Aug 15 2013, 5:40 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL R. FISHER GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KENNETH MCBRIDE, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1211-CR-547
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Kurt M. Eisgruber, Judge
Cause No. 49G01-1203-FB-15543
August 15, 2013
OPINION–FOR PUBLICATION
BAKER, Judge
Following a jury trial, the appellant-defendant, Kenneth McBride, was found
guilty of Counts I and II, class B felony criminal Confinement,1 Counts III, IV, and V,
class B felony Robbery,2 and Count VI and VII, class C felony Battery,3 for which the
trial court sentenced McBride to an aggregate term of thirty years.
McBride appeals, asking our Court to vacate all of his convictions or, in the
alternative, to revise his sentence pursuant to our authority under Indiana Appellate Rule
7(B). Specifically, McBride claims that the trial court committed reversible error when it
allowed him to proceed pro se because he did not make a knowing, voluntary, and
intelligent waiver of his right to counsel. McBride also contends that the trial court
committed fundamental error when it admitted evidence obtained through an improper
show-up identification procedure and that his thirty-year executed sentence is
inappropriate in light of the nature of the offenses and his character.
Finding no reversible error and concluding that McBride’s sentence is not
inappropriate, we affirm.
FACTS
On March 7, 2012, around 4:30 p.m., Officer Ryan Irwin of the Indianapolis
Metropolitan Police Department (IMPD) responded to the dispatch of a robbery in
progress at the Oriental Market (Market), a grocery store on Lafayette Road owned by
1
Ind. Code § 35-42-3-3.
2
I.C. § 35-42-5-1.
3
I.C. § 35-42-2-1
2
Bay Le Zhu (Zhu) and her husband. Officer Irwin arrived within one minute and found
that the employees, two of whom had obvious injuries, and Zhu’s six-year-old son Brian
were locked inside the Market. Irwin also found a twelve gauge shotgun lying on the
ground next to the market.
It was later established that Zhu, Brian, Zhu’s nephew Yixiu Chen (Yixiu), Kia
Wong (Wong) and his wife, Cai Nong Chen (Cai), were all at the market when McBride
and two other men, each armed and wearing dark clothing, gloves, and masks, entered the
Market through a back door and locked the door behind them. The men confined
everyone in the kitchen, striking several of the victims with their guns and binding their
hands and legs with duct tape. After the men demanded money, Zhu gave them $1200
that she had in her pocket and was escorted out of the kitchen to the cash register, where
they took additional money. When Van Duong, a regular customer, came by, he noticed
that the door was locked even though the lights were on and the “open” sign was
displayed. Suspicious, Duong peered through the Market window and observed masked
men but none of the store employees. When he looked again, he saw Zhu taking money
from the register, and she gave him a sign to call for help.
McBride and the other men escaped in Wong’s vehicle, taking with them Wong’s
cell phone, Yixius’s cell phone and many of his keys including his house and the Market
keys, Zhu’s purse and keys, the $1200 that Zhu had on her, and the money from the cash
register. Duong got a good look at McBride and provided the license plate number of the
getaway vehicle to the 911 dispatcher. He also reported that the vehicle had traveled
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south on Lafayette Road. Officers located the vehicle after a citizen reported seeing
someone flee from the vehicle.
At around 5:00 p.m., McBride and his co-defendant, Adrian Jackson,4 were
apprehended. They were found crouched down between a wood deck area and a garage,
wearing dark clothing and shoes matching those worn by the robbers. Around and under
the deck where McBride and Jackson were apprehended, the officers recovered several
pieces of dark clothing, including a stocking cap mask, three dark gloves, the distinctive
jacket worn by one of the men during the robbery with a Bic lighter in it that matched
McBride’s DNA, multiple cell phones, a set of keys, and a small purse, all of which were
items taken from the victims during the robbery. Additionally, a piece of foreign
currency and a rifle with Jackson’s DNA were recovered. Officers also found $622 on
McBride and $1106 on Jackson.
Jackson and McBride were arrested and taken to the police station and Zhu, Cai,
Wong, and Duong were brought over for a show-up identification. All but Wong
identified either one or both men as the robbers with seventy to one hundred percent
certainty. Duong positively identified both men, stating that Jackson was the driver and
McBride was the front seat passenger in the getaway vehicle.
