Phelps v. State, 55A01–1108–CR–410.
| Citation | 969 N.E.2d 1009 |
| Decision Date | 11 June 2012 |
| Docket Number | No. 55A01–1108–CR–410.,55A01–1108–CR–410. |
| Parties | Michael PHELPS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Court of Appeals of Indiana |
OPINION TEXT STARTS HERE
Steven C. Litz, Monrovia, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Michael Phelps appeals from his conviction of and sentence for Attempted Murder 1 as a class A felony. Phelps presents the following consolidated and restated issues for our review:
1. Did the trial court with juvenile court jurisdiction abuse its discretion by waiving its jurisdiction?
2. Did the trial court with juvenile court jurisdiction err by denying Phelps's motion to close the proceedings?
3. Did the trial court commit reversible error by denying Phelps's motion for change of venue after jurisdiction had been waived?
4. Is Phelps's sentence inappropriate in light of the nature of the offense and the character of the offender, or otherwise in violation of the state and federal constitutional prohibitions against cruel and unusual punishment?
We affirm.
Phelps began attending Martinsville West Middle School in 2007 upon entering the sixth grade. During that school year, Phelps accumulated twenty-four disciplinary referrals from five different staff members. Three involved altercations with other students and twenty-one were for refusing to cooperate with authority figures. The school attempted to modify Phelps's behavior through an array of disciplinary actions.
Phelps was retained in the sixth grade because of his failing grades, which were the result of a lack of effort rather than an inability to master the content. During his second year of sixth grade, Phelps had five disciplinary referrals from four different staff members, two of which were for altercations with other students and three of which were for failure to cooperate with authority figures.
In the seventh grade, Phelps had thirteen disciplinary referrals, one of which involved an altercation with other students and twelve of which were for refusal to cooperate with authority figures. The school repeated its attempt to use a variety of measures such as student conferences, calling home, meeting with parents, after-school-detention, and in-school suspension, among others, to correct Phelps's behavior. Phelps received an out-of-school suspension and was not allowed on school property for a period of time. The principal and other school officials communicated with Phelps's mother numerous times about her son's behavior. Phelps did not show a willingness to comply with school rules after receiving a disciplinary referral.
In the 2010–2011 school year Phelps was in the eighth grade. During that school year Phelps had eight disciplinary referrals from five different staff members. One of those referrals was for an altercation with other students and several other referrals were for refusing to cooperate with authority figures. On October 14, 2010, Phelps received his first referral to the juvenile system for truancy. He was placed on an informal adjustment for a period of three months. On November 29, 2010, Phelps made threats and punched another student in the face.
Two subsequent petitions were filed alleging that Phelps was delinquent for being in possession of paraphernalia. Phelps was adjudicated a delinquent and was placed on formal probation for six months. The very next day, Phelps received a disciplinary referral at school for rude and discourteous behavior. The day after that, Phelps received a disciplinary referral after he said he was going to blow up the school. Based on these referrals, the probation department filed a probation violation.
Phelps was suspended from school for ten days following his statement that he was going to blow up the school. The principal informed Phelps that his statement was taken seriously and they discussed Phelps's other referrals and his decision not to be a serious student. Phelps was notified that he was not allowed on school property. The principal further informed Phelps that school officials were also recommending his expulsion from school in addition to the period of suspension.
On March 17, 2011, Phelps's mother contacted the school to withdraw Phelps from school so that he could begin homeschooling. On March 22, 2011, Phelps's mother returned his text books to the school, ensured that he had no pending fines, and completed the paperwork necessary for withdrawal. The principal informed Phelps's mother that because he had withdrawn from school during a pending disciplinary action, Phelps would be considered a suspended student if he were to reenroll there.
During the period of suspension, Phelps spent time with his friend, Jeff Bunch. Phelps indicated that he wanted to steal a gun. Phelps subsequently stole a gun from the home of his former step-father, Andy Flanningan.
Phelps and another student at the middle school, Chance Jackson, did not get along with one another and had not for some time. Phelps had taunted Jackson on several occasions, and had attempted to engage him in a fight. Jackson, however, refused to fight Phelps.
