Kurt A. Young
Attorneys for Appellee
Attorney General of Indiana
Andrew L. Hedges
Deputy Attorney General
Kurt A. Young
LAMONTE M. BATTLES,
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
On March 12, 1996, a jury convicted the defendant, Lamonte M. Battles, of Murder,See footnote 1 Voluntary Manslaughter,See footnote 2 a class A felony, and Robbery,See footnote 3 a class A felony. The trial court
merged the counts of Voluntary Manslaughter and Robbery into the Murder count, and
sentenced defendant to sixty years' imprisonment.
Defendant appeals his convictions and sentence and raises the following issues for
our consideration: (1) whether the trial court erred in refusing defendant's tendered instruc
tions regarding the voluntariness of his statement to police and the defense of accident; and
(2) whether the sentence imposed by the trial court is manifestly unreasonable.
We have jurisdiction over this direct appeal because the longest single sentence
exceeds fifty years. Ind. Const. art. VII, § 4; Ind.Appellate Rule 4(A)(7); Buie v. State, 633
N.E.2d 250, 252 (Ind. 1994).
Defendant returned to Ragan's house between 9:00 and 10:00 that same night. They drank some more. Ragan made a pass at defendant and refused to let him leave the house.
Defendant then struck Ragan over the head with a partially full gin bottle, strangled him,
and fled the scene in Ragan's car.
committed was knowingly made, the jury may consider the age,
education, physical and mental condition of the defendant, and
his treatment while in custody or under interrogation as well as
all other circumstances surrounding the making of the statement
as shown by the evidence in this case.
If the evidence in this case does not convince you be
yond a reasonable doubt that the statement of the defendant to
police was made voluntarily and intentionally, you should dis
regard the statement entirely. On the other hand, if the evi
dence in this case does show beyond a reasonable doubt that
defendant's statement to police was voluntary and intentionally
made, you may consider it as evidence against the defendant.
Defendant argues that (1) the tendered instruction is a correct statement of the law,
taken almost verbatim from an instruction given in Grassmyer v. State, 429 N.E.2d 248, 253
(Ind. 1981);See footnote
(2) conflicting testimony regarding his level of intoxication when giving his
statement to the police supports the instruction; and (3) no other instruction given by the
court adequately instructed the jury on how to consider defendant's statement.
Defendant went to police headquarters around 2:00 a.m. on May 18, 1995. He ate a meal and took a nap before speaking to detectives Smiley and Stamm. The detectives took defendant's taped statement at 5:25 that morning, and detective Smiley testified at trial that defendant had not appeared intoxicated while giving his statement. However, defendant
introduced conflicting testimony to show that he was intoxicated when he talked to the
detectives. Floren Dedeaux testified that he had been with defendant around midnight on
May 18, 1995. While they were together, Dedeaux and defendant drank two six-packs of
beer and two pints of gin. After consuming this alcohol, defendant turned himself in.
Defendant argues that Dedeaux's testimony tends to show that defendant was intoxicated when he gave his statement to the police, that the statement was therefore involuntary, and that the jury should have been instructed that it could decide that defendant involuntarily gave his statement to the police. This Court has held that being intoxicated while giving a statement to the police does not render the statement involuntary per se. Brooks v. State, 683 N.E.2d 574, 575 (Ind. 1997); Gregory v. State, 540 N.E.2d 585, 592 (Ind. 1989); Bean v. State, 267 Ind. 528, 532, 371 N.E.2d 713, 715 (1978). As a general rule, intoxication only goes to the weight which should be accorded the statement and not to its admissibility. Brooks, 683 N.E.2d at 576; Gregory, 540 N.E.2d at 592; Bean, 267 Ind. at 532, 371 N.E.2d at 715. It is the role of the court to determine whether a statement made by a defendant is voluntary and therefore admissible. Coates v. State, 534 N.E.2d 1087, 1093 (Ind. 1989). Following the admission of a statement into evidence, it becomes the duty of the jury to evaluate the credibility of the statement, and to decide how much weight to give it. See Holmes v. State, 671 N.E.2d 841, 857 (Ind. 1996), cert. denied, 118 S.Ct. 137 (1997). Here, the trial court already had determined that defendant's statement was volun tary and admissible, and defendant does not ask us to reconsider that determination. The
only issue left to resolve is whether the jury needed an instruction to explain how it should
interpret defendant's statement.
For the content of his tendered instruction, defendant relied upon an instruction given
in Grassmyer v. State, 429 N.E.2d 248, 253 (Ind. 1981). The defendant in Grassmyer was
subjected to extensive police interrogation during which he gave an incriminating statement.
