ATTORNEY FOR APPELLANT
Kevin McShane
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Rosemary L. Borek
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
STEVEN MITCHELL, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S00-0006-CR-363
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark Renner, Magistrate
Cause No. 49D04-9901-CF-8585
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
March 7, 2001
BOEHM, Justice.
Steven Mitchell was convicted of murder and sentenced to sixty-five
years imprisonment. He challenges the instructions on the law of aiding
and abetting and the trial court’s limitation on cross-examination of a
witness who had been charged with the same crime but had pleaded guilty.
Mitchell contends that his cross-examination was improperly restricted to
exclude evidence of the potential length of the sentence the witness faced
if he had not pleaded. We affirm the judgment of the trial court.
Factual and Procedural Background
On January 14, 1999, Mitchell was in the home of his girlfriend,
Yolanda Coffee, with his friends, Edward “EZ” Crafter, Steven “Pooh”
Kilpatrick, Darnell Middlebrook, Antonio “TT” Williams, Antonio “Lamar”
Owens, Craig Ferrell, and Charlene Bronaugh. When Crafter and Middlebrook
began to argue, Mitchell asked them to leave the house.
Outside the house, Crafter and Middlebrook’s argument escalated into
a fist fight which lasted for approximately ten minutes before Kilpatrick,
Ferrell, Owens, and Williams “jumped on” Crafter. The men continued to
punch and kick Crafter until he was lying on the ground. At some point
during the fight, Thompson entered the melee and struck Crafter once.
Kilpatrick then hit Crafter over the head with a large piece of ice and
searched his pockets.
Crafter banged on the door of Coffee’s house, asking to be let in to
escape the attack and get help. Mitchell refused to let him in and told
Kilpatrick to remove Crafter from the porch. After returning Crafter to
the lawn, Kilpatrick entered the house and asked Mitchell if Mitchell
wanted him to kill Crafter. Mitchell responded in the affirmative and gave
Kilpatrick a kitchen knife. Kilpatrick returned outside and continued to
beat Crafter with the others. During this exchange, Thompson left the
premises.
Some time later, Ferrell and Kilpatrick were walking on the street
with Crafter between them, when they encountered Thompson. According to
Thompson’s testimony, Kilpatrick stabbed Crafter in the neck five or six
times, Ferrell stabbed him once in the chest, and the two left Crafter’s
body in a field.
The three then returned to Coffee’s house, disposed of their bloody
clothes, went to a liquor store, purchased a bottle of gin, and returned to
the house to drink it. Police found the body the next day. At trial,
Mitchell was charged with murder, robbery, and aggravated battery. Coffee,
Bronaugh, and Thompson testified to the events as described above. The
jury found Mitchell guilty of both murder and aggravated battery. The
trial court vacated the aggravated battery count and sentenced Mitchell to
sixty-five years.
I. Aiding and Abetting Instruction
Mitchell first claims that the trial court erred by giving the
State’s tendered instruction on aiding and abetting. The instruction read:
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. To aid is to
knowingly support, help, or assist in the commission of the crime.
In order to be held responsible for the actions of another, he
need only have knowledge that he is helping in the commission of the
crime. He does not have to personally participate in each element of
the crime nor does he have to be present when the crime is committed.
Proof of a person’s failure to oppose the commission of a crime,
companionship with the person committing the offense, and conduct
before and after the offense may be considered in determining whether
aiding may be inferred. A preconceived scheme or plan need not be
proven. Mere concerted action or participation in the illegal acts is
enough.
Mitchell objected, stating:
The fifth, I guess I would object to. I think the evidence is pretty
nebulous about—there’s been no discussion about opposing commission of
the crime, companionship, conduct before and after. It seems that’s
pretty thin. The previous two I can see might not be objectionable,
but this one I would object to.
He did not offer an alternative instruction.
On appeal, Mitchell claims that, although the instruction is a correct
statement of the law, it “is not a complete and fair statement of Indiana
law” and misled the jury. Specifically, he claims that the instruction did
not tell the jury that mere presence or acquiescence is not enough and that
there must be evidence of a defendant’s affirmative conduct.
