Etienne v. State, No. 40S00-9801-CR-14.

Docket NºNo. 40S00-9801-CR-14.
Citation716 N.E.2d 457
Case DateSeptember 28, 1999
CourtSupreme Court of Indiana

716 N.E.2d 457

Charles E. ETIENNE, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below)

No. 40S00-9801-CR-14.

Supreme Court of Indiana.

September 28, 1999.


716 N.E.2d 459
John T. Roche, North Vernon, Indiana, Attorney for Appellant

Jeffrey A. Modisett, Attorney General of Indiana, Rosemary Borek, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

716 N.E.2d 458
BOEHM, Justice

Charles E. Etienne was convicted of murder and sentenced to sixty years imprisonment. In this direct appeal he contends that (1) the State engaged in prosecutorial misconduct that constitutes fundamental error; (2) the trial court erroneously refused his lesser included offense instruction on reckless homicide; and (3) he received ineffective assistance of counsel. Under most circumstances we will not entertain a claim of ineffectiveness of counsel presented on appeal by the same attorney who tried the case. This case presents no basis for an exception. We affirm the trial court.

Factual and Procedural Background

On the evening of April 29, 1996, Etienne and his step-brother Joe Grider were wagering first beer and then money in a pool match against brothers Luke and Shane Brown at the Eagles Lodge in North Vernon. The Browns, both Australians, were staying with James Lonaker, who was also at the club. After several games, name-calling and shoving broke out and the bartender told the Browns to leave. The Browns, Lonaker, Etienne and Grider all exited the club. The men offered different accounts of what occurred outside.

According to Lonaker, Grider grabbed Luke, the two wrestled on the ground and Etienne ran from the scene. Luke soon had Grider in a headlock, and Shane told Luke not to let go of Grider because "he's going to give up in a minute...." Lonaker then saw Etienne running toward the men "with a gun straight out in front of him," heard Shane tell Etienne to put the gun down, and saw Etienne shoot Shane. Lonaker attempted to grab the gun, but Etienne stepped back, fired a shot over Lonaker's head, and said that he would "kill everyone of you mother fuckers." Luke Brown offered a similar account. Luke testified that as he and Grider were wrestling on the ground he heard someone say something about a gun, then heard Grider tell Etienne that there was "no need for that—put it away" and looked up to see Etienne walk "straight up and just shoot Shane." Although Luke did not remember hearing any subsequent shots, he testified that there could have been more.

Grider testified that, while he and Luke were wrestling on the ground, he saw Shane "swing on" or "shove" Etienne. Grider was either rendered unconscious or "had the wind knocked out of [him]" during his altercation with Luke and was unable to recall some of the events but did hear a gunshot.

Finally, Etienne testified that upon leaving the Eagles he saw Luke standing at the edge of the sidewalk. Etienne asked Luke how he was doing and Luke responded that he was waiting for Grider. Etienne told Luke that "fighting wasn't going to settle anything" and then Grider exited the club. Luke walked toward Grider, pushing Etienne to the side. Shane then exited the club and pushed Etienne onto some gravel. Grider and Luke then started

716 N.E.2d 460
screaming at each other. According to Etienne, he told Shane that he was not going to fight but Shane said "yes you are. We're going to fight." Etienne then turned and ran to his truck, pulled his gun from the console, and returned to the front of the club where Grider and Luke were fighting. Etienne screamed at Shane "[a]t least twice" to get Luke off of Grider. Shane told Etienne that he was going to "kick [Etienne's] fucking ass," and Etienne responded that he had a gun and showed the gun to Shane. Because Etienne believed that Shane was unaffected by his threat, he fired a shot over Shane's head. Etienne continued to scream at Shane to get Luke off of Grider, but Shane did not comply and instead stepped forward toward Etienne. According to Etienne, he backed away from Shane and told Shane "don't make me shoot you," but Shane "kept yelling he was going to kick my ass." Etienne then shot Shane. He agreed in cross-examination that he "pulled the trigger on purpose" and "meant to hit [Shane] with that bullet," but testified that he intended to hit Shane in the shoulder and not the chest. Shane died as the result of a single gunshot wound to the lower part of the heart

Etienne was charged with murder. The jury was instructed on self-defense, but the trial court refused defense counsel's tendered reckless homicide instruction. The jury convicted Etienne of murder.

I. Prosecutorial Misconduct

Etienne contends that the State engaged in prosecutorial misconduct. Specifically, he argues that the prosecutor did not comply with a pretrial discovery order and that the prosecutor's closing argument was "fraught with outrageous, inappropriate statements...." We find that none of the alleged errors were preserved for our review.

A. Noncompliance With Discovery Order

Shortly after the shooting, Etienne gave a statement to police. The statement was recorded on videotape and audiotape. A copy of the videotape and a transcript of the audiotape were provided to Etienne in the normal course of discovery. The videotape played at trial concluded as follows:1

OFFICER MCINTOSH: Okay, we'll go ahead and end this interview at 12:41 in the a.m. on 4/30/96.
OFFICER MCINTOSH: I don't understand what you said about how you shot him in the chest.
MR. ETIENNE: Well I tried to shoot him right there when I was shooting him.
OFFICER MCINTOSH: Well.

