ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ROBERTA STATEN STEVE CARTER
Kansas City, Missouri Attorney General of Indiana
ROBIN HODAPP-GILLMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
CURTIS WILLIAMS, )
)
Appellant (Defendant), )
)
v. ) Cause No. 48S00-0010-CR-578
)
STATE OF INDIANA, )
)
Appellee (Plaintiff). )
________________________________________________________________________
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Fredrick J. Spencer, Judge
Cause No. 48C01-0003-CF-78
July 8, 2002
SHEPARD, Chief Justice
A jury found appellant Curtis Williams guilty of various offenses
committed while breaking into Carolyn Smoots’ apartment and threatening her
with a handgun, and of being an habitual offender. Williams raises three
issues on appeal: 1) whether the trial court erred by not defining
“knowingly” and “intentionally” for the jury; 2) whether Williams’ trial
counsel was ineffective; and 3) whether Williams’ convictions and sentences
for intimidation and burglary violate Indiana’s prohibition against double
jeopardy. We affirm.
Facts and Procedural History
On March 22, 2000, Carolyn Smoots and her husband Terrence, though
separated, celebrated their wedding anniversary together. As they returned
home to Carolyn’s apartment, Troy Booker approached and warned Carolyn that
Williams was looking for her and threatening to “shoot up the building.”
(R. at 175, 234-37.) As Carolyn and Terrence entered the building’s back
door, Carolyn saw Williams coming in the front door and heard gunshots
fired from that direction. Carolyn and Terrence sought temporary refuge in
a neighbor’s upstairs apartment.
When they thought Williams was gone, the couple headed downstairs, but
before they reached Carolyn’s apartment Williams rushed back into the
building. Carolyn heard another gunshot and attempted to enter her
apartment and close the door. Williams prevented her from shutting him out
and during the struggle Carolyn’s ankle buckled, causing her to fall to the
floor. Williams then entered the apartment, put a gun to her head, and
threatened to shoot her. Terrence eventually persuaded the enraged
Williams to leave the apartment without further injuring Carolyn.
Williams was charged with unlawful possession of a firearm by a
serious violent felon as a class B felony, intimidation as a class C
felony, criminal recklessness as a class D felony, burglary as a class A
felony, and being an habitual offender. A jury found Williams guilty on
all counts. The trial court sentenced Williams to concurrent terms of
twenty years for possession of a firearm, eight years for intimidation,
three years for criminal recklessness, and thirty years for burglary. It
enhanced the burglary sentence by thirty years for the habitual offender
finding, for an aggregate term of sixty years.
I. Failure to Instruct
Williams first contends that the trial court failed to instruct the
jury on the level of culpability required for burglary and possession of a
firearm by a serious violent felon. He specifically argues that the court
erred when it did not sua sponte instruct the jury on the definitions of
“knowingly” and “intentionally.”
A defendant who fails to object to the court’s final instructions and
fails to tender a set of instructions at trial waives a claim of error on
appeal. Sanchez v. State, 675 N.E.2d 306 (Ind. 1996). Williams’ counsel
did not tender an instruction defining “knowingly” and “intentionally,” or
object to its omission. He thus preserved nothing for appeal.
II. Ineffective Assistance of Counsel
Williams next contends his attorney was ineffective within the meaning
of Strickland v. Washington, 466 U.S. 668 (1984). Williams maintains his
attorney did not render effective assistance because his attorney failed to
ensure that the jury received proper instructions. Additionally, Williams
claims his attorney was ineffective because he did not engage in proper pre-
trial preparation.
To prevail on an ineffective assistance of counsel claim, a defendant
must establish both deficient performance and resulting prejudice.
Brightman v. State, 758 N.E.2d 41 (Ind. 2001). To prove deficient
performance, the defendant must show errors serious enough to demonstrate
that counsel was not functioning as guaranteed by the Sixth Amendment.
Strickland, 466 U.S. at 687.
To establish prejudice, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. Further, counsel’s performance is presumed
effective, and a defendant must offer strong and convincing evidence to
overcome this presumption. Saylor v. State, 765 N.E.2d 535, 549 (Ind.
2002).
