Howard Howe
Jeffrey A. Modisett
Randi F. Elfenbaum
Office of the Attorney General
50 South Meridian Street No. 605
Indianapolis, Indiana 46204-3540
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
Indiana Government Center South
402 West Washington Street, Fifth Floor
Indianapolis, Indiana 46204-2770
ROBERT C. COLEMAN, )
)
Defendant-Appellant, )
) Supreme Court No.
v. ) 49S00-9302-CR-253
)
STATE OF INDIANA, )
)
Plaintiff-Appellee. )
Appellant Robert C. Coleman executed a waiver of his right to trial by jury. He was tried
before the court and found guilty of Murder, Ind. Code § 35-42-1-1 (Supp. 1991), and Carrying
a Handgun Without a License, a Class D Felony, Ind. Code § 35-47-2-1 and 23(c) (1988). The
trial court sentenced Coleman to sixty years for Murder and one and one-half years for Carrying a
Handgun Without a License, sentences to run concurrently.
This appeal was originally docketed in this Court in 1993. Coleman then sought a remand
to the trial court to pursue a petition for post-conviction relief. We granted this request and
terminated the appeal pursuant to Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977). See
also Hatton v. State, 626 N.E.2d 442 (Ind. 1993). After a hearing, the trial court denied
Coleman's petition for post-conviction relief. Coleman then initiated this appeal. By order, we
granted Coleman leave to present both the issues that would have been addressed in the original
appeal and those arising from the post-conviction proceeding.
Appellant raises the following issues: 1) Was Appellant denied his Sixth Amendment right
to effective assistance of counsel? 2) Did the trial court commit reversible error when excluding
evidence of specific instances of the victim's violent conduct and was counsel ineffective for
failing to make an offer of proof of those specific instances? 3) Did the judge pro tempore lack
authority to accept Appellant's jury trial waiver and was that waiver invalid? 4) Was the evidence
insufficient to support the conviction of Murder? and 5) Is the sentence manifestly unreasonable?
We answer these questions negatively, and affirm.
FACTS
The evidence viewed in the light most favorable to the judgment shows that Appellant
shot and killed his long-time friend, William House, in the early morning hours of August 22,
1991.
At approximately 3:00 a.m., House drove to the home of his cousin, Diaryl Hoskins, and
asked Hoskins to ride around with him in a white Camaro that House had borrowed. The two
men drove to a local night club. As they approached, Hoskins noticed that Appellant was
standing outside. Knowing that House and Appellant were good friends, Hoskins pointed out
Appellant to House. House pulled the car over, and got out to speak to Appellant. Appellant and
House argued; then House got back into the car, and he and Hoskins left the area.
A few minutes later, House noticed that Appellant was following him in his car. House
pulled over and got out of the car. Appellant pulled up next to the Camaro, got out of his car,
and the two rehashed their earlier argument. Hoskins told House that he wanted to get going,
and House got back into the Camaro. Appellant then approached the Camaro, pulled out a
handgun and fired two shots in House's direction. The first shot ricocheted off the ground and hit
the car door, the second shot hit House in the side of the chest, below his left armpit. House put
the car in gear and accelerated, then apparently lost consciousness. Hoskins managed to stop the
car. With the help of some bystanders, Hoskins moved House into the passenger seat and drove
to Methodist Hospital, where doctors pronounced House dead on arrival.
Appellant took the stand in his own defense and testified that he shot the gun in House's
direction to cover himself while he retreated behind his car. He stated that he believed House had
a gun, and he shot only after he saw House make a move for the gun.
DISCUSSION
I. Effective Assistance of Counsel
We evaluate claims concerning denial of the Sixth Amendment right to effective assistance
of counsel using the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984).