On March 9, 2012, the State charged McBride with Counts I and II, class B felony
criminal confinement, Counts III, IV, and V, class B felony robbery, and Counts VI, VII,
VIII, class C felony battery. On March 13, 2012, McBride was appointed a public
4
Adrian Jackson’s appeal has been assigned appellate cause number 49A05-1211-CR-553, and we hand
down that appeal contemporaneously with this one.
4
defender. On that day he also made a pro se request for a speedy trial, but on May 10,
2012, his counsel requested a continuance, which the trial court granted. McBride was
unhappy about his appointed counsel’s decision to request a continuance despite his
speedy trial request and proceeded to file motions and briefs pro se. McBride claimed
that because his appointed counsel sought a continuance against his will and was not
doing what he asked her to do, she had violated his constitutional right to counsel as well
as the rules of professional conduct.
On July 31, 2012, a waiver of counsel hearing was held, during which McBride
asked the trial court if he could proceed as co-counsel. This request was denied because
the trial court stated he was attempting to take the lead in his own defense, thus placing
his counsel at risk. McBride then petitioned the trial court to proceed pro se.
At a later hearing on August 16, 2012, the trial court questioned McBride about
his knowledge of the requirements for pro se litigants and advised McBride of the
responsibilities, dangers, and disadvantages that he might face by proceeding pro se. The
trial court also told McBride he was responsible for objections and that objections are the
manner in which he could preserve issues for appeal. The trial court specifically told
McBride that if objections are not made during trial, that particular issue would be
waived on appeal. During the advisement of rights hearing, the trial court was not
convinced that McBride would be prepared to proceed pro se and expressed this concern
to McBride several times. McBride acknowledged the fact that he needed counsel but
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refused to allow his appointed counsel to represent him because according to him, his
rights had been violated by the appointed counsel.
Having been informed of no specific instance of how McBride’s rights had been
violated by his counsel, the trial court told McBride that if he felt he needed counsel, he
would have to accept his appointed counsel because there was no evidence that the
appointed counsel had done anything wrong, and McBride did not have the right to
counsel of his choice.
The trial court also verified that McBride had the educational background and
mental capacity to defend himself and that no one had made either promises or threats to
coerce him into waiving his right to counsel. After the trial court read the advisement of
rights, McBride still insisted on representing himself and signed a written advisement
form stating that he had thoroughly reviewed all the dangers and disadvantages of self-
representation and had full knowledge of them. Although the trial court granted
McBride’s request to proceed pro se, it also appointed McBride with “standby counsel”
that could answer questions about trial procedure.
A jury trial was held from September 17-19, 2012. On September 19, 2012, the
State dismissed Count VIII, and the jury found McBride guilty on Counts I through VII.
During McBride’s sentencing hearing on October 5, 2012, the trial court merged Count I
into II, Count VI into Count III, and Count VII into Count IV and sentenced McBride to
six years of incarceration on Count II and eight years each on Counts III, IV, and V, with
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each sentence to run consecutively, for a total aggregate sentence of thirty years.
McBride now appeals.
DISCUSSION AND DECISION
I. Waiver of Right to Counsel
McBride first alleges that the trial court erred when it permitted him to proceed
pro se because his waiver of his right to counsel was not knowing, voluntary, and
intelligent. Specifically, McBride claims that he only waived his right to counsel because
a judge pro tempore informed him that by his actions of filing pro se motions and
interposing objections, he had waived his right to counsel.
The Sixth Amendment to the United States Constitution guarantees a criminal
defendant the right to counsel. Jones v. State, 783 N.E.2d 1132, 1138 (Ind. 2003).
Implicit in the right to counsel is the right to self-representation. Drake v. State, 895
N.E.2d 389, 392 (Ind. Ct. App. 2008). However, before a defendant waives his right to
counsel and proceeds pro se, the trial court must determine that the defendant’s waiver of
counsel is knowing, voluntary, and intelligent. Jones, 783 N.E.2d at 1138. We review de
novo a trial court’s finding that a defendant waived his right to counsel. Miller v. State,
789 N.E.2d 32, 37 (Ind. Ct. App. 2003)
“The right to counsel in a criminal proceeding does not mean that the defendant
has an absolute right to be represented by counsel of his own choosing.” Smith v. State,
474 N.E.2d 973, 978-79 (Ind. 1985). A trial court may, in the exercise of its sound
discretion, deny a defendant’s request for a new court appointed attorney. Luck v. State,
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466 N.E.2d 450, 451 (Ind. 1984). Such a ruling is reviewable only for an abuse of
discretion. Id.
