MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 31 2017, 8:42 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ross G. Thomas Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William Russell, May 31, 2017
Appellant-Defendant, Court of Appeals Case No.
69A01-1608-CR-1873
v. Appeal from the Ripley Circuit
Court
State of Indiana, The Honorable Ryan King, Judge
Appellee-Plaintiff. Trial Court Cause No.
69C01-1509-F1-2
Barnes, Judge.
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Case Summary
[1] William Russell appeals his convictions and sentence for Level 1 felony
attempted murder and Class A misdemeanor carrying a handgun without a
license. We affirm.
Issues
[2] The issues Russell raises are:
I. whether the trial court abused its discretion by denying his
motion for mistrial following an alleged violation of his right to
remain silent under the Fifth Amendment to the United States
Constitution; and
II. whether his sentence is inappropriate in light of the nature of
the offenses and the character of the offender.
Facts
[3] In 2015, Dennis Ryker hosted Friday night parties at his parents’ home in
Ripley County. Russell regularly attended the parties. Larry Hurd and
Jonathan Smith also attended the parties. On Friday evening, September 4,
2015, Ryker hosted a party, and Russell, Hurd, and Smith attended. All four
men consumed alcohol at the party. Around 2:00 a.m., the men left the house
to find something to eat. Russell drove himself and Ryker, and Hurd and Smith
drove separately in Hurd’s car. They found an open bar and ordered a round of
drinks. While the men were drinking, two other bar patrons began to argue
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with each other. Smith interceded and coaxed the larger of the two patrons,
Jamie Craft, outside. Craft eventually left the bar.
[4] Smith returned to the bar. Shortly thereafter, around 3:00 a.m. when the bar
was closing, he, Russell, Ryker, and Hurd walked out of the bar’s side door and
toward their vehicles. As the men walked, Smith vented to the group about
Craft’s behavior. Russell told Smith, “Quit being [an] idiot. Quit being a dumb
a**.” Tr. Vol. III p. 30. Smith shook his fist as he walked toward Russell and
said “if [Russell] didn’t stop talking to [him] that way, that [he’d] knock
[Russell’s] F-ing teeth out.” Id. at 155. Russell, who now was standing at his
vehicle, with one foot in the vehicle and one foot on the ground, reached into
the vehicle, retrieved a handgun, and shot Smith in the chest. Smith staggered,
and then brought his hands up and crossed his arms in an X-shape in front of
his face. Russell fired a second time, and the second shot hit Smith in the hand
and forearm and then traveled to Smith’s chest.
[5] Russell threw the gun into his vehicle and drove away from the scene. Smith
was transported to a hospital and survived his injuries. Based upon the
information provided by witnesses at the scene of the shooting, the police began
to search for Russell. Russell evaded the police for two days.
[6] On September 7, 2015, Russell appeared with his attorney at the Ripley County
jail and surrendered to authorities. Two days later, the State charged Russell
with Level 1 felony attempted murder, Level 3 felony aggravated battery, Level
5 felony battery with a deadly weapon, and Class A misdemeanor carrying a
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handgun without a license. Following a four-day jury trial, Russell was found
guilty as charged.
[7] At sentencing, the trial court vacated the Level 3 and Level 5 convictions due to
double jeopardy concerns. The trial court, finding no mitigating factors and
several aggravating factors, imposed consecutive thirty-seven-year and one-year
executed sentences on the remaining convictions for attempted murder and
carrying a handgun without a license, for an aggregate executed sentence of
thirty-eight years.
[8] Russell now appeals. Additional facts will be provided as necessary.
Analysis
I. Fifth Amendment Right to Silence
[9] Russell first contends that the trial court abused its discretion by denying his
motion for mistrial following an alleged violation of his Fifth Amendment right
to remain silent. He maintains that the State’s “use [during trial] of [his] post-
arrest silence and lack of cooperation [with the investigation] both substantively
and in an attempt to impeach [him] violated his rights under the [Fifth] and
Fourteenth Amendments to the United States Constitution and denied him a
fair trial.” Appellant’s Br. p. 14.
[10] At trial, Indiana State Police Detective Kip Main testified during the State’s
case-in-chief that he read the arrest warrant to Russell when Russell arrived at
the jail with his lawyer and surrendered to the authorities. Detective Main
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stated that, after Russell was taken into custody, “[t]he investigation continued.
Even, even with the arrest of that day, part of the process is interviewing people
and, you know, I wanted to get a statement from William Russell.” Tr. Vol. IV p. 21
(emphasis added). Russell objected and moved for a mistrial. The trial court
denied the motion but admonished the jury not to consider Detective Main’s
comment regarding wanting to take a statement from Russell.
