Paul v. State
| Decision Date | 19 June 2008 |
| Docket Number | No. 22A01-0706-CR-275.,22A01-0706-CR-275. |
| Citation | 888 N.E.2d 818 |
| Parties | Steven I. PAUL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Stacy R. Uliana, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Steven I. Paul brings his consolidated appeal of the sentence imposed by the trial court after his conviction by jury of aggravated battery, as a class B felony, and the trial court's order finding that Paul was not entitled to credit time for earning a second associate's degree during his incarceration.
We affirm in part, reverse in part and remand.
1. Whether the trial court erred when it allowed the jury to determine that the victim's death constituted an aggravating factor in Paul's conviction for aggravated battery, as a class B felony.
2. Whether Paul's sentence is inappropriate.
3. Whether the trial court erred when it denied Paul credit for his second associate's degree.
In Paul's initial appeal, we found the facts as follows:
On November 1, 2002, Paul and his girlfriend, Noreen Cousins, decided to go to a farm and practice target shooting. En route, they stopped at a liquor store in order to purchase beer. At approximately the same time that Paul drove his truck into the liquor store parking lot, Donald Barnett drove his truck into the same parking lot. Barnett was accompanied by his wife, Lisa, and their friend Cynthia Bogard. The two trucks nearly collided in the parking lot sparking a discussion between Paul and Barnett. After the encounter with Barnett, Paul decided to leave the area and go to a different liquor store.
Paul and Cousins exited the parking lot and were immediately stopped in traffic at the signal near the liquor store parking lot. Two vans with students from Xavier University were stopped near Paul's truck at the same traffic signal. The students were accompanied by Xavier's Associate Director for Peace and Justice Programs. The students and the college administrator watched as Cousins leaned out of the car window and began shouting at Barnett who was sitting in his truck in the parking lot. Barnett yelled back at Cousins. Then Cousins jumped from Paul's truck while Paul attempted to restrain her. Cousins confronted Barnett and Barnett exited his truck. In the ensuing confrontation, Barnett either struck Cousins or defended himself against blows lodged by Cousins. Paul then left his truck, approached Cousins and Barnett, and shot Barnett once in the lower abdomen with a handgun, causing a fatal injury. Barnett took a few steps away from Paul, and Paul shot Barnett again in the shoulder area.
Paul and Cousins retreated to Paul's truck. When the traffic signal turned green, Paul "quickly accelerated and drove down the street." The Xavier students and the administrator memorized Paul's license plate and telephoned the police. Shortly after a police radio broadcast of the truck description, Captain Keith Whitlow of the New Albany Police Department observed Paul driving the truck. Captain Whitlow followed Paul's truck. Paul abruptly turned, struck a tree, exited the truck, jumped over a privacy fence, and escaped. On foot, Captain Whitlow followed in the direction he surmised Paul had been going, then doubled back to Paul's truck. Captain Whitlow saw "an African American woman there next to the passenger side of that truck." She was crying and seemed upset. Because Captain Whitlow was unsure whether she was the shooter, he placed her in handcuffs. Then Captain Whitlow observed "a tall dark skinned gentle[man] walking" toward him with his hands raised. Tr. p. 683. Captain Whitlow determined Paul's identification. After additional officers arrived, Paul led them to the gun he had used to shoot Barnett.
On November 6, 2002, Paul was charged with murder. On November 26, 2002, Paul tendered his "Notice of Intent to Interpose the Defense of Self Defense and Defense of Another.". . . .
