Attorneys for Appellant
Attorneys for Appellee
Marce Gonzalez, Jr. Steve Carter
Merrillville, IN Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Appeal from the Lake County Superior Court,
Nos. 45G04-0102-CF-00026, 45G04-0102-CF-00028, 45G04-0101-CF-00036
The Honorable Thomas P. Stefaniak, Jr., Judge
On Petition To Transfer from the Indiana Court of Appeals, No.45A05-0201-CR-00052 _________________________________
October 16, 2003
A second armed robbery occurred on January 27, 2001, at the Smoke Shop
in Hammond, Indiana. As an employee who was working at the time
ving a man change from a cigarette purchase, the man and another
who was with him pulled their guns. Both men announced that it
was a robbery. Caldwell went around the corner of the counter, undid
the chain, and ordered the employee to open the cash register. After
the employee opened the cash register, Caldwell began taking out money. Defendant
meanwhile pointed his gun at the employee and said repeatedly, Im going to
kill you. Defendant and Caldwell then told the employee to open the
safe. However, upon learning that the employee did not know the combination,
Defendant ordered him to go to the back with him. Again, Defendant
pointed his gun at the employee and repeated, Im going to kill you,
Im going to kill you. Caldwell then tied the employee up with
duct tape in the back room. Defendant and Caldwell removed items from
the store, including the security video. After the two men left, the
employee hit a panic button. He later identified Defendant and Caldwell from
A few hours later, another armed robbery took place at the Cigarettes Cheaper
Store in Hobart, Indiana. The store manager was working at the time
of the robbery. Defendant and a
nother man entered the store and Defendant
put his gun in the managers side. Defendant took the manager into
the back room at gunpoint, threw her onto the floor, and told her
he would kill her if she did anything. The manager begged for
her life. Meanwhile, a customer entered the store to buy cigarettes and
saw Caldwell. After getting her cigarettes, the customer waited at the cash
register. When a few minutes passed, the customer asked Caldwell how much
longer the clerk was going to be. Defendant than walked up to
the customer with a gun in his hand and told her to go
to the back room. She went to the back and sat down
with the manager. Defendant then instructed the manager to open the cash
register and she gave Defendant the keys to do so. After getting
the keys, Defendant pulled the door to the back room shut. Defendant
and Caldwell left the scene before removing money from the cash register but
they still had the register keys in their possession.
The customers husband saw these events while waiting in the car. He
called the police on his cell phone. The police apprehended D
Caldwell after a pursuit. The manager and the customers husband later identified
Defendant from a photo array.
As a result of these three incidents, Defendant was charged with four counts
of robbery as Class B felonies
and eight counts of criminal confinement
was alleged to be a habitual offender. He was tried on all
these counts in a single proceeding.
At trial, Caldwell testified against Defendant. Caldwell said that he had been
charged with robbery in the three incidents and had entered a plea agreement
with the State where he pled guilty to one count in each.
Caldwell further testified that Defe
ndant had been with him at each of the
three robberies and that Defendant was the most forceful during at least one
of the robberies; Defendant had carried guns during each robbery and had actually
fired his gun on one occasion; Defendant had threatened to harm or kill
those present in the three locations; and that Defendant had participated in removing
items from the premises of the three stores. Each of these statements
was corroborated by the testimony given by the various individuals present in the
three stores at the time of the individual robberies.
At the time of Defendants trial, Caldwell had not yet been sentenced.
On cross-examination, Defendants counsel attempted to question Caldwell r
egarding the sentence he was
facing pursuant to the plea agreement. At a bench conference, the trial
judge refused to let Defendant question Caldwell about a possible sentence and then
proceeded to advise the jury that the potential sentence was within the sole
discretion of the court.
When the court gave its instructions to the jury, included among those instru
was jury instruction no. 8, which will be set forth in its entirety
and discussed at length infra. The instruction advised the jury on the
law of accomplice liability. Defendant did not object to this instruction.
The jury found Defendant guilty of all counts. The trial court se
Defendant to 20 years on each of the two robbery counts in the
Cash Indiana Pawn Shop incident, to be served concurrently. In addition, Defendant
was sentenced to 20 years for each of the robbery counts in the
Smoke Shop and Cigarettes Cheaper Store incidents, to be served concurrently with each
other but consecutively to the sentence for the Cash Indiana Pawn Shop incident.
Finally, Defendant pled guilty to being a habitual offender. Consequently, the
trial court sentenced him to 25 years on the habitual offender count, to
be served consecutively to the robbery sentences. Thus, Defendant was sentenced to
a total of 65 years.
