Attorneys for Appellant Attorneys for Appellee
Marce Gonzalez, Jr. Steve Carter
Merrillville, IN Attorney General of
Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, IN
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 45S05-0305-CR-224
Christopher McCorker,
Appellant (Defendant below),
v.
State of Indiana
Appellees (Plaintiff below).
_________________________________
Appeal from the Lake County Superior Court,
Nos. 45G04-0102-CF-00026, 45G04-0102-CF-00028, 45G04-0101-CF-00036
The Honorable Thomas P. Stefaniak, Jr., Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No.45A05-0201-CR-
00052 _________________________________
October 16, 2003
Sullivan, Justice.
Defendant Christopher McCorker appeals his multiple convictions for
robbery and confinement and his resulting sentence of 65 years. Our
principal concern in this case is a jury instruction that Defendant
contends, and the Court of Appeals agreed, relieved the State of its burden
of proof by creating an impermissible mandatory presumption. Although we
find the instruction to have been inartfully worded in several respects, we
affirm the convictions because the instruction is a correct statement of
law. To the extent the instruction creates a mandatory presumption, it is
a permissible one. This conclusion is contrary to that of the Court of
Appeals in its recent case, Walker v. State,[1] which we now disapprove.
Background
The evidence most favorable to the judgment indicates that on
December 26, 2000, an armed robbery took place at the Cash Indiana Pawn
Shop in Lake Station. Three employees were working at the time of the
robbery. Three men entered the store. One man, whom the first employee
later identified as Defendant, jumped over the counter towards the second
employee. The employee attempted to pull his own gun until he saw the
other men pointing guns at him. The employee then placed his gun on the
floor. Defendant held the employee at gunpoint and retrieved his gun from
the floor. Defendant pushed the employee toward the bathroom. Though the
employee struggled, Defendant overpowered him and shoved him against the
counter. Defendant fired his gun into the air and threw the employee to
the ground saying, “If you move again, mother fucker, I’ll shoot you.”
Defendant then put his gun in the first employee’s face and ordered him to
get down. After the employee got down, Defendant cocked the gun, placed it
in the employee’s mouth, and threatened to shoot him if he said a word. At
gunpoint, the third employee was ordered to the safe and instructed to
remove an envelope full of money. Defendant also sought the security tape
but the employee gave him a dummie tape. The robbers confined the three
employees and two customers in the bathroom. The bathroom door was shut
and the people in the restroom heard glass breaking. Once it was quiet,
the victims exited the bathroom and pushed the security button. The first
employee later identified Defendant and Teddia Caldwell as the robbers from
photo arrays.
A second armed robbery occurred on January 27, 2001, at the Smoke
Shop in Hammond, Indiana. As an employee who was working at the time was
giving a man change from a cigarette purchase, the man and another who was
with him pulled their guns. Both men announced that it was a robbery.
Caldwell went around the corner of the counter, undid the chain, and
ordered the employee to open the cash register. After the employee opened
the cash register, Caldwell began taking out money. Defendant meanwhile
pointed his gun at the employee and said repeatedly, “I’m going to kill
you.” Defendant and Caldwell then told the employee to open the safe.
However, upon learning that the employee did not know the combination,
Defendant ordered him to go to the back with him. Again, Defendant pointed
his gun at the employee and repeated, “I’m going to kill you, I’m going to
kill you.” Caldwell then tied the employee up with duct tape in the back
room. Defendant and Caldwell removed items from the store, including the
security video. After the two men left, the employee hit a “panic” button.
He later identified Defendant and Caldwell from photo arrays.
A few hours later, another armed robbery took place at the Cigarettes
Cheaper Store in Hobart, Indiana. The store manager was working at the
time of the robbery. Defendant and another man entered the store and
Defendant put his gun in the manager’s side. Defendant took the manager
into the back room at gunpoint, threw her onto the floor, and told her he
would kill her if she did anything. The manager begged for her life.
