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Mitchell v. State

Court: Indiana Supreme Court
Date filed: 2001-03-07
Citations: 742 N.E.2d 953
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11 Citing Cases

ATTORNEY FOR APPELLANT

Kevin McShane
Indianapolis, Indiana





ATTORNEYS FOR APPELLEE

Karen M. Freeman-Wilson
Attorney General of Indiana

Rosemary L. Borek
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________


                                   IN THE



                          SUPREME COURT OF INDIANA

__________________________________________________________________

STEVEN MITCHELL,             )
                                  )
      Appellant (Defendant Below), )
                                  )
            v.                    )     Indiana Supreme Court
                                  )     Cause No. 49S00-0006-CR-363
STATE OF INDIANA,                 )
                                  )
      Appellee (Plaintiff Below).       )
__________________________________________________________________

                    APPEAL FROM THE MARION SUPERIOR COURT
                    The Honorable Mark Renner, Magistrate
                        Cause No. 49D04-9901-CF-8585
__________________________________________________________________


                              ON DIRECT APPEAL

__________________________________________________________________

                                March 7, 2001

BOEHM, Justice.
      Steven Mitchell was convicted of murder and  sentenced  to  sixty-five
years imprisonment.  He challenges the instructions on  the  law  of  aiding
and abetting and the trial court’s  limitation  on  cross-examination  of  a
witness who had been charged with the same crime  but  had  pleaded  guilty.
Mitchell contends that his cross-examination was  improperly  restricted  to
exclude evidence of the potential length of the sentence the  witness  faced
if he had not pleaded.  We affirm the judgment of the trial court.

                      Factual and Procedural Background

      On January 14, 1999, Mitchell was  in  the  home  of  his  girlfriend,
Yolanda Coffee,  with  his  friends,  Edward  “EZ”  Crafter,  Steven  “Pooh”
Kilpatrick, Darnell Middlebrook,  Antonio  “TT”  Williams,  Antonio  “Lamar”
Owens, Craig Ferrell, and Charlene Bronaugh.  When Crafter  and  Middlebrook
began to argue, Mitchell asked them to leave the house.
      Outside the house, Crafter and Middlebrook’s argument  escalated  into
a fist fight which lasted for approximately ten minutes  before  Kilpatrick,
Ferrell, Owens, and Williams “jumped on”  Crafter.   The  men  continued  to
punch and kick Crafter until he was lying on  the  ground.   At  some  point
during the fight, Thompson  entered  the  melee  and  struck  Crafter  once.
Kilpatrick then hit Crafter over the head with a  large  piece  of  ice  and
searched his pockets.
      Crafter banged on the door of Coffee’s house, asking to be let  in  to
escape the attack and get help.  Mitchell refused to let  him  in  and  told
Kilpatrick to remove Crafter from the porch.   After  returning  Crafter  to
the lawn, Kilpatrick entered  the  house  and  asked  Mitchell  if  Mitchell
wanted him to kill Crafter.  Mitchell responded in the affirmative and  gave
Kilpatrick a kitchen knife.  Kilpatrick returned outside  and  continued  to
beat Crafter with the others.   During  this  exchange,  Thompson  left  the
premises.
      Some time later, Ferrell and Kilpatrick were  walking  on  the  street
with Crafter between them, when they  encountered  Thompson.   According  to
Thompson’s testimony, Kilpatrick stabbed Crafter in the  neck  five  or  six
times, Ferrell stabbed him once in the chest, and  the  two  left  Crafter’s
body in a field.
      The three then returned to Coffee’s house, disposed  of  their  bloody
clothes, went to a liquor store, purchased a bottle of gin, and returned  to
the house to drink it.  Police found the  body  the  next  day.   At  trial,
Mitchell was charged with murder, robbery, and aggravated battery.   Coffee,
Bronaugh, and Thompson testified to the  events  as  described  above.   The
jury found Mitchell guilty of  both  murder  and  aggravated  battery.   The
trial court vacated the aggravated battery count and sentenced  Mitchell  to
sixty-five years.

                     I.  Aiding and Abetting Instruction

      Mitchell first claims  that  the  trial  court  erred  by  giving  the
State’s tendered instruction on aiding and abetting.  The instruction read:
           A person is responsible for the actions of another person  when,
      either before or during the commission of a crime, he knowingly  aids,
      induces, or causes the other person to commit a crime.  To aid  is  to
      knowingly support, help, or assist in the commission of the crime.
           In order to be held responsible for the actions of  another,  he
      need only have knowledge that he is helping in the commission  of  the
      crime.  He does not have to personally participate in each element  of
      the crime nor does he have to be present when the crime is committed.
           Proof of a person’s failure to oppose the commission of a crime,
      companionship with the person  committing  the  offense,  and  conduct
      before and after the offense may be considered in determining  whether
      aiding may be inferred.  A preconceived scheme or  plan  need  not  be
      proven.  Mere concerted action or participation in the illegal acts is
      enough.


      Mitchell objected, stating:
      The fifth, I guess I would object to.  I think the evidence is  pretty
      nebulous about—there’s been no discussion about opposing commission of
      the crime, companionship, conduct before and after.  It  seems  that’s
      pretty thin.  The previous two I can see might not  be  objectionable,
      but this one I would object to.