Yerden v. State, 682 N.E.2d 1283, 1286 (Ind. 1997). First, the appellant must show that his
attorney's performance fell below an objective standard of reasonableness. Strickland, 466 U.S.
at 687-91. Second, the appellant must show that the deficiencies in the attorney's performance
were prejudicial to the defense. Id. at 691-96. Prejudice exists when the conviction or sentence
resulted from a breakdown in the adversarial process that rendered the result of the proceeding
fundamentally unfair or unreliable. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). We presume
that the attorney's performance has met the objective standard of reasonableness; to prevail, the
appellant must rebut this presumption with strong and convincing evidence. Barany v. State, 658
N.E.2d 60, 65 (Ind. 1995). Evidence of isolated poor strategy, inexperience or bad tactics will
not support a claim of ineffective assistance. Clark v. State, 668 N.E.2d 1206, 1211 (Ind. 1996),
cert. denied ___ U.S. ___, 117 S.Ct. 1438 (1997).
Appellant sought permission to terminate his direct appeal to pursue post-conviction
remedies for the alleged violation of his Sixth Amendment rights, and to develop a record for
review of those claims. The post-conviction court expressly limited its decision to Appellant's
ineffectiveness claims. On appeal from denial of post-conviction relief, the appellant must show
that the evidence as a whole was such that it leads unerringly and unmistakably to a decision
opposite that reached by the trial court. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind. 1995).
It is only where the evidence is without conflict and leads to but one conclusion, and the trial
court has reached the opposite conclusion, that the decision will be disturbed as being contrary to
law. Id. at 1119-20.
defend Appellant so as not to appear soft on crime.
In the post-conviction proceedings, attorney Bookwalter testified that Appellant's trial
was in mid-September and he did not begin campaigning full-time until October; that during
September, he campaigned only on evenings and weekends; and that the campaign had no impact
on his representation of Appellant at the trial. He further testified that he recommended that
Appellant waive his right to a jury trial because, based on his experience and the particular facts of
this case, he thought Appellant had a better chance being tried by the judge than by a panel of
twelve ordinary citizens. Finally, he stated that he was proud of being a defense attorney and did
not believe that representing Appellant was a liability to his campaign.
The post-conviction court found that counsel did not neglect Appellant's case in favor of
his campaign, and that counsel had adequate strategic reasons for recommending a jury waiver
and for conducting the trial as he did. The evidence does not lead unerringly and unmistakably to
the opposite conclusion; thus, we will not disturb the post-conviction court's decision on appeal.See footnote
1
before and during trial; failed to take any depositions or interview witnesses; failed to develop and
argue possible defenses; and failed to prepare for final argument.
As stated above, we will not find counsel's assistance ineffective absent a showing that
due to counsel's alleged errors, the result of the proceeding has been rendered unfair or
unreliable. Allegations that counsel failed adequately to consult with the appellant or failed to
investigate issues and interview witnesses do not amount to ineffective assistance absent a
showing of what additional information may have been garnered from further consultation or
investigation and how that additional information would have aided in the preparation of the case.
Brown v. State, ___ N.E.2d ___, slip op. at 15 (Ind. March 2, 1998).
Appellant apparently asserts that if his attorney consulted with him more frequently,
reviewed the evidence with him and interviewed witnesses, he would have developed additional
evidence to support his self-defense claim,
See footnote
2
or to support the claim that his conduct amounted to a
lesser included offense of murder such as reckless homicideSee footnote
3
or voluntary manslaughter,See footnote
4
rather
than intentional murder. At the post-conviction hearing, Appellant called two witnesses who
were not heard at trial. We construe Appellant's argument to be that if counsel called these
witnesses at trial, their testimony would have supported his claim that he was not guilty of
intentional murder, but acted in self-defense, or was guilty only of a lesser included offense of
murder.
Appellant's friend, Kenneth Ellis, testified at the post-conviction hearing that House had a
reputation for violence in the community, and recounted a specific instance in which Appellant
and House fought over money when they were teenagers. Appellant's wife, Anita Coleman,
testified that House was known for carrying a gun, and that she had seen House with a gun on
several occasions. Appellant points to no other specific evidence that would have been developed
upon further consultation and investigation.
