Attorney for Appellant
Kenneth R. Martin
Goshen, IN
Attorneys for Appellee
Karen Freeman-Wilson
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
EDDIE L. FREDRICK,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 20S00-0005-CR-00336
)
)
)
)
)
)
APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Gene R. Duffin, Judge
Cause No. 20C01-9902-CF-00009
ON DIRECT APPEAL
October 5, 2001
SULLIVAN, Justice.
Defendant Eddie Fredrick was convicted of murder for killing a police
informant. We affirm his conviction and sentence, concluding that he
waived his right to be tried separately from a co-defendant, that an
accomplice's testimony was sufficiently creditworthy to support the
conviction, and that the aggravating circumstances identified by the trial
court support the enhanced sentence imposed. We also reject his claims of
fundamental error as not rising to the level necessary to warrant relief.
Background
The facts most favorable to the judgment indicate that on August 19,
1998, Defendant and Reginald Dillard were hired by Savane Williams to kill
Christopher Thomas because he was acting as a police informant. Thomas was
residing in a room at the Three Point Motel in Elkhart, Indiana. Dillard
and Defendant used a mutual friend, Tricia Mock, as a decoy to get Thomas
to open the door. Mock knocked at the door of Thomas’s room and Defendant
forced himself into the room after Thomas opened the door. Thomas ran out
of the hotel room, but was shot near his door and fell to the ground. Mock
testified that the shots came from outside the hotel room, presumably from
Dillard. Defendant then stood over Thomas and fired three or four more
shots into his body. Thomas died as a result of gunshot wounds to the head
and chest.
Defendant and Dillard were tried together and found guilty of
murder.[1] The trial court sentenced him to 65 years in prison.
I
Defendant contends that “the consolidation of his case with co-
defendant Dillard deprived him of his right to a fair trial.”
Defendant signed a document captioned "Waiver of Right to Have
Separate Trial from Co-Defendant and Waiver of Conflict of Interest" and
filed with the trial court on the first day of trial.[2] The document
indicated the following: (a) Defendant had been advised by his attorney
that he had a right to a separate jury trial and that he made his request
for a joint trial despite his attorney’s advice recommending a separate
trial; (b) Defendant’s attorney had informed him that the state would call
at least one “jail-house snitch” who would testify that Dillard confessed
to the crime and implicated Defendant in his confession; and (c)
Defendant’s attorney advised him that he had “the right to confront and
cross examine ALL witnesses against [him], including anything that
[Dillard] purportedly told any witnesses... .” Defendant contends that
this instrument was not sufficient to waive his right to be tried
separately from Dillard.
Whether Defendant’s written “waiver” was ineffective is not
determinative of whether he waived his right to a separate trial. Absent a
motion by Defendant requesting a separate trial, the trial court is not
required to separate the trial. Ind. Code § 35-34-1-12(a) (1998). A
motion for a separate trial must be made prior to the commencement of the
trial.[3] Id. A defendant’s right to a separate trial is waived if the
defendant fails to make the motion at the appropriate time. Id. Here,
Defendant never made a motion to separate his trial from co-defendant
Dillard, thereby waiving his right to a separate trial.
II
Defendant contends that the “testimony of jailhouse informants was
acquired in derogation of Defendant’s right to counsel.” Appellant’s Br.
at 16.
The State called two jailhouse informants, Tyrand Terry and David
Brownlee, to testify against Defendant and co-defendant Dillard. Defendant
argues that their testimony was vital because it corroborated that of the
State’s main witness. Appellant’s Br. at 16.
Defendant acknowledges that he failed to object to the testimony of
the informants at trial. Appellants Br. at 20. He urges that we find that
the testimony of the informants amounted to fundamental error. The
fundamental error doctrine holds that we will grant relief even where error
is not properly preserved for appeal when the error is so prejudicial to
the rights of the defendant that a fair trial was impossible. See Carter
v. State, 738 N.E.2d 665, 677 (Ind. 2000); Charlton v. State, 702 N.E.2d
1045, 1051 (Ind. 1998).
A criminal defendant’s right to counsel is violated when the
government intentionally creates a situation likely to induce a defendant
to make an incriminating statement in the absence of counsel. See Massiah
v. State, 377 U.S. 201, 206 (1964); Rutledge v. State, 525 N.E.2d 326, 327
(Ind.1988). However, there is no violation where the government
unintentionally obtains the information regarding an incriminating
statement. The Supreme Court’s decision in Massiah applies to information
that government agents deliberately elicit from a defendant. Massiah, at
206 (emphasis added). As we have previously recognized,
[T]he Sixth Amendment is not violated whenever—by luck or
happenstance—the State obtains incriminating statements from the
accused after the right to counsel has attached. ... A defendant does
not make out a Sixth Amendment violation “simply by showing that an
informant, either through prior arrangement or voluntarily, reported
his incriminating statements to the police. Rather, the defendant
must demonstrate that the police and their informant took some action,
beyond merely listening, that was designed deliberately to elicit
incriminating remarks.”
Wisehart v. State, 693 N.E.2d 23, 61 (Ind. 1998) (quoting Kuhlmann v.
