ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KEVIN C. C. WILD KAREN M. FREEMAN-WILSON
Indianapolis, Indiana Attorney General of Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
STACY M. FRANCIS, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 49S00-9909-CR-473
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION, ROOM ONE
The Honorable Tanya Walton-Pratt, Judge
Cause No. 49G01-9804-CF-56562
ON DIRECT APPEAL
November 30, 2001
RUCKER, Justice
Stacy Francis appeals his convictions for murder, felony murder, and
three counts of robbery. We address the following rephrased issues: (1)
did the trial court err in denying Francis’ motion for mistrial; (2) did
the trial court err by allowing into evidence an out-of-court-statement
attributed to Francis’ associate in crime; (3) did the trial court err in
imposing sentences for robbery as a Class B felony; and (4) was the
evidence sufficient to sustain the murder conviction. We vacate the
sentences for robbery as Class B felonies and remand for resentencing as
Class C felonies. In all other respects we affirm the trial court’s
judgment.[1]
FACTS
The facts most favorable to the verdict show that in the late evening
hours of April 8, 1998, Stacy Francis and two associates, Amanda Jones and
Thomas Dangerfield, were present in a room at a motel on the east side of
Indianapolis. In an adjoining room there was another group that included
Scott Foor, Dewaun Sanders, Jason Thrasher, and Willie Thomas. During the
course of the night the two groups got together and were gambling and
smoking marijuana. At some point an argument erupted between Francis and
Foor, whereupon Francis produced a handgun declaring, “I want everything
you all got.” R. at 394, 426. Demanding Foor to lie on the floor and
firing a weapon in his direction, Francis continued, “You all think I’m
playing. I’ll kill you [m*f*s].” R. at 398. Francis then directed Jones
and Dangerfield to check everyone’s pockets. They complied, taking money
and drugs from Thomas, Thrasher, and Foor. The evidence is in conflict
whether during this escapade Francis gave his handgun to Dangerfield
telling him to “cap [‘shoot’] all these [m*f*s],” R. at 531, or whether
while Francis was pointing the gun, Dangerfield told him to “shoot ’em
all,” R. at 686. In any case, Jones, Dangerfield, and Francis eventually
left the motel. As Francis left, he fired several shots into the room, two
of which struck Sanders: one in the chest and the other in the abdomen.
Sanders died as a result.
Subsequently, Francis was arrested and charged with murder, felony
murder, four counts of robbery as Class A felonies, and one count of
carrying a handgun without a license. At the close of the State’s case-in-
chief, Francis moved for judgment on the evidence concerning one of the
robbery counts, which the trial court granted. As to the remaining
charges, the jury returned verdicts of guilty. Prior to sentencing, the
trial court merged the felony murder into the murder conviction, reduced
the convictions for Class A felony robbery to Class B felonies, and
sentenced Francis to a total executed term of sixty-one years.[2] This
direct appeal followed. Additional facts are set forth below where
necessary.
DISCUSSION
I.
Francis contends the trial court erred in denying his motion for
mistrial based on an allegation that the State improperly elicited evidence
concerning Francis’ post-arrest silence.[3] The essential facts are that
after the shooting, Francis fled to Evansville where he was eventually
arrested and held in custody. In its case in chief, the State called to
the stand investigating officer Michael Hornbrook from the Marion County
Sheriff’s Department. The following exchange occurred:
Q. Did it come a point in time after the night of these events that
you went to Evansville, Indiana?
A. Yes, there was.
Q. Are you able to give us the date that you went there?
A. If I could have a moment I could research that. I went to
Evansville, Indiana on April 14th, 1998.
Q. And what was your purpose for going there?
A. They had apprehended the Defendant in Evansville, Indiana and I
went down to try to interview Mr. Francis.
R. at 926. At that point defense counsel asked to approach the bench and
during a side bar conference moved for mistrial. The trial court denied
the motion but struck the officer’s response from the record. R. at 929.
At the close of the officer’s testimony, one of the jurors submitted the
following question to the court:
Why are we not allowed to hear the statement that they took from
Francis. [I]s this not important evidence to the case and for us to
hear.