Attorney Bookwalter interviewed Ellis and Coleman before trial, but called neither of
them to testify. Absent a strong showing to the contrary, we presume that counsel's decision not
to call a witness was indicated by the circumstances of the case and made upon due deliberation.
See Williams v. State, 508 N.E.2d 1264, 1267 (Ind. 1987). In light of the other evidence
admitted at trial that supported Appellant's defenses, we find that Appellant has not overcome
this presumption. For example, Appellant introduced evidence that House had a violent
character, including testimony from Mary Coleman and Appellant that House's reputation was a
violent one. Appellant also testified that House typically carried a gun, that he previously saw
House pull a gun on someone, and that Appellant was cautious and afraid of House. Appellant
testified that he discharged his gun only after he saw House make a move for a gun and he did not
fire at House but only in his direction. Hoskins testified that House had been convicted of a
violent crime and that, after the first argument outside the nightclub, House was angry and upset.
Since the trier of fact was presented with evidence that would arguably support
Appellant's defenses, we do not find that Appellant's conviction was somehow unfair or
unreliable due to counsel's strategic decision not to call Coleman or Ellis. C.f. Williams, 508
N.E.2d at 1267-69 (counsel's complete lack of trial preparation and failure to present any
evidence to support alibi defense merited reversal for new trial).
Appellant also argues that counsel was ineffective because he did not prepare for closing
argument, and particularly because counsel suggested during closing argument that, on the
evidence, "it's hard to argue self-defense." (R. 373.) We find no ground for reversal here. The
crafting and delivery of final argument are matters of strategy on which counsel is entitled to the
presumption of competency. Isolated poor strategy does not necessarily amount to ineffective
assistance.
See Mato v. State, 478 N.E.2d 57, 60 (Ind. 1985)(strategic decision to mention
defendant's motorcycle gang membership in closing argument not ineffective assistance).
Despite the comment regarding self-defense, counsel marshaled evidence and argued
vigorously in support of the theory that Appellant's conduct was not intentional or knowing, but
that Appellant acted in "sudden heat" or recklessly. Counsel's choice to focus on Appellant's lack
of intent rather than the self-defense claim falls within the realm of strategy, and did not render the
result of the proceedings unfair or unreliable.
unreliable.
appearance. The trial court consulted Appellant and offered to reschedule the sentencing hearing
and appoint substitute counsel. Appellant declined, and agreed to have trial counsel continue to
represent him. Appellant argues that after the motion was denied, counsel should have obtained a
continuance to prepare for the hearing; instead, Appellant claims counsel gave a mere perfunctory
performance, failing to call available witnesses to speak for him, failing to present evidence of
statutory mitigators, and failing to argue that the evidence at trial supported a lesser included
offense of murder. Appellant claims the trial court imposed the maximum sentence as a direct
result of counsel's poor performance.
At the hearing, counsel presented both testimonial evidence from Guy Hall, Appellant's
friend, and a written statement from Appellant's wife. Counsel pointed out the hardship a lengthy
incarceration would have on Appellant's wife and three children, Appellant's apparent remorse at
having killed his friend, and his lack of specific intent to kill. Appellant personally expressed his
remorse, denied any intent to kill the victim, and asked for forgiveness. Appellant affirmed on the
record that there was no further evidence to present on his behalf.
Other than his wife, who was heard at sentencing in the form of a written statement,
Appellant points to no specific witness whom counsel should have called, and does not show how
any additional testimony would have changed the sentencing outcome. Appellant has not met his
burden of establishing ineffective assistance. See Alvarado v. State, 686 N.E.2d 819, 822-23
(Ind. 1997).
See footnote
6
II. Victim Character Evidence
Appellant argues that the trial court improperly excluded evidence of a specific instance of
House's violent conduct offered in support of his self-defense claim, to prove that he had reason
to fear House at the time of the shooting. He also contends counsel was ineffective for failing to
make an offer of proof regarding the content of this testimony.
