis v.State, 707 N.E.2d
797, 804 (Ind. 1999). Additionally, we find that the court considered the
nature and circumstances of the crime as an aggravating circumstance to justify the
imposition of an enhanced sentence.
The trial court sufficiently demonstrated that it had engaged in an evaluative process
of the sort necessary for meaningful appellate review. Accordingly, we affirm the
=s imposition of the enhanced sentence.