The Court of Appeals reversed Defendants convictions, holding that jury instru
ction no. 8
constituted fundamental error. McCorker v. State, 783 N.E.2d 801 (Ind. Ct. App.
2003) (mem.). In doing so, the Court of Appeals followed the reasoning
of its recent decision, Walker v. State, 779 N.E.2d 1158 (Ind. Ct. App.
2002) (opinion on rehg),
trans. denied, 792 N.E.2d 33 (Ind. 2003). We
granted the States petition to transfer in McCorker. 792 N.E.2d 47 (Ind.
As noted, Walkers relief was granted in a post-conviction proceeding on grounds of
ffective assistance of counsel. Defendant here seeks relief in a direct appeal
on grounds of fundamental error. The Court of Appeals here followed Walkers
conclusion by finding the instruction to be erroneous and Walkers result by granting
relief. This is not surprising. While we frame the standard for
ineffective assistance of counsel and fundamental error in somewhat different terms appropriately
so, since the first is a standard of Federal Constitutional law and the
second of state criminal procedure
they will invariably operate to produce the
same result where the procedural posture of the claim is caused by counsels
failure to object at trial.
It is a fundamental principle of law that where two or more persons
ngage in the commission of an unlawful act, each person is criminally responsible
for the actions of each other person which were a probable and natural
consequence of their common plan even though not intended as part of the
original plan. It is not essential that participation of any person to
each element of the crime be established.
A person who knowingly or intentionally aids, induces, or causes another person to
commit an offense commits that offense, even if the other person:
has not been prosecuted for the offense;
has not been convicted of the offense; or
has been acquitted of the offense.
To aid under the law is to knowingly aid, support, help or assist
in the commission of a crime. Mere presence at the scene of
the crime and knowledge that a crime is being committed are not sufficient
to allow an inference of partic
ipation. It is being present at the
time and place, and knowingly doing some act to render aid to the
actual perpetrator of the crime.
The presence of a person at the scene of the commission of a
crime and companionship with another person engaged in the commission of the crime
and a course of conduct before and after the offense are circu
may be considered in determining whether such person aided and abetted the commission
of such crime.
(Appellants App. at 97.)
Sandstrom v. Montana, the United States Supreme Court held that the Fourteenth
Amendment of the U.S. Constitution requires the State to prove beyond a reasonable
doubt every material element of a crime, and that a jury instruction that
shifts that burden to the defendant violates the defendants due process rights.
442 U.S. 510, 524 (1979). Defendants claim is that jury instruction no.
8 violates the mandate of Sandstrom.
The instruction at issue in
Sandstrom is well known. In that case,
the jury had been instructed: the law presumes that a person intends
the ordinary consequences of his voluntary acts. 442 U.S. at 512 (emphasis
added). Counsel for the Sandstrom defendant made a timely objection to the
instruction, arguing that the instruction ha[d] the effect of shifting the burden of
proof on the issue of purpose or knowledge to the defense and that
that is impermissible under the Federal Constitution, due process of law. Id.
at 513. The objection was overruled and Sandstrom was convicted. The
Supreme Court initially determined that the jury could have found this to be
a mandatory presumption, that is, that the jury was required to find that
Sandstrom intended the consequences of his acts so long as it found that
Sandstrom had voluntarily performed them. Id. at 514. The Court also
pointed out that the Sandstrom jury had not been informed that the presumption
could be rebutted or how it could be rebutted. Id. at 517.
The Court concluded that because the jury might have interpreted the judges
instruction to shift the burden of proof on the element of Sandstroms intent,
which would have deprived Sandstrom of his due process rights, the instruction was
unconstitutional. Id. at 524.
We do not agree with Defendant that instruction no. 8 shifted
the burden of proof from the State on an essential element of the
To be sure, there are problems with instruction no. 8 and we counsel
courts against using it in the form given here. First, the preamble
to the instruction uses the phrase, It is a fundamental principle of law
that . . . . The rule of accomplice liabi
lity is certainly
a principle of law and may be even a fundamental one. But
there are many fundamental principles of law embodied in jury instructions and we
think it unhelpful to label some as such and not others. At
the same time, we think jurors recognize that this phraseology is little more
than a manner of speaking and does not speak to the core of
their responsibility. In any event, it was not objected to.