The trial court there instructed the jury to consider whether the defendant's statement was
voluntary for the purposes of ignoring it or deciding how credible it was. However, this
case is more like our recent decision in Holmes v. State, where we found that, "[u]nlike in
Grassmyer, the evidentiary predicate for the issue of voluntariness is not present in the case
at bar. While there was evidence that appellant was in custody during his statement, there
is no evidence that the statement was the product of interrogation and thus there is no
foundation for the voluntariness question." Holmes, 671 N.E.2d at 857 (trial court properly
refused defendant's tendered instruction regarding voluntariness of statements made by him,
including chanting "murder in the first degree" while in custody).
Here, defendant came together with his family to police headquarters and presented himself for questioning. Defendant waived his rights and gave a full statement to detectives Smiley and Stamm. Although there is evidence from which a jury could infer that defendant was intoxicated when he gave his statement, his level of intoxication was found by the trial court not to affect the voluntary nature of his statement. See Brooks, 683 N.E.2d at 576;
Bean, 267 Ind. at 532, 371 N.E.2d at 715 (intoxication must be so severe as to render
defendant unconscious about what he or she says for the statement to be considered involun
tary). The issue before the jury was credibility, not voluntariness. We find that the trial
court's preliminary instruction regarding witness credibilitySee footnote
adequately addressed this issue,
and that the court did not err in refusing defendant's tendered instruction.
This defense contains three elements:
1. The conduct must have been unintentional, or with out unlawful intent or evil design on the part of the de fendant;
2. The act resulting in injury must not have been an unlawful act;
3. The act must not have been done recklessly, care lessly or in wanton disregard of the consequences.
The State has the burden of disproving this defense beyond a
Defendant argues that the trial court erred in refusing this tendered instruction: (1)
the tendered instruction correctly stated the law because it was taken directly from Indiana
Pattern Jury Instruction No. 10.19; (2) no other instruction covered the same subject matter;
and (3) testimony from witnesses on both sides provided an evidentiary basis for the
instruction. The State does not dispute the first two contentions, so we address only the
issue of whether evidence supports giving the instruction.
The evidence on which defendant relies to support the instruction on the defense of
accident is his own out-of-court statement to the police that he intended to place a "sleeping
hold" on Ragan, and the testimony of Dr. Dean Hawley that Ragan's death from manual
strangulation could have resulted from the misapplication of a martial arts technique known
as a "shime waza." Neither defendant's statement nor Dr. Hawley's testimony constitutes
substantive evidence tending to prove the elements of the defense of accident set forth in
defendant's tendered instruction.
We first address defendant's statement to the police that he intended only to place a sleeper hold on Ragan, not to kill him. A defendant cannot make exculpatory statements outside court, present no evidence in defense, preclude the state from cross-examining the assertions, and then be entitled to have the self-serving statements constitute substantive evidence supporting an instruction on the defense of accident. Clemens v. State, 610 N.E.2d 236, 241 (Ind. 1993) (quoting Brown v. State, 485 N.E.2d 108, 111 (Ind. 1985)).
We next turn to Dr. Hawley's testimony. Dr. Hawley performed the autopsy on Ragan's body and determined that the cause of death was manual strangulation, with additional blunt force injury to the head. Strangulation is commonly done with a finger hold, Dr. Hawley said, but the injury to Ragan's neck was more consistent with application of a broader area, such as a forearm, to the neck from behind the victim. Dr. Hawley testified that this kind of manual strangulation is well-documented in medical literature, and is known as a "shime waza." He said that the shime waza is a martial arts technique taught occasionally to law enforcement officers as a way to render someone unconscious, but its application sometimes has resulted in accidental death. Dr. Hawley stated that it is possible to kill someone using the shime waza without there being any external indicia of injury to the neck muscles. The force applied to Ragan's neck tore his neck muscles off his collar bone and crushed his larynx into his spine. Dr. Hawley compared this force to what an unrestrained driver in a head-on collision at forty to fifty miles an hour would experience, and testified that it far exceeded what is necessary to render someone unconscious using proper application of the shime waza.
This Court previously has held that a defendant is not entitled to an instruction on the defense of accident when the only support for the instruction was the defendant's own out of court self-serving statement and the medical evidence introduced at trial showed that the victim's death was not accidental. Clemens, 610 N.E.2d at 241. The extreme force exerted upon Ragan's neck and described by Dr. Hawley tends to negate any inference that defen
dant's conduct was unintentional, or that the "sleeper hold" was not applied recklessly,
carelessly, or in wanton disregard of the consequences. We conclude that the trial court
could find that there was no evidentiary basis for defendant's tendered instruction on the
defense of accident.
