ATTORNEY FOR APPELLANT
P. Stephen Miller
Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Deputy Attorney General
SUPREME COURT OF INDIANA
TERMAINE DONTE CHAPMAN, )
Appellant (Defendant Below), )
v. ) Supreme Court
) Cause No. 02S00-9802-CR-72
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable John F. Surbeck, Judge
Cause No. 02D04-9609-CF-401
ON DIRECT APPEAL
November 19, 1999
A jury convicted Termaine Donte Chapman of murder and robbery as a Class A
felony. He was sentenced to sixty years for murder to be served concurrently with thirty
years for robbery. He raises the following three issues in this direct appeal: (1) whether
sufficient evidence supports his murder conviction, (2) whether his robbery conviction can
be enhanced based on the infliction of serious bodily injury (death) for which he was also
convicted under the murder count, and (3) whether the prosecution violated Brady by
withholding evidence.Factual Background
On September 5, 1996, Chapman, Carlos Young, Jr. (C.J.), his cousin Jerry Young
(J.D.), Chris Smith, and Johnny Washington were gambling on the second floor hallway of
an apartment complex in Fort Wayne. C.J. won several hundred dollars, and Chapman lost
quite a bit if not all of his money. At one point, Chapman left the game and returned a few
minutes later with a handgun. According to Washington, Chapman pointed the gun at the
group and told them to put their money on the floor. When C.J. refused to drop his money,
Chapman grabbed C.J., put the gun to his head, and asked him, [D]o you want to catch a
bullet? Without any physical struggle, Chapman fired a single shot to C.J.'s head.See footnote
Smith, and Washington all ran from the scene after the shooting. The only money found
when the police arrived was $1.77 in C.J.'s pocket. C.J. died from a gunshot to the head.
I. Sufficiency of the Evidence
Chapman first argues that there was insufficient evidence to prove beyond a
reasonable doubt that he committed a knowing or intentional killing. Our standard of review
for sufficiency of the evidence claims is well established. We do not reweigh evidence or
assess the credibility of witnesses. We look to the evidence and reasonable inferences drawn
therefrom that support the verdict and will affirm the conviction if there is sufficient
probative evidence from which a reasonable jury could have found the defendant guilty
beyond a reasonable doubt. Taylor v. State, 681 N.E.2d 1105, 1110 (Ind. 1997).
[T]he use of a deadly weapon in a manner likely to cause death or serious bodily
injury is sufficient evidence of intent to support a conviction for murder. Torres v. State,
673 N.E.2d 472, 473 (Ind. 1996) (citing Light v. State, 547 N.E.2d 1073, 1082 (Ind. 1989));
accord Storey v. State, 552 N.E.2d 477, 480 (Ind. 1990) (The use of a deadly weapon in a
manner likely to cause death or great bodily harm permits the jury to infer the defendant's
knowledge that he was killing another.). Smith and Washington saw Chapman hold a gun
to C.J.'s head and fire it, and J.D. heard the gunshot immediately before C.J. fell over against
him. Moreover, immediately before the shooting Chapman asked C.J. is he wanted to catch
a bullet or take a bullet. This is sufficient evidence to support the jury's verdict of a
knowing or intentional killing.See footnote
II. Prohibition Against Multiple Punishment
In addition to being convicted of murder, Chapman was also convicted of robbery as
a Class A felony. Robbery as a Class C felony is defined by statute as a person who
knowingly or intentionally takes property from another person or from the presence of
another person: (1) by using or threatening the use of force on any person; or (2) by putting
any person in fear . . . . Ind. Code § 35-42-5-1 (1998). The offense is a Class B felony if
committed while armed with a deadly weapon or if it results in bodily injury to any person
other than the defendant. Id. It becomes a Class A felony if it results in serious bodily injury
to any person other than the defendant. Id. Chapman contends, correctly in light of our
recent decision in Richardson v. State, 717 N.E.2d 32 (Ind. 1999), that his robbery
conviction cannot be elevated by the same serious bodily injury (death) that formed the basis
of his murder conviction. Here, the only injury was the fatal wound from a single gunshot.
As a result, the same evidence used by the jury to establish the essential elements of murder
was also included among the evidence establishing the essential elements of robbery as a
Class A felony, and the two cannot stand. Accordingly, we remand this case to the trial court
with instructions to reduce the robbery conviction to a Class B felony.See footnote
III. Brady Violation
As a final point, Chapman argues that the State violated Brady v. Maryland, 373 U.S.
83 (1963), when it failed to disclose the likely testimony of witness Andrea Baldwin, a
resident of the apartment complex who saw Chapman with a handgun and heard but did not
see the shooting. According to Chapman, the State knew what Baldwin would say and did
not disclose the information to the defense. Baldwin's testimony consisted of information
that she did not provide to any police officer who made a report.
Baldwin testified at trial that she saw Chapman leave the craps game and, when he
returned he was carrying his shoes, had a little gun in one shoe, and then took his shirt off.
Baldwin watched the men gamble a little while longer then returned to her apartment
where she and her boyfriend heard a single gunshot about twenty or thirty minutes later.
Her boyfriend then left the apartment and saw that C.J. had been shot. Baldwin called the
police, and ultimately she spoke to several different police officers about the shooting.