This Court has recently held that a defendant is ordinarily not
required to tender proposed alternative instructions to preserve a claim of
error. Scisney v. State, 701 N.E.2d 847, 848 (Ind. 1998). Specifically,
this Court concluded that, although a defendant is not generally required
to tender an alternative instruction when objecting to a proposed
instruction, the “instruction objection at trial [must be] sufficiently
clear and specific to inform the trial court of the claimed error and to
prevent inadvertent error.” Id. However, if the claimed error is failure
to give an instruction, “a tendered instruction is necessary to preserve
error because, without the substance of an instruction upon which to rule,
the trial court has not been given a reasonable opportunity to consider and
implement the request.” Id. at 848 n.3. Under these rules, Mitchell has
waived any error in the jury instruction.
Mitchell’s objection at trial did not make clear that he was objecting
based on missing information in the proposed instruction. Rather, his
objection appeared to be based on whether there was evidence in the record
to support the third paragraph of the instruction.[1] See Lehman v. State,
730 N.E.2d 701, 703 (Ind. 2000) (asserting a new argument on appeal waives
the appellate claim). However, even if the objection could somehow be
construed to complain about missing information, in order to preserve this
objection, it was necessary to propose an alternative instruction
containing the additional law. Because Mitchell failed to do that, he has
waived this claim.[2]
II. Limitation on Cross-Examination
Mitchell’s second argument is that the trial court erred by limiting
his cross-examination of Thompson about the possible penalties Thompson
faced if he had not pleaded guilty. Thompson was originally charged with
murder, robbery, aggravated battery, and criminal gang activity. Before
Mitchell’s trial, Thompson pleaded guilty to aggravated battery and agreed
to testify against the other defendants in this case in exchange for the
State’s dismissal of the other charges and a guarantee that he would not
receive more than fourteen years imprisonment. The State filed a motion in
limine to prohibit Mitchell from cross-examining Thompson about the
penalties for the crimes with which he was originally charged, arguing that
Mitchell was charged with the same crimes and that the jury should not be
informed of the penalties for these crimes. The trial court granted the
State’s motion over Mitchell’s objection.
At trial, Mitchell was allowed to cross-examine Thompson about his
plea agreement, including the charges that were dismissed, the seriousness
of those charges, and the length of time he received under the deal. At no
point during his cross-examination did Mitchell make an offer to prove or
challenge the pretrial ruling.
A pre-trial hearing or a motion in limine is appropriate to determine
the admissibility of evidence outside of the jury’s hearing. Hadley v.
State, 496 N.E.2d 67, 71 (Ind. 1986). However, in order to preserve an
error for appellate review, a party must do more than challenge the ruling
on a motion in limine. Tyra v. State, 506 N.E.2d 1100, 1102-03 (Ind.
1987); Johnson v. State, 472 N.E.2d 892, 908 (Ind. 1985). “[T]o raise the
question of error, the evidence must be offered at trial to give the trial
court an opportunity to rule on its admissibility at that time.” Tyra, 506
N.E.2d at 1103 (citations omitted). Because Mitchell failed at trial to
offer the evidence excluded at the pre-trial hearing, he has not preserved
the error for appellate review. See Wise v. State, 719 N.E.2d 1192, 1197
(Ind. 1999); Miller v. State, 716 N.E.2d 367, 370 (Ind. 1999).
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
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[1] This interpretation of the objection is supported by both counsels’
arguments following the objection. Both sides discussed what evidence was
presented and whether it supported giving the instruction, not any missing
language in the instruction.
[2] Mitchell also loses on the merits of this claim. This Court reviews
the giving or refusal of a tendered instruction by examining whether the
tendered instruction correctly stated the law, whether there was evidence
in the record to support the giving of the instruction, and whether the
substance of the tendered instruction was covered by other tendered
instructions. Wooley v. State, 716 N.E.2d 919, 926 (Ind. 1999). The trial
court has discretion in the manner of instructing the jury and its ruling
will not be reversed unless the instructions, when taken as a whole,
misstate the law or mislead the jury. Reaves v. State, 586 N.E.2d 847, 855
(Ind. 1992). The challenged instruction satisfies these criteria.