ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone, IV Jeffrey A. Modisett
Anderson, Indiana Attorney General of Indiana
Teresa Dashiell Giller
Deputy Attorney General
INDIANA SUPREME COURT
MARK T. WILLIAMS, )
v. ) 48S00-9808-CR-471
STATE OF INDIANA, )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Fredrick R. Spencer, Judge
Cause No. 48C01-9409-CF-148
On Direct Appeal
August 18, 2000
The defendant, Mark T. Williams, appeals his conviction for the August 20, 1994,
See footnote of John Frank Lewis. The trial court ordered a sixty-year sentence,
to run consecutively to a sentence he was already serving in the State
of Illinois. This appeal alleges trial error in (1) permitting leading questions;
(2) sentencing; and (3) ineffective assistance of trial counsel. We affirm the
defendant's conviction and remand for re-sentencing.
A. Examining of Witness
The defendant contends that the trial court abused its discretion in allowing, over
defense objections, the State to ask leading questions on direct examination. The
State responds that the questions were proper because the witness was reluctant to
testify for fear of her own safety and that of her children.
Indiana Evidence Rule 611(c) provides that leading questions should not be used on
the direct examination of a witness. However, the rule permits leading questions
when they are necessary to develop the witness's testimony and whenever a party
calls a hostile witness, an adverse party, or a witness identified with an
adverse party. Ind. Evidence Rule 611(c). Our case law has allowed
leading questions on direct examination to develop the testimony of certain kinds of
witnessesfor example, children witnesses; young, inexperienced, and frightened witnesses; special education student witnesses;
and weak-minded adult witnesses.
See, e.g., Bussey v. State, 536 N.E.2d 1027,
1029 (Ind. 1989); Altmeyer v. State, 519 N.E.2d 138, 141 (Ind. 1988); King
v. State, 508 N.E.2d 1259, 1263 (Ind. 1987); Ward v. State, 246 Ind.
374, 379, 205 N.E.2d 148, 151 (1965); Stallings v. State, 232 Ind. 646,
648, 114 N.E.2d 771, 772-73 (1953); Ingram v. State, 463 N.E.2d 483, 485
(Ind. Ct. App. 1984). The use of leading questions is limited in
order to prevent the substitution of the language of the attorney for the
thoughts of the witness as to material facts in dispute. Thompson v.
State, 674 N.E.2d 1307, 1309-10 (Ind. 1996); Webster v. State, 206 Ind. 431,
436, 190 N.E. 52, 54 (Ind. 1934). A leading question is one
that suggests to the witness the answer desired. Goodman v. State, 479
N.E.2d 513, 515 (Ind. 1985). However, the mere mention of a subject
to which a witness is desired to direct his or her attention is
not considered to be a suggestion of an answer. Id. The
use of leading questions on direct examination generally rests within the trial court's
discretion. Thompson, 674 N.E.2d at 1309-10; Garrison v. State, 589 N.E.2d 1156,
1158 (Ind. 1992); Webster, 206 Ind. at 436, 190 N.E. at 54.
See Robert Lowell Miller, Jr., Indiana Evidence, 13 Indiana Practice § 611.302 (1995
& Supp. 2000).
The defendant challenges four portions of the direct examination of a witness, Octavia
McDade, who at the time of the murder was twenty years old.
The first question the defendant challenges is: "The man you saw standing
next to the black S-10 pickup truck on August 20, 1994, is this
man right here in this purple shirt, isn't it, Octavia?" Record at
330. It appears from the Record that, as defense counsel objected, the
witness answered, "Yes." Record at 330. The defendant contends that this
question told the witness what the defendant was wearing so she could identify
him as the shooter.
This question was asked in the following context:
State: Did there come a time when you saw a man at
the driver's side door?
State: You ever seen that man before?
Witness: Not until he looked at me.
State: The man at the driver's side door looked at you?
State: Did you know who he was?
