Attorneys for Appellee
Karen M. Freeman-Wilson
Attorney General of Indiana
Timothy W. Beam
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
October 5, 2001
Wiley died as a result of a gunshot wound to the head.
Defendant was bleeding from a gunshot wound to his hand. Defendant then
fled from the party to the house of his mother who drove him
to St. Vincents Hospital in Indianapolis. Defendant initially told the hospital personnel
that he had fallen on some glass, but the hospital staff found fragments
in his hand and called the police. When a police officer arrived,
Defendant and his mother told him that one of Defendants friends had accidentally
shot him at an Indianapolis apartment complex. Defendant was charged and convicted
See footnote and Defendant was sentenced to 60 years incarceration.
To establish a valid ineffective assistance of counsel claim, Defendant must show, first,
that counsels performance fell below an objective standard of reasonableness based on prevailing
professional norms, and, second, that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.
See Strickland v. Washington, 466 U.S. 668, 687 (1984); Lambert v. State,
743 N.E.2d 719, 730 (Ind. 2001).
We have stated in past cases that the first prong of the Strickland
test affords counsel considerable discretion in choosing strategy and tactics, and we will
accord that decision deference. A strong presumption arises that counsel rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional judgment."
Lambert, 743 N.E.2d at 730 (quoting State v. Holmes, 728 N.E.2d 164,
172 (Ind. 2000)). Regarding the second prong of the Strickland test, [a]
reasonable probability is a probability sufficient to undermine the confidence in the outcome.
Final instruction no. 3 read in pertinent part: If the state did
prove each of these elements beyond a reasonable doubt, you should find the
defendant guilty of murder. (emphasis added). Final instruction no. 16 provided:
If, after considering all of the evidence, you have reached a firm belief
in the guilt of the defendant that you feel safe to act upon
that belief, without hesitation, in a matter of the highest concern and importance
to you, then you will have reached that degree of certainty which excludes
reasonable doubt and authorizes conviction.
(R. at 142.) (emphasis added).
Defendant argues that the emphasized language of these two instructions conflicts with the
trial courts initial instruction that the jury was the judge of the law
and the facts under Art. 1, § 19, of the Indiana Constitution.
Specifically, Defendant argues that the trial courts use of the words should and
will in the contested instructions was improper. He stated that the jury
was told how to think and act. In the first instance, the
trial court told the jury what it ought to do, and in the
second, it told them at what point it ought to do it.
Appellants Br. at 6.
We have held in a variety of contexts that Art. I, § 19,
is not violated when the types of instructions given in this case are
accompanied by an instruction informing the jury that it is the judge of
the law and the facts. See, e.g., Parker v. State, 698 N.E.2d
737, 742 (Ind. 1998); Loftis v. State, 256 Ind. 417, 420, 269 N.E.2d
746, 747-8 (1971); Mitchem v. State, 503 N.E.2d 889, 891 (Ind. 1987).
Defendant acknowledges that a law and the facts instruction was given here.
As to instruction no. 3, we recently reiterated that a trial court may
use the word should in such a manner. See Wright v. State,
730 N.E.2d 713, 716 (Ind. 2000). In Wright, this court found a
similar instruction to be instructive, and hardly offensive to any of our fundamental
precepts of criminal justice. Id. We stated, A trial court may
instruct the jury that if they find that all the material allegations of
the indictment or affidavit are proven beyond a reasonable doubt that they should
convict the defendants. Id. at 716-17 (Ind. 2000) (quoting Loftis, 256 Ind.
at 419-20, 269 N.E.2d at 747).
As to instruction no. 16, we have indicated that the use of the
analogy about what would cause one to act without hesitation on a matter
of highest personal concern and importance is neither required nor particularly desirable in
explaining the concept of reasonable doubt. Winegeart v. State, 665 N.E.2d 893,
902 (Ind. 1996). But we have not disapproved its use. Nor have
we questioned it as a violation of Art. I, § 19 the
claim Defendant asserts here.
The foregoing analysis demonstrates that instructions no. 3 and no. 16 comported with
the requirements Art. I, § 19. As such, we conclude that it
was within the range of reasonable attorney behavior not to object to these
instructions. And because we assume competence on the part of a lawyer
at trial, an action or omission that is within the range of reasonable
attorney behavior can only support a claim of ineffective assistance if that presumption
is overcome by specific evidence as to the performance of the particular lawyer.
Woods v. State, 701 N.E.2d 1208, 1212 (Ind. 1998). No such
evidence has been offered here.
