ATTORNEY FOR APPELLANT
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Rosemary L. Borek
Deputy Attorney General
SUPREME COURT OF INDIANA
STEVEN MITCHELL, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-0006-CR-363
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark Renner, Magistrate
Cause No. 49D04-9901-CF-8585
ON DIRECT APPEAL
March 7, 2001
Steven Mitchell was convicted of murder and sentenced to sixty-five years imprisonment.
He challenges the instructions on the law of aiding and abetting and the
trial courts limitation on cross-examination of a witness who had been charged with
the same crime but had pleaded guilty. Mitchell contends that his cross-examination
was improperly restricted to exclude evidence of the potential length of the sentence
the witness faced if he had not pleaded. We affirm the judgment
of the trial court.
Factual and Procedural Background
On January 14, 1999, Mitchell was in the home of his girlfriend, Yolanda
Coffee, with his friends, Edward EZ Crafter, Steven Pooh Kilpatrick, Darnell Middlebrook, Antonio
TT Williams, Antonio Lamar Owens, Craig Ferrell, and Charlene Bronaugh. When Crafter
and Middlebrook began to argue, Mitchell asked them to leave the house.
Outside the house, Crafter and Middlebrooks argument escalated into a fist fight which
lasted for approximately ten minutes before Kilpatrick, Ferrell, Owens, and Williams jumped on
Crafter. The men continued to punch and kick Crafter until he was
lying on the ground. At some point during the fight, Thompson entered
the melee and struck Crafter once. Kilpatrick then hit Crafter over the
head with a large piece of ice and searched his pockets.
Crafter banged on the door of Coffees house, asking to be let in
to escape the attack and get help. Mitchell refused to let him
in and told Kilpatrick to remove Crafter from the porch. After returning
Crafter to the lawn, Kilpatrick entered the house and asked Mitchell if Mitchell
wanted him to kill Crafter. Mitchell responded in the affirmative and gave
Kilpatrick a kitchen knife. Kilpatrick returned outside and continued to beat Crafter
with the others. During this exchange, Thompson left the premises.
Some time later, Ferrell and Kilpatrick were walking on the street with Crafter
between them, when they encountered Thompson. According to Thompsons testimony, Kilpatrick stabbed
Crafter in the neck five or six times, Ferrell stabbed him once in
the chest, and the two left Crafters body in a field.
The three then returned to Coffees house, disposed of their bloody clothes, went
to a liquor store, purchased a bottle of gin, and returned to the
house to drink it. Police found the body the next day.
At trial, Mitchell was charged with murder, robbery, and aggravated battery. Coffee,
Bronaugh, and Thompson testified to the events as described above. The jury
found Mitchell guilty of both murder and aggravated battery. The trial court
vacated the aggravated battery count and sentenced Mitchell to sixty-five years.
I. Aiding and Abetting Instruction
Mitchell first claims that the trial court erred by giving the States tendered
instruction on aiding and abetting. The instruction read:
A person is responsible for the actions of another person when, either before
or during the commission of a crime, he knowingly aids, induces, or causes
the other person to commit a crime. To aid is to knowingly
support, help, or assist in the commission of the crime.
In order to be held responsible for the actions of another, he need
only have knowledge that he is helping in the commission of the crime.
He does not have to personally participate in each element of the
crime nor does he have to be present when the crime is committed.
Proof of a persons failure to oppose the commission of a crime, companionship
with the person committing the offense, and conduct before and after the offense
may be considered in determining whether aiding may be inferred. A preconceived
scheme or plan need not be proven. Mere concerted action or participation
in the illegal acts is enough.
Mitchell objected, stating:
II. Limitation on Cross-Examination
The fifth, I guess I would object to. I think the evidence
is pretty nebulous abouttheres been no discussion about opposing commission of the crime,
companionship, conduct before and after. It seems thats pretty thin. The
previous two I can see might not be objectionable, but this one I
would object to.
He did not offer an alternative instruction.
On appeal, Mitchell claims that, although the instruction is a correct statement of
the law, it is not a complete and fair statement of Indiana law
and misled the jury. Specifically, he claims that the instruction did not
tell the jury that mere presence or acquiescence is not enough and that
there must be evidence of a defendants affirmative conduct.