Our Supreme Court has stated that there are no specific “talking points” a trial
court must follow when advising a defendant of the dangers and disadvantages of
proceeding without counsel. Poynter v. State, 749 N.E.2d 1122, 1126 (Ind. 2001).
Instead, a trial court needs only to come to a “considered determination” that the
defendant is making a knowing, voluntary, and intelligent waiver of his or her right to
counsel. Id. Our Supreme Court has adopted four factors for a trial court to consider
when determining whether a knowing, voluntary and intelligent waiver has occurred:
the extent of the court’s inquiry into the defendant’s decision, other
evidence into the record that establishes whether the defendant understood
the dangers and disadvantages of self-representation, the background and
experience of the defendant, and the context of the defendant’s decision to
proceed pro se.
Id. at 1127-28. In making this analysis, a trial court is in the best position to assess
whether the defendant has made a knowing, voluntary, and intelligent waiver, and the
trial court’s finding will most likely be upheld “where the judge has made the proper
inquiries and conveyed the proper information, and reaches a reasoned conclusion.”
Poynter, 479 N.E.2d at 1128.
We are perplexed by McBride’s involuntary waiver claim because he does not
claim that the trial court failed to advise him of the advantages of having an attorney
represent him. He makes no argument that the four Poynter factors were not met in his
case but instead claims that he only waived his right to counsel because at a waiver of
8
counsel hearing on July 31, 2012, a judge pro tempore informed him that he had waived
his right to counsel by his actions of filing pro se motions and interposing objections.
This is inaccurate because the record clearly shows that the judge pro tempore did not
explicitly tell McBride that he had waived his rights by filing motions and briefs pro se.
Instead, McBride was informed that if he wished to represent himself and continue filing
motions and briefs pro se, the court would have to relieve his counsel of her obligations
because McBride was attempting to take the lead in his own defense, thus placing his
attorney at risk. Tr. p. 435. The trial court further stated that if McBride wished to allow
his counsel do her job, she would continue to represent him and that this was his choice.
Id. Moreover, not once during the August 16, 2012 hearing did McBride express to the
trial court that he was waiving his right to counsel because he was advised by the judge
pro tempore that his rights had already been waived.
McBride also makes the argument that he had requested, more than once, that the
trial court appoint him alternative counsel but that his request was denied, thus showing
that his waiver of right to counsel was involuntary. We reject McBride’s contention
because McBride is not entitled to appointed counsel of his choosing. Smith, 474 N.E.2d
at 978-79. And he presented no evidence establishing that his appointed counsel was
ineffective. Accordingly, this argument fails.
II. Show-up Identification
McBride also claims that the trial court committed fundamental error when it
admitted evidence obtained through an improper show-up identification procedure.
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Specifically, he argues that the show-up identification was overly suggestive because he
was in handcuffs and the victims were informed before the identification that the police
had recovered their properties from the defendant. McBride further contends that even
though he failed to object at trial, the admission of the show-up identification evidence
was fundamental error.
The admission or exclusion of evidence falls within the sound discretion of the trial
court, and its determination regarding the admissibility of evidence is reviewed only for an
abuse of discretion. Gordon v. State, 981 N.E.2d 1215, 1217 (Ind. Ct. App. 2013). An
abuse of discretion occurs when the trial court’s decision is clearly against the logic and
effects of the facts and circumstances before the court. Id. To preserve an error for
review, the specific objection relied upon on appeal must have been stated in the trial
court as a basis for the objection. Hale v. State, 976 N.E.2d 119, 123 (Ind. Ct. App. 2012).
Thus, a claim may be waived for the purposes of an appeal where the defendant failed to
object that the evidence was improperly admitted. Id. at 1218.
As discussed above, the trial court specifically informed McBride that he would be
responsible for objections and that those objections were how McBride would preserve
errors for appeal. Tr. p. 453. The trial court further advised McBride that if he failed to
make objections, he would waive those errors on appeal. Id. McBride stated that he
understood these advisements. Id.
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McBride admits that he did not oppose the admission of the show-up identification
and that he did not move to suppress this evidence or object to its admission at trial.
Appellant’s Br. p. 19. Thus, these issues are waived.