When Appellant was tried in 1992, evidence of a homicide victim's character was
generally prohibited, unless a defendant raised a self-defense claim. Holder v. State, 571 N.E.2d
1250, 1253 (Ind. 1991).See footnote
7
In Holder, we summarized the applicable law as follows:
Evidence of the victim's character may be admitted for either of two distinct
purposes: to show that the victim had a violent character giving the defendant
reason to fear him or to show that the victim was the initial aggressor. [Phillips v.
State, 550 N.E.2d 1290 (Ind. 1990).]
Evidence of specific bad acts is admissible to prove that the victim had a
violent character which frightened the defendant. Id. However, only general
reputation evidence of the victim's violent character is admissible to prove that the
victim was the initial aggressor. Norris v. State, [498 N.E.2d 1203, 1205 (Ind.
1986).] If the defendant wishes to introduce either type of evidence, she must first
introduce appreciable evidence of the victim's aggression to substantiate the self-
defense claim. Phillips, 550 N.E.2d at 1297. When offering specific bad acts
evidence to prove the victim's violent character frightened her, the defendant must
also provide a foundation showing that she knew about the specific bad acts in
question before she killed the defendant. Id.
571 N.E.2d at 1254.
Appellant attempted to elicit evidence from Mary Coleman that House had a reputation
for carrying a gun, and that she saw him point a gun at a person on a prior occasion. The trial
court allowed the general reputation evidence, but excluded the evidence of the specific act.
Errors in the admission of evidence are to be disregarded as harmless unless they affect the
substantial rights of a party. Ind.Trial Rule 61; McClain v. State, 675 N.E.2d 329, 331 (Ind.
1996). In determining whether an evidentiary ruling affected an Appellant's substantial rights, we
assess the probable impact of the evidence on the trier of fact. Id. In determining whether there
has been a Sixth Amendment violation, we assess whether counsel's alleged deficient performance
has rendered the result of the trial fundamentally unfair or unreliable. Lockhart, 506 U.S. at 372.
At trial, Appellant was permitted to testify that House typically carried a gun, that he had
seen House pull a gun on someone before, that House was dangerous and vengeful, and that
Appellant was cautious and afraid of House. Hoskins testified that House had been convicted of a
violent crime and that, after the first encounter with Appellant outside the nightclub, House was
angry and upset.
Considering the other evidence that could support a finding that Appellant feared House,
we find it unlikely that the exclusion of evidence of a single instance of prior violent conduct had
an impact on the trial judge's ultimate ruling. And, in light of this evidence, we do not find that
counsel's failure to make an offer of proof regarding the content of Mrs. Coleman's testimony
rendered the result of the proceedings fundamentally unfair or unreliable. We find neither
reversible error as a result of the exclusion of this testimony, nor ineffective assistance of counsel
as a result of counsel's allegedly deficient efforts to introduce it.
III. Jury Trial Waiver
As stated above, Appellant executed a waiver of his right to a trial by jury. He now claims
that his conviction should be reversed because the judge pro tempore lacked authority to accept
the waiver, or because the judge failed to make an independent determination that the waiver was
knowing, intelligent and voluntary.
tempore failed fully to examine Appellant on the record as to his understanding and appreciation
of the consequences of the waiver. We find no error.
The right to a trial by jury is a fundamental right guaranteed by the Sixth Amendment to
the United States Constitution and by Article 1, § 13 of the Indiana Constitution, and may be
waived by a knowing, intelligent and voluntary waiver. Poore v. State, 681 N.E.2d 204, 206
(Ind. 1997); Robey v. State, 555 N.E.2d 145, 148 (Ind. 1990). The defendant must express his
personal desire to waive a jury trial and such personal desire must be apparent from the record.
Poore, 681 N.E.2d at 206. Contrary to Appellant's assertion, however, there is no requirement
that a trial court orally advise a defendant of his right to a jury trial and the consequences of
waiving that right. Hutchins v. State, 493 N.E.2d 444, 445 (Ind. 1986). A written waiver
executed by the defendant is adequate. Id.