Wilson, 477 U.S. 436, 459 (1986)) (citations omitted)).
Here Defendant does not demonstrate that the police intentionally
elicited information from Defendant in violation of Massiah. Defendant
does not point to any definitive evidence that either informant worked as
the State’s agent and elicited information. Defendant points to a portion
of Terry’s testimony that suggests that he might have been asked to write
down notes from conversations he had with Defendant and Dillard.[4] Terry
testified that no one had made any promises of leniency in his case in
exchange for acting as an informant. Even if Terry was asked to take
notes, as Defendant alleges, Defendant does not point to evidence
suggesting that Terry elicited the information from him. Terry’s taking of
notes, even at the request of the police, does not violate the Sixth
Amendment if he did not elicit the information. See Hobbs, 548 N.E.2d 164,
167 (Ind. 1990). Because there is no evidence that Terry elicited
information, we find no error, fundamental or otherwise.
The other jailhouse informant, Brownlee, testified that Defendant
admitted to killing Thomas. His testimony, however, suggests that
Defendant initiated the conversation and volunteered the information.
Furthermore, defendant presents no evidence that the police instructed
Brownlee to ask Defendant any questions. Again, we find no error,
fundamental or otherwise, in allowing Brownlee to testify.
III
Defendant contends that there was insufficient evidence to sustain
his murder conviction. Specifically, Defendant argues that his conviction
was supported solely by be unreliable testimony of Tricia Mock. Appellants
Br. at 21. We analyze the identical claim in Dillard's appeal and find
Mock's testimony sufficiently creditworthy to support the conviction. See
Dillard, slip op. at 9.
IV
Defendant contends that his verdict was not based on the guilt of the
defendants, but rather on the State’s improper request to the jury to find
guilt based on reasons other than the evidence. Appellant’s Br. at 24 and
25.
Defendant points out the following instances during the State’s final
argument that he asserts amount to prosecutorial misconduct:
We have had testimony in this case that tells us that [Defendant] and
[Dillard] aren’t even from here. They’re from Detroit, Michigan.
Now, these fellows come down from Detroit, where they would
undoubtedly be little twigs, so they can kind of hang out in sort of
the Mayberry of the area and take advantage of us.
***
Two fellows from Detroit just trying to make a living. But as I said,
this is not Detroit. This is your community, and you make the rules,
and you determine what you will find as acceptable behavior, and what
you will tolerate from anyone who chooses to participate in our
community.
(R. at 1184-7.) Defendant also cites an instance during the final argument
in which the State referred to a statement, attributed to Defendant, that
the case would not have been tried in Detroit because no gun was found:
“They’re so arrogant in this business they don’t believe anybody can touch
them. It goes back to what they told [Terry]. This case wouldn’t be tried
[in Detroit].”
Defendant also cites the following comment:
The State of Indiana would respectfully request that on each of those
verdict forms you find that the evidence firmly convinced you that
[Defendant and Dillard] murdered [Thomas] and check the box signed
guilty of murder. In so doing you’re gonna send a message to
[Defendant and Dillard] and that message is: this ain’t Detroit. This
ain’t the crib. And you’re [sic] business isn’t welcome here.
(R. at 1126.) Defendant also cites a comment in which the State referred
to the fact that the victim was a drug dealer, but did not deserve to die
because of that fact: “Did he deal drugs? Yeah. He had problems. Do
people who have problems, drug dealers and others, deserve the protection
of not being executed in our county or not? Because if they don’t, let’s
just sit back and see what happens.” (R. at 1182.)
Defendant failed to object to the State’s comments at trial.
Therefore, reversal is only possible where there is fundamental error,
which we do not find in this instance.
V
Defendant contends that a preliminary instruction deprived him of the
presumption of innocence throughout the trial. Appellant’s Br. at 26.
Preliminary instruction no. 5 read:
Under the law you must presume that the Defendants are innocent and
you must continue to believe that they are innocent throughout the
trial unless the State proves that the Defendants are guilty, beyond a
reasonable doubt, of every essential element of the crime(s) charged.
Since the defendants are presumed to be innocent, they are not
required to present any evidence to prove their innocence or to prove
or explain anything. If at the conclusion of trial, there remains in
your mind a reasonable doubt concerning the defendant’s [sic] guilt,
you must find them not guilty.
(R. at 477-78.)
Defendant argues that “the portion instructing the jury that they must
‘continue to believe that they are innocent throughout the trial’ is
rendered nugatory by the succeeding qualifying phrase ‘unless the State
proves that the defendants are guilty, beyond a reasonable doubt, of every
essential element of the crime(s) charged.” Appellant’s Br. at 26.
Defendant contends that the language suggests that the presumption of
innocence could disappear altogether early in the trial, and a defendant
would therefore be deprived of the fundamental right to a presumption of
innocence throughout the trial.
Prior to giving the preliminary instructions in this case, the trial
court stipulated that the jury must “consider all of the instructions that
are given ... as a whole, and [they] are to regard each with the others
given....” Another preliminary instruction given soon after the one at
issue instructed: “you need to keep an open mind during the trial. You
should not form nor express an opinion during the trial and reach no
conclusion about this case until it is submitted to you for you
deliberations.”