He did not offer an alternative instruction.
      On appeal, Mitchell claims that, although the instruction is a correct
statement of the law, it “is not a complete and fair  statement  of  Indiana
law” and misled the jury.  Specifically, he claims that the instruction  did
not tell the jury that mere presence or acquiescence is not enough and  that
there must be evidence of a defendant’s affirmative conduct.
      This Court has recently  held  that  a  defendant  is  ordinarily  not
required to tender proposed alternative instructions to preserve a claim  of
error.  Scisney v. State, 701 N.E.2d 847, 848 (Ind.  1998).    Specifically,
this Court concluded that, although a defendant is  not  generally  required
to  tender  an  alternative  instruction  when  objecting  to   a   proposed
instruction, the “instruction objection  at  trial  [must  be]  sufficiently
clear and specific to inform the trial court of the  claimed  error  and  to
prevent inadvertent error.”  Id.  However, if the claimed error  is  failure
to give an instruction, “a tendered instruction  is  necessary  to  preserve
error because, without the substance of an instruction upon which  to  rule,
the trial court has not been given a reasonable opportunity to consider  and
implement the request.”  Id. at 848 n.3.  Under these  rules,  Mitchell  has
waived any error in the jury instruction.
      Mitchell’s objection at trial did not make clear that he was objecting
based on missing information  in  the  proposed  instruction.   Rather,  his
objection appeared to be based on whether there was evidence in  the  record
to support the third paragraph of the instruction.[1]  See Lehman v.  State,
730 N.E.2d 701, 703 (Ind. 2000) (asserting a new argument on  appeal  waives
the appellate claim).  However, even  if  the  objection  could  somehow  be
construed to complain about missing information, in order to  preserve  this
objection,  it  was  necessary  to  propose   an   alternative   instruction
containing the additional law.  Because Mitchell failed to do that,  he  has
waived this claim.[2]

                    II.  Limitation on Cross-Examination

      Mitchell’s second argument is that the trial court erred  by  limiting
his cross-examination of Thompson  about  the  possible  penalties  Thompson
faced if he had not pleaded guilty.  Thompson was  originally  charged  with
murder, robbery, aggravated battery, and  criminal  gang  activity.   Before
Mitchell’s trial, Thompson pleaded guilty to aggravated battery  and  agreed
to testify against the other defendants in this case  in  exchange  for  the
State’s dismissal of the other charges and a guarantee  that  he  would  not
receive more than fourteen years imprisonment.  The State filed a motion  in
limine  to  prohibit  Mitchell  from  cross-examining  Thompson  about   the
penalties for the crimes with which he was originally charged, arguing  that
Mitchell was charged with the same crimes and that the jury  should  not  be
informed of the penalties for these crimes.  The  trial  court  granted  the
State’s motion over Mitchell’s objection.
      At trial, Mitchell was allowed to  cross-examine  Thompson  about  his
plea agreement, including the charges that were dismissed,  the  seriousness
of those charges, and the length of time he received under the deal.  At  no
point during his cross-examination did Mitchell make an offer  to  prove  or
challenge the pretrial ruling.
      A pre-trial hearing or a motion in limine is appropriate to  determine
the admissibility of evidence outside of  the  jury’s  hearing.   Hadley  v.
State, 496 N.E.2d 67, 71 (Ind. 1986).  However,  in  order  to  preserve  an
error for appellate review, a party must do more than challenge  the  ruling
on a motion in limine.  Tyra  v.  State,  506  N.E.2d  1100,  1102-03  (Ind.
1987); Johnson v. State, 472 N.E.2d 892, 908 (Ind. 1985).  “[T]o  raise  the
question of error, the evidence must be offered at trial to give  the  trial
court an opportunity to rule on its admissibility at that time.”  Tyra,  506
N.E.2d at 1103 (citations omitted).   Because Mitchell failed  at  trial  to
offer the evidence excluded at the pre-trial hearing, he has  not  preserved
the error for appellate review.  See Wise v. State, 719  N.E.2d  1192,  1197
(Ind. 1999); Miller v. State, 716 N.E.2d 367, 370 (Ind. 1999).

                                 Conclusion

      The judgment of the trial court is affirmed.

      SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] This interpretation of the objection  is  supported  by  both  counsels’
arguments following the objection.  Both sides discussed what  evidence  was
presented and whether it supported giving the instruction, not  any  missing
language in the instruction.
[2] Mitchell also loses on the merits of this  claim.   This  Court  reviews
the giving or refusal of a tendered instruction  by  examining  whether  the
tendered instruction correctly stated the law, whether  there  was  evidence
in the record to support the giving of  the  instruction,  and  whether  the
substance  of  the  tendered  instruction  was  covered  by  other  tendered
instructions.  Wooley v. State, 716 N.E.2d 919, 926 (Ind. 1999).  The  trial
court has discretion in the manner of instructing the jury  and  its  ruling
will not be reversed  unless  the  instructions,  when  taken  as  a  whole,
misstate the law or mislead the jury.  Reaves v. State, 586 N.E.2d 847,  855
(Ind. 1992).  The challenged instruction satisfies these criteria.