McBride attempts to avoid waiver by invoking the fundamental error doctrine. In
support of this contention, McBride claims that the show-up identification procedure was
unduly suggestive because the suspects were the only choice offered, as opposed to a line-
up or photo array where multiple options are presented to the witnesses. However, the
fundamental error doctrine is an extremely narrow doctrine and “applies only when the
error constitutes a blatant violation of basic principles, the harm or potential for harm is
substantial, and the resulting error denies the defendant fundamental due process.”
Gordon, 981 N.E.2d at 1218.
Even though our Supreme Court has cautioned against one-on-one show-up
identifications because of their inherent suggestiveness, identification evidence gathered
via a show-up procedure is not subject to a per se rule of exclusion in accordance with the
fundamental error doctrine. Id. Rather, the admissibility of show-up identification
evidence turns on an evaluation of the totality of the circumstances and whether those
circumstances lead to the conclusion that the confrontation was conducted in a manner
that could guide a witness into making a mistaken identification. Id.
In Mitchell v. State, this Court listed several factors for trial courts to consider
when determining whether show-up identification evidence was permissible, including the
witness’s opportunity to view the criminal, the distance between the witness and the
11
criminal during the crime, the lighting conditions, and the length of time between the
commission of the crime and the show-up identification. 690 N.E.2d 1200, 1204 (Ind. Ct.
App. 1998)
Here, the crime scene was well-lit, and the surveillance video shows that the mask
did not completely hide their facial features. State’s Ex. 11. Yixiu testified that he could
see the shape of the faces of two of the robbers because the masks were very thin. Tr. p.
85-86. The show-up identification also occurred soon after the robbery, and the other
witnesses presented testimony regarding their identification of McBride. Moreover, the
first officer was at the scene around 4:30 p.m., McBride and Jackson were apprehended
few blocks away around 5:00 p.m., and the witnesses were brought in for the show-up
identification shortly thereafter. Id. at 53-54, 86, 198.
Under these circumstances, McBride has failed to show that the show-up
identification was unduly suggestive. The State presented the surveillance video at trial as
well as evidence that McBride and Jackson were apprehended wearing the same clothes
the robbers were said to have been wearing with other stolen items found were they were
apprehended. Id. at 255-65, 283; State’s Ex. p. 11, 48-53.
Nevertheless, McBride maintains that the show-up identification was unduly
suggestive because the witnesses were told by the police that they had recovered the stolen
property from them before the witnesses were asked to make the identification.
Appellant’s Br. p. 18. However, Cai did not testify that any police officer told her
anything that would have influenced her identification, and none of the other witnesses
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testified that they saw the items observed by Cai or that they were influenced by anything
leading up to their identifications.
As a result, when considering the circumstances here, McBride’s claim of
fundamental error fails.
III. Sentencing
A. Abuse of Discretion
McBride next argues that the trial court erred in imposing consecutive sentences.
Specifically, he claims that even though he was sentenced to less than the advisory term
on each of the class B felonies, the trial court erred by ordering that his sentences run
consecutively, especially considering the fact that he has a minor criminal history.
The decision to impose consecutive sentences lies within the discretion of the trial
court. Ind. Code § 35-50-1-2; Gilliam v. State, 901 N.E.2d 72, 74 (Ind. Ct. App. 2009).
However, a trial court is required to state its reasoning for imposing consecutive
sentences. Gilliam, 901 N.E.2d at 74. In order to impose consecutive sentences, a trial
court must find at least one aggravating circumstance. Owens v. State, 916 N.E.2d 913,
917 (Ind. Ct. App. 2009). It is a well-established principle that the existence of multiple
crimes or victims constitutes a valid aggravating circumstance that a trial court may
consider in imposing consecutive sentences. O’Connell v. State, 742 N.E.2d 943, 952
(Ind. 2001).
During McBride’s sentencing hearing, the trial court stated that the sentences
should run consecutively because McBride and his co-defendant had committed the
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crimes against multiple victims in the presence of a six-year-old. Tr. p. 428. These are
indeed valid aggravating circumstances that can be used to impose consecutive sentences.
McBride also alleges that the consecutive sentences are not appropriate because he
has a minor criminal history. Appellant Br. p. 20. He further claims that he is the father
of a three-year-old daughter and that imprisonment would result in undue hardship to him
or his dependent. Id. at 24-25. Thus, it appears that McBride is arguing that the trial court
erred by failing to find mitigating factors that were supported by the evidence.
