ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ROBERTA STATEN STEVE CARTER
Kansas City, Missouri Attorney General of Indiana
Deputy Attorney General
CURTIS WILLIAMS, ) ) Appellant (Defendant ), ) ) v. ) Cause No. 48S00-0010-CR-578 ) STATE OF INDIANA, ) ) Appellee (Plaintiff ). )
Williams was charged with unlawful possession of a firearm by a
serious violent felon as a class B felony, intimidation as a class C
felony, criminal recklessness as a class D felony, burglary as a class A
felony, and being an habitual offender. A jury found Williams guilty on
all counts. The trial court sentenced Williams to concurrent terms of twenty
years for possession of a firearm, eight years for intimidation, three years for
criminal recklessness, and thirty years for burglary. It enhanced the burglary sentence
by thirty years for the habitual offender finding, for an aggregate term of
A defendant who fails to object to the courts final instructions and fails
to tender a set of instructions at trial waives a claim of error
on appeal. Sanchez v. State, 675 N.E.2d 306 (Ind. 1996).
Williams counsel did not tender an instruction defining knowingly and intentionally, or object
to its omission. He thus preserved nothing for appeal.
To establish prejudice, [t]he defendant must show that there is a reasonable probability
that, but for counsels unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence
in the outcome. Id. at 694. Further, counsels performance is presumed
effective, and a defendant must offer strong and convincing evidence to overcome this
presumption. Saylor v. State, 765 N.E.2d 535, 549 (Ind. 2002).
A. Instructions. Williams claims that his trial attorney, Donald Hurst, submitted no
instructions to the Court, had not properly reviewed the instructions the State had
submitted[,] and was wholly unprepared for this portion of the Williams defense.
(Appellants Br. at 19.) Contrary to Williams assertion that his attorney submitted
no instructions to the trial court, Hurst did submit an instruction on jury
nullification. (See R. at 130, 466-69.) Hursts specific objection to the
trial courts instruction on jury nullification also contradicts Williams assertion that Hurst did
not review the instructions. (See id.)
As for whether defense counsel should have tendered instructions relating to culpability of
the crimes, we note the trial court gave instructions on the elements of
burglary and possession of a firearm by a serious violent felon. These
informed the jury that guilt required a knowing or intentional state of mind.
The trial court also instructed the jury that the State had to
prove each essential element of the crimes beyond a reasonable doubt. The
court then properly explained this concept to the jury.
While we would expect further definitions for words of art such as knowingly
and intentionally, we can well imagine counsel deciding to focus on points likely
to have more weight with the jury. Hurst chose to concentrate on
attacking the reliability of key State witnesses by highlighting inconsistencies in their stories,
and on challenging the credibility of the States argument that Williams threatened to
kill Carolyn merely because she refused to tell him the whereabouts of his
sister. (R. at 429-36.) Measured against counsels legitimate decision to emphasize
issues such as these, failure to submit an instruction does not seem so
serious an omission to overcome the
Strickland presumption of adequate performance.
B. Trial Preparation. Williams also argues that his attorney was unprepared for
trial in various respects.
See footnote He first maintains that Hursts questioning of witnesses
at trial was ineffective due to lack of pre-trial preparation. Williams argues
that had Hurst deposed various witnesses, he could have impeached the States case
and thus created a reasonable doubt as to his guilt.
Counsels failure to interview or depose States witnesses does not, standing along, show
Williams v. State, 724 N.E.2d 1070, 1076 (Ind. 2000).
The question is what additional information may have been gained from further investigation
and how the absence of that information prejudiced his case. Id.
Williams does not indicate what new information was available, much less how its absence impaired his case. (See Appellants Br. at 18-25.) In fact, Hursts performance at trial contradicts the charge that he was unprepared. Hurst challenged Bookers memory of the events and got him to admit he never saw Williams with a gun. (R. at 183-86.) He pointed out inconsistencies between Carolyns testimony at trial and her pre-trial interviews. (R. at 285-86, 289.) He also impeached another State witnesss testimony with conflicting previous statements. (R. at 220.) These instances support the Strickland presumption that Hurst was effective in his trial preparation.
Williams also claims that Hurst did not adequately prepare him for trial.
