John T. Roche
Jeffrey A. Modisett
North Vernon, Indiana
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
John T. Roche
Jeffrey A. Modisett
misconduct that constitutes fundamental error; (2) the trial court erroneously refused his
lesser included offense instruction on reckless homicide; and (3) he received ineffective
assistance of counsel. Under most circumstances we will not entertain a claim of
ineffectiveness of counsel presented on appeal by the same attorney who tried the case. This
case presents no basis for an exception. We affirm the trial court.
to see Etienne walk straight up and just shoot Shane. Although Luke did not remember
hearing any subsequent shots, he testified that there could have been more.
Grider testified that, while he and Luke were wrestling on the ground, he saw Shane swing on or shove Etienne. Grider was either rendered unconscious or had the wind knocked out of [him] during his altercation with Luke and was unable to recall some of the events but did hear a gunshot.
Finally, Etienne testified that upon leaving the Eagles he saw Luke standing at the edge of the sidewalk. Etienne asked Luke how he was doing and Luke responded that he was waiting for Grider. Etienne told Luke that fighting wasn't going to settle anything and then Grider exited the club. Luke walked toward Grider, pushing Etienne to the side. Shane then exited the club and pushed Etienne onto some gravel. Grider and Luke then started screaming at each other. According to Etienne, he told Shane that he was not going to fight but Shane said yes you are. We're going to fight. Etienne then turned and ran to his truck, pulled his gun from the console, and returned to the front of the club where Grider and Luke were fighting. Etienne screamed at Shane [a]t least twice to get Luke off of Grider. Shane told Etienne that he was going to kick [Etienne's] fucking ass, and Etienne responded that he had a gun and showed the gun to Shane. Because Etienne believed that Shane was unaffected by his threat, he fired a shot over Shane's head. Etienne continued to scream at Shane to get Luke off of Grider, but Shane did not comply and instead stepped forward toward Etienne. According to Etienne, he backed away from Shane and told Shane don't make me shoot you, but Shane kept yelling he was going to kick my ass. Etienne then
shot Shane. He agreed in cross-examination that he pulled the trigger on purpose and
meant to hit [Shane] with that bullet, but testified that he intended to hit Shane in the
shoulder and not the chest. Shane died as the result of a single gunshot wound to the lower
part of the heart.
Etienne was charged with murder. The jury was instructed on self-defense, but the trial court refused defense counsel's tendered reckless homicide instruction. The jury convicted Etienne of murder.
in the chest.
MR. ETIENNE: Well I tried to shoot him right there when I was shooting him.
OFFICER MCINTOSH: Well.
The transcript, which according to the State was made from the audiotape, did not contain the final exchange, but rather concluded with McIntosh's comment about ending the interview. Although Etienne concedes that he was provided with a copy of the videotape, albeit of poor quality, he nevertheless asserts error because his final statement from the videotape was not included on the transcript. Moreover, Etienne acknowledges that he was first apprised of this statement, although not its source, during the State's opening statement in which the prosecutor told the jury that Etienne told McIntosh well I meant to shoot him right here, so he openly admits that he was trying to shoot him. Defense counsel, in his opening statement, responded
I don't know where Mr. Smith [the prosecutor] intends to show that Mr. Etienne shot [Shane] some place other than where he intended to shoot him. That may come out. I thought I was well familiar with the facts of this case, that escaped me, but I'm sure that if that was indeed a statement of that night that he'll show that during his own case in chief.
Etienne did not object to the State's opening statement, allege a violation of the trial court's discovery orderSee footnote 2 or assert a claim of prosecutorial misconduct at any point during the trial. As this Court observed in Maldonado v. State, 265 Ind. 492, 498, 355 N.E.2d 843, 848 (1976), a prompt objection to alleged prosecutorial misconduct affords the trial court an
opportunity to prevent or remedy prejudice to a defendant without the considerable waste of
time and resources involved in the reversal of a conviction . . . . Because Etienne did not
object to the alleged misconduct, any claim of error is waived. Mftari v. State, 537 N.E.2d
469, 473 (Ind. 1989).
B. Closing Argument
Etienne also points to eight portions of the State's closing argument that he contends were inappropriate and rose to the level of prosecutorial misconduct. Etienne objected to only one of these comments at trial. As to the seven other allegations of prosecutorial misconduct to which no objection was interposed,See footnote 3 any claim of error is waived. Id.
