ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ERIC K. KOSELKE STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
CHRISTOPHER L. LAFUSE
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
MYRON A. POWELL, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 49S00-0009-CR-562
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT, ROOM NO. 3
The Honorable Cale Bradford, Judge
Cause No. 49G03-9712-CF-183028
ON DIRECT APPEAL
June 18, 2002
RUCKER, Justice
A jury convicted Indianapolis police officer Myron Powell of felony
murder for his role in the attempted robbery and shooting death of a
suspected drug dealer. The trial court sentenced him to sixty-five years
imprisonment. In this direct appeal, Powell raises four issues for our
review, which we rephrase as follows: (1) is Powell’s conviction for
felony murder inconsistent with his acquittal for robbery; (2) did the
trial court err in refusing Powell’s tendered instruction on accomplice
liability; (3) did the trial court err in sentencing Powell; and (4) is
Powell’s sentence manifestly unreasonable. We affirm.
Facts
The facts most favorable to the verdict show that in the evening
hours of December 11, 1997, David Hairston was present at his home in
Indianapolis. Also present were twenty-year-old Khalalah and fifteen-year-
old Michael. When the doorbell rang, Khalalah answered and observed two
men, one of whom was wearing a police uniform. She also observed an
Indianapolis Police Department patrol car parked in front of the house.
The man wearing the uniform asked to speak with “Big C,” which was
Hairston’s nickname. Khalalah shut the door, leaving the men outside, and
yelled to Hairston that the police wanted to talk to him. In the meantime,
the two men entered the house and waited in the foyer. Hairston came to
the door and inquired, “What’s the problem, Officers?” R. at 1373. The
man in the uniform responded, “We just busted one of your friends and [he]
said you had a lot of drugs over here.” R. at 1374. When Hairston asked
to see a search warrant, the uniformed officer replied that additional
police officers were en route to the house with the document. Hairston
then told the pair to wait outside until the other officers arrived.
However, the two men refused to leave. Hairston then demanded their names
and badge numbers. The officer in uniform stated that his name was
“Thompson.” Suspecting something was amiss, Hairston brushed aside the
officer’s coat and saw a nametag that read “Powell.” R. at 1291.
At that point, the second man, later identified as Michael Highbaugh,
produced a handgun, placed the barrel against Hairston’s temple, and
ordered him to lie on the floor. Hairston refused, and Highbaugh shot him
once in the head. He died as a result. In the meantime, Khalalah and
Michael had run from the foyer into the kitchen. Highbaugh shot Michael in
the head as he was trying to exit through a kitchen window. The resulting
wound was not fatal, and Michael lay motionless pretending to be dead.
Highbaugh then placed the barrel of the gun against Khalalah’s head and
pulled the trigger. When it misfired, he grabbed a knife and stabbed her
several times in the neck. She survived and identified Powell as the man
in the uniform.
From his position on the kitchen floor, Michael heard footsteps
running throughout the house. After several minutes, he saw Powell rushing
out the front door carrying three bags, one of which appeared to contain
marijuana. When Powell and Highbaugh were finally gone, Michael locked the
door and called the police. Officers from the Indianapolis Police
Department arrived and observed a large safe that had been moved from
Hairston’s bedroom closet to the front porch. It contained $75,000 in
cash, a semi-automatic handgun, jewelry, and a $5000 Certificate of
Deposit. Officers also recovered from the house a scale used to weigh
narcotics, $22,000 in cash, and a large quantity of cocaine and marijuana.
The State charged Powell with murder, felony murder, two counts of
attempted murder, and robbery. The State also sought the death penalty but
later amended its complaint and sought life imprisonment without parole.[1]
After a jury trial, Powell was convicted of felony murder and acquitted
of the remaining charges. The trial court sentenced Powell to sixty-five
years imprisonment. This appeal followed.
Discussion
I.
Because the jury found Powell guilty of felony murder but acquitted
him of robbery, Powell argues these verdicts are inconsistent because
robbery was “the only . . . underlying felony used to support his felony
murder conviction.” Br. of Appellant at 8. Therefore, the argument
continues, this Court should reverse his felony murder conviction.
When this Court reviews a claim of inconsistent jury verdicts, “we
will take corrective action only when the verdicts are extremely
contradictory and irreconcilable.” Mitchell v. State, 726 N.E.2d 1228,
1239 (Ind. 2000) (quotation omitted). A jury’s verdict may be inconsistent
or even illogical but nevertheless permissible if it is supported by
sufficient evidence. Totten v. State, 486 N.E.2d 519, 522 (Ind. 1985); see
also Hodge v. State, 688 N.E.2d 1246, 1248-49 (Ind. 1997) (noting that
ordinarily when the trial of a defendant results in acquittal on some
charges and convictions on others, the verdicts will survive a claim of
inconsistency when the evidence is sufficient to support the convictions).
