Legal Research AI

Williams v. State

Court: Indiana Supreme Court
Date filed: 2002-07-08
Citations: 771 N.E.2d 70
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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.
-----------------------
[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.