Charlton v. State

• Decision Date: 07 December 1998
• Docket Number: No. 84S00-9608-CR-00570,84S00-9608-CR-00570
• Citation: 702 N.E.2d 1045
• Parties: Michael W. CHARLTON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1045

702 N.E.2d 1045

Michael W. CHARLTON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 84S00-9608-CR-00570.

Supreme Court of Indiana.

Dec. 7, 1998.

Eugene C. Hollander, Special Assistant to the Office of the State Public Defender, Indianapolis, for Appellant.

Jeffrey A. Modisett, Attorney General, Carol A. Nemeth, Deputy Attorney General, Indianapolis, for Appellee.

SULLIVAN, Justice.

On August 28, 1995, defendant Michael Charlton was charged with killing his girlfriend, Deborah Carpenter. Defendant appeals his conviction of Murder ¹ and sentence of sixty years. We affirm both.

This Court has jurisdiction over this direct appeal because the longest single sentence exceeds fifty years. Ind. Const. art. 7, § 4; Ind.Appellate Rule 4(A)(7).

Background

Defendant and the victim lived together for approximately two and one-half years. On August 21, 1995, the victim called defendant at work and told him that because they were having problems she had placed all of his belongings on the front porch for him to pick up later. She also advised him that she was planning to secure a protective order against him that day. Defendant did pick up his possessions and later that evening, he and the victim met at a neutral location to talk about their separation.

On August 22, 1995, the victim had her family over for dinner and spoke to defendant over the phone on at least one occasion. The victim's son left around 9 pm and she took her daughter and grandson home around 11:30 pm.

During trial, the defendant testified that the victim called him at his parents' home around 4 am on August 23, 1995, and invited him to come over. Defendant allegedly walked to the victim's house, talked with her, and the two subsequently had sexual intercourse on the couch. Then, according to defendant, after the two got dressed, the victim came towards him as if to give him a hug but instead reached behind and grabbed his gun. Defendant testified that during the struggle to get the loaded gun away from the victim, the gun accidentally discharged and hit the victim in the head. Defendant alleges that he left the victim's home and went straight to his parents' home to discuss the morning's events. Several hours later, the defendant turned himself in to the police.

Additional facts will be provided as necessary.

Discussion

Defendant raises four issues on appeal: (1) whether the trial court erred in not instructing the jury on a lesser included offense; (2) whether the trial court erred by allowing testimony regarding the victim's application for a protective order; (3) whether the prosecutor's comments during closing argument constituted prosecutorial misconduct; and (4) whether the defendant's sixty-year sentence is manifestly unreasonable.

I

Defendant contends that the trial court committed reversible error by denying his proposed jury instruction on the lesser included offense of reckless homicide. ² We set forth in Wright v. State, 658 N.E.2d 563 (Ind.1995), the proper analysis to determine when a trial court should, upon request, instruct the jury on a lesser included offense of the crime charged. Three steps are involved: (1) a determination of whether the lesser included offense is inherently included in the crime charged; if not, (2) a determination of whether the lesser included offense is factually included in the crime charged; and, if either, (3) a determination of whether a serious evidentiary dispute existed whereby the jury could conclude the lesser offense was committed but not the greater. Id. at 566-67. If the third step is reached and answered in the affirmative, the requested instruction should be given.

When the trial court has made a finding on the existence or lack of a "serious evidentiary dispute," our standard of review is abuse of discretion. See Champlain v. State, 681 N.E.2d 696, 700 (Ind.1997). However, if the trial court makes no ruling with respect to whether a "serious evidentiary dispute" exists, "Wright implicitly requires the reviewing court to make this determination de novo based on its own review of the evidence." Champlain, 681 N.E.2d at 700. In this case, the trial court simply refused the defendant's tendered Reckless Homicide instruction and made no finding regarding whether a serious evidentiary dispute existed. ³ Additionally, defendant's tendered instruction contained no explanation as to why a serious evidentiary dispute existed, nor does defendant direct us to the record where he explained to the trial court the existence of such a dispute. "[W]hen the court rejects tendered instructions on lesser included offenses on their merits, but the record provides neither a finding that there is no serious evidentiary dispute nor a specific claim from the defendant as to the nature of that dispute, the standard of review is an abuse of discretion." Thomas Brown v. State, No. 82S00-9609-CR-603, slip op. at 16 (Ind. Dec. 3, 1998). We review this case accordingly.

