Attorneys for Appellee
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
October 5, 2001
Defendant and Dillard were tried together and found guilty of murder.
trial court sentenced him to 65 years in prison.
Whether Defendants written waiver was ineffective is not determinative of whether he waived
his right to a separate trial. Absent a motion by Defendant requesting
a separate trial, the trial court is not required to separate the trial.
Ind. Code § 35-34-1-12(a) (1998). A motion for a separate trial
must be made prior to the commencement of the trial.
A defendants right to a separate trial is waived if the defendant fails
to make the motion at the appropriate time. Id. Here, Defendant
never made a motion to separate his trial from co-defendant Dillard, thereby waiving
his right to a separate trial.
Defendant acknowledges that he failed to object to the testimony of the informants
at trial. Appellants Br. at 20. He urges that we find
that the testimony of the informants amounted to fundamental error. The fundamental
error doctrine holds that we will grant relief even where error is not
properly preserved for appeal when the error is so prejudicial to the rights
of the defendant that a fair trial was impossible. See Carter v.
State, 738 N.E.2d 665, 677 (Ind. 2000); Charlton v. State, 702 N.E.2d 1045,
1051 (Ind. 1998).
A criminal defendants right to counsel is violated when the government intentionally creates a situation likely to induce a defendant to make an incriminating statement in the absence of counsel. See Massiah v. State, 377 U.S. 201, 206 (1964); Rutledge v. State, 525 N.E.2d 326, 327 (Ind.1988). However, there is no violation where the government unintentionally obtains the information regarding an incriminating statement. The Supreme Courts decision in Massiah applies to information that government agents deliberately elicit from a defendant. Massiah, at 206 (emphasis added). As we have previously recognized,
[T]he Sixth Amendment is not violated wheneverby luck or happenstancethe State obtains incriminating statements from the accused after the right to counsel has attached. ... A defendant does not make out a Sixth Amendment violation simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.
Wisehart v. State, 693 N.E.2d 23, 61 (Ind. 1998) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986)) (citations omitted)).
Here Defendant does not demonstrate that the police intentionally elicited information from Defendant
in violation of
Massiah. Defendant does not point to any definitive evidence
that either informant worked as the States agent and elicited information. Defendant
points to a portion of Terrys testimony that suggests that he might have
been asked to write down notes from conversations he had with Defendant and
Terry testified that no one had made any promises of leniency
in his case in exchange for acting as an informant. Even if
Terry was asked to take notes, as Defendant alleges, Defendant does not point
to evidence suggesting that Terry elicited the information from him. Terrys taking
of notes, even at the request of the police, does not violate the
Sixth Amendment if he did not elicit the information. See Hobbs, 548
N.E.2d 164, 167 (Ind. 1990). Because there is no evidence that Terry
elicited information, we find no error, fundamental or otherwise.
The other jailhouse informant, Brownlee, testified that Defendant admitted to killing Thomas.
His testimony, however, suggests that
Defendant initiated the conversation and volunteered the information.
Furthermore, defendant presents no evidence that the police instructed Brownlee to ask
Defendant any questions. Again, we find no error, fundamental or otherwise, in
allowing Brownlee to testify.
Defendant points out the following instances during the States final argument that he
asserts amount to prosecutorial misconduct:
We have had testimony in this case that tells us that [Defendant] and
[Dillard] arent even from here. Theyre from Detroit, Michigan.
Now, these fellows come down from Detroit, where they would undoubtedly be little twigs, so they can kind of hang out in sort of the Mayberry of the area and take advantage of us.
Two fellows from Detroit just trying to make a living. But as
I said, this is not Detroit. This is your community, and you
make the rules, and you determine what you will find as acceptable behavior,
and what you will tolerate from anyone who chooses to participate in our
(R. at 1184-7.) Defendant also cites an instance during the final argument
in which the State referred to a statement, attributed to Defendant, that the
case would not have been tried in Detroit because no gun was found:
Theyre so arrogant in this business they dont believe anybody can touch
them. It goes back to what they told [Terry]. This case
wouldnt be tried [in Detroit].
Defendant also cites the following comment:
The State of Indiana would respectfully request that on each of those verdict forms you find that the evidence firmly convinced you that [Defendant and Dillard] murdered [Thomas] and check the box signed guilty of murder. In so doing youre gonna send a message to [Defendant and Dillard] and that message is: this aint Detroit. This aint the crib. And youre [sic] business isnt welcome here.
(R. at 1126.) Defendant also cites a comment in which the State
referred to the fact that the victim was a drug dealer, but did
not deserve to die because of that fact: Did he deal drugs?