A. Instructions. Williams claims that his trial attorney, Donald
Hurst, “submitted no instructions to the Court, had not properly reviewed
the instructions the State had submitted[,] and was wholly unprepared for
this portion of the Williams defense.” (Appellant’s Br. at 19.) Contrary
to Williams’ assertion that his attorney submitted no instructions to the
trial court, Hurst did submit an instruction on jury nullification. (See
R. at 130, 466-69.) Hurst’s specific objection to the trial court’s
instruction on jury nullification also contradicts Williams’ assertion that
Hurst did not review the instructions. (See id.)
As for whether defense counsel should have tendered instructions
relating to culpability of the crimes, we note the trial court gave
instructions on the elements of burglary and possession of a firearm by a
serious violent felon. These informed the jury that guilt required a
knowing or intentional state of mind.[1] The trial court also instructed
the jury that the State had to prove each essential element of the crimes
beyond a reasonable doubt. The court then properly explained this concept
to the jury.
While we would expect further definitions for words of art such as
“knowingly” and “intentionally,” we can well imagine counsel deciding to
focus on points likely to have more weight with the jury. Hurst chose to
concentrate on attacking the reliability of key State witnesses by
highlighting inconsistencies in their stories, and on challenging the
credibility of the State’s argument that Williams threatened to kill
Carolyn merely because she refused to tell him the whereabouts of his
sister. (R. at 429-36.) Measured against counsel’s legitimate decision to
emphasize issues such as these, failure to submit an instruction does not
seem so serious an omission to overcome the Strickland presumption of
adequate performance.
B. Trial Preparation. Williams also argues that his attorney was
unprepared for trial in various respects.[2] He first maintains that
Hurst’s questioning of witnesses at trial was ineffective due to lack of
pre-trial preparation. Williams argues that had Hurst deposed various
witnesses, he could have impeached the State’s case and thus created a
reasonable doubt as to his guilt.
Counsel’s failure to interview or depose State’s witnesses does not,
standing along, show deficient performance. Williams v. State, 724 N.E.2d
1070, 1076 (Ind. 2000). The question is what additional information may
have been gained from further investigation and how the absence of that
information prejudiced his case. Id.
Williams does not indicate what new information was available, much
less how its absence impaired his case. (See Appellant’s Br. at 18-25.)
In fact, Hurst’s performance at trial contradicts the charge that he was
unprepared. Hurst challenged Booker’s memory of the events and got him to
admit he never saw Williams with a gun. (R. at 183-86.) He pointed out
inconsistencies between Carolyn’s testimony at trial and her pre-trial
interviews. (R. at 285-86, 289.) He also impeached another State
witness’s testimony with conflicting previous statements. (R. at 220.)
These instances support the Strickland presumption that Hurst was effective
in his trial preparation.
Williams also claims that Hurst did not adequately prepare him for
trial. His claim relies on a comment by the trial judge indicating that
the jury would have acquitted Williams had he not testified. Williams
maintains that had Hurst spent time with him before trial, Williams would
not have been subjected to the “unmerciful[]” harassment by the State
during cross-examination. (Appellant’s Br. at 20.)
The record paints a different picture. Williams testified on direct
examination that he was at the apartment building on March 22, 2000, spoke
with the victim that night, and ran from police sometime thereafter. (R.
at 360-62.) On cross-examination, he changed his story and denied that he
was at the complex on March 22nd, claiming instead that his version of
events took place on March 18th. (R. at 378.) The State reacted by
thoroughly attacking Williams’ recollection of the events and their timing.
(R. at 378-88, 392-98.)
Williams acknowledges that Hurst urged him not to testify at trial.
(Appellant’s Br. at 20; R. at 372, 562.) Moreover, based on Williams’
answers on direct examination, Hurst likely had no way of knowing that
Williams was about to change his own testimony so significantly. (See R.
at 377-78.) Hurst seems to have done what he could to save Williams from
himself.
Williams also faults Hurst’s direct examination of him. He says
Hurst’s “questions were repeatedly object[ed] to” and Hurst was “unable to
answer any of the objections with cogent offers of proof . . . .”
(Appellant’s Br. at 20.) Some of the objections, however, stemmed from
Williams making hearsay statements. (See, e.g., R. at 361.) The others
arose because Williams wanted to testify about irrelevant matters. (See,
e.g., R. at 358-59, 370-74.) Hurst was not deficient because these
objections were sustained.
Williams next complains that Hurst’s motion for a continuance prior
to the start of trial was not assertive enough. Immediately before the
trial court read preliminary instructions, Hurst moved for a continuance on
the grounds that Williams claimed that Hurst was unprepared. Williams also
wanted to hire private counsel.