[11] “A mistrial is an extreme remedy that is warranted only when less severe
remedies will not satisfactorily correct the error.” Banks v. State, 761 N.E.2d
403, 405 (Ind. 2002). A decision on a motion for mistrial lies within the sound
discretion of the trial court, and we reverse only upon a showing of an abuse of
that discretion. Francis v. State, 758 N.E.2d 528, 532 (Ind. 2001). To prevail,
the appellant must show that he was placed in a position of grave peril to which
he should not have been subjected. Id. The gravity of peril is measured by the
probable persuasive effect on the jury’s decision. Oliver v. State, 755 N.E.2d 582,
585 (Ind. 2001). The trial judge is in the best position to gauge the surrounding
circumstances and the potential impact on the jury when deciding whether a
mistrial is appropriate. Id.
[12] The Fifth Amendment to the U.S. Constitution, made applicable to the states
through the Fourteenth Amendment, provides that no person shall be
compelled in any criminal case to be a witness against himself. U.S. Const.
amend. V; Cox v. State, 854 N.E.2d 1187, 1193 (Ind. Ct. App. 2006). A suspect
is informed of this right to remain silent, among others, when given what is
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1
commonly known as the Miranda rights. Using as evidence of guilt that the
suspect remained silent during police questioning can be a violation of the Fifth
Amendment. See United States v. Hernandez, 948 F.2d 316, 322 (7th Cir. 1991).
Determining whether the use of the defendant’s silence is a violation of the
Fifth Amendment turns on the manner in which the prosecution used the
evidence and if the silence was before or after the defendant was read the
2
Miranda rights.
[13] In Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240 (1976), the United States Supreme
Court held that using a defendant’s silence, which occurred after arrest and
receiving Miranda warnings, for impeachment purposes violates the Due
Process Clause of the Fourteenth Amendment. Id. at 619, 96 S. Ct. at 2245.
The underlying rationale was that use of a defendant’s post-arrest, post-Miranda
silence to impeach an explanation subsequently offered at trial would be
contrary to the Miranda warnings’ implicit assurance to an individual in police
custody that silence will carry no penalty. Id. at 618, 96 S. Ct. at 2245. The
United States Supreme Court has also held a defendant’s post-arrest, post-
Miranda silence could not be used substantively in the prosecution’s case-in-
chief. See Wainwright v. Greenfield, 474 U.S. 284, 295, 106 S. Ct. 634, 641, 88 L.
1
See Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694 (1966) (“He must be
warned prior to any questioning that he has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford
an attorney one will be appointed for him prior to any questioning if he so desires.”).
2
We note that no evidence was presented at trial as to when Russell received his Miranda warnings.
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Ed. 2d 623 (1986). Whether a defendant’s post-arrest, pre-Miranda silence may
be used substantively has yet to be addressed by the United States Supreme
Court, but Indiana courts have held that post-arrest, pre-Miranda silence cannot
be used as substantive evidence in the State’s case-in-chief. See Rowe v. State,
717 N.E.2d 1262, 1267 (Ind. Ct. App. 1999); see also Akard v. State, 924 N.E.2d
202, 209 (Ind. Ct. App. 2010), aff’d in part and reversed in part on other grounds,
937 N.E.2d 811 (Ind. 2010).
[14] Here, the record does not reveal when Russell received his Miranda warnings.
Regardless of whether Russell’s silence was pre-Miranda or post-Miranda, we
find no reversible error.
[15] The statement elicited from Detective Main during the State’s case-in-chief, “I
wanted to get a statement from William Russell,” was brief, nonspecific, and
did not indicate that Russell had refused to speak with the detective. Tr. Vol.
IV p. 21. Russell’s counsel objected immediately and moved for a mistrial.
After discussion at sidebar, the trial court denied the mistrial motion but did
admonish the jury by stating: “Ladies and gentlemen of the jury, the Court
directs you to, uh, disregard the last statement that was made by the witness
testifying.” Id. at 33.
[16] Reversible error is seldom found when the trial court has admonished the jury
to disregard a statement made during the proceedings. Alvies v. State, 795
N.E.2d 493, 506 (Ind. Ct. App. 2003), trans. denied. A timely and accurate
admonition to the jury is presumed to sufficiently protect a defendant’s rights
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and remove any error created by the objectionable statement. Id. Here, the trial
court determined that an admonishment was sufficient and that mistrial was
not warranted. Russell has not shown that the detective’s statement placed him
in a position of grave peril to which he should not have been subjected. We
presume the trial court’s timely and accurate admonishment in this case
sufficiently protected Russell’s rights.
[17] We find that no violation of Russell’s Fifth or Fourteenth Amendment rights
occurred. We conclude that the trial court did not abuse its discretion when it
denied his motion for a mistrial.