In resolving such a claim, we neither interpret nor speculate about the
thought process or motivation of the jury in reaching its verdict.
Mitchell, 726 N.E.2d at 1239.
Powell’s argument is based on a faulty premise. Rather than relying
solely on the commission of a robbery as the crime underlying the felony
murder charge, the record shows the State relied on alternative theories,
namely: robbery or attempted robbery.[2] Evidence that a locked safe in
Hairston’s home had been moved from the closet to the front porch was
sufficient for the jury to conclude that Powell intended to rob Hairston
but simply did not complete the job. Powell’s conviction for felony murder
with attempted robbery as the underlying felony is not inconsistent with
his acquittal for robbery.
II.
Powell tendered the following jury instruction on accomplice
liability:
The criminal liability of an accomplice is negated by the
principal’s commission of an offense greater in severity than the
offense originally planned if the resulting offense is not a probable
and natural consequence of the planned offense.
R. at 969 (emphasis in original). The trial court refused to give Powell’s
tendered instruction and instead gave its own, which read in pertinent
part:
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, 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 is to knowingly support, help, or assist in the
commission of a crime.
In order to be held responsible for the actions of another, [a
defendant] need only have knowledge that he is helping in the
commission of the charged crime. He does not have to personally
participate in the crime nor does he have to be present when the crime
is committed.
. . .
It must be proved beyond a reasonable doubt that a defendant had
knowledge of and participated in the commission of the crime.
R. at 1004-05 (Instruction No. 10 B). Powell complains the trial court
erred in refusing to give his proposed tendered instruction.
The manner of instructing a jury lies largely within the sound
discretion of the trial court, and we review the trial court’s decision
only for an abuse of that discretion. Cline v. State, 726 N.E.2d 1249,
1256 (Ind. 2000). The test for reviewing the trial court’s decision to
refuse a tendered instruction is: (1) whether the instruction correctly
states the law; (2) whether there was evidence in the record to support
the giving of the instruction; and (3) whether the substance of the
instruction is covered by other instructions given by the court. Id.
Although Powell contends otherwise, the substance of his instruction –
accomplice liability – is contained in the instruction given by the trial
court. We find no error on this issue.
In a related argument, Powell also complains the trial court erred in
refusing to give his tendered instruction on accomplice liability after the
jury sent a note to the trial court. The facts are these. In the late
evening hours during the first day of deliberations, the jury sent two
questions to the trial court. The one at issue here read as follows:
Could we have clarification in relationship to Instruction 10B? Does
the sentence, [“]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,
even if the other person . . .[”] does this crime, underlined, have to
be the exact crime that eventually was committed, robbery, murder?
R. at 1763-64. After discussing the matter with the parties outside the
jury’s presence, the trial court returned the jury to the courtroom,
advised them that court would be adjourned for the day, and that the trial
court would answer the jury’s questions the following morning. The next
day, over Powell’s objection, the trial court responded, “The Court may not
answer this question. You should reread your Jury Instructions.” R. at
1791. In this appeal, Powell contends the trial court should have re-read
all of the final instructions along with his previously rejected tendered
instruction.[3]
Indiana Code section 34-36-1-6 provides:
If, after the jury retires for deliberation:
(1) there is a disagreement among the jurors as to any part of
the testimony; or
(2) the jury desires to be informed as to any point of law
arising in the case;
the jury may request the officer to conduct them into court, where the
information required shall be given in the presence of, or after
notice to, the parties or the attorneys representing the parties.
There is no dispute that the jury’s question in this case concerned a point
of law. Also there is no dispute that the trial court complied with the
statutory mandate. Powell’s complaint is that the trial court should have
done more.