Meanwhile, a customer entered the store to buy cigarettes and saw Caldwell.
After getting her cigarettes, the customer waited at the cash register.
When a few minutes passed, the customer asked Caldwell how much longer the
clerk was going to be. Defendant than walked up to the customer with a gun
in his hand and told her to go to the back room. She went to the back and
sat down with the manager. Defendant then instructed the manager to open
the cash register and she gave Defendant the keys to do so. After getting
the keys, Defendant pulled the door to the back room shut. Defendant and
Caldwell left the scene before removing money from the cash register but
they still had the register keys in their possession.
The customer’s husband saw these events while waiting in the car. He
called the police on his cell phone. The police apprehended Defendant and
Caldwell after a pursuit. The manager and the customer’s husband later
identified Defendant from a photo array.
As a result of these three incidents, Defendant was charged with four
counts of robbery as Class B felonies[2] and eight counts of criminal
confinement[3] and was alleged to be a habitual offender. He was tried on
all these counts in a single proceeding.
At trial, Caldwell testified against Defendant. Caldwell said that
he had been charged with robbery in the three incidents and had entered a
plea agreement with the State where he pled guilty to one count in each.
Caldwell further testified that Defendant had been with him at each of the
three robberies and that Defendant was the most forceful during at least
one of the robberies; Defendant had carried guns during each robbery and
had actually fired his gun on one occasion; Defendant had threatened to
harm or kill those present in the three locations; and that Defendant had
participated in removing items from the premises of the three stores. Each
of these statements was corroborated by the testimony given by the various
individuals present in the three stores at the time of the individual
robberies.
At the time of Defendant’s trial, Caldwell had not yet been
sentenced. On cross-examination, Defendant’s counsel attempted to question
Caldwell regarding the sentence he was facing pursuant to the plea
agreement. At a bench conference, the trial judge refused to let Defendant
question Caldwell about a possible sentence and then proceeded to advise
the jury that the potential sentence was within the sole discretion of the
court.
When the court gave its instructions to the jury, included among
those instructions was jury instruction no. 8, which will be set forth in
its entirety and discussed at length infra. The instruction advised the
jury on the law of accomplice liability. Defendant did not object to this
instruction.
The jury found Defendant guilty of all counts. The trial court
sentenced Defendant to 20 years on each of the two robbery counts in the
Cash Indiana Pawn Shop incident, to be served concurrently. In addition,
Defendant was sentenced to 20 years for each of the robbery counts in the
Smoke Shop and Cigarettes Cheaper Store incidents, to be served
concurrently with each other but consecutively to the sentence for the Cash
Indiana Pawn Shop incident. Finally, Defendant pled guilty to being a
habitual offender. Consequently, the trial court sentenced him to 25 years
on the habitual offender count, to be served consecutively to the robbery
sentences. Thus, Defendant was sentenced to a total of 65 years.
The Court of Appeals reversed Defendant’s convictions, holding that
jury instruction no. 8 constituted fundamental error. McCorker v. State,
783 N.E.2d 801 (Ind. Ct. App. 2003) (mem.). In doing so, the Court of
Appeals followed the reasoning of its recent decision, Walker v. State, 779
N.E.2d 1158 (Ind. Ct. App. 2002) (opinion on reh’g),[4] trans. denied, 792
N.E.2d 33 (Ind. 2003). We granted the State’s petition to transfer in
McCorker. 792 N.E.2d 47 (Ind. 2003).
Discussion
I
Defendant contends that the trial court committed reversible error
when it gave jury instruction no. 8, arguing that the instruction shifted
the State’s burden of proof to Defendant. Because no objection was made to
the giving of the instruction at trial, Defendant invokes the “fundamental
error” doctrine. See Goodwin v. State, 783 N.E.2d 686, 687 (Ind. 2003)
(fundamental error doctrine permits reversal of a conviction even though
defendant did not object at trial or otherwise preserve the claim for
appeal). Fundamental error occurs when there has been a "blatant violation
of basic principles" that denies a defendant "fundamental due process."
