ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony V. Luber Jeffrey A. Modisett
South Bend, Indiana Attorney General of Indiana
Preston W. Black
Deputy Attorney General
SUPREME COURT OF INDIANA
TRACEY A. YOUNG, ) ) Appellant (Defendant Below ), ) ) v. ) Cause No. 71S00-9702-CR-158 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )The Honorable Sanford M. Brook, Judge Cause No. 71D08-9510-CF-499
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
SHEPARD, Chief Justice.
A jury found appellant Tracey A. Young guilty of burglary, a class B felony;See footnote 1 two counts of attempted murder, class A felonies;See footnote 2
and murder, a felony.See footnote
The jury also found him to be a habitual
The trial court imposed a sentence of one hundred
On direct appeal, Young now raises four issues:
I. Whether a 911 emergency call was authenticated;
II. Whether the court erred by allowing a child victim to show her wounds on the witness stand and by admitting a photograph of that child at the crime scene;
III. Whether several of the jury instructions were
IV. Whether the sentenced was manifestly unreasonable.
The dispatcher then dialed Garner's residence and reached the answering machine. He stated that an officer would be sent if the
phone was not answered, and a female voice answered the phone. The
woman frantically screamed something about her children and the
name "Tracey." The dispatcher also heard a man's voice in the
background and the sound of breaking glass.
Minutes later, South Bend Police Officer Scott Ross arrived at
1610 Dunham Street. Upon noticing the front door open and its
glass shattered, he entered the house and found Allison Rochelle
Garner and her children, Kenneth Garron and Allison Latifah Garner,
lying on the living room floor covered in blood. Kenneth was
crying for help and Allison Latifah was kneeling by her
unresponsive mother. Kenneth said that a man named "Tracy" shot
all three of them.See footnote
Although the two children survived their
wounds, their mother died from a gunshot wound to the abdomen.
Officer Charles Eakins, an evidence technician, arrived at
approximately 11:30 p.m. He recovered fingerprints from the broken
glass of the front door and from a book shelf in the living room.
These fingerprints belonged to Tracey Young. Officer Eakins also
found four casings and two bullets that were fired from the same
Young claims that the trial court erred in admitting the
recorded 911 call between an emergency dispatcher and Allison
Garner. He says the call was not properly authenticated under
Indiana Rule of Evidence 901. We disagree.
Generally, the identities of both parties must be
authenticated before admitting a telephone call. King v. State,
560 N.E.2d 491, 494 (Ind. 1990). A caller's identity can be
established by circumstantial evidence, and need not be proven
beyond a reasonable doubt. Lock v. State, 567 N.E.2d 1155, 1158
(Ind. 1991) (citing Reed v. State, 491 N.E.2d 182, 186 (Ind.
1986)), cert. denied, 503 U.S. 991 (1991);
Ashley v. State, 493
N.E.2d 768, 774 (Ind. 1986).
A telephone call to a 911 system may not always require such
authentication where the point of submitting it as evidence is not
really to establish the identification of the caller. Here, the
point was largely to demonstrate where the call originated and how
the police discovered the crime scene. The foundation here was
adequate for that purpose.
In this case, the identity of Allison Garner as the caller can be established by several circumstances surrounding the call. The dispatcher testified that he received a non-responsive call on
October 23, 1995. His caller identification equipment listed
Allison Garner's name, phone number, and address. He then dialed
that number and a woman answered the phone. The voice frantically
screamed something about her children and the name "Tracey." He
also heard a man's voice and breaking glass. When police arrived
moments later, they found three victims and broken glass on the
One of these victims was indeed Allison Garner.
Considering this evidence, the state sufficiently authenticated the
fact that Allison Garner was the woman who answered the phone.
Young also objects to the display of Allison Latifah's wounds
on the witness stand and admittance of a photograph showing that
child at the crime scene. He contends this evidence was cumulative
and prejudicial, and thus should not have been admitted.
Appellant cites Stone v. State, 536 N.E.2d 534 (Ind. Ct. App.