The defendant was charged with Murder. Indiana's Murder statute provides in relevant part that "[a] person who ... knowingly or intentionally kills another human being ... commits Murder, a felony." Ind.Code § 35-42-1-1 (1993). Indiana's Reckless Homicide statute provides that "[a] person who recklessly kills another human being commits reckless homicide, a Class C felony." Ind.Code § 35-42-1-1 (1993). A comparison of these two statutes indicates that Reckless Homicide is an inherently lesser included offense of Murder; the only distinguishing factor between Reckless Homicide and Murder is the lesser culpability. Wright, 658 N.E.2d at 567. See Horan v. State, 682 N.E.2d 502, 507 (Ind.1997).

The final step of the Wright analysis requires the court to determine whether a serious evidentiary dispute existed warranting a Reckless Homicide instruction. Ind.Code § 35-41-2-2(c) (1993) provides that "[a] person engages in conduct 'recklessly' if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct." In support of his position, defendant makes the following argument:

The Defendant argues that the evidence presented at trial raised a serious evidentiary dispute regarding the element of intent, and the trial Court committed reversible error by not instructing the jury regarding Reckless Homicide. The Defendant committed the shooting. He reported the shooting. He admitted to the shooting. The Defendant testified during the trial regarding the fact that the gun accidentally fired while the parties were struggling.

Br. of Def.-Appellant at 15-16. While these facts do call into question defendant's intent, they present absolutely no evidence of reckless conduct--they present evidence of an accident or, at most, negligence. Defendant has not presented or referred us to any evidence showing that his conduct was reckless, much less showing that there was a serious evidentiary dispute over whether his conduct was reckless.

On the other hand, the evidence presented by the State all supported its contention that defendant "knowingly" or "intentionally" killed the victim:

1. On the morning of August 22, 1995, the defendant told a co-worker that he was going to kill the victim and himself.

2. The defendant testified that the victim telephoned him at his parents' house around 4 am on August 23, 1995, and invited him to come over. The defendant claimed that he walked to the victim's house. However, the victim's son testified that while he was at work, the defendant drove by around 4:30 am to inquire whether his sister was still at the victim's house. Additionally, one of the victim's neighbors testified that on August 23, 1995, he noticed defendant's truck parked on the street at 4:30 am and that the truck was still there when he left for work around 5:45 am.

3. The defendant never called for emergency help and did not turn himself in to authorities until several hours after the shooting.

4. The coroner testified that the victim died of a contact wound which means that the gun was held against the skin when it was fired and not from a distance.

5. A few hours after the police had discovered the victim's body and left the house, the daughter noticed that the telephone lines had been cut and that the back door had been damaged and that there were paint fragments and wood shavings on the floor. The police had not made these observations earlier during their investigation of the house.

Given this evidence, there was no serious evidentiary dispute that defendant recklessly killed the victim. The trial court did not abuse its discretion when it refused the Reckless Homicide instruction.

II

Defendant contends that the trial court erred in admitting evidence that the victim had attempted to obtain a protective order against the defendant. We disagree.

Indiana Evidence Rule 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident ..." When a defendant objects to the admission of evidence on the grounds that it would violate Rule 404(b), the following test is applied: (1) the court must determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act; and (2) the court must balance the probative value of the evidence against its prejudicial effect pursuant to Rule 403. ⁴ Thompson v. State, 690 N.E.2d 224, 233 (Ind.1997). See Hicks v. State, 690 N.E.2d 215, 221 (Ind.1997); Heavrin v. State, 675 N.E.2d 1075, 1083 (Ind.1996), reh'g denied; Taylor v. State, 659 N.E.2d 535, 543 (Ind.1995); Hardin v. State, 611 N.E.2d 123, 128-29 (Ind.199...