Although the failure to find mitigating circumstances that are clearly supported by
the record may suggest they were overlooked, a trial court does not have to afford the
same credit or weight to the proffered mitigating circumstance as a defendant may
suggest. Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999). Moreover, if the trial court does
not find the existence of a mitigating factor after it has been argued by counsel, the trial
court is not obligated to explain why it has found that the factor does not exist.
Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007).
In this case, the trial court in fact considered McBride’s contentions that he had a
less severe criminal history than his co-defendant and that imprisonment would result in
undue hardship to him or his three-year-old daughter. However, the trial court found that
these factors were not significant and, thus, were not factors that would have an impact on
the sentence. Thus, McBride’s claim fails.
McBride also alleges that because he proceeded pro se, he was unaware of the
statutory factors that the trial court could have considered under Indiana Code section 35-
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38-1-7.1 when sentencing him. Appellant Br. p. 24. McBride’s lack of knowledge
regarding this statute does not affect the trial court’s sentencing decision. As discussed
above, McBride’s waiver of counsel was knowingly, voluntarily, and intelligently made.
Thus, he was therefore responsible for knowing what statutory factors he should argue at
his sentencing hearing.
B. Inappropriate Sentence
Finally, McBride argues that his sentence is inappropriate pursuant to Indiana
Appellate Rule 7(B). Under this rule, we have the constitutional authority to revise a
sentence if, after consideration of the trial court’s decision, this Court concludes the
sentence is inappropriate in light of the nature of the offense and the character of the
offender. Ind. Appellate Rule 7(B). It is the defendant’s burden to “persuade the
appellate court that his or her sentence has met the inappropriateness standard of review.”
Anglemyer, 868 N.E.2d at 494.
Here, McBride has failed to make any discernible argument regarding the nature of
the robbery or his character. Thus, we find that he has failed to present a cogent argument
in support of this claim and has, therefore, waived the issue. See Ind. App. Rule
46(A)(8)(a).
Waiver notwithstanding, regarding the nature of the offenses, we note that the
advisory sentence is the starting point our legislature has selected as an appropriate
sentence for the crime committed. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
The advisory sentence for both class B felony criminal confinement and class B felony
15
robbery is ten years with a sentencing range from six years to twenty years. I.C. § 35-50-
2-5. McBride was sentenced to six years on the felony confinement conviction and eight
years each on the felony robbery convictions. Thus, for each of his convictions,
McBride’s sentences fell below the advisory term.
Our review of the record reveals that McBride committed multiple crimes of
violence. McBride and the other men robbed the victims while armed with guns that they
used to physically assault the victims. They also bound the victims with duct tape and
confined them in the kitchen with guns pointed at them. And finally, they engaged in this
conduct in the presence of a six-year-old boy.
Notwithstanding these circumstances, McBride claims that the offenses should be
considered as being less serious because the guns recovered were unloaded and he could
not have shot anyone during this incident. However, McBride and the other men used the
guns in a threatening manner causing the victims to experience substantial fear. Indeed,
although the guns were not fired at the victims, the guns were used to inflict bodily
injuries on the victims. Thus, McBride’s nature of the offense argument avails him of
nothing.
Likewise, our review of McBride’s character reveals that McBride has a lengthy
criminal history that involves prior crimes of violence. As a juvenile, McBride had four
true findings for battery and one for disorderly conduct. PSI p. 4-5. As an adult, McBride
has convictions for class D felony battery, class A misdemeanor resisting law
enforcement, and violation of his probation. Id. at 5-6.
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McBride argues that the State contended at sentencing that he was at a very high
risk to reoffend but that there was nothing to support the State’s contention but for the
deputy prosecutor’s speculations. Notwithstanding this claim, that McBride is likely to
reoffend was not an aggravating circumstance considered by the trial court. However,
McBride’s criminal and juvenile histories demonstrate that he has no respect for our
judicial system despite the opportunities that were offered to him to change. As a result,
McBride has failed to show that his sentence was inappropriate.
Conclusion
In sum, we conclude that McBride made a knowing, voluntary, and intelligent
waiver of his right to counsel. We also conclude that McBride waived his objection to
the show-up identification, and the show-up procedure did not amount to fundamental
error. Finally, we conclude that the trial court neither abused its discretion in sentencing
McBride nor sentenced him inappropriately.
The judgment of the trial court is affirmed.
MAY, J., and MATHIAS, J., concur.
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