Calhoun v. State
| Decision Date | 24 October 1985 |
| Docket Number | No. 1183S381,1183S381 |
| Citation | 484 N.E.2d 7 |
| Parties | Charles CALHOUN, Jr., Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Jonathan R. O'Hara, Valparaiso, for appellant.
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.
This is a direct appeal from a conviction of murder, I.C. Sec. 35-42-1-1, and a habitual offender determination. A jury tried the case. Appellant received a sentence of eighty years.
Appellant raises four issues on appeal: (1) whether the trial court erred in refusing to submit to the jury his tendered accidental homicide instruction; (2) whether he was denied effective assistance of counsel; (3) whether his sentence violates the double jeopardy clause in that the trial court enhanced the presumptive sentence and then enhanced it further on the basis of the habitual offender determination; (4) whether the trial court erred in not permitting him to be present at the hearing on the belated motion to correct errors.
These are the facts from the record that tend to support the determination of guilt. On March 17, 1982, appellant entered the Double B Barbershop in Gary, Indiana to purchase a lottery ticket. The proprietor informed appellant that it was too late to purchase a ticket; consequently, he offered to sell appellant a lottery ticket for the next day. Thereafter, the victim staggered into the barbershop. The victim was noticibly intoxicated. The victim offered appellant a drink of wine from his bottle. Appellant responded, "I'm not a winehead," and then he hit the victim, knocking him back. Immediately afterwards, appellant grabbed the victim by the collar and exclaimed, "I'll kill you your mother fucking ass." Then, appellant pulled out his gun and he shot the victim. The bullet entered the victim's cheek, and it lodged in the victim's skull. Appellant laid the victim down on the floor, and he told the proprietor, "It's all over." The victim died from the gunshot wound.
Appellant claims that the trial court erred in refusing to submit to the jury his tendered accidental homicide instruction. The record of proceedings before us shows that the evidence was concluded on the afternoon of December 1, 1982, and the jury was released with instruction to reconvene the following morning for final arguments and instructions. The court then settled the instructions, and in so doing stated that he would refuse appellant's instruction numbered two (2), the tendered accidental homicide instruction.
The record of proceedings further discloses however that the jury returned to court the following morning, heard the final argument of counsel, and then heard the court read final instructions numbered one (1) through twenty four (24), and was then permitted to take the twenty four written instructions to the jury room. Among these serially numbered final instructions was final instruction fourteen (14), appearing in this record of proceedings at p. 196. That instruction is identical in import to appellant's tendered instruction two (2) which had been refused the night before. It is serially numbered as fourteen (14), marked by hand in ink as given, personally signed in ink by the presiding trial judge, and preceded in the record of proceedings before us, by the entry:
"Court now reads to the jury its Final Instructions numbered one (1) through twenty-four (24) inclusive, which are now signed by the Court and made a part of the record herein, in these words (insert)."
Some further support for the fact that the jury did receive the court's final instruction fourteen (14) may be gleaned from the fact that the refusal of the trial court to give the tendered instruction # 2 was not mentioned as an error in either the motion to correct errors or the belated motion to correct errors.
The record of the proceeding before us, when considered as a whole, demonstrates that the jury did receive the substance of appellant's tendered instruction two (2) through the court's own final instruction fourteen (14). Under such circumstances, the refusal of a tendered instruction is not error. Hash v. State (1972), 258 Ind. 692, 284 N.E.2d 770. New v. State (1970), 254 Ind. 307, 259 N.E.2d 696.
Appellant argues that his counsel was ineffective. Specifically, he claims that his counsel was deficient in not calling certain witnesses on his behalf and that such inaction prejudiced his defense.
These guidelines are to be followed when reviewing ineffective assistance claims.
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 2064, 2065, 80 L.Ed.2d 674. Price v. State (Ind.1985), 482 N.E.2d 719.
Appellant claims that cou...
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