Id. (quoting Wilson v. State, 514 N.E.2d 282, 284 (Ind. 1987)).
A
We examine the procedural aspects of this claim before moving to the
substantive. In Walker v. State, 779 N.E.2d 1158, the Court of Appeals
granted petitioner Walker post-conviction relief on grounds that he had
been denied his Sixth Amendment right to the effective assistance of
counsel when counsel failed to object to an instruction identical to
instruction no. 8.
As noted, Walker’s relief was granted in a post-conviction proceeding
on grounds of ineffective assistance of counsel. Defendant here seeks
relief in a direct appeal on grounds of fundamental error. The Court of
Appeals here followed Walker’s conclusion by finding the instruction to be
erroneous and Walker’s result by granting relief. This is not surprising.
While we frame the standard for ineffective assistance of counsel and
fundamental error in somewhat different terms – appropriately so, since the
first is a standard of Federal Constitutional law and the second of state
criminal procedure[5] – they will invariably operate to produce the same
result where the procedural posture of the claim is caused by counsel’s
failure to object at trial.
B
But was the instruction erroneous? The instruction at issue read as
follows:
It is a fundamental principle of law that where two or more
persons engage in the commission of an unlawful act, each person is
criminally responsible for the actions of each other person which were
a probable and natural consequence of their common plan even though
not intended as part of the original plan. It is not essential that
participation of any person to each element of the crime be
established.
A person who knowingly or intentionally aids, induces, or causes
another person to commit an offense commits that offense, even if the
other person:
1. has not been prosecuted for the offense;
2. has not been convicted of the offense; or
3. has been acquitted of the offense.
To aid under the law is to knowingly aid, support, help or
assist in the commission of a crime. Mere presence at the scene of
the crime and knowledge that a crime is being committed are not
sufficient to allow an inference of participation. It is being
present at the time and place, and knowingly doing some act to render
aid to the actual perpetrator of the crime.
The presence of a person at the scene of the commission of a
crime and companionship with another person engaged in the commission
of the crime and a course of conduct before and after the offense are
circumstances which may be considered in determining whether such
person aided and abetted the commission of such crime.
(Appellant’s App. at 97.)
In Sandstrom v. Montana, the United States Supreme Court held that the
Fourteenth Amendment of the U.S. Constitution requires the State to prove
beyond a reasonable doubt every material element of a crime, and that a
jury instruction that shifts that burden to the defendant violates the
defendant’s due process rights. 442 U.S. 510, 524 (1979). Defendant’s
claim is that jury instruction no. 8 violates the mandate of Sandstrom.
The instruction at issue in Sandstrom is well known. In that case,
the jury had been instructed: “the law presumes that a person intends the
ordinary consequences of his voluntary acts.” 442 U.S. at 512 (emphasis
added). Counsel for the Sandstrom defendant made a timely objection to the
instruction, arguing that “‘the instruction ha[d] the effect of shifting
the burden of proof on the issue of’ purpose or knowledge to the defense
and that ‘that is impermissible under the Federal Constitution, due process
of law.’” Id. at 513. The objection was overruled and Sandstrom was
convicted. The Supreme Court initially determined that the jury could have
found this to be a “mandatory presumption,” that is, that the jury was
required to find that Sandstrom intended the consequences of his acts so
long as it found that Sandstrom had voluntarily performed them. Id. at
514. The Court also pointed out that the Sandstrom jury had not been
informed that the presumption could be rebutted or how it could be
rebutted. Id. at 517. The Court concluded that because the jury might
have interpreted the judge’s instruction to shift the burden of proof on
the element of Sandstrom’s intent, which would have deprived Sandstrom of
his due process rights, the instruction was unconstitutional. Id. at 524.
We do not agree with Defendant that instruction no. 8 shifted the
burden of proof from the State on an essential element of the charged
offense.