1989) for the proposition that evidence should be excluded if it
induces jurors to decide cases on an improper basis, usually an
emotional one. Id. at 539 (citing Cook v. Hoppin, 783 F.2d 684,
689 (7th Cir. 1986)).
We agree that courts must be cautious of inflammatory and cumulative evidence that impermissibly sways the jury. In this
case, however, after careful consideration, the trial judge
approved the display and cited
Wolfe v. State, 562 N.E.2d 414 (Ind.
1990) for the proposition that young children could be used to
illustrate testimony concerning their injuries, if their age
prevents them from testifying. Id. at 420-21.
photograph of the child adds to the cumulative effect, we are not
persuaded that it was so prejudicial as to improperly influence the
We find no reversible error.
Young contests several jury instructions given by the trial
Jury instructions are solely within the discretion of the
trial court; we will reverse only if the court abuses that
discretion. Tanner v. State, 471 N.E.2d 665, 667 (Ind. 1984). Such
abuse, however, does not occur if the instructions, considered as
a whole and in reference to each other, do not mislead the jury as
to the applicable law. Daniels v. State, 582 N.E.2d 364, 373 (Ind.
Young claims the court erred by giving its Preliminary Instruction No. 6 on reasonable doubt, rather than using the instruction he tendered. He alleges that the court's instruction
was argumentative and confusing by using the words "imagination or
speculation" in the first paragraph and "absolute certainty" in the
second paragraph. Further, he argues the instruction did not
establish the requisite level of certainty needed for reasonable doubt.
The actual instruction given by the court read :
The State has the burden of proving the Defendant guilty beyond a reasonable doubt.
A reasonable doubt is a fair, actual and logical doubt that arises in your mind after an impartial consideration of all the evidence and circumstances in the case. It should be a doubt based upon reason and common sense and not a doubt based upon imagination or speculation.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the Defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the Defendant is guilty of the crime charged, you should find [him/her] guilty. If on the other hand, you think there is a real possibility that [he/she] is not guilty, you should give [him/her] the benefit of the doubt and find [him/her] not guilty.
(R. at 104).
The defendant's proposed final instruction stated:
A reasonable doubt is a fair, actual and logical doubt that arises in your mind after an impartial consideration of the evidence and circumstances in the case. It should be a doubt based on reason and common sense.
To prove the defendant's guilt of the elements of the crimes charged beyond a reasonable doubt, the evidence must be such that it would convince you of the truth of it to such a degree of certainty that you would feel safe to act upon such conviction without hesitation in a matter of the highest concern and importance to you when you are not required to act at all.
(R. at 122).
These two instructions are substantively similar. Because
trial courts are not required to give instructions already covered
by other instructions, the court did not abuse its discretion in
rejecting Young's instruction. Schweitzer v. State, 552 N.E.2d
454, 457 (Ind. 1990) (citing Carter v. State, 512 N.E.2d 158, 168
Although Young challenges the words "imagination or
speculation" and "absolute certainty," we have approved using words
of this very sort.
See Winegeart v. State, 665 N.E.2d 893, 902
(Ind. 1996) (the words "absolute certainty" were approved by our
authorization and recommendation of the use of the Federal Judicial
Center, Pattern Criminal Jury Instruction 18-19 (1987) on
reasonable doubt); Hoskins v. State, 441 N.E.2d 419, 426 (Ind.
1982) (using the words "imagination and speculation" in a
reasonable doubt instruction was not error). Finally,
instruction sufficiently establishes the requisite degree of
certainty--it requires the jury to be "firmly convinced" of the
defendant's guilt based on the evidence. Winegeart, 665 N.E.2d at
The second instruction that Young challenges is the instruction directing jurors "to fit the evidence to the presumption that the Defendant is innocent and the theory that
every witness is telling the truth." (R. at 105, 151). Young
claims the instruction is prejudicial because it urges the jury to
assume everyone is telling the truth regardless of whether he presents witnesses or testifies.
