ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Jeffrey A. Modisett
Public Defender of Indiana Attorney General of Indiana
Lorraine L. Rodts Carol A. Nemeth
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
STATE OF INDIANA,
STATE OF INDIANA,
Shepard, Chief Justice.
Charles Cooper was charged with one count of Murder, Ind. Code Ann. § 35-42-1-1(1) (West Supp. 1997). The jury found Cooper guilty of Murder, and the trial judge sentenced him to a term of
sixty years. Cooper appeals his conviction and sentence. We
As they drove around further, the five men discussed gangs and
their respective affiliations. They also talked about doing a
"drive-by" directed at a member of a rival gang, meaning they would
shoot at that person's house from the car.
Some time during the night, the group stopped at a grocery
store, where Cooper purchased cigarettes and a potato. There had
been talk among the group about a movie in which a gang member
placed a potato on the end of a gun to silence a shot.
Cynthia City finished her shift at the Great Dane trailer plant in Brazil at 1:30 on the morning of April 21, 1995. While driving home, her car broke down. She began walking home. The
group saw City along the side of the road, and stopped to give her
a ride. She got into the front seat of the car between Cooper and
McBride. McBride stopped the car and all five men got out to
urinate. City stayed in the car. Cooper returned to the passenger
side of the car. With the potato on the end of the gun, he put the
gun to City's head and shot her.
Appellant pulled City's body from the car and dragged it into
the brush. He removed a wallet from her pocket that contained more
than $500.00. He divided the money among the group. The five men
returned to Cooper's residence, where he burned the wallet. Later
that day, they all went shopping and bought matching outfits and
shoes with the money taken from City's wallet. Cooper pawned the
murder weapon to a neighbor.
Cooper presents the following issues on appeal: (1) whether
five alleged errors made by counsel at trial deprived him of his
Sixth Amendment right to effective assistance of counsel; and (2)
whether the trial court properly imposed the maximum sentence for
Cooper asserts trial counsel was ineffective in five separate
respects: (1) by failing to object to the admission of evidence of
his character, including evidence of his gang affiliation and prior
uncharged crimes, (2) by failing to request a limiting instruction
related to evidence of his drug use after the crime, (3) by failing
to object to victim character evidence, (4) by eliciting evidence
of Cooper's prior crimes from his own witness, and (5) by eliciting
evidence that Cooper was a high school drop out and recipient of
social security disability benefits.
Cooper contends the cumulative effect of the alleged errors,
considered with additional prejudice allegedly resulting from an
incident where the jury viewed him in restraints,See footnote
result of the proceeding fundamentally unfair or unreliable. See
Smith v. State, 547 N.E.2d 817, 819-20 (Ind. 1990).
We need not determine whether counsel's performance was
deficient before examining the prejudice suffered as a result of
the alleged deficiencies. See Strickland, 466 U.S. at 697.
Accordingly, we proceed to evaluate whether the alleged trial
errors rendered the result of appellant's trial fundamentally
unfair or unreliable. When making this evaluation, we consider the
totality of the evidence, taking due account of the effect of the
alleged errors. Id. at 695-96.
A review of the record as a whole shows that the witnesses
present at the scene testified with general consistency that Cooper
brought the gun into the car, Cooper bought the potato to use as a
silencer, Cooper was standing closest to the car, and had the gun
in his hand immediately after the shot was heard. He dragged the
body from the car and hid it in the brush, took control over the
proceeds of the crime and divided them among the group, and burned
the victim's wallet.
Sean Dixon testified he saw Cooper place the potato on the end
of the gun and shoot the victim from the passenger side of the car.
(R. at 884-85).
Lance Debouse testified Cooper told him he shot the victim
because he had the urge to do it, (R. at 726), and to prove himself
to the group. (R. at 725).
A Vigo County Deputy Sheriff testified that he overheard
Cooper brag to other county jail inmates that he shot a woman and
that his friends "ratted him out." (R. at 1014).
In light of this overwhelming evidence of guilt, we cannot say that counsel's alleged failings, even when viewed cumulatively, rendered the result of the trial fundamentally unfair or unreliable. Thus, Cooper's claim that he was denied effective assistance of counsel must fail.
asks the court to review and revise the sentence.See footnote
A . Sentencing Statement. 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. 1996). 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. Id. "These requirements serve
the dual purpose of guarding against arbitrary sentences and
providing an adequate basis for appellate review." Id. at 1074.
Cooper first claims the sentencing statement is not adequate to permit appellate review because the trial court failed to identify the aggravating circumstances and explain why those circumstances supported enhancing the sentence to the maximum term of years.