To be sure, there are problems with instruction no. 8 and we counsel
courts against using it in the form given here. First, the preamble to the
instruction uses the phrase, “It is a fundamental principle of law that . .
. .” The rule of accomplice liability is certainly a principle of law and
may be even a fundamental one. But there are many fundamental principles
of law embodied in jury instructions and we think it unhelpful to label
some as such and not others. At the same time, we think jurors recognize
that this phraseology is little more than a manner of speaking and does not
speak to the core of their responsibility. In any event, it was not
objected to.
It is also a weakness of the instruction as given that it did not
recite the State’s burden of proving beyond a reasonable doubt that
Defendant knowingly or intentionally aided, induced, or caused Caldwell to
commit the unlawful acts at issue. But the jury was thoroughly instructed
that the State’s burden of proof was beyond a reasonable doubt.[6] We
cannot conclude that the trial court abused its discretion by not including
the reasonable doubt language in this particular instruction. Ivy v.
State, 715 N.E.2d 408, 410 (Ind. 1999) (“[T]he jury was thoroughly
instructed on the State’s burden of proof beyond a reasonable doubt [by the
other instructions given].”); Richards v. State, 481 N.E.2d 1093, 1095
(Ind. 1985) (“[I]nstructions must be considered as a whole, with reference
to each other, in determining whether the trial court erred in charging the
jury.”) (citations omitted).
Still a third weakness of instruction no. 8 is that it uses many of
the same words – or close synonyms – that were used in the unconstitutional
instruction disapproved in Sandstrom. Although, as we explain in a moment,
we find them to have been used in a constitutional fashion here, the use of
the words and phrases “fundamental principle of law,” “probable and natural
consequences,” and “intended” in the same sentence certainly spotlights
instruction no. 8 for Sandstrom scrutiny.
But we do not find instruction no. 8 to violate Sandstrom. The
problem in Sandstrom, to repeat, was that the instruction could be
understood by the jury as either (1) an irrebuttable direction by the court
to find intent once convinced that defendant’s actions were voluntary or
(2) a direction to find intent upon proof of the defendant's voluntary
actions (and their "ordinary" consequences), unless the defendant proved
the contrary by some quantum of proof greater than the law requires.
Either interpretation would be contrary to the requirements of the Due
Process Clause because intent was an element of the charged offense and the
jury was free to determine whether or not the State had proved its
existence beyond a reasonable doubt.
The important thing to remember about Sandstrom in this context is
that it did not outlaw mandatory presumptions in jury instructions.
Indeed, jury instructions are full of mandatory presumptions as to what the
law requires once the jury has found certain facts. What Sandstrom held is
that a jury instruction cannot require a jury to find that – cannot impose
a mandatory presumption that – the State has met its burden of proof on an
element of the charged offense. That is for the jury to decide; it cannot
be mandated or presumed.
Jury instruction no. 8 did not instruct the jury to presume or
otherwise find intent (or any other element of the crimes of which
Defendant was accused) from the consequences of Defendant’s acts. Rather,
it instructed the jury that it could impose liability or guilt if it found
that Defendant knowingly aided, supported, helped, or assisted Caldwell in
the commission of the charged crimes. This was a correct statement of law,
a permissible presumption, that did not impinge in any way on the jury’s
fact-finding prerogative. Furthermore, instruction no. 8 contains language
helpful to Defendant to the effect that mere presence at the scene of the
crime and knowledge that a crime was being committed were not sufficient to
allow an inference of participation. In at least this respect, the
instruction is the antithesis of Sandstrom error.[7]
Although for the reasons set forth above, we direct trial courts not
to use this formulation in instructing juries on accomplice liability, it
was not Sandstrom error to give jury instruction no. 8.
