Bouye v. State, No. 49S00-9703-CR-201

Docket NºNo. 49S00-9703-CR-201
Citation699 N.E.2d 620
Case DateJuly 20, 1998
CourtSupreme Court of Indiana

Page 620

699 N.E.2d 620
Bradford BOUYE, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 49S00-9703-CR-201.
Supreme Court of Indiana.
July 20, 1998.

Page 622

Patricia Caress McMath, Appellate Public Defender, Indianapolis, for Defendant-Appellant.

Jeffrey A. Modisett, Attorney General, Randi F. Elfenbaum, Deputy Attorney General, Indianapolis, for Plaintiff-Appellee.

DICKSON, Justice.

The defendant, Bradford Bouye, was convicted of murder, 1 conspiracy to commit robbery as a class B felony, 2 and carrying a handgun without a license, a class A misdemeanor. 3 He was given consecutive sentences of sixty years for the murder, twenty years for conspiracy to commit robbery, and one year for the handgun violation.

In this direct appeal, the defendant presents five errors: (1) the trial court should have granted a mistrial; (2) the defendant's right to counsel was impaired; (3) the trial court erroneously allowed a witness to read portions of the probable cause affidavit as a prior consistent statement; (4) the trial court committed reversible error when it responded to a note from the jury without informing the defendant or his counsel; and (5) his sentence was unreasonable.

1. Mistrial

The defendant contends that he was entitled to a mistrial, alleging that the prosecutor vouched for a particular witness's credibility. To determine whether a mistrial is warranted, we consider whether the improper conduct had a probable persuasive effect on the jury's decision. Tompkins v. State, 669 N.E.2d 394, 398 (Ind.1996). A prompt admonishment to the jury to disregard the improper testimony is usually enough to avoid a mistrial. Carter v. State, 686 N.E.2d 834, 836 (Ind.1997).

In this case, a codefendant, Teon Witherspoon, accepted a plea bargain and agreed to testify against the defendant. On cross-examination, the defendant questioned Witherspoon about the conditions of his plea agreement, stating that he was "required to cooperate with law enforcement officers and to testify against co-defendants in this case," but asked him if "there [was] any requirement in [the plea] that [his] statements be truthful." Record at 501. The State objected, stating, "There's no question about the fact that he's required to testify truthfully. If he does not then I certainly will move the Court to set aside the plea agreement and that he be tried.... I certainly wouldn't ask a witness to tell anything but the truth." Record at 501-02. The defendant, in the presence of the jury, moved for a mistrial, stating that the prosecutor's comments amounted to the State "personally vouch[ing]" for Witherspoon. Record at

Page 623

502. The State denied doing so and the judge quickly told the jury:

The plea agreement which you will see does not use the word testifying truthfully .... the word truthful is not in the plea agreement. The jury is now admonished to disregard the statements, any other statements concerning that plea agreement about why the word truthfully is not in there as said by any of the three lawyers who talked, I now tell you that the word truthful or truthfully is not in the plea agreement. So anything, that uh, any of the three lawyers said in argument disregard.

Record at 503-04.

While the defendant is correct that, "[i]t is improper for the prosecutor to make an argument which takes the form of personally vouching for the witness," Schlomer v. State, 580 N.E.2d 950, 957 (Ind.1991), the above statements do not amount to the State "personally vouching" for Witherspoon. The State was defensively responding to the implication that it does not require truthful testimony and referred to witnesses in general and the fact that the State would not ask any witness to lie. The State never mentioned this witness in particular, unlike Schlomer, the case upon which the defendant relies. In Schlomer, the State told the jury in closing arguments that one of its witnesses, "got confused," and then told the jury, "I'm not gonna say Detective McGee is ever gonna be a brain surgeon or a rocket scientist, but I believe Detective McGee when he tell us what happened." Id. This is very different from the events transpiring in this case. However, even if the State had been personally vouching for the witness, the court quickly admonished the jury to disregard the colloquy between the State and the defendant. The trial court did not err in refusing to grant a mistrial.