The preliminary instructions in their entirety did not instruct the
jury that it could come to any premature conclusions regarding guilt.
Furthermore, we have previously approved of language that is nearly
identical to that of which Defendant now complains. See Daniel v. State,
582 N.E.2d 364, 373 (Ind. 1991); Taylor v. State, 468 N.E.2d 1378, 1381-82
(Ind. 1984).
VI
Defendant contends that his sentence of 65 years was manifestly
unreasonable. The presumptive sentence for murder is 55 years. See Ind.
Code § 35-50-2-3 (1998). When sentencing a defendant, the trial court may
consider certain aggravating and mitigating circumstances. See Ind. Code §
35-38-1-7.1 (1998). The trial court may subtract or add up to 10 years to
a murder sentence for mitigating and aggravating circumstances
respectively. See Ind. Code § 35-50-2-3 (1998).
In general, the legislature has prescribed standard sentences for each
crime, allowing the sentencing court limited discretion to enhance each
sentence to reflect aggravating circumstances or reduce the sentence to
reflect mitigating circumstances. Morgan v. State, 675 N.E.2d 1067, 1073
(Ind. 1996) (citing Reaves v. State, 586 N.E.2d 847 (Ind. 1992)).
When the trial court imposes a sentence other than the presumptive
sentence, or imposes consecutive sentences where not required to do so by
statute, this Court will examine the record to insure that the court
explained its reasons for selecting the sentence it imposed. Archer v.
State, 689 N.E.2d 678, 683 (Ind. 1997) (citing Hammons v. State, 493 N.E.2d
1250, 1254 (Ind. 1986)). The trial court’s statement of reasons must
include the following components: (1) identification of all significant
aggravating and mitigating circumstances; (2) the specific facts and
reasons that lead the court to find the existence of each such
circumstance; and (3) an articulation demonstrating that the mitigating and
aggravating circumstances have been evaluated and balanced in determining
the sentence. Mitchem v. State, 685 N.E.2d 671, 678 (Ind.1997) (citing
Jones v. State, 675 N.E.2d 1084, 1086 (Ind.1996)).
The trial court found Defendant’s age (22 years old) to be a
mitigating circumstance. The trial court also found the following
aggravating circumstances: The killing was a murder for hire; the victim
was a confidential informant who was working for the police; guns were used
in the commission of the crime; Defendant showed no remorse; and “Defendant
was in [Elkhart County] as a drug dealer and not gainfully employed.” The
trial court found that the aggravating circumstances outweighed the
mitigating circumstances and imposed an enhanced sentence of 65 years
imprisonment.
Defendant complains that the trial court improperly used lack of
remorse as an aggravating factor. Defendant cites Guenther v. State, 495
N.E.2d 788 (Ind. App. 1986), as barring trial courts from using lack of
remorse as an aggravating factor where the defendant has pled not guilty.
See Guenther, at 792. However, we granted transfer in Guenther and held
that that the trial court’s use of lack of remorse as an aggravating
circumstance was proper. See Id., 501 N.E.2d 1071 (Ind. 1986). We have
since held that lack of remorse may be available as an aggravating
circumstance even where a defendant has pled not guilty. See Davidson v.
State, 558 N.E.2d 1077, 1091-92 (Ind. 1990); Dinger v. State, 540 N.E.2d
39, 40 (Ind. 1989). Therefore, we do not find that the trial court abused
its discretion in considering lack of remorse an aggravating circumstance.
Defendant also argues that the trial court improperly considered his
lack of employment as an aggravating circumstance. Appellant’s Br. at 29.
The sentencing order, however, states that the trial court found it to be
an aggravating circumstance that “Defendant was in [Elkhart County] as a
drug dealer and not gainfully employed.” (R. at 382-383.) While lack of
gainful employment alone is not an aggravating circumstance, we believe the
trial court's language here indicates that it properly considered
Defendant’s drug dealing to be aggravating.
Conclusion
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, and BOEHM, JJ., concur.
RUCKER, J., Concurs in parts I, II, III, V, and VI, and concurs in result
in part IV.
-----------------------
[1] Indiana Code § 35-42-1-1 (1998). Dillard also appeals his
conviction. We address his claims on appeal in a separate decision.
Dillard v. State, No.20C01-9902-CF-00009 (Ind. Oct. 3, 2001).
[2] This document is substantially similar to the "waiver" signed by
co-defendant Dillard. However, Dillard's waiver followed Dillard's earlier
motion for a separate trial. See Dillard, slip op. at 3.
[3] “[E]xcept that the motion may be made before or at the close of
all the evidence during trial if based upon a ground not previously known.”
Ind. Code § 35-34-1-12(a) (1998).
[4] [State]: Mr. Terry, you indicate that you took notes of
conversations that you had with Mr. Dillard and Mr. Fredrick; is that
correct?
[Terry]: Yes, sir.
[State]: Okay. What’s the correct—what is it you’re saying?
[Terry]: That I did as—after they told me so when they told me write
down stuff that they said.