R. at 1075, 1078. The record is not clear what response, if any, was given
to the juror. In any case, defense renewed its motion for mistrial, which
the trial court again denied. During final instructions the trial court
advised the jury among other things that it should not consider any answers
and statements that had been stricken from the record. R. at 263. Francis
contends that striking the officer’s remark and admonishing the jury were
not enough; rather, the trial court should have declared a mistrial. He
argues that the officer’s remark “amounted to a comment on the defendant’s
right to remain silent and not to testify as guaranteed by the Fifth
Amendment.” Br. of Appellant at 9.
Although citing absolutely no authority to support his argument,
Francis makes a claim for what is commonly referred to as a Doyle
violation. In Doyle v. Ohio, the United States Supreme Court held that
“the use for impeachment purposes of petitioners’ silence, at the time of
arrest and after receiving Miranda warnings, violated the Due Process
Clause of the Fourteenth Amendment.” 426 U.S. 610, 619 (1976).[4] The
Court explained, “[W]hile it is true that the Miranda warnings contain no
express assurance that silence will carry no penalty, such assurance is
implicit to any person who receives the warnings.” Id. at 618. Not
limiting Doyle solely to “the use for impeachment purposes,” this Court has
held that “[d]uring trial, the State may not comment upon a defendant’s
post-arrest, post-Miranda warning silence because that silence may be
nothing more than an exercise of the Fifth Amendment right.” Wisehart v.
State, 693 N.E.2d 23, 64 (Ind. 1998). Indeed, the Supreme Court has noted
that where, as here, a defendant’s silence is used not as impeachment but
as affirmative proof in the State’s case in chief, “The constitutional
violation might thus be especially egregious because, unlike Doyle, there
was no risk that exclusion of the evidence would merely provide a shield
for perjury.” Wainwright v. Greenfield, 474 U.S. 284, 292 n.8 (1986)
(quotation omitted).
In Nicks v. State, an investigating officer testified as follows: “I
left the Courthouse and went down to the station to conduct an interview
with [the defendant] and when I got to the station Sergeant Hammerlein
assisted me in the interview. We waited a few minutes and got things
together and then we sat down to interview Mr. Nicks.” 598 N.E.2d 520, 524
(Ind. 1992). Defense counsel immediately objected arguing that the
testimony implied that the defendant had invoked his right to remain
silent. Thus, the argument continued, the State was using the exercise of
that right against him in violation of Doyle. Id. This Court disagreed,
declaring “the potential for abuse of [defendant’s] exercise of his right
to remain silent clearly was too attenuated to amount to a Doyle
violation.” Id. We reach the same conclusion here. Francis’ silence was
used neither as impeachment nor as affirmative proof of his guilt. There
was certainly the potential that the officer’s testimony would stray into a
constitutionally protected area. However, because of a timely request to
approach the bench, Francis’ silence was never implicated. And as a result
no Doyle violation occurred.
At most, the officer’s testimony was simply not relevant. However, it
was stricken from the record, and the jury was admonished not to consider
it. We presume the jury followed the trial court’s admonishment and that
the excluded testimony played no part in the jury’s deliberation.
Duncanson v. State, 509 N.E.2d 182, 186 (Ind. 1987). The grant of a motion
for mistrial is an extreme remedy that is warranted only when less severe
remedies will not satisfactorily correct the error. Warren v. State, 725
N.E.2d 828, 833 (Ind. 2000). The decision to grant or deny a motion for
mistrial lies within the discretion of the trial court. Ortiz v. State,
741 N.E.2d 1203, 1205 (Ind. 2001). The trial court’s determination will be
reversed only when an abuse of discretion can be established. Mickens v.
State, 742 N.E.2d 927, 929 (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. In this case, Francis has made no such showing.
The trial court correctly denied the mistrial motion.
II.