II. Appropriateness of Sentence
[18] Russell argues that his thirty-eight-year sentence is inappropriate in light of the
nature of the offenses and his character. According to Russell, when the trial
court sentenced him, it should have considered that, at the time of the shooting,
Russell “acted under strong provocation and that the victim played a role in
facilitating the offense” by threatening Russell with bodily harm. Appellant’s
Br. p. 16. Russell also contends that his general character is not one of
violence, that he demonstrated a strong history of employment prior to
suffering medical problems that left him with a permanent disability, he
expressed remorse that the shooting occurred and a willingness to pay
restitution, and his risk to reoffend is low.
[19] We may revise a sentence if it is “inappropriate in light of the nature of the
offense and the character of the offender.” Ind. Appellate Rule 7(B). Whether
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the reviewing court regards a sentence as inappropriate turns on a “sense of the
culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other factors that come to light in a given case.” Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008). This Court “must give ‘deference to a
trial court’s sentencing decision, both because Rule 7(B) requires us to give due
consideration to that decision and because we understand and recognize the
unique perspective a trial court brings to its sentencing decisions.’” Gil v. State,
988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013) (quoting Stewart v. State, 866
N.E.2d 858, 866 (Ind. Ct. App. 2007)). Russell bears the burden of persuading
us that his sentence is inappropriate. Reid v. State, 876 N.E.2d 1114, 1116 (Ind.
2007).
[20] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. See Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
Russell was found guilty of Level 1 felony attempted murder and Class A
misdemeanor carrying a handgun without a license. The sentencing range for a
Level 1 felony is “a fixed term of between twenty (20) and forty (40) years, with
the advisory sentence being thirty (30) years.” Ind. Code § 35-50-2-4(b). The
sentencing range for a Class A misdemeanor is “a fixed term of not more than
one (1) year.” Ind. Code § 35-50-3-2. The trial court found as aggravating
circumstances that the victim, Smith, suffered significant injuries greater than
the elements necessary to prove the attempted murder count, that Smith’s
family will suffer hardship, that Russell showed a total lack of remorse, and that
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Russell had misdemeanor criminal history and a prior probation violation. The
court imposed consecutive sentences of thirty-seven years for the Level 1 felony
and one year for the Class A misdemeanor. The sentence for the Level 1 felony
was above the advisory sentence but below the maximum advised by the
General Assembly.
[21] Regarding the nature of Russell’s handgun offense, he allowed his license to
carry the handgun to lapse and he did not bother to renew it. As for the
attempted murder offense, it was indisputably callous. After a verbal
altercation, Russell reached into his vehicle, pulled out his handgun, and fired
two shots – aiming for Smith’s chest. The first shot hit Smith in his chest.
Because Smith attempted to shield himself by raising his arms and hands into
an X-shape, the second shot hit the pinky finger of his right hand and his left
forearm, and then lodged into his chest. Smith’s forearm was shattered, his
pinky finger was amputated, and the bullet remains lodged in Smith’s chest.
Smith has undergone multiple surgeries to repair his forearm. He has lost fifty
percent of the strength he had in his right hand. Based on the foregoing, we
conclude that the nature of Russell’s offenses did not render his sentence
inappropriate.
[22] Our review of the character of the offender reveals that Russell’s criminal
history consisted of three misdemeanor driving while suspended convictions
from 2009 and 2010. Russell had one prior probation violation in 2010. The
trial court found several aggravators including Russell’s lack of remorse,
evidenced by statements Russell uttered when he made calls from the Ripley
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County jail: “that’s what happens when you’re my friend . . . I miss,” and “this
[shooting someone] was bound to happen some time.” App. p. 59. The trial
court gave “substantial weight” to all of the aggravators except Russell’s
criminal history, to which the court gave “little weight,” finding that it was not
a “substantial aggravating factor.” App. p. 59; Tr. Vol. VII p. 48. The court
considered the evidence presented at trial that Smith might have provoked
Russell; however, the court determined that this could not serve as a mitigator
because Russell possessed a handgun without a license, and “[b]ut for that
illegal possession of a handgun, nobody’s ever here [before the trial court].” Tr.
Vol. VII p. 49.
[23] Russell carried a handgun for which he had no license. After a verbal
altercation, he shot Smith twice in the chest, causing significant injuries,
immediately left the scene of the shooting, and hid from the police for two days.
During jail-house phone calls, Russell spoke of the shooting in a flippant
manner. Russell’s criminal history, though light, showed a pattern for
disregarding the law. Russell’s character does not persuade us to modify his
sentence. We find that Russell’s thirty-eight-year sentence is not inappropriate
in light of the nature of the offenses and his character.
Conclusion
[24] The trial court properly denied Russell’s motion for a mistrial, and his sentence
is not inappropriate. We affirm.
[25] Affirmed.
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Kirsch, J., and Robb, J., concur.
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William Russell v. State of Indiana (mem. dec.)
Combined Opinion