This analysis disapproves the holding in Walker v. State, 769 N.E.2d
1162, 1171 (Ind. Ct. App. 2002), trans. denied, which found the exact same
instruction to be unconstitutional. (Walker held that the words
“fundamental principle” denoted a level of importance that ultimately
created a presumption. As our analysis above suggests, we do not
necessarily disagree with this characterization. But the presumption, if
there was one, created here was permissive – the jury could find or presume
liability or guilt if it found Defendant aided Caldwell.)
II
Defendant also contends that the trial court erred by not permitting
him to cross-examine Caldwell regarding the possible sentence Caldwell
would receive pursuant to the terms of the plea agreement Caldwell entered
with the State. Trial courts have wide discretion to determine the scope
of cross-examination, and a trial court’s decision as to the appropriate
extent of cross-examination will only be reversed for an abuse of
discretion. Appleton v. State, 740 N.E.2d 122, 124 (Ind. 2001); Marshall
v. State, 621 N.E.2d 308, 316 (Ind. 1993).
On the other hand, the Sixth Amendment of the United States
Constitution guarantees a defendant the right to confront witnesses against
him. Davis v. Alaska, 415 U.S. 308, 315 (1974). This right is secured for
defendants in state criminal proceedings through the Fourteenth Amendment.
Pointer v. Texas, 380 U.S. 400, 403 (1965). We have previously determined
that any beneficial agreement between an accomplice and the State must be
revealed to the jury. Morrison v. State, 686 N.E.2d 817, 818 (Ind. 1997);
Newman v. State, 263 Ind. 569, 572-73, 334 N.E.2d 684, 687 (1975). “This
rule serves to help the jury better assess the reliability and honesty of
the felon-witness.” Morrison, 686 N.E.2d at 819. The full extent of the
benefit offered to a witness is relevant to the jury’s determination of the
weight and credibility of the witness’s testimony. Standifer v. State, 718
N.E.2d 1107, 1110 (Ind. 1999); Jarrett v. State, 498 N.E.2d 967, 968 (Ind.
1986) (“[S]ignificant harm results when the jury is prevented from learning
the extent of benefit received by a witness in exchange for his
testimony.”).
The trial court abused its discretion when it prevented Defendant from
cross-examining Caldwell regarding the beneficial sentence he would likely
receive under the plea agreement. When a trial court excludes testimony in
violation of a defendant’s federal constitutional right to confront
witnesses, the conviction will be sustained only if the error is harmless
beyond a reasonable doubt. Standifer, 718 N.E.2d at 1110-11 (citing
Chapman v. California, 386 U.S. 18, 24 (1967)). Whether the error was in
fact harmless depends on factors such as the importance of the witness’s
testimony in the State’s case, whether the testimony was cumulative, the
presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points, the extent of cross-
examination otherwise permitted, and the overall strength of the State’s
case. Id. at 1111 (citations omitted).
In the present case, Caldwell’s testimony regarding Defendant’s
presence and participation in the three robberies was merely cumulative of
the testimony offered by the witnesses at each of the three locations.
Caldwell’s testimony did not further incriminate Defendant in terms of his
role in the planning of the crimes since Caldwell in fact testified that
the crimes were not planned. In addition, besides the inability to cross-
examine regarding a possible sentence, Defendant was permitted to conduct
an extensive cross-examination of Caldwell. In fact, Defendant was able to
cross-examine Caldwell regarding the inconsistencies between his trial
testimony and an earlier statement filed with the police, the presence of
the beneficial plea agreement, and the delay in sentencing until a time
following Defendant’s trial—all of which undermined Caldwell’s credibility.
Thus, given the extent of the cross-examination Defendant conducted
and the substantial cumulative evidence by other witnesses that placed
Defendant at the scenes of the three robberies and corroborated his
behavior, any error resulting from Defendant not being permitted to cross-
examine as to the exact sentence Caldwell would likely receive under the
plea agreement was harmless beyond a reasonable doubt.