Francis phrases the next issue as trial court error in “lifting a
defense motion in limine . . . .” Br. of Appellant at 12. The facts are
these. Immediately prior to trial Francis filed a motion in limine to
prohibit the introduction of certain evidence. Specifically, Francis
sought to exclude on hearsay grounds testimony concerning anything his
associate Dangerfield may have said during the course of the events on
April 8. After a hearing, the trial court granted the motion. The trial
proceeded, and the State called Foor as its first witness. The following
exchange occurred:
Q. Okay, what happened next?
A. [Francis] pulled out a gun and said, “I want everything you all
got.”
Q. Okay, and did you see the gun?
A. Yes, I seen the gun.
Q. You saw it in his hand?
A. Yes.
Q. Okay, and what happened at that point?
A. He was pointing the gun at everybody in the room, telling them,
he wanted [their] money and had the girl, Amanda, check their
pockets for money and his buddies in the background,
Dangerfield, telling him to “kill everybody in the room . . . .”
R. at 394. Defense counsel immediately objected and moved for mistrial on
grounds the testimony violated the order in limine. The trial court denied
the mistrial motion but struck the response and admonished the jury.
The trial proceeded, and the State eventually requested the trial
court to reconsider its order and lift the motion in limine. Granting the
request, the trial court noted the State had introduced evidence showing
that Francis and Dangerfield were apparently working together during the
robberies and shooting. The State then called Amanda Jones to the stand
who testified over objection that while present in the motel room she heard
Dangerfield say “something along the lines of ‘shoot ’em all.’” R. at 686.
Francis claims error.
Granting a motion in limine does not determine the ultimate
admissibility of the evidence. Goodby v. State, 736 N.E.2d 252, 255 (Ind.
2000), reh’g denied. Rather, the purpose of a ruling in limine is to
prevent the presentation of potentially prejudicial evidence until the
trial court can rule on the admissibility of the evidence in the context of
the trial itself. Wright v. State, 593 N.E.2d 1192, 1194 (Ind. 1992). If
the trial court errs by admitting evidence, the exclusion of which was
sought by the motion in limine, then the error is in admitting the evidence
at trial in violation of an evidentiary rule, not in rescinding a previous
order in limine. Short v. State, 443 N.E.2d 298, 308 (Ind. 1982) (“[I]f a
Motion in Limine is granted and then at trial the court decides to admit
the evidence, the error is not in violating the Motion in Limine but in
admitting the evidence.”). The record shows the trial court admitted the
testimony over Francis’ hearsay objection on the basis that a conspiracy
had been established. R. at 673-74. See Ind. Evidence Rule 801(d)(2)(E);
Barber v. State, 715 N.E.2d 848, 852 (Ind. 1999) (“A statement by a co-
conspirator of a party during the course and in furtherance of the
conspiracy is not hearsay and is therefore admissible.” (quotation
omitted)). Despite Francis’ argument to the contrary, by the time Jones
testified there was sufficient evidence before the trial court to
demonstrate the existence of a conspiracy between Francis and Dangerfield.
See Ind. Code § 35-41-5-2(a), (b) (listing the elements of conspiracy as:
(1) intent to commit a felony; (2) an agreement with another person to
commit the felony; and (3) an overt act in furtherance of that
agreement).[5] We find no error here.
III.
Francis next complains the trial court erred by imposing sentences for
robbery as Class B felonies. The facts underlying this assertion show that
the State charged Francis with three counts of robbery as Class A felonies,
and he was convicted as charged. Because the serious bodily injury alleged
in each count - death to Dewaun Sanders - was the element the State relied
upon to elevate the offenses to an A felony, the trial court imposed
sentences for Class B felony robberies. See Logan v. State, 729 N.E.2d
125, 136 (Ind. 2000) (principles of double jeopardy prohibit the same
evidence - death of the victim - from supporting a murder conviction as
well as elevating robbery to a Class A felony). Although at sentencing
Francis argued “the robberies reduce to a B,” R. at 1213, in this appeal he
claims error alleging he should have been sentenced to the robberies as C
felonies.