This Court has recently held that a defendant is ordinarily not required to
tender proposed alternative instructions to preserve a claim of error.
State, 701 N.E.2d 847, 848 (Ind. 1998). Specifically, this Court concluded
that, although a defendant is not generally required to tender an alternative instruction
when objecting to a proposed instruction, the instruction objection at trial [must be]
sufficiently clear and specific to inform the trial court of the claimed error
and to prevent inadvertent error. Id. However, if the claimed error
is failure to give an instruction, a tendered instruction is necessary to preserve
error because, without the substance of an instruction upon which to rule, the
trial court has not been given a reasonable opportunity to consider and implement
the request. Id. at 848 n.3. Under these rules, Mitchell has
waived any error in the jury instruction.
Mitchells objection at trial did not make clear that he was objecting based
on missing information in the proposed instruction. Rather, his objection appeared to
be based on whether there was evidence in the record to support the
third paragraph of the instruction.
See Lehman v. State, 730 N.E.2d 701,
703 (Ind. 2000) (asserting a new argument on appeal waives the appellate claim).
However, even if the objection could somehow be construed to complain about
missing information, in order to preserve this objection, it was necessary to propose
an alternative instruction containing the additional law. Because Mitchell failed to do
that, he has waived this claim.
Mitchells second argument is that the trial court erred by limiting his cross-examination
of Thompson about the possible penalties Thompson faced if he had not pleaded
guilty. Thompson was originally charged with murder, robbery, aggravated battery, and criminal
gang activity. Before Mitchells trial, Thompson pleaded guilty to aggravated battery and
agreed to testify against the other defendants in this case in exchange for
the States dismissal of the other charges and a guarantee that he would
not receive more than fourteen years imprisonment. The State filed a motion
in limine to prohibit Mitchell from cross-examining Thompson about the penalties for the
crimes with which he was originally charged, arguing that Mitchell was charged with
the same crimes and that the jury should not be informed of the
penalties for these crimes. The trial court granted the States motion over
At trial, Mitchell was allowed to cross-examine Thompson about his plea agreement, including
the charges that were dismissed, the seriousness of those charges, and the length
of time he received under the deal. At no point during his
cross-examination did Mitchell make an offer to prove or challenge the pretrial ruling.
A pre-trial hearing or a motion in limine is appropriate to determine the
admissibility of evidence outside of the jurys hearing.
Hadley v. State, 496
N.E.2d 67, 71 (Ind. 1986). However, in order to preserve an error
for appellate review, a party must do more than challenge the ruling on
a motion in limine. Tyra v. State, 506 N.E.2d 1100, 1102-03 (Ind.
1987); Johnson v. State, 472 N.E.2d 892, 908 (Ind. 1985). [T]o raise
the question of error, the evidence must be offered at trial to give
the trial court an opportunity to rule on its admissibility at that time.
Tyra, 506 N.E.2d at 1103 (citations omitted). Because Mitchell failed
at trial to offer the evidence excluded at the pre-trial hearing, he has
not preserved the error for appellate review. See Wise v. State, 719
N.E.2d 1192, 1197 (Ind. 1999); Miller v. State, 716 N.E.2d 367, 370 (Ind.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
This interpretation of the objection is supported by both counsels arguments following
the objection. Both sides discussed what evidence was presented and whether it
supported giving the instruction, not any missing language in the instruction.
Mitchell also loses on the merits of this claim. This Court
reviews the giving or refusal of a tendered instruction by examining whether the
tendered instruction correctly stated the law, whether there was evidence in the record
to support the giving of the instruction, and whether the substance of the
tendered instruction was covered by other tendered instructions. Wooley v. State, 716
N.E.2d 919, 926 (Ind. 1999). The trial court has discretion in the
manner of instructing the jury and its ruling will not be reversed unless
the instructions, when taken as a whole, misstate the law or mislead the
jury. Reaves v. State, 586 N.E.2d 847, 855 (Ind. 1992). The
challenged instruction satisfies these criteria.