MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Dec 19 2017, 10:30 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Phillips Curtis T. Hill, Jr.
Boonville, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy Ottis Hale, December 19, 2017
Appellant-Defendant, Court of Appeals Case No.
87A04-1706-CR-1501
v. Appeal from the Warrick Superior
Court
State of Indiana, The Honorable J. Zach Winsett,
Appellee-Plaintiff Judge
Trial Court Cause No.
87D01-1605-F5-192
Baker, Judge.
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[1] Timothy Hale appeals his convictions for Level 4 Felony Causing Death When
Operating a Vehicle with an ACE1 of .15 or More2 and for Level 5 Felony
Causing Death When Operating a Vehicle While Intoxicated. 3 Hale argues that
he received the ineffective assistance of trial counsel. We find that he did not
receive ineffective assistance, but also sua sponte find that double jeopardy
principles prohibit both of Hale’s convictions from standing. Therefore, we
affirm in part, vacate Hale’s Level 5 felony conviction, and remand to the trial
court with instructions to enter an amended abstract of judgment and an
amended sentencing order.
Facts
[2] On May 5, 2016, Hale was working at home when a friend, James Hopper,
arrived. Hopper had been drinking whiskey and offered to share; Hale
accepted. The two men eventually drove to a restaurant to have dinner. While
at dinner, they each had one or two beers. After dinner, they went to a liquor
store and bought one bottle of whiskey and one bottle of bourbon. They went
to the home of some friends. While there, Hale had “at least three or four”
drinks. Tr. Vol. III p. 116.
1
ACE stands for “alcohol concentration equivalent[.]” Ind. Code § 9-30-5-5(a).
2
I.C. § 9-30-5-5(c)(1).
3
Id. at -5(a)(3).
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[3] Around 8:20 p.m., Hale began driving back home; Hopper was a passenger in
the vehicle. At some point, Hale’s truck swerved into oncoming traffic, nearly
striking a vehicle going in the opposite direction. Hale’s truck then swerved
into a ditch, struck a concrete culvert and a utility pole, and flipped over.
Hopper died as a result of the crash. Bystanders and responding officers saw
two partially empty bottles of alcohol in the truck.
[4] Shortly after the accident, Warrick County Sheriff’s Deputy Kyle Tevault
arrived at the scene. Deputy Tevault observed that Hale’s speech was
extremely slurred and noticed a strong odor of alcohol emanating from him.
Hale was transported to the hospital, where he consented to a blood draw,
which later revealed his blood alcohol content to be .295. At the hospital,
Deputy Tevault spoke with Hale. The deputy had difficulty understanding
Hale because of his slurred speech. Hale admitted that he and Hopper had
drunk bourbon earlier in the evening and that he had a “fishbowl” of beer at
dinner. Tr. Vol. II p. 97-98. He admitted that he was driving at the time of the
accident and that Hopper was in the passenger’s seat.
[5] Indiana State Trooper Josh Greer, a certified crash reconstructionist, responded
to the scene. He took photographs and measurements of the vehicle and the
scene as part of his investigation. Trooper Greer concluded that the truck was
traveling on the wrong side of the road leading up to the crash. Later, Trooper
Greer reviewed the truck’s event data recorder, which is analogous to the black
boxes used on airplanes. Trooper Greer used a Bosch crash data retrieval tool
to retrieve the information on the event data recorder; the information was
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generated in the form of a report, which Trooper Greer used to reconstruct the
crash. Trooper Greer then prepared his own report. The data regarding the
truck’s speed and usage of brakes indicated to Trooper Greer that there was a
“whole lot going on” that indicated driver confusion, with “a whole lot of just
smacking at the pedals.” Tr. Vol. III p. 37. No other vehicle caused the
accident; the sole cause was Hale, the operator of the truck.
[6] On May 10, 2016, the State charged Hale with Level 5 felony causing death
when operating a motor vehicle while intoxicated and Level 4 felony causing
death when operating a motor vehicle with an ACE of .15 or more.4 Hale’s jury
trial took place from May 9 through May 11, 2017. At the trial, a number of
things occurred that are relevant to this appeal:
• After the trial had begun, Juror #2596 informed the trial court that he
had realized that he knew Hopper because they had been neighbors
about two decades earlier. The juror indicated that it would have no
impact on his ability to sit on the jury, and he was allowed to remain.
• Trooper Greer testified about the crash reconstruction. The State did not
seek to have him qualified as an expert witness.
• Hale’s attorney moved for a directed verdict at the close of the State’s
case-in-chief; the trial court denied the motion. Hale’s attorney did not
renew the motion at the close of the evidence.
• Hale’s attorney attempted to introduce testimony that in the past,
Hopper had become intoxicated and attempted to grab steering wheels
operated by other drivers. The trial court did not permit that line of
questioning to occur.
4
Evidently the State also charged Hale with multiple lesser-included offenses. The trial court ultimately
vacated the convictions for the lesser-included offenses. The full charging information is not part of the
record on appeal.