At the final pretrial hearing in this case, Appellant filed a written, signed waiver of jury
trial. Before accepting the waiver, the judge pro tempore questioned Appellant about whether he
understood that he had the right to have his guilt or innocence determined by a jury of twelve
persons selected from the county voter registration rolls, and that by waiving that right, his guilt
or innocence would be determined by a judge alone. The judge also asked Appellant whether he
had an adequate opportunity to discuss the consequences of this waiver with his attorney, and
Appellant responded that he had. This was more than sufficient to insure that Appellant's waiver
was valid. See Jones v. State, 544 N.E.2d 492, 495 (Ind. 1989).
IV. Sufficiency of Evidence of Murder
Appellant contends that the record contains insufficient evidence to sustain his conviction
for murder. When examining the sufficiency of evidence, we neither reweigh the evidence nor
resolve questions of credibility; rather, we consider only the evidence most favorable to the
judgment together with all reasonable inferences to be drawn from that evidence. Deckard v.
State, 670 N.E.2d 1, 3 (Ind. 1996). We affirm if, considering that evidence and those inferences,
we find substantial evidence of probative value to support the judgment. Minter v. State, 653
N.E.2d 1382, 1383 (Ind. 1995).
To obtain a conviction for murder, the State must prove beyond a reasonable doubt that
the defendant knowingly or intentionally killed the victim. Ind. Code § 35-42-1-1(1) (Supp.
1991); Davis v. State, 635 N.E.2d 1117, 1120 (Ind. Ct. App. 1994). Appellant argues although
the evidence shows he fired two shots in the victim's general direction, it is insufficient to
establish beyond a reasonable doubt that he knowingly or intentionally killed House. Appellant
testified at trial that he fired the shots under the belief that House had a gun, and that House was
going to shoot him first. He stated that he discharged the gun to cover himself as he ran behind
his car, not to injure or kill House. He argues this evidence might prove that he committed
reckless homicide or voluntary manslaughter, but not murder.
State witness Diaryl Hoskins testified that after Appellant and House argued the second
time, House got back into the white Camaro. Appellant then approached the car and said, "Yeah,
motherf----r, but you ain't going to talk to me like that either," and he reached in his pocket,
pulled out the gun, and fired. (R. at 154.)
This testimony from the single eyewitness to the act is sufficient to sustain a murder
conviction. See, e.g., Hood v. State, 561 N.E.2d 494, 496 (Ind. 1990). Further, intent to kill may
be inferred from the use of a deadly weapon in a manner likely to cause death. Cook v. State, 675
N.E.2d 687, 692 (Ind. 1996). Approaching the victim and firing two shots in his direction
undoubtedly constitutes using a deadly weapon in a manner likely to cause death. The evidence
was therefore sufficient for a reasonable trier of fact to conclude beyond a reasonable doubt that
Appellant knowingly or intentionally killed William House.
V. Sentence
At the time of Appellant's crime, murder carried a presumptive sentence of forty years,
which could be enhanced by twenty years due to aggravating circumstances. Ind. Code § 35-50-
2-3(a) (1988). The trial court found two aggravating circumstances, and imposed the maximum
sentence of sixty years. Appellant argues this sentence is erroneous.
When a trial court enhances a presumptive sentence, it must state its reasons for doing so.
Morgan v. State, 675 N.E.2d 1067, 1073 (Ind. 1997). The court must identify all significant
aggravating and mitigating factors, state why each is considered aggravating or mitigating, and
articulate the balancing process by which the court determined that the aggravating factors
outweighed the mitigating factors. Mitchem v. State, 685 N.E.2d 671, 678 (Ind. 1997). "These
requirements serve the dual purpose of guarding against arbitrary sentences and providing an
adequate basis for appellate review." Id. at 678. Imposition of sentence is within the sound
discretion of the trial court, and we "will not revise a sentence authorized by statute except where
such a sentence is manifestly unreasonable in light of the nature of the offense and the character of
the offender." Ind.Appellate Rule 17(B).