Paul's jury trial was held over the course of six days in March and April 2004. Interspersed in the trial, both the State and the defense alluded to Barnett's race and the socio-economic differences among Paul, Barnett, and Cousins. For instance, Bogard testified that she, Lisa, and Barnett went to Louisville on the day of the incident in order to buy crack cocaine. Defense counsel asked Bogard whether they went to a black community in Louisville. Bogard also testified that Cousins had called Bogard, Lisa, and Barnett a "bunch of crack heads[,]" to which defense counsel offered rhetorically: "[S]he was right, wasn't she?" Paul testified as to his family and background, including that he was a student, his father was a retired physician, and his mother was a professor. During closing argument, defense counsel referred to Barnett's "black hand . . . grabbing a very black girl wearing a black sweatshirt." In closing arguments, without objection, the deputy prosecutor noted that the law protects "everybody," including "black men at a liquor store who have used cocaine."
At the close of the evidence, the jury was instructed that Paul was charged only with murder, but, in the event the State failed to prove the elements of murder, the jury could consider one of the lesser included offenses of murder, including, "voluntary manslaughter, reckless homicide, aggravated battery, or involuntary manslaughter...." April 6, 2004, the jury returned a guilty verdict to aggravated battery, a class B felony.
and that there were "no mitigating factors." Id. at 6. The trial court ordered Paul to serve a twenty-year sentence, with one year suspended to probation.
In his appeal, Paul argued prosecutorial misconduct and that he had been improperly sentenced in violation of the constitutional considerations articulated in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Smylie v. State, 823 N.E.2d 679 (Ind.2005). We affirmed his conviction but found that he was entitled to application of the sentencing holdings of Blakely, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Smylie. Thus, no sentence greater than the presumptive sentence1 could stand "because the aggravating circumstances upon which the trial court relied were not found by a jury." Slip op. at 13. Accordingly, we remanded "to the trial court with instructions to impose the presumptive sentence or less, ... or for a sentencing hearing that comports with Apprendi, Blakely, and Smylie." Id.
On July 11, 2005, the State filed in the trial court a notice of its intent to prove to a jury various aggravating factors. As subsequently amended, the State alleged the following aggravating factors: (1) that the harm, injury, loss or damage suffered by the victim of the offense was significant and greater than the elements necessary to prove the commission of aggravated battery in that the injury sustained by Barnett "was death"; (2) that harm, injury, loss or damage suffered by the victim was significant and greater than the elements necessary to prove the commission of aggravated battery in that Barnett was shot in the back as he was running away; (3) that the "shooting occurred in broad daylight at a busy public place"; and (4) that Barnett was unarmed. (App.126, 1272). On December 19, 2005, Paul filed a motion to dismiss the aggravators alleged by the State, arguing inter alia that the filing of the alleged aggravators violated his double jeopardy rights, and that the alleged aggravator of Barnett's death was "improper" because the jury had "acquitted Paul of the death of Barnett." (App.61). On May 9, 2006, the trial court denied Paul's motion to dismiss.
On May 23, 2007, Paul filed a motion to strike the alleged aggravating factors regarding Barnett's death, asserting it was barred by collateral estoppel and double jeopardy. The motion was denied on May 24, 2007.
On April 23-25, 2007, a jury trial on the alleged aggravating factors was held. The State presented evidence that Barnett died on November 1, 2002, as a result of being shot from within close range by Paul on that day. Evidence further established that Barnett was shot at approximately 4:00 p.m. on a weekday at one of the busiest intersections in the community and that numerous people were present in the immediate vicinity at the time of the shooting. Paul took the witness stand and admitted shooting Barnett from within close range, when Barnett "was right in front of [him]"; that his shot inflicted "a significant injury" on Barnett; that Barnett was "dead because [he] shot him"; and that the shooting had taken place in a "very busy" public place during "broad daylight." (Tr. 419, 443, 444, 443).
The jury returned verdicts finding that the State had proven beyond a reasonable doubt that (1) the harm, injury, loss or damage suffered by Barnett was significant and greater than the elements necessary to prove the commission of aggravated battery, as a class B offense, in that the injury suffered by Barnett was death; and (2) that the shooting occurred in broad daylight at a busy public place. The jury found that the State had not proven beyond a reasonable doubt the other two aggravators alleged.
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