At the time of Powell’s trial, the generally accepted procedures in
answering a jury’s question on a matter of law was to reread all
instructions in order to avoid emphasizing any particular point and not
qualify, modify, or explain its instructions in any way. Wallace v. State,
426 N.E.2d 34, 36 (Ind. 1981); see also Jenkins v. State, 424 N.E.2d. 1002,
1003 (Ind. 1981) (“The path is extremely hazardous for the court that would
depart from the body of final instructions and do other than reread the
final instructions in responding to jury questions.”).[4] However, we have
permitted departure from this procedure. In Riley v. State we said “‘when
the jury question coincides with an error or legal lacuna [gap] in the
final instructions . . . a response other than rereading from the body of
final instructions is permissible.’” 711 N.E.2d 489, 493 (Ind. 1999)
(quoting Jenkins, 424 N.E.2d at 1003). In this case, Powell contends there
was a gap in the trial court’s final instructions that would have been
cured by a reading of his tendered instruction. We disagree there was any
gap. The trial court’s instruction was thorough and more detailed than
that proposed by Powell. As we have already determined, the substance of
Powell’s instruction was contained in the instruction given by the trial
court. Further, reading Powell’s instruction would not have provided the
jury with any more guidance on the question raised. The court’s
instruction informed the jury, among other things, that it must find beyond
a reasonable doubt that Powell had knowledge that Highbaugh intended to
commit the “charged crime.” Powell’s proposed instruction stated the same
proposition, but simply in the negative. We find no error here.
III.
The trial court sentenced Powell to the maximum term of sixty-five
years. Powell challenges his sentence contending the trial court
considered an improper aggravator, failed to consider several mitigating
factors, and failed to balance substantial mitigating factors against the
aggravating factors. Generally, sentencing determinations rest within the
trial court’s discretion. Bonds v. State, 729 N.E.2d 1002, 1004 (Ind.
2000). We review trial court sentencing decisions only for abuse of
discretion, including a trial court’s decision to increase the presumptive
sentence because of aggravating circumstances. Id.
At sentencing the trial court identified as aggravating factors: (1)
the nature and circumstances of the crime; and (2) the commission of a
forcible felony while wearing a garment designed to resist the penetration
of a bullet.[5] Powell complains there is no evidence in the record to
support the second aggravator. The State counters that in his statement
given to investigating officers, Powell testified that he was wearing a
“full uniform” at the time of the crime. R. at 1532. The State also
points to testimony that Powell was wearing a bulletproof vest when
arrested the morning after the crime was committed.
The record shows that Powell was arrested during roll call at his
precinct. That fact does not support the notion that he wore a bulletproof
vest the night before. Also, although Powell testified that he was in
“full uniform” at the crime scene, there is no evidence in the record that
a full uniform includes a garment designed to resist the penetration of a
bullet. Therefore, the use of this aggravator was inappropriate.[6]
The trial court found Powell’s lack of criminal history as the sole
mitigating factor. Powell complains the trial court erred in failing to
consider as mitigating factors his military service, his “chronically
abusive childhood,” and that he was a good father to his children and step-
children. Br. of Appellant at 20. The finding of mitigating circumstances
is within the discretion of the trial court. McCann v. State, 749 N.E.2d
1116, 1121 (Ind. 2001). “An allegation that the trial court failed to
identify or find a mitigating circumstance requires the defendant to
establish that the mitigating evidence is both significant and clearly
supported by the record.” Id. Further, the trial court is not obligated
to accept the defendant’s contention as to what constitutes a mitigating
circumstance. Id.
The record shows that Powell was released from his second tour of duty
in the United States Air Force with an “other than honorable discharge.”
R. at 1833. Apparently, he was accused of taking quarters from a slot
machine and resigned rather than accept a reduction in rank. Even if
Powell’s record was exemplary to that point, the existence of an other than
honorable discharge was a factor the trial court could properly consider in
determining that his military record was entitled to no significant
mitigating weight.
Concerning Powell’s “chronically abusive childhood,” the record shows
that Powell’s father had a drinking problem; his mother was hospitalized
for psychiatric problems; his father-figure older brother was murdered; and
he witnessed the stabbing death of another brother. A defendant’s
difficult childhood is not necessarily entitled to mitigating weight. See,
e.g., Loveless v. State, 642 N.E.2d 974, 977 (Ind. 1994) (no weight given
where sixteen-year-old defendant had been molested by her father as an
infant; witnessed father molest her sisters, cousin, and other young girls;
witnessed her parents’ multiple attempts to commit suicide; and witnessed
her father attempting to kill her mother); Page v. State, 615 N.E.2d 894,
896 (Ind. 1993) (no weight given where nineteen-year-old defendant was
addicted to alcohol and abused by both parents). In this case, the trial
court was not obligated to consider Powell’s family background as a
mitigating circumstance. By being qualified to serve as a police officer
and having served for a number of years, Powell apparently was able to
overcome whatever adversity he might have experienced in his youth. There
is no indication that Powell’s childhood was relevant to his level of
culpability, and the trial court properly ignored it. The same is true for
Powell’s claim that he was a good father to his children and stepchildren.
We conclude the trial court properly determined the foregoing factors were
entitled to no mitigating weight.