Sentencing lies within the discretion of the trial court. Mayberry v. State, 670 N.E.2d
1262, 1270 (Ind. 1996) (citing Sims v. State, 585 N.E.2d 271, 272 (Ind. 1992)). This Court
has authority to revise sentences, but will not do so unless the sentence imposed is mani
festly unreasonable. Ind. Const. art. VII, § 4; Ind.Appellate Rule 17(B); Woods v. State,
677 N.E.2d 499, 502 (Ind. 1997).
Defendant argues that the trial court improperly considered some aggravating factors
and erroneously failed to consider other mitigating factors. In reviewing enhanced sen
tences, we employ a three part review. The trial court's sentencing statement must (1)
identify all of the significant mitigating and aggravating circumstances relied upon by the
trial court, (2) state the specific reason why each circumstance is considered aggravating or
mitigating, and (3) demonstrate that the court balanced the aggravating and mitigating
circumstances and determined that the aggravators outweighed the mitigators. Jones v.
State, 675 N.E.2d 1084, 1087 (Ind. 1996) (emphasis added). See also Pruitt v. State, 622
N.E.2d 469, 474 (Ind. 1993); Henderson v. State, 489 N.E.2d 68, 71 (Ind. 1986). We now
apply this test in reviewing defendant's enhanced sentence.
622 N.E.2d at 474; Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993). Instead, he argues
that the trial court improperly considered his criminal history because it did not indicate in
its sentencing statement how much weight it placed on the criminal history in relation to the
other aggravating factor it considered.
Here, we believe the trial court demonstrated in its statement that it had considered
the evidence before it in determining that defendant's prior criminal history properly
constituted an aggravating factor. When a defendant's criminal history is used as an
aggravating factor to support an enhanced sentence, the court must recite the incidents
comprising the criminal history. Jones, 675 N.E.2d at 1087 (citing Hammons v. State, 493
N.E.2d 1250, 1254 (Ind. 1986), reh'g denied, 496 N.E.2d 1284 (Ind. 1986)). Here, the trial
court explicitly stated that defendant's lengthy criminal history began with "a true finding
when [he was] seventeen" of the juvenile equivalent of armed robbery, and that "[his
subsequent] criminal activity [had been] considerable and consistent." This statement
demonstrates the trial court's awareness of the individual incidents that comprised defen
dant's criminal history. We find that defendant's lengthy criminal history was an aggravat
ing circumstance sufficient by itself to support an enhanced sentence.
language of Ind. Code § 35-38-1-7.1(b) does not support the enhanced sentence. Ind. Code
§ 35-38-1-7.1(b) provides the sentencing court with a nonexclusive list of aggravating
circumstances it may consider when imposing an enhanced sentence. In its sentencing
statement, the trial court said that defendant "[was] in grave need of some correctional and
rehabilitative treatment that [could] only be provided by [his] being committed to a penal
facility." This is an almost verbatim quotation from Ind. Code § 35-38-1-7.1(b) (Supp.
1994), which states in pertinent part:
(3) The person is in need of correctional or rehabilitative treat ment that can best be provided by commitment of the person to a penal facility.
A 'perfunctory recitation' of statutory factors does not provide adequate review of the appropriateness of an enhanced sentence. Mitchem v. State, 685 N.E.2d 671, 679 (Ind. 1997); Robey v. State, 555 N.E.2d 145, 152 (Ind. 1990); Ridenour v. State, 639 N.E.2d 288, 296 (Ind. Ct. App. 1994). Recently, this court has prescribed standards for the use of the "in need of corrective or rehabilitative treatment best provided by a penal facility" aggravator. When relying on this particular aggravator to support an enhanced sentence, the trial court must provide a specific statement of why the particular defendant needs corrective or rehabilitative treatment that could best be provided by a penal facility _ for a period of time in excess of the presumptive sentence. See Hollins v. State, 679 N.E.2d 1305, 1308 (Ind. 1997); Smith v. State, 675 N.E.2d 693, 697-98 (Ind. 1996); Mayberry, 670 N.E.2d at 1270- 71; Newhart v. State, 669 N.E.2d 953, 955 (Ind. 1996).
Here, the trial court did not indicate in its sentencing statement why defendant needed corrective treatment for a period of time in excess of the presumptive sentence and, therefore, it improperly considered this aggravating circumstance. However, we find this to be harmless error because defendant's lengthy criminal history by itself suffices to support his enhanced sentence despite the trial court's misapplication of the other aggravator. See Hollins, 679 N.E.2d at 1308; Smith, 675 N.E.2d at 698.