Yeah. He had problems. Do people who have problems, drug
dealers and others, deserve the protection of not being executed in our county
or not? Because if they dont, lets just sit back and see
what happens. (R. at 1182.)
Defendant failed to object to the States comments at trial. Therefore, reversal
is only possible where there is fundamental error, which we do not find
in this instance.
Preliminary instruction no. 5 read:
Under the law you must presume that the Defendants are innocent and you must continue to believe that they are innocent throughout the trial unless the State proves that the Defendants are guilty, beyond a reasonable doubt, of every essential element of the crime(s) charged.
Since the defendants are presumed to be innocent, they are not required to
present any evidence to prove their innocence or to prove or explain anything.
If at the conclusion of trial, there remains in your mind a
reasonable doubt concerning the defendants [sic] guilt, you must find them not guilty.
(R. at 477-78.)
Defendant argues that the portion instructing the jury that they must continue to believe that they are innocent throughout the trial is rendered nugatory by the succeeding qualifying phrase unless the State proves that the defendants are guilty, beyond a reasonable doubt, of every essential element of the crime(s) charged. Appellants Br. at 26. Defendant contends that the language suggests that the presumption of innocence could disappear altogether early in the trial, and a defendant would therefore be deprived of the fundamental right to a presumption of innocence throughout the trial.
Prior to giving the preliminary instructions in this case, the trial court stipulated
that the jury must consider all of the instructions that are given ...
as a whole, and [they] are to regard each with the others given....
Another preliminary instruction given soon after the one at issue instructed:
you need to keep an open mind during the trial. You should
not form nor express an opinion during the trial and reach no conclusion
about this case until it is submitted to you for you deliberations.
The preliminary instructions in their entirety did not instruct the jury that it
could come to any premature conclusions regarding guilt. Furthermore, we have previously
approved of language that is nearly identical to that of which Defendant now
complains. See Daniel v. State, 582 N.E.2d 364, 373 (Ind. 1991); Taylor
v. State, 468 N.E.2d 1378, 1381-82 (Ind. 1984).
In general, the legislature has prescribed standard sentences for each crime, allowing the
sentencing court limited discretion to enhance each sentence to reflect aggravating circumstances or
reduce the sentence to reflect mitigating circumstances. Morgan v. State, 675 N.E.2d
1067, 1073 (Ind. 1996) (citing Reaves v. State, 586 N.E.2d 847 (Ind. 1992)).
When the trial court imposes a sentence other than the presumptive sentence, or imposes consecutive sentences where not required to do so by statute, this Court will examine the record to insure that the court explained its reasons for selecting the sentence it imposed. Archer v. State, 689 N.E.2d 678, 683 (Ind. 1997) (citing Hammons v. State, 493 N.E.2d 1250, 1254 (Ind. 1986)). The trial courts 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. Mitchem v. State, 685 N.E.2d 671, 678 (Ind.1997) (citing Jones v. State, 675 N.E.2d 1084, 1086 (Ind.1996)).
The trial court found Defendants age (22 years old) to be a mitigating circumstance. The trial court also found the following aggravating circumstances: The killing was a murder for hire; the victim was a confidential informant who was working for the police; guns were used in the commission of the crime; Defendant showed no remorse; and Defendant was in [Elkhart County] as a drug dealer and not gainfully employed. The trial court found that the aggravating circumstances outweighed the mitigating circumstances and imposed an enhanced sentence of 65 years imprisonment.
Defendant complains that the trial court improperly used lack of remorse as an
aggravating factor. Defendant cites Guenther v. State, 495 N.E.2d 788 (Ind. App.
1986), as barring trial courts from using lack of remorse as an aggravating
factor where the defendant has pled not guilty. See Guenther, at 792.
However, we granted transfer in Guenther and held that that the trial
courts use of lack of remorse as an aggravating circumstance was proper.
See Id., 501 N.E.2d 1071 (Ind. 1986). We have since held that
lack of remorse may be available as an aggravating circumstance even where a
defendant has pled not guilty. See Davidson v. State, 558 N.E.2d 1077,
1091-92 (Ind. 1990); Dinger v. State, 540 N.E.2d 39, 40 (Ind. 1989).
Therefore, we do not find that the trial court abused its discretion in
considering lack of remorse an aggravating circumstance.
Defendant also argues that the trial court improperly considered his lack of employment
as an aggravating circumstance. Appellants Br. at 29. The sentencing order,
however, states that the trial court found it to be an aggravating circumstance
that Defendant was in [Elkhart County] as a drug dealer and not gainfully
employed. (R. at 382-383.) While lack of gainful employment alone is
not an aggravating circumstance, we believe the trial court's language here indicates that
it properly considered Defendants drug dealing to be aggravating.