As for Powell’s complaint that the trial court failed to balance
substantial mitigating factors against the aggravating factors, as
explained by the foregoing discussion, there was only one proper mitigating
factor that the trial court found: lack of criminal history. Because the
trial court improperly relied on the “committing a forcible felony while
wearing a garment designed to resist the penetration of a bullet”
aggravator, we are left with a single aggravator: the nature and
circumstances of the crime. However, the manner and circumstances in which
a crime is committed can be considered as an aggravating circumstance.
Georgopulos v. State, 735 N.E.2d 1138, 1144 (Ind. 2000). Also, a single
aggravating circumstance is adequate to justify a sentence enhancement.
Hawkins v. State, 748 N.E.2d 362, 363 (Ind. 2001). In this case,
identifying the nature and circumstances of Powell’s crime, the trial court
noted Powell’s abuse of police power and breach of public trust; the fact
that his acts not only resulted in a death but also severe injury to a
young woman and a minor child; and that the crime was motivated by drugs
and money. The trial court gave substantial aggravating weight to the
nature and circumstances of Powell’s crime finding them to be “[t]he main
aggravating factor[s] in this case.” R. at 1970. This sole aggravating
factor outweighs the single mitigating factor even though one of the
aggravators was invalid.[7] See, e.g., Walter v. State, 727 N.E.2d 443,
447 (Ind. 2000) (“Even when a trial court improperly applies an aggravator,
a sentence enhancement may be upheld if other valid aggravators exist.”).
IV.
Finally, Powell contends his sentence is manifestly unreasonable and
invites this Court to revise it to the presumptive term of fifty-five
years. Although this Court is empowered to review and revise criminal
sentences, we will not do so unless the sentence is “manifestly
unreasonable in light of the nature of the offense and the character of the
offender.” Prowell v State, 687 N.E.2d 563, 568 (Ind. 1997). While on
duty as a police officer, sworn to “protect and serve,” Powell entered a
house on the pretext of serving a search warrant. While present he
participated in killing the resident and seriously injuring two innocent
bystanders. And he did so for the sake of stealing drugs and money. We
are not persuaded that a sixty-five year sentence for Powell’s crime is
manifestly unreasonable.
Conclusion
We affirm the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
[1] Highbaugh was charged separately with the same offenses. And as
with Powell, the State also sought the death penalty and later amended its
complaint to a request for life imprisonment without parole. Highbaugh
pleaded guilty to murder and two counts of attempted murder and was
sentenced to life without parole. His direct appeal is pending before this
Court.
[2] The charging information provides in relevant part, “MYRON A.
POWELL . . . did kill another human being, namely DAVID HAIRSTON, while
committing or attempting to commit ROBBERY.” R. at 89.
[3] Although the record is not clear, apparently the trial court
provided the jury with a set of final instructions to aid them during
deliberations. Thus, rather than re-reading the instructions itself, the
trial court directed the jury to do so. There was no error in that regard,
and Powell makes no such claim. We take Powell’s argument on appeal to
mean that the trial court erred by not tendering his proposed instruction
and directing the jury to read it along with the other final instructions.
[4] With this Court’s adoption of the Indiana Jury Rules, which
become effective January 1, 2003, trial courts are afforded greater
flexibility in responding to jury inquiries. Jury Rule 28 provides:
If the jury advises the court that it has reached an impasse in
its deliberations, the court may, but only in the presence of counsel,
and, in a criminal case the parties, inquire of the jurors to
determine whether and how the court and counsel can assist them in
their deliberative process. After receiving the jurors’ response, if
any, the court, after consultation with counsel, may direct that
further proceedings occur as appropriate.
[5] See Ind. Code § 35-38-1-7.1(b)(7)
[6] Powell also contends that the trial court “relied on false
assumption when pronouncing sentence” because the trial court referred to
him as a “robber.” Br. of Appellant at 19. Powell complains this amounts
to error because the jury acquitted him of robbery. Our review of the
record shows that the trial court’s reference to Powell as a “robber,” as
opposed to an “attempted robber,” was inadvertent. In its sentencing
statement, the trial court explained that Powell “attempt[ed] to make his
own personal gain in drugs and money” and later referred to the crime as an
“attempt[ed] robbery.” R. at 1970-71. In any event, Powell has failed to
establish that this reference was used as an aggravating factor.
[7] This Court has held that the lack of criminal history should be
given substantial mitigating weight. See Loveless v. State, 642 N.E.2d
974, 976 (Ind. 1994). However, “that does not mean that lack of criminal
history automatically outweighs any valid aggravating circumstance.
Rather, it is a balancing test.” McCarthy v. State, 749 N.E.2d 528, 539
(Ind. 2001).