His claim relies on a comment by the trial judge indicating that the
jury would have acquitted Williams had he not testified. Williams maintains that
had Hurst spent time with him before trial, Williams would not have been
subjected to the unmerciful harassment by the State during cross-examination. (Appellants Br.
The record paints a different picture. Williams testified on direct examination that
he was at the apartment building on March 22, 2000, spoke with the
victim that night, and ran from police sometime thereafter. (R. at 360-62.)
On cross-examination, he changed his story and denied that he was at
the complex on March 22nd, claiming instead that his version of events took
place on March 18th. (R. at 378.) The State reacted by
thoroughly attacking Williams recollection of the events and their timing. (R. at
Williams acknowledges that Hurst urged him not to testify at trial. (Appellants
Br. at 20; R. at 372, 562.) Moreover, based on Williams answers
on direct examination, Hurst likely had no way of knowing that Williams was
about to change his own testimony so significantly. (See R. at 377-78.)
Hurst seems to have done what he could to save Williams from
Williams also faults Hursts direct examination of him. He says Hursts questions
were repeatedly object[ed] to and Hurst was unable to answer any of the
objections with cogent offers of proof . . . . (Appellants Br.
at 20.) Some of the objections, however, stemmed from Williams making hearsay
statements. (See, e.g., R. at 361.) The others arose because Williams
wanted to testify about irrelevant matters. (See, e.g., R. at 358-59, 370-74.)
Hurst was not deficient because these objections were sustained.
Williams next complains that Hursts motion for a continuance prior to the start
of trial was not assertive enough. Immediately before the trial court read
preliminary instructions, Hurst moved for a continuance on the grounds that Williams claimed
that Hurst was unprepared. Williams also wanted to hire private counsel.
Any motion to continue offered at such a moment was bound to fail,
especially when, as the judge noted, the private attorney that Williams wanted to
hire was in the courtroom but declined to enter an appearance until the
judge ruled favorably on the matter. (R. at 116-17.) Again, we
fail to see how Hurst was deficient.
Williams also faults Hurst for not informing the trial court that his habitual
enhancement could have been reduced by ten years, relying on Garrett v. State,
602 N.E.2d 139 (Ind. 1992). He overlooks the fact that the 1993
General Assembly amended the habitual offender statute and eliminated the language that was
at issue in Garrett. See P.L. No. 164-1993, § 13, 1993 Ind.
Acts 3851. The current statute does not contain a comparable provision.
See Ind. Code Ann. § 35-50-2-8 (West 2000).
The contentions about Hursts performance are inadequate to overcome the constitutional presumption of
Williams argument is based on this Courts Article 1, section 14 analysis as
laid out by Richardson v. State, 717 N.E.2d 32 (Ind. 1999) and Spivey
v. State, 761 N.E.2d 831 (Ind. 2002). Two charged offenses violate Indianas
Double Jeopardy Clause when the essential elements of one offense also establish all
the essential elements of a second offense. Spivey, 761 N.E.2d at 832.
A violation may be proven by looking at either the statutory elements
of the challenged crimes or the actual evidence used to convict the defendant
of the challenged crimes. Id.
The State charged Williams with burglary as an A felony and intimidation as
a C felony. A person who breaks and enters the building or
structure of another person, with intent to commit a felony in it, commits
burglary as a C felony. Ind. Code Ann. § 35-43-2-1 (West 2000).
The charge is elevated to a class A felony when a victim
suffers bodily injury. Id. § 35-43-2-1(2)(A). As applicable to this case,
a person commits intimidation as a class A misdemeanor when the person communicates
a threat to another person, with the intent: (1) that the other
person engage in conduct against the other persons will; (2) that the other
person be placed in fear of retaliation for a prior lawful act .
. . . Ind. Code Ann. § 35-45-2-1(a) (West 2000). The
charge may be enhanced to a class C felony when the person uses
a deadly weapon during commission of the crime. Id. § 35-45-2-1(b)(2).
The facts supporting Williams convictions for intimidation and burglary make it apparent that there is no double jeopardy violation. The essential elements of burglary included Williams forced entry into Carolyns apartment, causing Carolyns ankle injury. When Williams broke into the apartment, the burglary was complete. Williams then put a gun to Carolyns head -- an act separate and distinct from the act that supported the burglary conviction. There is no double jeopardy violation when, as here, the same evidentiary facts establish less than all of the essential elements of the two challenged crimes.
DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ., concur.