ATTORNEY FOR APPELLANT|
Kenneth R. Martin
ATTORNEYS FOR APPELLEE|
Jeffrey A. Modisett
LESTER BUFKIN, ) ) Appellant (Defendant Below ), ) ) v. ) ) Supreme Court STATE OF INDIANA ) Cause No. 20S00-9804-CR-231 ) Appellee (Plaintiff Below ). )
imprisonment. In this direct appeal, he raises six issues for our review: (1) whether the trial
court erred in admitting a photograph of the victim's face; (2) whether it was error for a
police officer to testify about Bufkin's arrest for another charge; (3) whether he was denied
the effective assistance of counsel; (4) whether the trial court erred in giving a flight
instruction; (5) whether the trial court committed fundamental error in giving an instruction
on his failure to testify; and (6) whether the trial court erred in sentencing him. We affirm
the conviction, but remand for resentencing because the trial court was mistaken about the
proper presumptive sentence.
the street. Williams drove both Mathis and Bufkin to Goshen where he dropped them off at
the home of John Kincaid. Bufkin asked Kincaid to take him to Detroit, but Kincaid said he
was too tired and went back to bed. When Kincaid woke up the next morning, Bufkin was
still in his home. According to Kincaid, Bufkin asked again to be taken to Detroit. Instead
of driving Bufkin to Detroit, Kincaid drove him to the bus station. Bufkin gave Kincaid $50
for the ride.
During trial, the defense attacked the credibility of some of the state's witnesses, particularly Stacy Proctor who had prior convictions for multiple counts of check deception and false informing. The defense also pointed out that Proctor did not tell her story to the police until ten weeks after the killing. Nevertheless, a jury found Bufkin guilty of murder, and he was sentenced to fifty-five years imprisonment.
was not ineffective for failing to make a hearsay objection. Lloyd v. State, 669 N.E.2d 980,
985 (Ind. 1996) (when an ineffective assistance of counsel claim is based on trial counsel's
failure to make an objection, the appellant must show that, had a proper objection been
made, it would have been sustained).
Bufkin's second contention is that his trial counsel was ineffective for failing to object to testimony from Captain Towns that allegedly bolstered the testimony of Stacy Proctor. Bufkin draws our attention to the following exchange from the State's cross-examination of Towns:
Q: How much of [Proctor's] testimony did you see?
A: I believe the majority.
Q: From what you observed, did you find her credible?
A: I find that it is awfully difficult for people, especially [in] a death investigation, to
turn emotions on and off. One thing that I noticed with Proctor is whenever it got to
the point of the shooting, the tears, the emotions that came. Talked about a lot of
subjects, talked about her boyfriend, and previous convictions, and that kind of stuff,
and you really didn't see that. It only kind of came up when the shooting took place,
which was an indication, and of course, as I stated, the other witnesses that put
credibility to what she says.
Bufkin maintains that this testimony violated Indiana Evidence Rule 704(b) which prohibits witnesses from testifying to opinions concerning, among other things, whether a witness has testified truthfully[.] We agree with Bufkin that it was improper for Captain Towns to offer his opinion as to Proctor's credibility. However, we do not agree that trial counsel's failure
to object to this testimony denied Bufkin the effective assistance of counsel. Even if this
were not a decision related to trial strategy,See footnote 2
it is at most an isolated error that does not render
counsel ineffective. See, e.g., Smith v. State, 689 N.E.2d 1238, 1244 (Ind. 1997) (an isolated
mistake does not amount to ineffective assistance of counsel unless, taken as a whole, the
defense was inadequate).
was that there was not sufficient evidence of flight to warrant giving such an instruction.See footnote 3
He contends that his departure from Elkhart after the murder was no more than the act of
returning home to Detroit. Brief of Appellant at 17.