There are three felony classes of robbery:
A person who knowingly or intentionally takes property from
another person or from the presence of another person:
1) by using or threatening the use of force on any person; or
2) by putting any person in fear;
commits robbery, a Class C felony. However, the offense is a
Class B felony if it is committed while armed with a deadly
weapon or results in bodily injury to any person other than a
defendant, and a Class A felony if it results in serious bodily
injury to any person other than a defendant.
I.C. § 35-42-5-1. Robbery as a Class C felony is an inherently included
lesser offense of robbery as a Class A felony. It is not possible to
commit the greater offense without committing the lesser offense as well.
See Kingery v. State, 659 N.E.2d 490, 495 (Ind. 1995). Whether robbery as
a Class B felony is either an inherently included or a factually included
lesser offense of robbery as a Class A felony depends on the wording of the
charging information. In this case, with respect to each of the three
victims, the charging informations read in pertinent part:
Stacy M. Francis, Amanda Jones and Thomas A. Dangerfield, A/K/A
Anthony T. Dangerfield, on or about the 9th day of April, 1998, did
knowingly take from the person or presence of [named victim] property,
that is: United States currency and cocaine, by putting [named victim]
in fear or by using or threatening the use of force on [named victim],
which resulted in serious bodily injury, that is: mortal gunshot
wounds to Dewaun Sanders[.]
R. at 157-58. As charged, it is apparent that the bodily injury variety of
Class B felony robbery is an inherently included lesser offense of robbery
as a Class A felony. However, as the trial court correctly determined,
because death of the victim supported the murder conviction as well as
elevating robbery to a Class A felony, principles of double jeopardy
prohibited sentencing Francis to A felony robberies. The same double
jeopardy concerns are posed by sentencing Francis to the bodily injury
variety of Class B felony robbery.
The question here is whether the charging informations sufficiently
allege the “armed with a deadly weapon” variety of Class B felony robbery
such that it is a factually included lesser offense of robbery as a Class A
felony. The State answers affirmatively citing in support Smith v. State,
445 N.E.2d 998 (Ind. 1983). In that case, the defendant was charged with
attempted robbery as a Class A felony. However, the trial court gave the
jury an instruction on attempted robbery as a Class B felony, and the
defendant was convicted accordingly. On appeal, he complained the trial
court erred in giving the instruction because: (i) under the robbery
statute the Class B felony was not inherently included within a charge of
Class A felony; and (ii) the information did not allege an attempted
robbery as a Class B felony. The information charged in pertinent part:
Larry David Smith did knowingly attempt to take property, to wit U.S.
currency, by using and threatening the use of force, to wit a firearm
or bomb, thereby putting Roger Smith in fear and causing bodily injury
to Roger Smith.
Id. at 999. Because the information did not allege that he committed the
act “while armed with a deadly weapon,” defendant Smith complained that the
information did not allege robbery as a Class B felony. Id. Unpersuaded,
this Court held:
Though it is undoubtedly preferable for an information for Attempted
Robbery, Class B felony, to contain the phrase “while armed with a
deadly
weapon”, [] absent proof that the accused was misled by the
phraseology
employed, we do not think that such a phrase is imperative to satisfy
the due process requirement of notice.
Id.
The State urges that Smith is dispositive arguing “[t]he information
in the present case specified the injuries to be mortal gunshot wounds, and
gunshot wounds can only be inflicted by firearms.” Br. of Appellee at 9.
We disagree that Smith provides the answer in this case. A fair reading of
the information in that case shows that implicitly the defendant was
“armed.” The only question was the flexibility the Court would allow in
the terminology used to allege “with a deadly weapon.” Smith, 445 N.E.2d
at 999. As the Court pointed out, a firearm is a deadly weapon. See I.C.
§ 35-41-1-8(a). Thus, the defendant could not have been misled by an
information using words sufficiently similar in meaning to those used in
the robbery statute. Smith, 445 N.E.2d at 999.