III
Defendant contends he received ineffective assistance of counsel
because his counsel failed to (1) make an offer of proof as to the full
benefits afforded to Caldwell under the plea agreement with the State; and
(2) object to jury instruction no. 8 as violative of Defendant’s federal
due process rights.
Ineffective assistance of counsel claims are governed by the two-part
test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052
(1984). Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). First, the
defendant must show that the counsel’s performance was deficient by falling
below an objective standard of reasonableness and the resulting errors were
so serious that they resulted in a denial of the right to counsel
guaranteed under the Sixth Amendment. Id. Second, the defendant must show
that the deficient performance prejudiced his defense. Id. Prejudice is
shown with a reasonable probability that, but for counsel’s errors, the
result of the proceeding would have been different. Id. This reasonable
probability is a probability sufficient to undermine confidence in the
original outcome of the proceeding. Id.
Defendant contends that his counsel should have made an offer of
proof of the importance behind cross-examining Caldwell regarding the
specific terms of his plea agreement. But given our finding supra that
Caldwell’s testimony was not the sole basis of his conviction – that there
was testimony from numerous witnesses at the three different crime scenes
that placed Defendant at the scenes and described his involvement – the
strength of his defense was not prejudiced by the failure to make the offer
of proof.
As to Defendant’s contention that his counsel should have objected to
final jury instruction no. 8 as violative of his due process rights, we
held above that the instruction was not erroneous. “‘When an ineffective
assistance of counsel claim is based on trial counsel's failure to make an
objection, the appellant must show that a proper objection would have been
sustained by the trial court.’” Lambert v. State, 743 N.E.2d 719, 732
(Ind. 2001) (quoting Lloyd v. State, 669 N.E.2d 980, 985 (Ind. 1996)).
IV
The trial court sentenced Defendant to a total of 65 years.[8] The
trial court based the consecutive sentences on “the aggravating factor of
the defendant’s past criminal history [which] demonstrates the defendant’s
inability to be rehabilitated. Imposition of probation in the past and
short prison sentences have not deterred the defendant from criminal
activity. The defendant is unable to conform to society’s rules and is
violent in the commission of his crimes.” (Appellant’s App. at 113.)
Defendant contends that his sentence was manifestly unreasonable
because it was improper for a trial court to enhance a presumptive sentence
by relying on his criminal history and violent nature of the offenses since
the nature of the offenses, and violence and/or use of a weapon are
contemplated in the Class B enhancement of the robbery charge. Thus,
according to Defendant, the trial court essentially enhanced a presumptive
sentence by using the underlying elements of the offense.
The record shows that Defendant had accumulated thirteen felony
convictions for robbery, aggravated criminal sexual assault causing bodily
harm, aggravated criminal sexual assault, criminal sexual assault, unlawful
restraint, possession of a controlled substance, manufacturing and delivery
of a controlled substance, and delivery of cocaine. (R. at 607-08.) (The
State’s information on the habitual offender count included one possession
of controlled substance conviction and one aggravated criminal sexual
assault conviction.) (Appellant’s App. at 60.)
Defendant’s significant criminal history and inability to
rehabilitate were sufficient to justify consecutive sentences under Ind.
Code § 35-38-1-7.1. The trial court could well have reached its decision
without even examining the violence involved in the present offenses. We
are not persuaded that a 65-year total sentence is manifestly unreasonable.
Conclusion
Having granted transfer pursuant to Indiana Appellate Rule 58(A), we
now affirm Defendant’s convictions and affirm his sentences totaling 65
years.
Shepard, C.J., Dickson, Boehm, and Rucker, JJ., concur.
-----------------------
[1] 779 N.E.2d 1158 (Ind. Ct. App. 2002) (opinion on reh’g), trans. denied,
792 N.E.2d 33 (Ind. 2003).
[2] “A person who knowingly or intentionally takes property from another
person or from the presence of another person:
1) by using or threatening the use of force on any person; or
2) by putting any person in fear;
commits robbery, a Class C felony. However, the offense is a Class B
felony if it is committed while armed with a deadly weapon or results in
bodily injury to any person other than a defendant . . . .” Ind. Code § 35-
42-5-1.