Witness: I knew him but I didn't know his name.
State: Do you see him in the courtroom today?
State: The man you saw standing next to the black S-10 pickup
truck on August 20, 1994, is this man right here in this purple
shirt, isn't it, Octavia?
Defense Counsel: That's a leading question, Your Honor.
Defense Counsel: I object.
State: Well, point to the man you saw at John Lewis' black
S-10 pickup truck. Do you see him in the courtroom?
State: Point to him?
Witness: He's sitting over there.
State: This man that I'm pointing to, is that who you saw?
State: Is that Marcus Williams?
Witness: If that's his name, yeah.
State: That's the man, isn't it?
Record at 329-30. Considering this question in the context of the testimony
supplied by the witness, we note that, before defense counsel objected, the witness
had already testified that the man who was at the driver's side door
the day of the murder looked at her, that she knew him, and
that he was in the courtroom when she was testifying. In the
testimony that followed the challenged question, the witness pointed to the man she
saw next to the driver's side door and testified that this man was
the defendant. The question"The man you saw . . . is this
man right here in this purple shirt, isn't it, Octavia?"is clearly leading.
The second portion that the defendant challenges arose in the following exchange:
State: Did you go anywhere after your sister's house, Octavia?
Witness: Yeah, I went to Walmart.
State: You went on with your day with your family, didn't you?
State: Did you call the police?
State: You didn't call the police and say, "I just saw a
man that was murdered." You didn't do that?
State: Why not?
Witness: Because I didn't want to be in it. I didn't
want to have nothing to do with it.
State: Cause you didn't want to face that man, did you?
Defense Counsel: Your Honor, I'm going to object again and in direct
examination, leading questions are not permissible. . . . And they also,
uh, these questions also contain conclusions or testimony. That's our objection just
for the record.
Record at 336. We agree that "[c]ause you didn't want to
face that man, did you?" is a leading question.
The third question challenged by the defendant is as follows: "Did you
think the same thing might happen to you that happened to John Lewis
[the murder victim]?" Record at 338. After the defense objected, the
State asked, "Did you think the same thing would happen to you or
your children that happened to John Lewis?" Record at 338. The
witness responded: "Including (inaudible) me and my children." Record at 339.
The defendant contends that the State thereby told her that she was
afraid for her safety and that of her children so she had an
excuse for not voluntarily coming forward with information.
The following exchange preceded this question:
State: Didn't want to be here, did you?
Witness: Because I don't want to have nothing to do with it.
State: Because you got kids, is that right?
Witness: Yep. I got two (2) kids and I done .
. . everything's well without doing this.
State: Did there come a time when Detective Tracy came to see
State: Do you know Detective Tracy over here, Octavia?
State: You've seen him before?
State: Did he come to see you?
Witness: Yes, at my mother's house.
State: You were at your mother's house?
State: Why were you at your mother's house?
Witness: Cause I didn't want to go home.
State: You didn't go back to your house after the murder?
State: Why not?
Witness: Cause I didn't want to.
State: Were you afraid to go back home?
State: What were you afraid of?
Witness: Me and my kids, that's what I was afraid of.
For me and my kids. I was afraid for me and my
kids. That's all I know.
Record at 337-38. From the context surrounding the question, we note that
the witness had already testified without objection that she did not want to
get involved in the case, that she had two children, that she did
not return home after witnessing the murder, that she was staying at her
mother's house, that she did not want to return home, and that she
was afraid for her own safety and that of her children.
The fourth question challenged by the defendant was, "Did you go to school
with the man that murdered John Lewis?" Record at 340. The
defense objected to the question, but the witness did not answer the question.
The State then asked, "Did you tell Detective Tracy you had went
to school with the man that murdered John Lewis?" Record at 340.
The witness responded, "Yeah, little bitty kids." Record at 340.
The State clarified, "Elementary school?" Record at 340. The witness again
replied, "Yeah." Record at 341. The defendant argues that the State
told her how she knew the defendant.