However, only one police officer prepared a report, and a copy of that report was provided
to defense counsel in the course of pretrial discovery.
After Baldwin left the stand, Chapman moved for a mistrial on the basis that the State
withheld evidence relating to Baldwin's testimony. Chapman did not offer the detective's
report into evidence during the hearing on his motion for a mistrial nor has he otherwise
included it in the record of proceedings on appeal. Based on the testimony of the detective
who prepared the report, however, it appears that the report did not mention Chapman's
taking off his shirt or shoes or Baldwin's seeing Chapman with a gun in his shoe or
elsewhere. In response to Chapman's motion for a mistrial, the State pointed out that
Baldwin was listed as a witness on the charging information since day one, and defense
counsel could have taken her deposition at any time. The trial court denied Chapman's
motion, concluding that the items omitted from the report (Chapman's taking off his shoes
and shirt and his possession of a gun) were not exculpatory.
Brady holds that suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution. 373 U.S. at 87.See footnote
The evidence at issue in this case is neither exculpatory nor material to Chapman's case. See
United States v. Bagley, 473 U.S. 667, 682 (1985) ([E]vidence is material only if there is
a reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.). Chapman argues that the three known
eyewitnesses to the murder provided conflicting testimony, and that there
is a reasonable possibility that if counsel had knowledge of the completely different
story of Baldwin before trial, he may well have discovered an agreement among the
witnesses that the shooting should be blamed on [Chapman] and not anyone else.
Counsel does not claim to know if that is in fact what happened, however, to permit
the prosecutor to hide testimony of a witness, which testimony is entirely different
from three other witnesses whose testimony is filled with inconsistencies, results in
a trial in which it is difficult to believe in the result.
This argument is flawed in at least three major respects. First, there is no evidence that the
three eyewitnesses ever agreed to blame the shooting on Chapman. This is nothing more
than speculation on the part of appellate counsel. Second, Baldwin's testimony is not
entirely different from the testimony of the three eyewitnesses. It is inconsistent only on
the minor points of whether Chapman took off his shoes or his shirt, both of which were
fully explored by defense counsel's cross-examination of all three eyewitnesses. Baldwin's
testimony that she saw Chapman with a little gun is corroborated by the testimony of the
eyewitnesses who saw Chapman point a handgun (described by Washington as a small
gun) at C.J. and then shoot C.J. in the head. Finally, the witnesses' testimony is not filled
with inconsistencies. The inconsistencies that Chapman identifies relate to the relative
position of Chapman and C.J. at the time of the shooting, whether Chapman had the gun in
his hand as he came up the steps or drew the gun when he got to the top of the stairs, and
whether or not there was a tussle between Chapman and C.J. These are all trivial points
in this case, in which the witnesses agree that Chapman had a gun, pointed it at C.J., and
pulled the trigger. Conclusion
Because Baldwin's testimony was in no way exculpatory or material to Chapman's
case, there was no Brady violation.
Termaine Donte Chapman's conviction for murder is affirmed. This case is remanded
to the trial court with instructions to reduce the robbery count to a Class B felony and impose
a sentence of ten years to be served concurrently with the previously imposed sentence for
SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.
1 J.D. and Smith testified to essentially the same story. According to J.D., Chapman first held C.J.
by the arm and it appeared that they were like tussling with each other. Chapman then pointed his gun
and told everybody to drop their money. After C.J. refused, Chapman asked if he was going to take a
bullet for the money, then the two again briefly tussled before Chapman pushed [C.J.] over on top of
[J.D.] and pulled the trigger. Smith testified that he was standing at the door when Chapman put the gun
on C.J. demanding him to put the money down on the floor. After Smith asked Chapman what was going
on, Chapman pointed the gun at Smith and Smith shut the door. Smith then opened the door, saw C.J. try
to move towards the rail to avoid the gun, and saw Chapman shoot C.J. in the head.
2 The crux of Chapman's argument seems to be that he intended to commit only a robbery and not
a murder. Therefore, the argument goes, although the State could have successfully obtained a felony
murder conviction, there was insufficient evidence to support a knowing or intentional murder. This
argument ignores Chapman's threatening catching or taking a bullet and our well-settled decisional
law which holds that a defendant's intent to kill may be inferred from the use of a deadly weapon in a
manner likely to cause death or serious bodily injury. Whether Chapman intended to kill C.J. was an issue
for the jury to decide, and there is sufficient evidence in the record to support its conclusion. Chapman's
discussion of the felony murder rule, particularly his verbatim quotation from Head v. State, 443 N.E.2d
44, 48-51 (Ind. 1982), which comprises six full pages of his brief, is largely irrelevant. A persuasive six-
page quotation is perhaps conceivable, but we have never seen one.
3 Chapman is incorrect that the robbery count should be reduced to a Class C felony. The robbery
charge included the allegation that he was armed with a handgun. Because the use of a deadly weapon is
not an element of the murder charge, elevation to a Class B felony is proper.
4 This general rule has since been extended to cover no request, general request, and specific
request cases of prosecutorial failure to disclose evidence favorable to the accused. See United States v.
Bagley, 473 U.S. 667, 682 (1985).
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