At trial, a security guard from St. Vincents Hospital testified that Mrs. Morgan
had given him a false account of how Defendant sustained the wound to
his hand. Defendant argues that the guards testimony was improper hearsay evidence,
and should have been objected to. Defendant argues that counsel was ineffective
for failing to object.
We do not find a valid ineffective assistance of counsel claim here because
the prejudice prong of Strickland is not satisfied. The testimony of the
guard was cumulative of the admissible testimony of other witnesses. Defendants mother
herself testified at trial that she had told the security guard a false
story. And another witness, Deputy Salluom, testified that Defendant himself had told
him the same story. Because of the cumulative nature of the hearsay
testimony at issue here, we see no basis for concluding that its exclusion
would have produced a different result.
Well, after that, as [Defendants trial counsel] well knows, and youre represented by
an attorney, the police cant go and speak to you. If Bradley
Morgan wanted to provide his version of these events to the police all
he had to do was tell Mr. Ryan, Pick up the phone, call
the detectives, set up an appointment for me to give a statement.
Thats all that had to be done.
(R. at 1460.)
A person in custody who is questioned by the police has the right to remain silent, Miranda v. Arizona, 384 U.S. 436, 445 (1966), and, in general, a criminal defendant may not be penalized at trial for invoking the right to remain silent. See Doyle v. Ohio, 426 U.S. 610, 620 (1976). Using a defendants post-Miranda silence to impeach a defendant at trial violates the Due Process Clause of the Fourteenth Amendment. See Doyle, 426 U.S. at 619; See footnote Miranda, 384 U.S. at 445.
Although evidence of a defendants post-
Miranda silence is generally not admissible, the defendant
may open the door to its admission. The Doyle Court acknowledged this
in its decision, stating [I]t goes almost without saying that the fact of
post-arrest silence could be used by the prosecution to contradict a defendant who
testifies to an exculpatory version of events and claims to have told the
police the same version upon arrest. Doyle, 426 U.S. at 619.
As we explained in Willsey v. State:
[T]he central constitutional inquiry is the particular use to which the post-arrest silence
is being put
Doyle does not impose a prima facie bar
against any mention whatsoever of a defendants right to request counsel, but instead
guards against the exploitation of that constitutional right by the prosecutor.
698 N.E.2d 784, 793 (Ind. 1998) (quoting Lindgren v. Lane, 925 F.2d 198, 202 (7th Cir. 1991)).
It follows that the prosecutor may comment on a defendants post-Miranda silence in
limited circumstances as long as it is not used to exploit a defendants
constitutional rights. See Vitek v. State, 750 N.E.2d 346, 350 (Ind. 2001).
We find that this case falls within those limited circumstances. During
Defendants case in chief, he testified that when he went to the police
station the police never asked him for his version of events. During
closing argument, defense counsel reiterated this: Rev. Woodard picks up Bradley and they
go to the police department. Bradley indicates no one asked him at
the time what was his version. No one asked him to give
a statement. ... no one asked him at the station what his version
Defendants testimony and closing argument could reasonably have been understood to suggest to
the jury that the police were not interested in hearing Defendants version of
events. The prosecutors statement was in response to Defendants testimony and closing
argument. Defendants own statements and his closing argument opened the door to
the prosecutors comments. There was no Doyle violation and Defendants counsel was
therefore not ineffective for not objecting.
Defendants justification for the shooting was that he acted in self-defense by striking
Wiley in the head with a gun and that the gun discharged.
Then, according to Defendants testimony, the gun discharged accidentally a second and third
time as he and Wiley fell to the ground. He argues that
at the time of the final confrontation, Wiley grabbed him while his hands
were in his pockets and that Defendant took his hands out of his
pockets and started hitting him. Defendant testified that he didnt know at
the time that the weapon was in his hand and he maintained that
he never intentionally shot Wiley. In fact, Defendant testified that he was
not even angry at Wiley after their first confrontation.
A voluntary manslaughter instruction would likely have conflicted with this theory of the
case. A person commits voluntary manslaughter by knowingly or intentionally killing another
human being while acting under sudden heat. Ind. Code § 35-42-1-3.