2. Ineffective Assistance of Counsel

The defendant contends that his right to counsel was violated because he received ineffective assistance of trial counsel when counsel failed to object to Witherspoon's statement that the defendant may have been in Boy's School.

To establish a claim of ineffective assistance of trial counsel, a defendant must show both that his counsel's performance was sufficiently deficient and that prejudice resulted from that deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Id. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699. Because "[t]he object of an ineffectiveness claim is not to grade counsel's performance," the Court instructed that, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id.

"[A] criminal defendant alleging prejudice must show 'that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' " Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 842, 122 L.Ed.2d 180, 189 (1993). In this case, the defendant contends that counsel should have sought a mistrial when Witherspoon (the codefendant-turned-State's witness) testified that, in an earlier incident the night of the murder, the defendant had gone to rob a person who was standing at a phone booth. Witherspoon stated that the defendant did not rob the person because the defendant "said that he knew him from somewhere, Job Corps, Boy's School, somewhere, I don't know exactly...." Record at 385. The defendant contends this was an improper reference to the fact that the defendant had been in Boy's School, a penal institution. The defendant urges that counsel was ineffective for failing to seek a mistrial.

To determine whether a mistrial is warranted, we consider the probable persuasive effect of the alleged error on the jury's decision. Tompkins v. State, 669 N.E.2d 394, 398 (Ind.1996). The evidence at trial demonstrated that, in August of 1992, the defendant and three friends planned to commit some robberies and were out driving. The defendant and two of the friends, Witherspoon

Page 624

and Antonio Collier, initially decided to rob two women, but changed their minds after seeing a little boy with them. The third friend, Katrina Bass, expressed her intention to rob the women notwithstanding the young boy and, armed with a gun, began approaching the two women. At that same time, the thirty-nine year old, mentally-retarded victim in this case, Richard Briles, rode down the street on his bicycle. Bass spoke to Briles, trying to get him to stop, and he refused, riding off. Bass then got into the car with the other men and they followed after Briles, leaving the two women and the little boy alone. The two women testified that they soon heard shots fired, a long pause, and then more shots fired. They looked down the road, but didn't see anything. About a half hour after the shots had been fired, Briles's body was found twisted in his bike by a passer-by. He had been shot in the head at close range.

The defendant, Bass, Collier, and Witherspoon were all charged with murder, conspiracy to commit robbery, and carrying a handgun without a license. At the defendant's trial, Witherspoon testified that, as he was driving up to Briles, the defendant leaned out of the car and started firing at Briles, although none of the shots hit him. As they got closer, they saw that Briles had a crate on the front of his bicycle and it was full of cans. Witherspoon then told the defendant to stop shooting at Briles because "it wasn't nothin' but a can dude ... a can collector." Record at 402. The defendant listened to Witherspoon and "got back in the car and rolled the window up." Record at 402. Although the defendant had stopped shooting, Briles was still pedaling very fast, trying to get away. As the car passed Briles, the defendant again rolled down the window, pointed his gun, said "one to the head," and shot Briles. Record at 404.

The defendant's girlfriend at the time, Deborah Jones, testified that, on the night of the murder, the defendant confessed to her that he had killed Briles by shooting him in the head. The defendant then asked her to tell the police that he was with her. She complied with his request and initially gave a taped statement to this effect. The State introduced a copy of a letter written by the defendant and sent to Jones, in which the defendant asked Jones to continue to lie to the police:

Deborah honey, ... [the policeman] might come over and ask you about what happen. Deborah tell that man that I came over your house about 11:30 pm and I did not go home [until] your daddy got up and I had to go home. What ever you do, don't tell him that you know what happen.

Record at 343. Soon after receiving this letter and following a discussion wherein her mother told her that the police could "lock you up for perjury," Record at 340, Jones recanted her previous statement and gave another taped statement indicating that the defendant had not been with her and that he had confessed to the murder.

Another friend of the defendant's, Anthony Brooks, also testified that the defendant "said somebody was followin' him on a bike or whatever, he got tired of it so he shot him." Record at...