It is also a weakness of the instruction as given that it did
not recite the States burden of proving beyond a reasonable doubt that Defendant
knowingly or intentio
nally aided, induced, or caused Caldwell to commit the unlawful acts
at issue. But the jury was thoroughly instructed that the States burden
of proof was beyond a reasonable doubt.
We cannot conclude that the
trial court abused its discretion by not including the reasonable doubt language in
this particular instruction. Ivy v. State, 715 N.E.2d 408, 410 (Ind. 1999)
([T]he jury was thoroughly instructed on the States burden of proof beyond a
reasonable doubt [by the other instructions given].); Richards v. State, 481 N.E.2d 1093,
1095 (Ind. 1985) ([I]nstructions must be considered as a whole, with reference to
each other, in determining whether the trial court erred in charging the jury.)
Still a third weakness of instruction no. 8 is that it uses many
of the same words or close synonyms that were used in
the unconstitutional instruction disapproved in
Sandstrom. Although, as we explain in a
moment, we find them to have been used in a constitutional fashion here,
the use of the words and phrases fundamental principle of law, probable and
natural consequences, and intended in the same sentence certainly spotlights instruction no. 8
for Sandstrom scrutiny.
But we do not find instruction no. 8 to violate
problem in Sandstrom, to repeat, was that the instruction could be understood by
the jury as either (1) an irrebuttable direction by the court to find
intent once convinced that defendants actions were voluntary or (2) a direction to
find intent upon proof of the defendant's voluntary actions (and their "ordinary" consequences),
unless the defendant proved the contrary by some quantum of proof greater than
the law requires. Either interpretation would be contrary to the requirements of
the Due Process Clause because intent was an element of the charged offense
and the jury was free to determine whether or not the State had
proved its existence beyond a reasonable doubt.
The important thing to remember about
Sandstrom in this context is that it
did not outlaw mandatory presumptions in jury instructions. Indeed, jury instructions are
full of mandatory presumptions as to what the law requires once the jury
has found certain facts. What Sandstrom held is that a jury instruction
cannot require a jury to find that cannot impose a mandatory presumption
that the State has met its burden of proof on an element
of the charged offense. That is for the jury to decide; it
cannot be mandated or presumed.
Jury instruction no. 8 did not instruct the jury to presume or otherwise
intent (or any other element of the crimes of which Defendant was
accused) from the consequences of Defendants acts. Rather, it instructed the jury
that it could impose liability or guilt if it found that Defendant knowingly
aided, supported, helped, or assisted Caldwell in the commission of the charged crimes.
This was a correct statement of law, a permissible presumption, that did
not impinge in any way on the jurys fact-finding prerogative. Furthermore, instruction
no. 8 contains language helpful to Defendant to the effect that mere presence
at the scene of the crime and knowledge that a crime was being
committed were not sufficient to allow an inference of participation. In at
least this respect, the instruction is the antithesis of Sandstrom error.
Although for the reasons set forth above, we direct trial courts not to use this fo rmulation in instructing juries on accomplice liability, it was not Sandstrom error to give jury instruction no. 8.
This analysis disapproves the holding in Walker v. State, 769 N.E.2d 1162, 1171 (Ind. Ct. App. 2002), trans. denied, which found the exact same instruction to be unconstitutional. (Walker held that the words fundamental principle denoted a level of importance that ultimately created a presumption. As our analysis above suggests, we do not necessarily disagree with this characterization. But the presumption, if there was one, created here was permissive the jury could find or presume liability or guilt if it found Defendant aided Caldwell.)
On the other hand, the Sixth Amendment of the United States Constitution guara
a defendant the right to confront witnesses against him. Davis v. Alaska,
415 U.S. 308, 315 (1974). This right is secured for defendants in
state criminal proceedings through the Fourteenth Amendment. Pointer v. Texas, 380 U.S.
400, 403 (1965). We have previously determined that any beneficial agreement between
an accomplice and the State must be revealed to the jury. Morrison
v. State, 686 N.E.2d 817, 818 (Ind. 1997); Newman v. State, 263 Ind.
569, 572-73, 334 N.E.2d 684, 687 (1975). This rule serves to help
the jury better assess the reliability and honesty of the felon-witness. Morrison,
686 N.E.2d at 819. The full extent of the benefit offered to
a witness is relevant to the jurys determination of the weight and credibility
of the witnesss testimony. Standifer v. State, 718 N.E.2d 1107, 1110 (Ind.