Defendants defense was that he didnt intentionally kill Wiley. It would have
been a reasonable strategic decision for defense counsel to conclude that a voluntary
manslaughter instruction would have been inconsistent with Defendants testimony, which invoked a self-defense
argument and adamantly insisted that there was no intent. As discussed supra,
because we assume competence on the part of a lawyer at trial, an
action or omission that is within the range of reasonable attorney behavior can
only support a claim of ineffective assistance if that presumption is overcome by
specific evidence as to the performance of the particular lawyer. Woods, 701
N.E.2d at 1212. Again, such evidence has been offered in respect of
Defendant objected, stating:
[T]he court should instruct the [j]ury as to the proper way to address inferences in one fashion or another, that being that if there are two inferences, one consistent with guilt and one consistent with innocence, the [j]ury would be required and should be instructed that they should accept the inference that is consistent with innocence.
(R. at 1383.)
Defendant now argues on appeal that the instruction was improper because it invaded the province of the jury. Appellants Br. at 12. See Turner v. State, 280 N.E.2d 621 (Ind. 1972). Defendant, citing Wilson v. State, 635 N.E.2d 1109 (Ind. Ct. App. 1994), also claims, incorrectly, that the Court of Appeals deemed the above instruction to be imperfect. See footnote Defendants argument on appeal is different than his argument at trial, and his objection is therefore waived. See Small v. State, 736 N.E.2d 742, 747 (Ind. 2000) (A defendant may not raise one ground for objection at trial and argue a different ground on appeal.); Lehman v. State, 730 N.E.2d 701, 703 (Ind. 2000) (When ... a defendant presents one argument at trial and a different argument on appeal, the claims are forfeited.).
At trial, Dr. Hawley, a forensic pathologist, testified regarding the position that Defendant
and the victim were in when the gun discharged. Dr. Hawley testified
that he was a forensic pathologist with nearly 20 years of experience.
In his field, he [examines] the human body after death through the surgical
performance of an autopsy to determine the cause and the manner of death
and [he is] particularly interested in cases where death has been sudden, unusual,
unexpected, and ... violent.
Defendant objected to Dr. Hawley providing a scenario in which both wounds were
inflicted. The trial court sustained the objection, but allowed Dr. Hawley to
testify regarding the relative positions that he believed Wiley and Defendant were in
when the shots were fired.
Dr. Hawley testified that he determined that Wiley died of a gunshot wound
to the head. The entrance wound was located on the left side
of Wileys head, and the gunshot tracked across Wileys head from left to
right before exiting the right side of Wileys head. The nature of
the wounds indicated to Dr. Hawley that the muzzle of the gun was
against Wileys head when it was discharged. Dr. Hawley also testified that
he believed that Defendant was shot through the hand, with the bullet entering
the back of the hand and exiting through the outside edge of the
hand. Given the circumstances of the wounds and the fact that witnesses
indicated that the shots were fired in rapid succession, Dr. Hawley gave his
opinion as to the relative position of Defendant and Wiley:
[Prosecutor]: And for the shot which entered Mr. Wileys skull, in your
opinion what would be the relative positions of the bodies of Mr. Morgan
and Mr. Wiley?
[Dr. Hawley]: Well, the weapon is actually touching the skin of the
side of the head on the left side which places, in your hypothetical
presentation, the shooters right hand at the top of the victims left shoulder
with the gun up against the left side of the victims head.
[Prosecutor]: How about the second or the additional shot when Mr. Morgans
injuries was [sic] sustained?
[Dr. Hawley]: For the injury the shooters left hand must be palm
down, very close to the muzzle of the gun at the time the
shot is fired and no more than a few inches from the barrel
of the gun.
(R. at 1035.)
Generally, an experts opinion is admissible if the experts scientific, technical, or other specialized knowledge assists the trier of fact in understanding the evidence. Ind. Evidence Rule 702(a). Decisions regarding the admissibility of expert testimony are within the broad discretion of the trial court. See Williams v. State, 706 N.E.2d 149, 163 (Ind. 1999). We will only reverse the trial courts judgment upon a showing of abuse of discretion. Id.
We find that the trial court did not abuse its discretion by allowing
Dr. Hawley to te
stify regarding the relative positions of Defendant and Wiley at
the time of the shooting. Dr. Hawleys conclusions were based on his
expert analysis of the trajectory and location of the wounds. While providing
a scenario or narrative would have pushed the limits of admissibility, it was
within the trial courts discretion to allow Dr. Hawley, based on his examination,
to offer an opinion of how the wounds were inflicted.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
The following exchange regarding Defendants state of mind took place during cross examin
[Prosecutor]: Isnt it true, [Defendant], that [Wiley] pissed you off when he pushed you?
[Defendant]: No, sir.
[Prosecutor]: You werent pissed off?
[Defendant]: No, sir.
(R. at 1350-51.)