This testimony was preceded by the following exchange:
State: Did [Detective Tracy] tell you that he knew you were a
witness to the murder?
Witness: Yeah, he said something about (inaudible). Seen me standing on
my porch when it happened.
State: Did you tell him the truth when he confronted you that,
in fact, you had been a witness to the murder of John Lewis?
Did you tell Detective Tracy what you saw?
Witness: It took him a minute to get it out of me.
State: You didn't want to tell, did you?
State: But you finally did, didn't you?
State: You told him what happened, didn't you?
State: You told him what you saw, didn't you?
Witness: Um hum (affirmative response).
State: Did you tell him you knew the man who killed John
State: What did you say?
Witness: I didn't know him. I didn't know his name.
State: You'd seen him before, didn't ya? Hadn't ya?
Record 339-40. We note that the witness earlier testified that she knew
the defendant but did not know his name, that the context of the
question includes the witness's testimony that she had seen the shooter before, and
that the witness did not answer the question to which the defense objected.
The defense did not object to the numerous other leading questions.
Although the State argues that the leading questions were proper because the young
witness was fearful of her own safety and that of her children, we
note that the apprehensive and vulnerable emotional state of a witness may well
increase his or her susceptibility to suggestive questions and impair the accuracy of
the resulting responses. Such circumstances amplify the wisdom of the proscription against
leading questions. In the present case, however, we decline to reverse because
the trial court's action in permitting these leading questions, even if erroneous, was
not inconsistent with substantial justice and did not affect the substantial rights of
the defendant. Ind. Trial Rule 61.
The defendant contends that the trial court abused its discretion in imposing, under
P.L. 164-1994, a presumptive sentence of fifty years enhanced by ten years for
aggravating circumstances. The trial court sentenced the defendant to the maximum sentence
of sixty years under Indiana Code section 35-50-2-3. Determining the appropriate sentence
is within the trial court's discretion, and the trial court will be reversed
only upon a showing of manifest abuse of discretion. Archer v. State,
689 N.E.2d 678, 683 (Ind. 1997); Carter v. State, 686 N.E.2d 1254, 1263
(Ind. 1997). We have noted that, for murders committed between July 1,
1994, and May 5, 1995, two versions of Indiana Code section 35-50-2-3 existed
on the books. See Carter, 686 N.E.2d at 1262-63; Jones v. State,
675 N.E.2d 1084, 1086-87 (Ind. 1996); Smith v. State, 675 N.E.2d 693, 695-97
(Ind. 1996). We have previously held that P.L. 158-1994, which provides a
presumptive forty-year sentence for murder subject to a twenty-year enhancement, rather than P.L.
164-1994, which provides a presumptive fifty-year sentence for murder subject to a ten-year
enhancement, applies to murders during this period. Smith, 675 N.E.2d at 697.
Because it is clear from the record that the trial court applied P.L.
164-1994, we remand for a new sentencing hearing.
C. Assistance of Counsel
Urging that his trial counsel provided ineffective assistance, the defendant contends that his
trial counsel was deficient in fourSee footnote areas: (1) failure to object to
testimony about the family of the deceased; (2) failure to offer evidence of
deceased's possession of marijuana at the time of death; (3) failure to object
to evidence of a witness's fears for her safety and that of her
family; and (4) failure to object to improper closing argument.
A defendant claiming a violation of the right to effective assistance of counsel
must establish the two components set forth in
Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also Williams v.
Taylor, 529 U.S. ---, ---, 120 S.Ct. 1495, 1511-12, 146 L.Ed.2d 389, 416-17
(2000). First, the defendant must show that counsel's performance was deficient.
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.
