Walter E. Bravard, Jr.
Jeffrey A. Modisett
Preston W. Black
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
Walter E. Bravard, Jr.
Jeffrey A. Modisett
Preston W. Black
trial court sentenced Garrett to concurrent terms of sixty-five years imprisonment on each
count. Garrett raises three claims in this direct appeal, which we restate as contentions that:
(1) he cannot be convicted of both murder and felony murder for the killing of the same
person; (2) there is insufficient evidence to support the jury's verdict; (3) the trial court
committed fundamental error when it instructed the jury on the mental element of murder;
and (4) the trial court erred in its articulation of aggravating and mitigating circumstances
and imposed a manifestly unreasonable sentence. We affirm Garrett's conviction and
sentence for murder, but remand this case to the trial court with instructions to vacate the
felony murder conviction.
Shawn Alexander and asked whether Alexander had seen anything on the news about a man
who had been shot. Alexander said that he had not. Garrett told Alexander that he shot a
man on Kenwood Avenue after the man made a move and that [h]e was sorry for what
he had did. Alexander handed the phone to another friend of Garrett's, Charles Taylor.
Garrett told Taylor that he had killed a man . . . with his shotgun . . . [o]n Kenwood. Both
Alexander and Taylor had seen Garrett carry a single shot, sawed-off shotgun. Garrett also
told another friend, Gregory Terry, that he did it during a struggle with the gun and it just
went off or somethin'.
Taylor reported his conversation with Garrett in the course of an investigation for another crime. After a warrant was secured and Garrett was arrested, he gave a statement to police. Garrett said that he was on Kenwood selling crack cocaine with seventeen-year- old Taijuan Patton when he saw Patton approach a car and shoot the driver. Garrett told the police that he did not own a sawed off shotgun but that he had a 32 automatic with him at the time of the shooting.
At trial the State introduced evidence that Patton was incarcerated in a juvenile detention center on the night of the shooting (from January 24, 1996 to February 16, 1996). Garrett took the stand and admitted that he had lied to police and had accused Patton because the two were enemies. He then testified that he was selling crack cocaine on Kenwood on the evening of the killing with three men, one of whom was Donald Carter. He testified that Carter and one of the others approached the driver's side of Wise's car and talked to Wise briefly, then Carter pulled out a gun and shot Wise in the head. Garrett denied ever speaking
to Taylor about the killing. He said that he had joked about his possible involvement with
Alexander and Terry while the three watched a news account of the killing on television, but
later told them that he did not do it.
The jury found Garrett guilty of both murder and felony murder.
death or serious bodily injury. Webster v. State, 699 N.E.2d 266, 268 (Ind. 1998). Both in
his statement to police and trial testimony, Garrett admitted that he was at the scene of the
shooting but blamed the killing on others in each account. Three of Garrett's friends testified
that Garrett told them that he was the shooter. In addition to this testimony, the State
presented evidence relating to the weapon used in the killing. The firearm expert who
examined the broken hammer found on the floorboard of Wise's car testified that two types
of weapons, both single shot shotguns, have a similar hammer. The examiner also
concluded that the indentation in the molding of Wise's car door could have been caused by
impact from the hammer found in the car. The pathologist testified that the victim's wound
was caused by a shotgun. Alexander testified that he had seen Garrett carry a 20 gauge
sawed off . . . [s]hotgun in his sleeve and Taylor testified that Garrett told him he had shot
the man on Kenwood with his gauge, which Taylor knew to be the sawed off shotgun
that he had seen Garrett carry.
Garrett gave inconsistent accounts of the killing. He initially told police that Patton shot Wise, then testified at trial that Carter was the killer. In addition, his statement to police and trial testimony conflict with the testimony of other witnesses on important points regarding the time, place and content of his conversations with Alexander and Terry, his denial that he had spoken to Taylor about the killing, and the type of gun he carried.
In short, Garrett admitted the killing to three different people, physical evidence showed that the fatal wound to Wise was caused by the same type of gun that witnesses had seen Garrett carry, and Garrett offered two different accounts of the killing, neither of which
was consistent with the accounts given by other witnesses. The jury was in the best position
to assess the credibility of witnesses and it was the jury's exclusive prerogative to weigh this
conflicting evidence. Robinson v. State, 699 N.E.2d 1146, 1148 (Ind. 1998) (citing Garrett
v. State, 602 N.E.2d 139, 142 (Ind. 1993)). After assessing witness credibility and sorting
through the conflicting evidence, the jury found Garrett guilty of murder beyond a reasonable
doubt. There is sufficient evidence to support its verdict.
of his sentencing hearing in the record of proceedings. The Indiana Rules of Appellate
Procedure require a party to transmit those portions of the record relevant to the claims
raised. See Ind. Appellate Rule 7.2(B); see also Turner v. State, 508 N.E.2d 541, 543 (Ind.