The case before us is different. It may be true that only a deadly
weapon can inflict a gunshot wound. Here, however, it cannot be said that
the phrase “mortal gunshot wound” was contemplated to put Francis on notice
that he was being charged with the “armed with a deadly weapon” variety of
robbery. Rather, the phrase describes the bodily injury - death - to the
victim. In essence, it serves to emphasize that the information is
alleging a Class A felony robbery. We conclude therefore that the
informations in this case did not sufficiently allege the armed with a
deadly weapon variety of Class B felony robbery, and thus it was not a
factually included lesser offense of robbery as a Class A felony.
Accordingly, we vacate Francis’ sentences for the three robberies as Class
B felonies and remand this cause to the trial court for a new sentencing
order that imposes sentences for Class C felony robberies.
IV.
Alleging he did not know that he had shot anyone and certainly did not
know that anyone had been mortally wounded, Francis insists that the
evidence was not sufficient to convict him of “knowingly” killing another
person. In reviewing a sufficiency of the evidence claim, we neither
reweigh the evidence nor assess witness credibility. Soward v. State, 716
N.E.2d 423, 425 (Ind. 1999). Rather, we look to the evidence and
reasonable inferences drawn thereform that support the verdict. Kelly v.
State, 719 N.E.2d 391, 394 (Ind. 1999), reh’g denied. We will affirm the
conviction if there is probative evidence from which a reasonable jury
could have found the defendant guilty beyond a reasonable doubt. Id. “A
person engages in conduct ‘knowingly’ if, when he engages in the conduct,
he is aware of a high probability that he is doing so.” I.C. § 35-41-2-
2(b). A knowing killing may be inferred from the deliberate use of a
deadly weapon in a manner likely to cause death or serious bodily harm.
Hawkins v. State, 748 N.E.2d 362, 363 (Ind. 2001), reh’g denied. Evidence
is sufficient to uphold a murder conviction when the evidence indicates
that a weapon was fired in the direction of the victim. Id. Francis’
claim in this case amounts to an invitation for this Court to reweigh the
evidence. We decline. The evidence set forth in the facts section of this
opinion is sufficient to sustain Francis’ murder conviction.
CONCLUSION
We vacate Francis’ sentences for the three robbery convictions as
Class B felonies and remand this cause to the trial court for a new
sentencing order that imposes sentences for robbery as Class C felonies.
In all other respects the judgment of the trial court is affirmed.[6]
SHEPARD, C.J., and SULLIVAN, J., concur.
DICKSON, J., concurs in Parts I, II, and IV and dissents as to Part III
without separate opinion.
BOEHM, J., concurs in Parts I, II, and IV and dissents as to Part III on
the ground that the information charged infliction of a gunshot wound,
which is sufficient to put the defendant on notice that he is charged with
robbery armed with a deadly weapon.
-----------------------
[1] We decline to address Francis’ claim concerning his conviction
for felony murder. Prior to sentencing, the trial court merged the felony
murder into the murder conviction and did not impose a sentence thereon.
R. at 1216.
[2] Specifically, Francis received sixty years for murder, twenty
years apiece for each of the three robbery convictions, and one year for
the handgun conviction. The trial court ordered the murder and robbery
convictions to be served concurrently and the handgun conviction to be
served consecutively to one of the robbery convictions.
[3] Francis also claims the trial court erred in denying a second
motion for mistrial that was premised on the violation of a defense motion
in limine. We resolve a related issue in part II. Therefore, we decline
to address it here.
[4] In this case, the record shows that Officer Hornbrook advised
Francis of his Miranda rights, and Francis declined to give a statement
indicating that he would obtain private counsel. R. at 1085-86.
[5] We observe that consistent with Federal Rule of Evidence
801(d)(2)(E), our own rule “applies not only to conspiracies but also to
joint ventures, and that a charge of criminal conspiracy is not required to
invoke the evidentiary rule.” United States v. Kelley, 864 F.2d 569, 573
(7th Cir. 1989).
[6] We note that a new sentencing hearing is unnecessary. See
O’Connell v. State, 742 N.E.2d 943, 952-53 (Ind. 2001) (setting forth the
options a trial court may employ when a cause is remanded for a new
sentencing order). That is especially so because the sentences the trial
court originally imposed for the robbery convictions were ordered to be
served concurrently to the sentence imposed for the murder conviction.