The transcript, which according to the State was made from the audiotape, did not contain the final exchange, but rather concluded with McIntosh's comment about ending the interview. Although Etienne concedes that he was provided with a copy of the videotape, "albeit of poor quality," he nevertheless asserts error because his final statement from the videotape was not included on the transcript. Moreover, Etienne acknowledges that he was first apprised of this statement, although not its source, during the State's opening statement in which the prosecutor told the jury that Etienne told McIntosh "well I meant to shoot him right here, so he openly admits that he was trying to shoot him." Defense counsel, in his opening statement, responded

I don't know where Mr. Smith [the prosecutor] intends to show that Mr. Etienne shot [Shane] some place other than where he intended to shoot him. That may come out. I thought I was well familiar with the facts of this case, that escaped me, but I'm sure that if that was indeed a statement of that night
716 N.E.2d 461
that he'll show that during his own case in chief.

Etienne did not object to the State's opening statement, allege a violation of the trial court's discovery...

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48 practice notes
  • Isom v. State, No. 45S00–0803–DP–125.
    • United States
    • Indiana Supreme Court of Indiana
    • May 20, 2015
    ...that a defendant believes might warrant a mistrial, generally the correct procedure is to request an admonishment. Etienne v. State, 716 N.E.2d 457, 461 (Ind.1999). If counsel is unsatisfied with the admonishment or it is obvious that the admonishment will not be sufficient to cure the erro......
  • Keats v. State, No. 04-171.
    • United States
    • United States State Supreme Court of Wyoming
    • July 20, 2005
    ...1178 (1980); Bottoson v. State, 674 So.2d 621, 625 n. 5 (Fla.1996) (Kogan, J., concurring in part, dissenting in part); Etienne v. State, 716 N.E.2d 457, 463 (Ind.1999); Bear v. State, 417 N.W.2d 467, 472 (Iowa Ct.App.1987); Hill v. State, 749 So.2d 1143, 1149 (Miss.Ct.App.1999); State v. H......
  • Owens v. State, No. 29A02-1002-CR-390.
    • United States
    • January 12, 2011
    ...1098, 1111 (Ind.1997). "Failure to request an admonishment or move for a mistrial results in waiver of the issue." Etienne v. State, 716 N.E.2d 457, 461 (Ind.1999). Because Owens did not make a contemporaneous objection and did not request an admonishment, his claim of prosecutorial miscond......
  • Timberlake v. State, No. 49S00-9804-PD-252.
    • United States
    • Indiana Supreme Court of Indiana
    • August 20, 2001
    ...it is addressed below. To the extent it is an argument concerning counsel's own ineffectiveness, it cannot be raised. Etienne v. State, 716 N.E.2d 457, 463 3. The postconviction court found that "[t]here is no machine that monitors Petitioner's mind and/or controls his thoughts." 4. The fin......
  • Request a trial to view additional results
48 cases
  • Isom v. State, No. 45S00–0803–DP–125.
    • United States
    • Indiana Supreme Court of Indiana
    • May 20, 2015
    ...that a defendant believes might warrant a mistrial, generally the correct procedure is to request an admonishment. Etienne v. State, 716 N.E.2d 457, 461 (Ind.1999). If counsel is unsatisfied with the admonishment or it is obvious that the admonishment will not be sufficient to cure the erro......
  • Keats v. State, No. 04-171.
    • United States
    • United States State Supreme Court of Wyoming
    • July 20, 2005
    ...1178 (1980); Bottoson v. State, 674 So.2d 621, 625 n. 5 (Fla.1996) (Kogan, J., concurring in part, dissenting in part); Etienne v. State, 716 N.E.2d 457, 463 (Ind.1999); Bear v. State, 417 N.W.2d 467, 472 (Iowa Ct.App.1987); Hill v. State, 749 So.2d 1143, 1149 (Miss.Ct.App.1999); State v. H......
  • Owens v. State, No. 29A02-1002-CR-390.
    • United States
    • January 12, 2011
    ...1098, 1111 (Ind.1997). "Failure to request an admonishment or move for a mistrial results in waiver of the issue." Etienne v. State, 716 N.E.2d 457, 461 (Ind.1999). Because Owens did not make a contemporaneous objection and did not request an admonishment, his claim of prosecutorial miscond......
  • Timberlake v. State, No. 49S00-9804-PD-252.
    • United States
    • Indiana Supreme Court of Indiana
    • August 20, 2001
    ...it is addressed below. To the extent it is an argument concerning counsel's own ineffectiveness, it cannot be raised. Etienne v. State, 716 N.E.2d 457, 463 3. The postconviction court found that "[t]here is no machine that monitors Petitioner's mind and/or controls his thoughts." 4. The fin......
  • Request a trial to view additional results

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