1987) (It is the duty of an appellant to present a record that is complete and that supports
his [or her] claim of error so that an intelligent review of the issues may be made.). The
failure to submit a transcript of the sentencing hearing could be found to waive any claim of
sentencing error. Cf. Pannarale v. State, 627 N.E.2d 828, 831 (Ind. Ct. App. 1994), summ.
aff'd, 638 N.E.2d 1247, 1249 (Ind. 1994) (failure to submit transcript of hearing on motion
for return of property resulted in waiver of issue on appeal). However, rather than finding
the issue waived we consider only the limited record before us in addressing Garrett's
A. The Aggravating and Mitigating Circumstances
Garrett contends that the trial court refused to find any mitigating circumstances, even Bradford Garrett's young age of 18 years at sentencing. The record before us rebuts this contention in two respects. First, the Chronological Case Summary entry from the December 12, 1996 sentencing hearing states that the court finds mitigating circumstances to be the defendant[']s age. Second, an entry four days later states that the trial court also found Garrett's unstable home life as a youth to be a mitigating circumstance. The latter mitigator is also included on the abstract of judgment. Based on the record before us, it is clear that the trial court articulated and found at least two mitigating circumstances.
Garrett also contends that the trial court erred in finding two circumstances to be
aggravating. We agree that it was improper for the trial court to find as an aggravating factor
that the imposition of a reduced sentence would depreciate the seriousness of the crime.
This may not enhance a sentence. It applies only when the trial court is considering
imposing a sentence of shorter duration than the presumptive. See, e.g.,
Jones v. State, 675
N.E.2d 1084, 1088 (Ind. 1996). Second, Garrett argues that the trial court used some of the
very elements of the crimes to enhance the sentence on those crimes, namely the use of a
weapon and 'this was a particularly violent offense.' The limited record before us does not
contain the quoted language or otherwise support this contention. Garrett was convicted of
murder, which is defined as knowingly or intentionally killing another human being. See
Ind. Code § 35-42-1-1 (1993). It is not an element of the offense that Garrett used a weapon
and killed Wise in a particularly violent manner. Moreover, the nature and
circumstances of a crime is a proper aggravating circumstance provided it does not merely
rely on the statutory elements of the offense. See Angleton v. State, 686 N.E.2d 805, 815
In sum, although the trial court erred in finding one improper aggravating circumstance, other valid aggravators remain including a history of delinquent activity as evidenced by Garrett's juvenile record and his admission at trial that he regularly dealt crack cocaine. A single aggravating circumstance may be sufficient to support an enhanced sentence. Barany v. State, 658 N.E.2d 60, 67 (1995); Sweany v. State, 607 N.E.2d 387, 391 (Ind. 1993). If the trial court improperly applies an aggravator, but other valid aggravators exist, a sentence enhancement may still be upheld. See Gibson v. State, 702 N.E.2d 707, 710
(Ind. 1998) (citing Blanche v. State, 690 N.E.2d 709, 715 (Ind. 1998)). In light of the valid
aggravating circumstances that remain, the trial court did not abuse its discretion by imposing
an enhanced sentence.
B. Manifestly Unreasonable
As a final point, Garrett contends that his sentence is manifestly unreasonable. Although this Court has the constitutional authority to review and revise sentences, Ind. Const. art. VII, § 4, it will not do so unless the sentence imposed is manifestly unreasonable in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 17(B). The Court has explained this standard as not whether in our judgment the sentence is unreasonable, but whether it is clearly, plainly, and obviously so. Prowell v. State, 687 N.E.2d 563, 568 (Ind. 1997), cert. denied, U. S. , 119 S. Ct. 104, 142 L. Ed. 2d 83 (1998)).
Mitigating factors relating to Garrett's character include his age of seventeen at the time of the offense and his unstable home life as a youth. However, according to the presentence report Garrett had a history of contacts with the juvenile justice system including arrests for residential entry, theft, possession of paraphernalia, and fleeing the police.See footnote 1 In addition, Garrett testified at trial that he regularly dealt crack cocaine. The nature of the offense, as is true of all murder cases, is severe and troubling. Anthony Wise died as the
result of a gunshot to the back of the head at close range. Giving due deference to the trial
court's determination of an appropriate sentence, we conclude that Garrett's sixty-five year
sentence for murder is not manifestly unreasonable in light of the nature of the offense and
character of the offender.See footnote
SHEPARD, C.J., and DICKSON and SELBY, JJ., concur.
SULLIVAN, J., concurs in result.
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