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43 practice notes
  • Stephenson v. State, No. 87S00-9605-DP-398.
    • United States
    • Indiana Supreme Court of Indiana
    • January 25, 2001
    ...that a motive to fabricate likely arises immediately upon the commission of the crime." Id. (emphasis added) (citing Bouye v. State, 699 N.E.2d 620, 624-25 (Ind.1998); Thompson v. State, 690 N.E.2d 224, 232 n.8 (Ind.1997)).11 In identifying the second category in Sturgeon, we said, "Where t......
  • Dike v. State, No. 98-254.
    • United States
    • United States State Supreme Court of Wyoming
    • November 30, 1999
    ...to fabricate. See, e.g., Cole v. State, 307 Ark. 41, 818 S.W.2d 573 (1991); Shellito v. State, 701 So.2d 837 (Fla.1997); Bouye v. State, 699 N.E.2d 620 (Ind.1998); State v. Johnson, 539 N.W.2d 160 (Iowa 1995); Smith v. Commonwealth, 920 S.W.2d 514 (Ky.1995); State v. Littlefield, 540 A.2d 7......
  • Miller v. State, No. 64S00-9408-PD-00742
    • United States
    • Indiana Supreme Court of Indiana
    • December 8, 1998
    ...differently today, following the adoption of the Indiana Rules of Evidence in 1994, and this Court's recent decision in Bouye v. State, 699 N.E.2d 620 25 We acknowledge that Wood's videotaped statement, unlike that in Fox, was not redacted. We conclude that Miller was not prejudiced in this......
  • Hernandez v. State, No. 68S00-0009-CR-563.
    • United States
    • Indiana Supreme Court of Indiana
    • January 30, 2002
    ...was a simple refusal to answer, that is harmless error to the extent 761 N.E.2d 848 it is an ex parte communication. Bouye v. State, 699 N.E.2d 620, 628 (Ind.1998). Hernandez also makes no claim that it was an error of substantive law to refuse to respond. Once again, we agree with his judg......
  • Request a trial to view additional results
43 cases
  • Stephenson v. State, No. 87S00-9605-DP-398.
    • United States
    • Indiana Supreme Court of Indiana
    • January 25, 2001
    ...that a motive to fabricate likely arises immediately upon the commission of the crime." Id. (emphasis added) (citing Bouye v. State, 699 N.E.2d 620, 624-25 (Ind.1998); Thompson v. State, 690 N.E.2d 224, 232 n.8 (Ind.1997)).11 In identifying the second category in Sturgeon, we said, "Where t......
  • Dike v. State, No. 98-254.
    • United States
    • United States State Supreme Court of Wyoming
    • November 30, 1999
    ...to fabricate. See, e.g., Cole v. State, 307 Ark. 41, 818 S.W.2d 573 (1991); Shellito v. State, 701 So.2d 837 (Fla.1997); Bouye v. State, 699 N.E.2d 620 (Ind.1998); State v. Johnson, 539 N.W.2d 160 (Iowa 1995); Smith v. Commonwealth, 920 S.W.2d 514 (Ky.1995); State v. Littlefield, 540 A.2d 7......
  • Miller v. State, No. 64S00-9408-PD-00742
    • United States
    • Indiana Supreme Court of Indiana
    • December 8, 1998
    ...differently today, following the adoption of the Indiana Rules of Evidence in 1994, and this Court's recent decision in Bouye v. State, 699 N.E.2d 620 25 We acknowledge that Wood's videotaped statement, unlike that in Fox, was not redacted. We conclude that Miller was not prejudiced in this......
  • Hernandez v. State, No. 68S00-0009-CR-563.
    • United States
    • Indiana Supreme Court of Indiana
    • January 30, 2002
    ...was a simple refusal to answer, that is harmless error to the extent 761 N.E.2d 848 it is an ex parte communication. Bouye v. State, 699 N.E.2d 620, 628 (Ind.1998). Hernandez also makes no claim that it was an error of substantive law to refuse to respond. Once again, we agree with his judg......
  • Request a trial to view additional results

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