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• Hale’s attorney indicated to the trial court that John King, a former
police officer, would be called to testify generally about the effectiveness
of prison as a remedy for certain types of offenses. The trial court refused
to allow King to testify.
On May 11, 2017, the jury found Hale guilty as charged. On June 6, 2017, the
trial court sentenced Hale to concurrent terms of three years imprisonment for
the Level 5 felony and six years imprisonment for the Level 4 felony. Hale now
appeals.
Discussion and Decision
I. Assistance of Counsel
[7] Hale argues that he received the ineffective assistance of trial counsel. 5 A claim
of ineffective assistance of trial counsel requires a showing that: (1) counsel’s
performance was deficient by falling below an objective standard of
reasonableness based on prevailing professional norms; and (2) counsel’s
performance prejudiced the defendant such that “‘there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444
(Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A
reasonable probability arises when there is a ‘probability sufficient to undermine
5
Because Hale raises a claim of ineffective assistance of trial counsel in a direct appeal, he is foreclosed from
raising an ineffectiveness of trial counsel claim in a future post-conviction proceeding. E.g., Jewell v. State,
887 N.E.2d 939, 941 (Ind. 2008).
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confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.
2006) (quoting Strickland, 466 U.S. at 694).
[8] In this case, Hale argues that his trial counsel was ineffective for the following
reasons: (1) failing to ask that Juror #2596 be removed; (2) failing to challenge
Trooper Greer’s expert qualifications (the State did not seek to qualify Trooper
Greer as an expert); (3) failing to make a second motion for directed verdict;
(4) trying too hard to get inadmissible specific acts testimony into evidence;
(5) not trying hard enough to introduce general testimony about the
effectiveness of prison as a remedy; and (6) not giving a sufficiently persuasive
closing argument.
1. Juror #2596
[9] Hale contends that his attorney was ineffective for failing to request that Juror
#2596 be removed after the juror realized that, nearly two decades earlier, the
deceased had been his upstairs neighbor. The connection was so attenuated
that the juror did not even realize he had known Hopper until the State had
presented three witnesses in its case-in-chief. The juror told the trial court that
his previous acquaintanceship with Hopper would have no impact on his ability
to sit on the jury. Under these circumstances, it was reasonable for counsel to
refrain from asking that the juror be excused. And even if counsel had
requested the juror’s removal, the trial court would almost certainly have
denied it. Therefore, we find no ineffectiveness on this basis.
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2. Trooper Greer
[10] Hale’s next argument is somewhat unclear. He appears to contend that counsel
should have objected to Trooper Greer’s qualifications as an expert witness.
The State, however, did not offer Trooper Greer as an expert witness, instead
offering him as a skilled witness. Ind. Evidence Rule 701; see also Satterfield v.
State, 33 N.E.3d 344, 352-53 (Ind. 2015) (noting that “lay and skilled witnesses
testify from their perceptions” and that “[s]killed witnesses . . . possess
knowledge beyond that of the average juror”). Consequently, had counsel
objected to Trooper Greer’s qualifications as an expert witness, the objection
would have been overruled. We note that counsel did, in fact, object during the
trooper’s testimony, both to the Bosch report and to the accident reconstruction
report, and both objections were overruled. We do not find that trial counsel
was ineffective related to Trooper Greer’s testimony.
3. Second Motion for Directed Verdict
[11] Trial counsel moved for a directed verdict at the close of the State’s case-in-
chief, and that motion was denied. Hale argues, however, that counsel should
have made a second motion for a directed verdict at the conclusion of the
evidence. He contends, somewhat confusingly, that the State charged him with
a violation of Indiana Code section 9-30-5-5(b)(1), which makes it a Level 4
felony to cause death when operating while intoxicated if the driver has a
previous conviction of operating while intoxicated within the previous ten
years. According to Hale, his attorney should have moved for a directed verdict
because the State failed to prove that he had a previous conviction.
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[12] It is unclear why he believes that he was charged with this offense—especially
because he has failed to include the charging information in the appendix—as
all the evidence and argument at trial, the jury instructions, and the verdict form
clearly indicate that the State charged him with a violation of Indiana Code
section 9-30-5-5(c)(1).6 Given the record before us, it is apparent that it would
have been futile for counsel to have requested a directed verdict on this basis.
Consequently, counsel was not ineffective for failing to move for a second
directed verdict.
4. Specific Acts Testimony
[13] Trial counsel attempted to introduce the testimony of a witness who planned to
testify that in the past, Hopper had gotten intoxicated and attempted to grab the
steering wheels of other drivers. The trial court ruled against admitting this
testimony because a person’s character may not be established by specific acts.
Ind. Evidence Rules 405, 406. Counsel argued strenuously that this testimony
constituted admissible habit evidence rather than inadmissible specific acts
testimony, but the trial court ruled against her. And she continued to attempt
to introduce this evidence, which she believed was helpful to her client, even
making an offer to prove. Under these circumstances, we fail to see how
counsel’s performance was ineffective.