The trial court found Cooper's prior criminal record, which included a conviction for battery and for carrying a handgun without a license, to be an aggravating factor.
And, although not explicitly identified as such, it is apparent from the sentencing statement that the court considered the nature and circumstances of the crime to be an aggravating factor. The trial court stated that the crime was gang-related, that Cooper had been driving around with a gun looking for a target to shoot, that the victim was an innocent target of opportunity, and that Cooper looted the victim's body and ceremonially burned her wallet. The particular manner in which a crime is committed may serve as an aggravating factor.
It is also evident from the sentencing statement that the
trial court considered Cooper's character to be an aggravating
factor. The court stated that Cooper had a dangerous mind set that
confuses fear and respect, that he believes violence and raw force
command respect. (R. at 196). A defendant's character is a
required consideration in the sentencing determination, Ind. Code
§ 35-38-1-7.1(a)(3)(B) (West Supp. 1997), and may be considered an
aggravating factor. See Wray v. State, 547 N.E.2d 1062, 1068 (Ind.
Thus, the trial court identified significant aggravating
factors on the record that justify imposition of an enhanced
Appellant next argues that the sentencing statement is
inadequate because it does not show that the trial court undertook
to balance any mitigating factors against the aggravating factors.
Specifically, he claims the trial court should have found his young
age at the time of the crime (twenty-two years), his criminal
record (containing only misdemeanor offenses), and the nature and
circumstances of the crime (the victim died instantly without
prolonged suffering or infliction of pain) to be mitigating
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 (Ind. 1995). Otherwise, while a trial court may not ignore facts in the record that would mitigate an offense, id. at 534, it need not explain why it found a particular circumstance insufficiently mitigating, id. at 533. A finding of mitigating circumstances is within the trial court's discretion. Id.
It is clear from the sentencing statement that the trial court considered Cooper's criminal record and the nature and circumstances of the crime to be aggravating, not mitigating factors. As discussed above, we find these to be appropriate aggravating factors. And, the trial court apparently did not find Cooper's age to be sufficiently mitigating to offset these
aggravating factors. The trial court was not required to state on
the record the reasons why it found this factor to be
insufficiently mitigating. Id.
Cooper next argues the sentence is improper because the trial
court considered facts that are not supported by the record. The
trial court stated the "crime was gang-related, a crime about going
out and stealing a gun which the Defendant admitted taking, and
driving about hunting someone to shoot by doing a drive-by." (R.
at 196). Appellant says there was no evidence to support the
conclusion that the gun was stolen. He further contends the trial
court wrongly implied that the group acted as a gang in obtaining
the gun and in carrying out the murder.
The record shows the group went to Cooper's residence where he
obtained a gun belonging to his brother, that he took the gun with
him that night, and that the brother did not discover the gun was
missing until alerted by police. It is fairly inferred from these
facts that Cooper took the gun without first getting his brother's
The trial court also specifically attributed the taking of the
gun to Cooper, not the group. (R. at 196). This is supported by
Further, the phrase "gang-related" refers to the nature and
circumstances of the crime and reflects the fact that before the
shooting took place, members of the group expressed a desire to
direct a drive-by shooting at the house of a rival gang member.
Thus, use of the phrase "gang-related" is supported by the record
and does not compel the allegedly unsupported inference that the
entire gang is responsible for shooting Cynthia City.
B. Request to Revise . Finally, appellant asks us to exercise our
constitutional power to review and revise his sentence. Ind.
Const. art. VII, § 4. We will not revise a sentence authorized by
statute unless it is manifestly unreasonable in light of the nature
of the offense and the character of the offender. Ind.Appellate
Rule 17(B); Fointno v. State, 487 N.E.2d 140 (Ind. 1986).
Sentencing decisions are otherwise left to the sound discretion of
the trial court. Sims v. State, 585 N.E.2d 271 (Ind. 1992).
Appellant argues the sentence is excessive because the others who were at the scene of the crime and who allegedly share some responsibility for City's death have gone uncharged and unpunished. However, the fact that alleged accomplices remain uncharged does not render the imposition of an enhanced sentence manifestly unreasonable. Cf. Johnson v. State, No. 45S00-9610-CR-656, ___ N.E.2d ___ (Ind. Oct. 29, 1997) (imposition of two consecutive, enhanced sentences for murder not manifestly unreasonable despite fact that an alleged accomplice had not been charged).
Accordingly, we do not find the sentence to be manifestly unreasonable, and we decline to revise it.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
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