In its sentencing statement, the court did not mention any possible mitigating circum stances and neither decreased the presumptive sentence of fifty years nor offset the ten year enhancement. Inclusion of mitigators in the sentencing statement is mandatory only if they
are used to reduce the presumptive sentence or to offset aggravators. Widener v. State, 659
N.E.2d 529, 533 (Ind. 1995). Otherwise, the trial court is not required to include mitigators
in its statement, especially where mitigators are disputed, because the finding of mitigators
is discretionary. Id. at 534; Aguirre v. State, 552 N.E.2d 473, 476 (Ind. 1990). In addition,
the sentencing statement must include only those mitigators the trial court found to be
significant. Jones, 675 N.E.2d at 1087; Pruitt, 622 N.E.2d at 474; Henderson, 489 N.E.2d
at 71. (Emphasis added.) Finding a mitigating factor to be significant lies within the trial
court's discretion. Jones, 675 N.E.2d at 1088; Mayberry, 670 N.E.2d at 1270; Harris v.
State, 659 N.E.2d 522, 528 (Ind. 1995). All of that having been said, it is better practice for
the trial court to indicate its rejection of any proffered mitigating circumstances to assure the
court on review that they have not been overlooked. Jones, 675 N.E.2d at 1088 ("failure to
find mitigating circumstances that were clearly supported by the record may imply that they
were overlooked"); Grund v. State, 671 N.E.2d 411, 419 (Ind. 1996).
When determining whether a particular mitigator is significant, "the trial court is not required to give the same credit or weight to the proffered mitigating circumstance that the defendant does." Widener, 659 N.E.2d at 533-34. However, the trial court "may not ignore mitigating circumstances clearly supported by the record." Id. at 534. Defendant argues (1) that the record clearly demonstrates that his incarceration would work a hardship upon his dependent child, and (2) that he voluntarily explained his actions to the police, at which time he expressed remorse for Bruce Ragan's death.
Defendant contends that his incarceration for the maximum enhanced sentence will work a hardship upon his five year old son, who had been living with him prior to his arrest. Dependent children are properly considered a mitigating factor under Ind. Code § 35-38-1- 7.1(c)(10). However, the difference between the presumptive and enhanced sentence here hardly can be argued to impose much, if any, additional hardship on the child, and we decline to attach any significant weight to this proffered mitigating circumstance.
Next, defendant argues that his voluntary statement to the police should be consid
ered a mitigating factor in light of this Court's decision in Brewer v. State, in which we
found a maximum sentence of sixty years for murder to be unreasonable, when the defen
dant confessed to the crime after it had remained unsolved for fifteen years. Brewer v.
State, 646 N.E.2d 1382, 1386 (Ind. 1995). Defendant analogizes his immediate cooperation
with the police to Brewer's confession, and contends that the trial court failed to properly
consider that significant mitigating circumstance.
Acknowledging that defendant's cooperation with the police is probably entitled to some mitigating weight, we nevertheless believe defendant's reliance on Brewer is mis placed. In Brewer, fifteen years passed between Brewer's commission of the murder and his voluntary confession to the police. Until Brewer confessed, the police had not linked the crime to him, or to anyone else. For fifteen years, Brewer successfully had escaped punish ment for the murder, and it was likely he could have continued avoiding it. Here, however,
there was evidence linking defendant to the crime almost immediately, and detective Smiley
had distributed defendant's picture to the local media for broadcast purposes. Escape for
defendant under these conditions would have been highly unlikely.
In Brewer, our finding that the sentence was manifestly unreasonable, and that the
trial court gave insufficient weight to a significant mitigating factor, i.e., the defendant's
confession, was based largely
on the defendant's successful avoidance of any responsibility
for the crime he had committed fifteen years earlier. Here, however, defendant's eventual
capture and arrest were nigh unavoidable, and we cannot say that the trial court abused its
discretion in failing to find that his voluntary statement to the police was a mitigating factor
entitled to any significant weight.
Finally, defendant argues that the trial court improperly failed to consider his expres
sion of remorse for Ragan's murder as a significant mitigating factor. In light of the ex
tremely brutal nature of Ragan's injuries and death, we are hard pressed to assign any
significant weight to defendant's alleged remorse.
Although the trial court did not mention any mitigating circumstances in its sentenc ing statement, we find that any weight that might have been assigned to the proffered mitigating circumstances is more than offset by defendant's prior criminal history. As such, we conclude that the sentence was not manifestly unreasonable.
SHEPARD, C.J., and DICKSON, SELBY and BOEHM, JJ., concur.
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