Bufkin's challenge to the sufficiency of evidence of flight is not well taken. We give the trial court's ruling the benefit of all reasonable inferences which can be drawn from the evidence. Phillips v. State, 550 N.E.2d 1290, 1301 (Ind. 1990). Stacy Proctor and Stephanie Bryant both testified about Bufkin's hurried departure from the scene of the killing. The testimony of Andy Mathis, Don Williams, and John Kincaid all show that Bufkin was anxious to leave the Elkhart area and return to Detroit. The fact that Bufkin had to wait until Kincaid woke up the next morning to get a ride to the bus station does not change this. If a flight instruction is proper at all, the evidence was sufficient to support it. See, e.g., Ingram v. State, 547 N.E.2d 823, 830 (Ind. 1989) (defendant ran to girlfriend's nearby house where he told her that he thought he had killed a man, but then turned himself in to the police nineteen hours later); Agnew v. State, 518 N.E.2d 477, 478 (Ind. 1988) (defendant was found with the victim's car some twenty-four hours later in a city twenty-five miles from the crime scene); Hegg v. State, 514 N.E.2d 1061, 1062-63 (Ind. 1987)
(defendant in robbery case grabbed the victim's billfold and ran down the alley with it);
Cheney v. State, 486 N.E.2d 508, 511-12 (Ind. 1985) (defendant's automobile hurriedly left
the parking lot of the club where he had shot someone); Tanner v. State, 471 N.E.2d 665,
668 (Ind. 1984) (defendant was absent from the scene of the crime and police did not locate
him until he surrendered two days after a warrant was issued); Clemons v. State, 424 N.E.2d
113, 119 (Ind. 1981) (witnesses testified that the defendant ran away from the scene, even
though the defendant and his companion stated that they merely continued walking home).
A defendant has a Fifth Amendment right to have such an instruction given upon request. Carter v. Kentucky, 450 U.S. 288, 101 S. Ct. 1112, 67 L. Ed. 2d 241 (1981); Horan v. State, 642 N.E.2d 1374 (Ind. 1994). A defendant also has a state constitutional right under Article I, § 14 not to have this instruction given over his objection. Priest v. State, 270 Ind. 449, 386 N.E.2d 686 (1979); cf. Lakeside v. Oregon, 435 U.S. 333, 98 S. Ct. 1091, 55 L. Ed. 2d 319 (1978) (giving the instruction over a defendant's objection does not violate the Fifth Amendment). Neither is the case here. Bufkin neither requested nor objected to this
instruction. We have previously held that giving a failure to testify instruction in the absence
of an objection from the defendant is not error. Priest, 270 Ind. at 452, 386 N.E.2d at 688-89
(1979); Moore v. State, 268 Ind. 519, 521, 376 N.E.2d 1129, 1130 (1978).
The sentencing statement shows that the trial court found one mitigating circumstance which offset the two aggravators.See footnote 4 4 The statement also demonstrates the trial court's belief that fifty- five years was the presumptive sentence for murder. This murder, however, was committed on April 11, 1995. At that time, there were two versions of the sentencing statute for murder on the books. One provided for a forty year presumptive sentence, and the other provided a fifty year presumptive. Ind. Code § 35-50-2-3; Smith v. State, 675 N.E.2d 693, 697 (Ind. 1996) (holding that the forty-year presumptive should be followed). The presumptive sentence for murder was increased to fifty-five years effective July 1, 1995. See Pub. L. No. 148-1995, § 4, 1995 Ind. Acts 3069. Therefore, the trial court was clearly operating under a mistaken understanding of the applicable sentencing law when it imposed a presumptive
sentence of fifty-five years.See footnote 5
We can only speculate as to what sentence the trial court would
have imposed if it had been operating under a correct understanding of the presumptive
sentence for murder; therefore, we remand this case for resentencing on the record. See, e.g.,
Alvarado v. State, 686 N.E.2d 819, 824 (Ind. 1997) (remanding for resentencing when it was
not clear which sentencing statute the trial court applied).
Because the issue may arise during resentencing, we briefly consider Bufkin's contention that the trial court failed to consider his lack of a criminal record as a mitigating circumstance when imposing sentence. We review a trial court's sentencing decision only for an abuse of discretion. Grund v. State, 671 N.E.2d 411, 418 (Ind. 1996). The finding of mitigating factors rests within this discretion, and the trial court is not obligated to accept the defendant's version of what constitutes a mitigating factor. Magers v. State, 621 N.E.2d 323, 324 (Ind. 1993). On the other hand, the trial court may not ignore significant mitigating circumstances that are supported by the record. Widener v. State, 659 N.E.2d 529, 534 (Ind. 1995).
We do not agree with Bufkin's characterization of his criminal record as pristine, nor do we believe the trial court abused its discretion in failing to find this supposed lack of criminal history as a mitigating circumstance. As a practical a matter, a fifteen-year-old defendant has not had much time to amass a criminal history. Nevertheless, as noted in the Presentence Investigation Report and discussed during the sentencing hearing, Bufkin
admitted he was referred to juvenile authorities in Detroit at age fourteen for Incorrigibility.
As a result of this charge, he received a six-month placement at a camp. The trial court was
well within the bounds of its discretion when it failed to find the lack of criminal history as
a mitigating circumstance.
SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.
Converted by Andrew Scriven