This requires showing that counsel's representation fell below an objective standard of
reasonableness, id. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693, and
that counsel made errors so serious that counsel was not functioning as "counsel"
guaranteed the defendant by the Sixth Amendment, id. at 687, 104 S.Ct. at
2064, 80 L.Ed.2d at 693. Counsel is afforded considerable discretion in choosing
strategy and tactics, and we will accord that decision deference. Id. at
689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95. Thus, a strong
presumption arises that counsel rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment. Id. at 690, 104 S.Ct. at
2066, 80 L.Ed.2d at 695. Even the finest, most experienced criminal defense
attorneys may not agree on the ideal strategy or the most effective way
to represent a client. Id. at 689, 104 S.Ct. at 2065, 80
L.Ed.2d at 695. "The court must . . . determine whether, in
light of all the circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance. In making that determination, the court
should keep in mind that counsel's function, as elaborated in prevailing professional norms,
is to make the adversarial testing process work in the particular case."
Id. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Furthermore,
isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily
render representation ineffective. Bieghler v. State, 690 N.E.2d 188, 199 (Ind. 1997);
Davis v. State, 598 N.E.2d 1041, 1051 (Ind. 1992); Ingram v. State, 508
N.E.2d 805, 808 (Ind. 1987).
Second, the defendant must show that the deficient performance prejudiced the defense.
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.
This requires showing that counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.
Id. To establish prejudice, a defendant must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would be different. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d
at 698. A reasonable probability is a probability sufficient to undermine confidence
in the outcome. Id.
The defendant contends that his trial counsel failed to object when the widow
of the deceased victim testified as to the number of years that she
was married to the deceased, where they lived, the children they had together,
and the victim's employment. The defendant contends that this evidence was irrelevant
to the case, that it was prejudicial in that it lead the jury
to sympathize with the victim, and that no tactical reason supports failing to
The defendant also contends that his trial counsel failed to effectively offer evidence
of deceased's possession of marijuana at the time of death. The defendant's
trial counsel intended to offer evidence that the deceased possessed marijuana at the
time of death and thereby to suggest that the victim's character was not
as good as the State claimed when the State argued that the victim
was living out the American dream. The trial court found such evidence
irrelevant and refused to allow it. The defendant now urges that trial
counsel did not realize that the evidence could be admitted under the doctrine
of curative admissibility
See footnote and that counsel's ignorance of the law rendered him incapable
of carrying out his strategy. The defendant contends that he was prejudiced
because this evidence "could have undermined the jury's view of the deceased as
an innocent victim brutally gunned down for no reason," Brief of Defendant at
14; convinced the jury that this was "simply another drug user getting killed,
in short nothing really important," Brief of Defendant at 14; and "undercut the
jury's sympathy for the deceased," Brief of Defendant at 15.
Further, the defendant alleges that trial counsel failed to object to evidence of
Octavia McDade's fears for her safety and that of her family.
supra Section A discussing McDade's testimony. The defendant contends that this evidence
was irrelevant and prejudicial as anonymous threats against the life of a witness.
Finally, the defendant asserts that his trial counsel failed to object to the
prosecutor's improper closing argument and that no conceivable tactical reason supports choosing not
to object. The defendant urges that the prosecutor's discussion of his own
background, the character of the housing project where the murder occurred, and the
residents of the housing project was improper. The prosecutor argued:
I grew up on welfare. Orphans homes, foster homes, public housing.
I grew up in that environment, but I never lived in the Fountain
Street Apartments or any place like it. I've been to the Fountain
Street Apartments many times as a police officer, as a prosecutor. We
deal with the Fountain Street Apartments all the time. [Defense counsel] never
lived in a place like that Fountain Street Apartments. . . .
None of you have either. I just don't believe that you can
understand and fairly appreciate the things . . . the kind of things
that go on in a complex like the Fountain Street Apartments if you
don't experience it first hand.
Record at 459-60. The defendant argues that this argument was unsupported by
the evidence and that he was prejudiced in the following two ways:
it created an excuse for McDade's failure to voluntarily report to the police
the person she claimed did the shooting and to back up her claim
that she feared for her own safety and that of her children; and
it served to dehumanize the defendant, picturing him as one who resides at
such a place and one who is a member of a threatening, criminal
underclass with whom the jury had nothing in common.