The remaining instance of alleged prosecutorial misconduct involved the following comment by the prosecutor: now I know self-defense is a significant issue and it ought to be and I value that defense. We talked about it during opening statement. I'm a member of the National Rifle Association and Mr. Vogel [a juror] is maybe some of the others of you are . . . . Defense counsel objected on the ground that it was not proper to mention groups
in closing argument, and the State promptly responded [f]ine, your honor, I'll strike it.
Etienne did not ask for an admonishment or move for a mistrial based on this comment.
Not only must a defendant object to alleged misconduct, he or she must also request an appropriate remedy. Generally, the correct procedure is to request an admonishment. See Brown v. State, 572 N.E.2d 496, 498 (Ind. 1991). However, if counsel is not satisfied with the admonishment or it is obvious that the admonishment will not be sufficient to cure the error, counsel may then move for a mistrial. See Dresser v. State, 454 N.E.2d 406, 407-08 (Ind. 1983). Etienne's failure to request an admonishment or move for a mistrial results in waiver of the issue. See Robinson v. State, 693 N.E.2d 548, 552 (Ind. 1998).
C. Fundamental Error
To deal with the lack of objections to these matters, Etienne contends that the alleged prosecutorial misconduct constitutes fundamental error. To rise to the level of fundamental error, the error must constitute a blatant violation of basic principles, the harm or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process. Wilson v. State, 514 N.E.2d 282, 284 (Ind. 1987); see also Barany v. State, 658 N.E.2d 60, 64 (Ind. 1995) (defining fundamental error as error so prejudicial to the rights of the defendant as to make a fair trial impossible). As to the alleged discovery violation, we fail to see how Etienne was prejudiced because his other accounts to the police and his testimony at trial were to the effect that he intentionally shot Shane, albeit in self- defense. Moreover, most of the State's allegedly improper comments during closing
argument were fair characterizations of the State's view of the evidenceSee footnote
and were only a
small part of a lengthy closing argument at the end of a five-day trial. There was no
fundamental error here. Cf. Robinson, 693 N.E.2d at 552 (rejecting a claim of fundamental
error involving a closing argument in which the defendant claimed that the prosecutor
disparaged him or his counsel in front of the jury, or suggested that the defense was trying
to mislead the jury).
reckless homicide occurs when the defendant recklessly kills another human being and
murder occurs when the killing is done knowingly or intentionally. Compare Ind. Code
§ 35-42-1-5 (1998) with id. § 35-42-1-1(1). Reckless conduct is action taken in plain,
conscious, and unjustifiable disregard of harm that might result and the disregard involves
a substantial deviation from the acceptable standards of conduct. Id. § 35-41-2-2(c). In
contrast, a person engages in conduct knowingly if the person is aware of a high
probability that he or she is doing so. Id. § 35-41-2-2(b). The trial court refused Etienne's
tendered instruction because it found no serious evidentiary dispute as to the mental element
of the offense. Because the trial court specifically made a finding of no evidentiary dispute,See footnote
we review its rejection of the tendered instruction for an abuse of discretion. Brown v. State,
703 N.E.2d 1010, 1019 (Ind. 1998) (citing Champlain v. State, 681 N.E.2d 696, 700 (Ind.
The only evidence of reckless conduct that Etienne points to is his pre-shooting conduct of taking a loaded handgun into the volatile situation and his narrowing of the gap between himself and Shane to five or six feet. However, this was not the issue to be decided by the jury. The jury was to determine whether Etienne knowingly killed Shane which, according to the statutory definition quoted in the jury instructions, turned on whether
Etienne was aware of a high probability that his conduct might kill Shane. When one aims
a gun at another person's shoulder or upper chest area and fires it, he or she is reasonably
aware of a high probability that the shot may kill. Accordingly, the trial court did not abuse
its discretion in refusing Etienne's reckless homicide instruction. See Sanders v. State, 704
N.E.2d 119, 122-23 (Ind. 1999) (upholding the rejection of reckless homicide instruction
because the defendant, who also claimed self-defense, testified that he aimed and shot at the
victim and accordingly must have known that firing directly at a person at such close range
is highly probable to result in death).
positioned to critique their own performance or to proclaim it deficient, a defendant should
not be foreclosed from ever having a fresh set of eyes consider and argue the effectiveness
of his or her trial counsel.
Accordingly, under most circumstances we will not entertain a claim of ineffectiveness of counsel presented on appeal by the same attorney who tried the case. There may be circumstances in which an ineffectiveness claim is sufficiently clear that immediate review is appropriate to avoid unnecessary delay in addressing it. Here, however, Etienne's ineffectiveness claim is little more than a rehashing of his other claims and presents no basis for an exception.
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