Appellant first argues that his sentence is erroneous because the trial court failed to
consider certain mitigating factors and weigh them against aggravating factors. Specifically, he
claims the trial court should have found that he was remorseful, and that long-term imprisonment
was not in his or society's best interests and would result in undue hardship to his family.
Appellant also claims that the trial court should have considered as a mitigating factor that he was
provoked, and that the proof at trial was more consistent with reckless homicide or involuntary
manslaughter than with murder.
A description of significant mitigating circumstances must be set forth on the record if the
trial court reduces the presumptive sentence or uses mitigating circumstances to offset
aggravating circumstances. Widener v. State, 659 N.E.2d 529, 533-34 (Ind. 1995). Otherwise,
while a trial court may not ignore facts in the record that would mitigate an offense, it need not
credit mitigating factors in the same manner as would the appellant, nor explain why it found a
particular circumstance insufficiently mitigating. Crawley v. State, 677 N.E.2d 520, 523 (Ind.
1997). A finding of mitigating circumstances is within the trial court's discretion. Widener, 659
N.E.2d at 533.
The trial court apparently did not find any of the suggested factors to be sufficiently
mitigating to offset the aggravating factors expressly found. The trial court was not required to
state on the record why it found these factors to be insufficiently mitigating. See Widener, 659
N.E.2d at 533-34. We find no error regarding mitigating circumstances in this record.
Appellant next argues his sentence should be reversed because the trial judge failed
adequately to explain its reasons for imposing the maximum term of years. Appellant complains
that the sentencing statement merely recites statutory aggravating factors, and that mere recitation
of statutory factors is insufficient to support an enhanced sentence. See Erby v. State, 511 N.E.2d
302, 303-04 (Ind. 1987).
When sentencing Appellant, the trial court stated on the record:
I sentence Mr. Coleman to the Department of Corrections for classification and
confinement for a period of sixty years on count one. I impose this sentence because
Mr. Coleman's prior criminal history includes three felony convictions and two of
those are for violent crimes, harmful to individuals; battery and conspiracy to commit
robbery, and as a juvenile he was convicted of armed robbery. This to me indicates
that he is [in] need of corrective treatment that can only be found in a prison setting.
(R. at 456-57.) This is more than a "mere recitation" of statutory factors. The trial judge
specifically listed three prior crimes of which Appellant had been convicted. This alone would
have been adequate to support the enhanced sentence. See Isaacs v. State, 673 N.E.2d 757, 765
(Ind. 1996). And, while a generalized statement that a defendant is in need of correctional and
rehabilitative treatment is not a sufficient reason to enhance a sentence, here the trial court
specifically explained that Appellant's criminal history demonstrates the need for such treatment.
C.f., Erby, 511 N.E.2d at 303-04 (sentencing statement that merely lists statutory aggravators
without stating particular facts and circumstances is insufficient to support sentence
enhancement). We find no error.
To summarize, Appellant's arguments do not show that his sentence is manifestly
unreasonable. The trial court found two valid aggravating factors: (1) Appellant's criminal
history, including three convictions for violent crimes; and (2) that Appellant is in need of
correctional and rehabilitative treatment because of that criminal history. The trial court found no
mitigating circumstances, and none are compelled in this record. The sentence imposed therefore
represents a valid exercise of trial court discretion.
CONCLUSION
We affirm Appellant's conviction and sentence.
SHEPARD, C.J., and DICKSON, SULLIVAN, and BOEHM, JJ., concur.
mitigating factor that reduces what otherwise would be murder under section 1(1) of this chapter to voluntary manslaughter." Ind. Code 35-42-1-3 (1988). "Sudden heat" has been defined as "anger, rage, resentment, or terror sufficient to obscure the reason of an ordinary man, which prevents deliberation and premeditation, excludes malice, and renders a person incapable of cool reflection." Baird v. State, 604 N.E.2d 1170, 1178 (Ind. 1992). Mere words are not sufficient provocation to precipitate sudden heat. Id.
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