1999); Jarrett v. State, 498 N.E.2d 967, 968 (Ind. 1986) ([S]ignificant harm results
when the jury is prevented from learning the extent of benefit received by
a witness in exchange for his testimony.).
The trial court abused its discretion when it prevented Defendant from cross-examining Caldwell
regarding the beneficial sentence he would likely receive under the plea agreement.
When a trial court excludes testimony in violation of a defendants fe
right to confront witnesses, the conviction will be sustained only if the error
is harmless beyond a reasonable doubt. Standifer, 718 N.E.2d at 1110-11 (citing
Chapman v. California, 386 U.S. 18, 24 (1967)). Whether the error was
in fact harmless depends on factors such as the importance of the witnesss
testimony in the States case, whether the testimony was cumulative, the presence or
absence of evidence corroborating or contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise permitted, and the overall strength of the
States case. Id. at 1111 (citations omitted).
In the present case, Caldwells testimony regarding Defendants presence and particip
ation in the
three robberies was merely cumulative of the testimony offered by the witnesses at
each of the three locations. Caldwells testimony did not further incriminate Defendant
in terms of his role in the planning of the crimes since Caldwell
in fact testified that the crimes were not planned. In addition, besides
the inability to cross-examine regarding a possible sentence, Defendant was permitted to conduct
an extensive cross-examination of Caldwell. In fact, Defendant was able to cross-examine
Caldwell regarding the inconsistencies between his trial testimony and an earlier statement filed
with the police, the presence of the beneficial plea agreement, and the delay
in sentencing until a time following Defendants trialall of which undermined Caldwells credibility.
Thus, given the extent of the cross-examination Defendant conducted and the su
evidence by other witnesses that placed Defendant at the scenes of the three
robberies and corroborated his behavior, any error resulting from Defendant not being permitted
to cross-examine as to the exact sentence Caldwell would likely receive under the
plea agreement was harmless beyond a reasonable doubt.
Ineffective assistance of counsel claims are governed by the two-part test a
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Perez v.
State, 748 N.E.2d 853, 854 (Ind. 2001). First, the defendant must show
that the counsels performance was deficient by falling below an objective standard of
reasonableness and the resulting errors were so serious that they resulted in a
denial of the right to counsel guaranteed under the Sixth Amendment. Id.
Second, the defendant must show that the deficient performance prejudiced his defense.
Id. Prejudice is shown with a reasonable probability that, but for
counsels errors, the result of the proceeding would have been different. Id.
This reasonable probability is a probability sufficient to undermine confidence in the
original outcome of the proceeding. Id.
Defendant contends that his counsel should have made an offer of proof of
rtance behind cross-examining Caldwell regarding the specific terms of his plea agreement.
But given our finding supra that Caldwells testimony was not the sole
basis of his conviction that there was testimony from numerous witnesses at
the three different crime scenes that placed Defendant at the scenes and described
his involvement the strength of his defense was not prejudiced by the
failure to make the offer of proof.
As to Defendants contention that his counsel should have objected to final jury
ction no. 8 as violative of his due process rights, we held above
that the instruction was not erroneous. When an ineffective assistance of counsel
claim is based on trial counsel's failure to make an objection, the appellant
must show that a proper objection would have been sustained by the trial
court. Lambert v. State, 743 N.E.2d 719, 732 (Ind. 2001) (quoting Lloyd
v. State, 669 N.E.2d 980, 985 (Ind. 1996)).
Defendant contends that his sentence was manifestly unreasonable because it was i
a trial court to enhance a presumptive sentence by relying on his criminal
history and violent nature of the offenses since the nature of the offenses,
and violence and/or use of a weapon are contemplated in the Class B
enhancement of the robbery charge. Thus, according to Defendant, the trial court
essentially enhanced a presumptive sentence by using the underlying elements of the offense.
The record shows that Defendant had accumulated thirteen felony convictions for ro
criminal sexual assault causing bodily harm, aggravated criminal sexual assault, criminal sexual assault,
unlawful restraint, possession of a controlled substance, manufacturing and delivery of a controlled
substance, and delivery of cocaine. (R. at 607-08.) (The States information
on the habitual offender count included one possession of controlled substance conviction and
one aggravated criminal sexual assault conviction.) (Appellants App. at 60.)
Defendants significant criminal history and inability to rehabilitate were suff
icient to justify consecutive
sentences under Ind. Code § 35-38-1-7.1. The trial court could well have
reached its decision without even examining the violence involved in the present offenses.
We are not persuaded that a 65-year total sentence is manifestly unreasonable.