Natalie Arnold had dated both Phelps and Jackson. Two weeks prior to March 25, 2011, Arnold saw Phelps at school. Arnold knew that Phelps was not supposed to be on school property and asked Phelps what he was doing. Phelps told her that he had some business to take care of and later showed Arnold a firearm. When Arnold inquired why Phelps had a gun, Phelps told her it was for her protection. On a separate occasion, Phelps sent a text message to Arnold stating that he wanted to shoot Jackson. Phelps and Arnold sent several text messages to one another, during one of which, Arnold asked Phelps to promise that he would not shoot Jackson.
A week to ten days prior to March 25, 2011, Darian Hoskins spoke with Phelps. Hoskins gave Phelps a hug and felt something in Phelps's waistband. Hoskins asked Phelps what was in his waistband and Phelps replied that it was a gun. Phelps pulled out a black and silver firearm from the front of his pants and displayed it to Hoskins. Phelps also removed bullets from his pocket and showed them to Hoskins. Hoskins inquired why Phelps had a gun, and Phelps told him that he was having trouble with a kid at school named Chance. Phelps told Hoskins that he was going to shoot Chance at school.
On March 25, 2011, when Jeff Bunch arrived at school, Phelps was there and was asking if anyone had seen Chance Jackson. Phelps and Bunch started to enter the middle school, but turned around after Phelps indicated that there were too many people in there. Phelps and Bunch then entered a vestibule area where they found Jackson. Phelps stated to Jackson, “I hear you've been talking shit about me.” Trial Transcript at 36. Jackson replied, “No, I've been trying to avoid you.” Id. at 73. Phelps told Jackson that was not what he had heard, to which Jackson replied, “Well, you heard wrong.” Id. Phelps said, “So why won't you fight me.” Id. Jackson stated that there was no reason to fight and that fighting would not solve anything. Jackson also told Phelps that he did not want to get kicked out of school. Phelps replied, “Too bad, bitch.” Id. Phelps then pulled out the black and silver firearm and shot Jackson twice in the abdomen. After the shooting, Phelps ran off, followed by Bunch.
Martinsville Police Officer Brian Chambers arrived at the school, which was at that time in complete lockdown. Due to the emergency and uncertainty if the assailant or assailants had additional plans, the children were required to sit on the floor in their classrooms. All the lights were turned off and the blinds were pulled while the SWAT team searched the school.
Jackson had sustained two gunshot wounds to his abdomen. Jackson told Officer Dawn Hoffman of the Martinsville Police Department that Phelps had shot him. Jackson was then transported via Lifeline to Methodist Hospital in Indianapolis.
Bunch returned to the school and told police officers there that Phelps had tossed the firearm into a wooded area. Phelps was apprehended by Officer Blake Long near an elementary school. Phelps tested positive for marijuana when he was admitted to the detention center.
On March 28, 2011, the State filed a petition alleging that Phelps was a delinquent child. Thereafter, the State filed a motion to waive juvenile-court jurisdiction. A two-day hearing was held on the State's motion at the conclusion of which the trial court took the matter under advisement. On April 25, 2011, the juvenile court held a hearing, during which it announced its findings and waived jurisdiction.
On April 26, 2011, the State charged Phelps with one count of attempted murder a class A felony, one count of aggravated battery as a class B felony, one count of carrying a handgun without a license on school property as a Class C felony, one count of trespassing on school property as a class D felony, possession of a firearm on school property as a class D felony, and one count of theft as a class D felony. On May 4, 2011, Phelps filed a motion for a change of venue, which was ultimately granted by the trial court.
Jury selection was held in Clay County. During voir dire, counsel for Phelps told the jury that the defense theory of the case was that although Phelps had shot Jackson, he had not intended to kill him. Several prospective jurors disagreed with the premise that a person could shoot another person twice without intending to kill the person. Phelps moved for another change of venue, to which the State objected. The trial court took the matter under advisement, deferring decision on the motion until further questioning of the prospective jurors had been completed.
After conferring with Phelps, Phelps's counsel informed the trial court that Phelps wished to waive his right to a jury trial. After questioning Phelps, the trial...
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