[3] “A person who knowingly or intentionally:
1) confines another person without the other person’s consent; or
2) removes another person, by fraud, enticement, force, or threat
of force, from one (1) place to another;
commits criminal confinement, a Class D felony. However, . . . [it is] a
Class B felony if it is committed while armed with a deadly weapon or
results in serious bodily injury to another person.” Ind. Code § 35-42-3-
3.
[4] Both parties to this appeal cite the original opinion of the Court of
Appeals in Walker v. State, 769 N.E.2d 1162 (Ind. Ct. App. 2002), without
reference to the opinion on rehearing.
[5] The two also differ in that a claim of ineffective assistance of
counsel is generally best reserved for post-conviction proceedings, Woods
v. State, 701 N.E.2d 1208, 1220 (Ind. 1998), and a claim of fundamental
error is usually available only on direct appeal, Sanders v. State, 765
N.E.2d 591, 592 (Ind. 2002).
[6] Jury Instr. No. 4 (“To each count of the Information in this case,
the Defendant has entered a plea of not guilty, which makes it incumbent
upon the State of Indiana to prove to your satisfaction, beyond a
reasonable doubt, each and every material allegation of any or all counts
of said Information. The burden of proof in a criminal case is upon the
State alone and it never shifts to the defendant.) (Appellant’s App. at 93)
(emphasis added); Jury Instr. No. 5 (“To convict the defendant of the crime
of Criminal Confinement, a class B felony, the State must have proved
beyond a reasonable doubt that the defendant . . .”) (Appellant’s App. at
94); Jury Instr. No. 7 (“In order to convict the defendant, the State must
have proved beyond a reasonable doubt that the defendant . . .”)
(Appellant’s App. at 96); Jury Instr. No. 9 (“The fact that an Information
has been filed charging the Defendant with the commission of a crime does
not give rise to any presumption of guilt and is not to be considered by
the jury as any evidence of guilt. On the contrary, it is a fundamental
concept in our law that the Defendant comes into Court presumed to be
innocent of the charge, and this presumption remains throughout the trial
of the case until and unless it is overcome by competent proof of guilt
beyond a reasonable doubt. . . . If at the conclusion of the trial there
remains in your mind a reasonable doubt concerning the Defendant’s guilt,
you should find him not guilty. Every reasonable doubt arising from the
evidence, the lack of evidence or a conflict in the evidence in this case
must be construed in favor of the Defendant.”) (Appellant’s App. at 98);
Jury Instr. No. 10 (“A ‘reasonable doubt’ is a fair, actual and logical
doubt that arises in your mind after an impartial consideration of all of
the evidence and circumstances in the case.”) (Appellant’s App. at 99);
Jury Instr. No. 11 (“You, the jury, must be satisfied beyond a reasonable
doubt of the accuracy of the identification of the defendant before you may
convict him. If you are not convinced beyond a reasonable doubt that the
defendant was the person who committed the crimes you must find the
defendant not guilty.”) (Appellant’s App. at 100); Jury Instr. No. 17
(“[B]ut if after a careful consideration of the law and the evidence in the
case, you are satisfied beyond a reasonable doubt that the defendant is
guilty of the offense charged, you should return your verdict
accordingly.”) (Appellant’s App. at 1
[7] That is, it would have been Sandstrom error had the instruction
required the jury to find that Defendant aided Caldwell if the jury found
Defendant present at the scene of the crime or that he knew the crime was
being committed. But the instruction instead directed the jury that while
those factors could be considered by them, they were not “sufficient to
allow an inference of participation.”
[8] As explained above, this resulted from 20-year sentences for each of
the three robbery counts, with two of those terms to be served concurrently
with each other and consecutively to the third term, combined with a 25-
year habitual offender enhancement. (Appellant’s App. at 110-14, 117.)