The defendant also contends that the prosecutor improperly played upon his position, identifying
himself as a law enforcement officer who served for many years as a
police officer and now as a prosecutor, arguing that prosecutors have a duty
to do justice, unlike defense lawyers who have a duty of loyalty to
their clients, and urging that he was making arguments and presenting evidence, not
because he was an advocate trying to win a case, but because he
had determined the evidence led to no other conclusion.
Considering the performance prong of ineffective assistance of counsel, we note that the
defendant's trial counsel challenged jurors during voir dire; objected to the State's motion
in limine; developed and followed a trial strategy; made an opening statement; objected
to leading questions asked by the State during direct examination of one of
its witnesses; objected to the admission of certain evidence; cross-examined the State's witnesses;
challenged one of the State's witnesses as to her identification of the defendant
as the shooter; offered exhibits; moved to admit evidence; requested and tendered a
limiting instruction, which was given to the jury; tendered proposed final instructions; objected
to one of the State's proposed final instructions; moved for a directed verdict
on the robbery charge; and presented a closing argument.
Considering the prejudice prong, we note that the evidence in this case demonstrated
the following: within the few days before the murder, the defendant was
observed around the apartment complex where the murder occurred; on the morning of
and shortly before the murder, the defendant and a few other young men
were observed on a porch near the murder scene; one of the State's
witnesses observed the defendant and the other young men around the victim's truck,
saw the defendant with a gun, and heard a shot fired; this witness
knew the defendant from elementary school, even though he had later moved to
Illinois, and identified him from a photographic array; the defendant's palm print was
found on the driver's side door of the victim's truck, the side of
the truck from which the gun was fired; and the gun used in
the murder was also used in another crime committed in Illinois twenty-two days
before the murder and the defendant was present at the scene of the
We find that the defendant's trial counsel's performance did not fall below an
objective standard of reasonableness and that defense counsel's performance rendered the defendant's trial
a reliable adversarial testing process. Even if we were to find that
the performance of the defendant's trial counsel fell short at points and despite
the highly questionable nature of a portion of the prosecutor's closing argument, the
defendant has not shown that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would be different, and thus
our confidence in the outcome is not undermined. We reject the defendant's
claim that his trial counsel provided ineffective assistance.
We affirm the defendant's conviction, vacate the trial court's sentencing order, and remand
for a new sentencing hearing.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
Ind. Code § 35-42-1-1.
In his brief, the defendant also contends that the trial court improperly
found aggravating circumstances by merely reciting the statutory factors and not explaining the
application of the circumstances to the case and that his sentence is manifestly
unreasonable. Because we find the sentence to be otherwise erroneous and remand
for a new sentencing hearing, it is inappropriate to address these claims.
The defendant also contends that his trial counsel provided ineffective assistance by
erroneously agreeing that, at the time of the killing, the presumptive sentence for
murder was fifty years. Because we hold that his sentence is erroneous
and remand for a new sentencing hearing, we need not consider this aspect
of his claim of ineffective assistance.
The doctrine of curative admissibility allows evidence which is otherwise inadmissible to
be presented because similar evidence has been introduced by the adverse party.
See Black's Law Dictionary 381 (6th ed. 1990); 1 Wigmore, Evidence § 15
(Tillers rev. 1983).
The prosecutor's line of argument is highly questionable and has been disapproved
by this Court. See, e.g, Craig v. State, 267 Ind. 359, 367-68,
370 N.E.2d 880, 884 (1977). See also Miller v. State, 623 N.E.2d
403 (Ind. 1993). Because the defendant did not timely object to this
argument, the trial court had no opportunity to correct any error, and the
issue is presented only as part of the defendant's claim of ineffective assistance