Any motion to continue offered at such a moment was bound to fail,
especially when, as the judge noted, the private attorney that Williams
wanted to hire was in the courtroom but declined to enter an appearance
until the judge ruled favorably on the matter. (R. at 116-17.) Again, we
fail to see how Hurst was deficient.
Williams also faults Hurst for not informing the trial court that his
habitual enhancement could have been reduced by ten years, relying on
Garrett v. State, 602 N.E.2d 139 (Ind. 1992). He overlooks the fact that
the 1993 General Assembly amended the habitual offender statute and
eliminated the language that was at issue in Garrett. See P.L. No. 164-
1993, § 13, 1993 Ind. Acts 3851. The current statute does not contain a
comparable provision. See Ind. Code Ann. § 35-50-2-8 (West 2000).
The contentions about Hurst’s performance are inadequate to overcome
the constitutional presumption of reasonable representation.
Double Jeopardy
Finally, Williams contends that his convictions for intimidation as a
class C felony and burglary as a class A felony violate Indiana’s
prohibition against double jeopardy. He argues that because the State used
the evidence of Williams putting a gun to Carolyn’s head both to convict
him of intimidation as well as to support an element of burglary, the same
facts support both convictions. Williams claims this violates the actual
evidence test of the Indiana double jeopardy analysis.
Williams’ argument is based on this Court’s Article 1, section 14
analysis as laid out by Richardson v. State, 717 N.E.2d 32 (Ind. 1999) and
Spivey v. State, 761 N.E.2d 831 (Ind. 2002). Two charged offenses violate
Indiana’s Double Jeopardy Clause when the essential elements of one offense
also establish all the essential elements of a second offense. Spivey, 761
N.E.2d at 832. A violation may be proven by looking at either the
statutory elements of the challenged crimes or the actual evidence used to
convict the defendant of the challenged crimes. Id.
The State charged Williams with burglary as an A felony and
intimidation as a C felony. A person who breaks and enters the building or
structure of another person, with intent to commit a felony in it, commits
burglary as a C felony. Ind. Code Ann. § 35-43-2-1 (West 2000). The
charge is elevated to a class A felony when a victim suffers bodily injury.
Id. § 35-43-2-1(2)(A). As applicable to this case, a person commits
intimidation as a class A misdemeanor when the person “communicates a
threat to another person, with the intent: (1) that the other person
engage in conduct against the other person’s will; (2) that the other
person be placed in fear of retaliation for a prior lawful act . . . .”
Ind. Code Ann. § 35-45-2-1(a) (West 2000). The charge may be enhanced to a
class C felony when the person uses a deadly weapon during commission of
the crime. Id. § 35-45-2-1(b)(2).
The facts supporting Williams’ convictions for intimidation and
burglary make it apparent that there is no double jeopardy violation. The
essential elements of burglary included Williams’ forced entry into
Carolyn’s apartment, causing Carolyn’s ankle injury. When Williams broke
into the apartment, the burglary was complete. Williams then put a gun to
Carolyn’s head -- an act separate and distinct from the act that supported
the burglary conviction. There is no double jeopardy violation when, as
here, the same evidentiary facts establish less than all of the essential
elements of the two challenged crimes.
Conclusion
We affirm the judgment of the trial court.
DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ., concur.
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[1] Prior to the start of voir dire, the trial court did give the jury
pool some preliminary information, including definitions of the terms
“knowingly” and “intentionally.” (R. at 96-100.) The court later noted,
however, that not every person who served as a juror in Williams’ trial
heard these definitions. (R. at 119.) Accordingly, the court should have
re-read the instruction defining “knowingly” and “intentionally.”
[2] Two of these claims deserve short shrift. At one point in the trial,
while Hurst explained the next stage of the trial to Williams, the trial
judge suggested that Hurst give Williams a piece of paper that described a
charged offense. (See Appellant’s Br. at 21; R. at 461-62.) We fail to
see error in this.
Williams also cites Hurst’s statement that he had not seen Williams’
criminal record and claims that Hurst was therefore unprepared for the
enhancement stages of trial and failed to advise Williams of the
ramifications of these proceedings. (Appellant’s Br. at 21-22; R. at 456.)
Williams does not explain how this amounts to ineffective performance nor
how this may have prejudiced him. This claim fails for lack of cogent
argument.