6
His belief may be based on an apparent scrivener’s error in the Chronological Case Summary, which
indicates that he was convicted of a violation of section -5(b)(1). Given the content of the trial, the jury
instructions, and the verdict form, however, we have no difficulty concluding that this was merely an
inadvertent error.
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5. General Prison Testimony
[14] Counsel indicated to the trial court that she intended to call John King as a
witness. King is a former police officer, and counsel stated that she anticipated
that he would testify “that prison does not work for certain types of offenses.”
Appellant’s Br. p. 15. The State objected, stating that King was not qualified to
testify on this topic because he was a police officer and did not work inside the
prison system. The trial court responded that if King’s testimony was not
specific to Hale, and would be “generally his experience as a police officer and
how prison sentences don’t work, then I’d have to agree with [the prosecutor]
that he’s not qualified.” Tr. Vol. IV p. 156. The trial court indicated to counsel
that she was free to call King to testify, but made it clear that the expected
testimony would not be admitted. We find no fault in counsel’s decision to
refrain from calling King to testify, as it is apparent that the action would have
been futile. Therefore, counsel was not ineffective on this basis.
6. Closing Argument
[15] Finally, Hale contends that counsel made an inadequate closing argument.
According to Hale, her argument was too short and did not make a sufficiently
compelling case. We agree with the State that counsel’s argument, which
highlighted reasonable doubt and cited to evidence that Hopper caused the
accident by grabbing and pulling at the wheel, was the best available given the
overwhelming evidence of her client’s guilt. The length of closing is certainly
not a barometer by which to gauge an attorney’s effectiveness. Her argument
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was short, direct, and made the only possible arguments available to her client.
We do not find her ineffective in this regard.
[16] Wholly separate from all the above claimed deficiencies is the following
evidence supporting Hale’s guilt: he consumed alcohol over the course of the
afternoon and evening leading up to the crash. Hale himself admitted at trial to
drinking whiskey, beer, and bourbon that afternoon and evening. Partially
empty bottles of alcohol were found in Hale’s truck, he admitted to the police
that he had been drinking bourbon and a “fishbowl” of beer, tr. vol. II p. 97-98,
and his speech was extremely slurred after the accident. Hale consented to a
blood draw, which revealed a blood alcohol content of .295. Hale was the
driver of the truck, which swerved into oncoming traffic and then crashed into a
ditch, a concrete culvert, and a utility pole. Hopper died as a result of the crash.
Consequently, all elements of the charged offenses are readily proved by the
unchallenged evidence: intoxication, blood alcohol content over .15, operation,
accident, and fatality.
[17] None of the specific claims of ineffectiveness impact the admission of the above
evidence, nor does any specific instance of ineffectiveness (or the cumulative
effect of all the claimed instances) call into question the overwhelming evidence
supporting Hale’s guilt. Therefore, we find that Hale has established neither
deficient performance nor prejudice.
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II. Double Jeopardy
[18] We are compelled to consider the issue of double jeopardy sua sponte. Indiana’s
double jeopardy clause was intended to prevent the State from being able to
proceed against a person twice for the same criminal transgression. Wharton v.
State, 42 N.E.3d 539, 541 (Ind. Ct. App. 2015). Our Supreme Court has held
that two or more offenses are the “same offense,” in violation of our
Constitution’s double jeopardy clause, “if, with respect to either the statutory
elements of the challenged crimes or the actual evidence used to convict, the
essential elements of one challenged offense also establish the essential elements
of another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind.
1999) (emphases original). Under the actual evidence test, the “actual evidence
presented at trial is examined to determine whether each challenged offense
was established by separate and distinct facts.” Id. at 53.
[19] Here, Hale was convicted of (1) Level 4 felony causing death when operating a
vehicle with an ACE of .15 or more; and (2) Level 5 felony causing death when
operating while intoxicated. We can only conclude that the same behavior—
operating a vehicle while intoxicated, causing death—formed the basis for both
convictions. Consequently, the same actual evidence presented at trial
supported both convictions, and both may not stand. See, e.g., Wharton v. State,
42 N.E.3d 539 (Ind. Ct. App. 2015) (finding double jeopardy violation where
defendant was convicted of operating while intoxicated with a prior conviction
and operating with an ACE of .08 or more with a prior conviction); West v.
State, 22 N.E.3d 872, 874-75 (Ind. Ct. App. 2014) (finding double jeopardy
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violation where defendant was convicted of operating while intoxicated and
operating with a blood alcohol content of .15 or more).
[20] A violation of double jeopardy principles requires that we vacate the conviction
with the less severe penal consequences. E.g., Moala v. State, 969 N.E.2d 1061,
1065 (Ind. Ct. App. 2012). Therefore, we vacate Hale’s Level 5 felony causing
death when operating while intoxicated conviction and remand with
instructions to enter an amended abstract of judgment and an amended
sentencing order.
[21] The judgment of the trial court is affirmed in part, vacated in part, and
remanded with instructions to enter an amended abstract of judgment and an
amended sentencing order.
Riley, J., and Brown, J., concur.
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