Although we approved this instruction in Lottie v. State, 273
Ind. 529, 534-35, 406 N.E.2d 632, 637 (1980), Young distinguishes
that case because, unlike the defendant in Lottie, he did not
testify. This distinction is unavailing. The instruction merely
"tells the jury that they are to test the evidence as they hear it
so that they may then fit that evidence to the presumption that the
defendant is innocent." Id. It does not mandate that jurors are
to believe every witness irrespective of the defendant's
presumption of innocence. This instruction is not erroneous.
The trial court also instructed the jury that "[t]he intent of
the defendant may be inferred from his conduct and all the
surrounding facts and circumstances proved in the case." (R. at
118, 145). Young believes this instruction suggested to the jury
that, regardless of who committed the act, the intent should be
attributed to him.
We previously determined that this instruction correctly states the law. See Miller v. State, 541 N.E.2d 260, 262 (Ind. 1989). Contrary to Young's assertions, the instruction did not attribute acts, or intent therefrom, to Young. It merely informed
the jury that Young's intent could be inferred from his conduct, if
that conduct had been proven. The instructions taken as a whole make this abundantly clear.
Appellant also contests the court's instruction on motive.
(R. at 120, 150). Young claims it did not clarify the distinction
between motive and intent, and thereby, diluted the state's burden
of proof. This instruction comes directly from Indiana Pattern
Jury Instructions (Criminal) 12.27.See footnote
We also have approved its use
in Light v. State, 547 N.E.2d 1073, 1081 (Ind. 1989). As our
intermediate court stated in Malone v State, 660 N.E.2d 619 (Ind.
Ct App. 1996), "the instruction does not lead us to conclude that
the jury could have interpreted it as relieving the State of its
burden to prove intent." Id. at 630. We agree and find no
Young's final allegation of error is that his 195 year
sentence was manifestly unreasonable because the trial court failed
to consider his mental disabilities as a mitigating factor.
Determination of sentences are a matter of discretion for the trial court. Sims v. State, 585 N.E.2d 271, 272 (Ind. 1992). When deciding to enhance a sentence, however, the court must state all significant aggravating and mitigating factors, and articulate the balancing process by which it determined that the aggravating factors outweighed the mitigating ones. Ind. Code Ann. § 35-38-1- 7.1 (1998); Harris v. State, 659 N.E.2d 522, 527 (Ind. 1995). Although weight need not be give to every mitigating factor, the court cannot ignore mitigating factors that are clearly supported by the record. Widener v. State, 659 N.E.2d 529, 534 (Ind. 1995).
The Indiana Constitution confers upon this Court the power to
review and revise sentences. Ind. Const. art. VII, § 4. But, we
will not revise a sentence unless it is "manifestly unreasonable in
light of the nature of the offense and the character of the
offender." Ind. Appellate Rule 17(B); Barany v. State, 658 N.E.2d
60, 67 (Ind. 1995).
Finding numerous aggravating factors and no mitigating factors, the trial court sentenced Young to twenty years for robbery, fifty years for each attempted murder, and sixty-five years for murder. (R. at 864-67). The murder and two attempted murder sentences were to be served consecutively and the robbery sentence was to run concurrent with the other terms. The court then enhanced the sentence by thirty years based on the habitual finding for a total of 195 years executed.
We find this sentence to be manifestly unreasonable. Although the court recorded no mitigating factors, the record clearly indicates that Young functions with the mental capacity of a child. (R. at 856, 861-62). In fact, during a pre-trial conference, the court found Young to be mentally retarded under Indiana Code § 35- 36-9-2 (1998). Therefore, it determined that he could not be sentenced to life without parole under Indiana Code § 35-50-2-9 (1998). (R. at 279-82).
By sentencing Young to 195 years, however, the court virtually
imposed life without parole anyway.
We believe that the trial court should have given this
mitigator some weight in the sentence .
Sullivan, Selby, and Boehm, JJ., concur.
Dickson, J., concurs as to the conviction but dissents to the majority's finding that the sentence is manifestly unreasonable.
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