Kutscheid v. State

• Decision Date: 10 June 1992
• Docket Number: No. 49S00-9105-CR-363,49S00-9105-CR-363
• Citation: 592 N.E.2d 1235
• Parties: Timothy KUTSCHEID, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1235

592 N.E.2d 1235

Timothy KUTSCHEID, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-9105-CR-363.

Supreme Court of Indiana.

June 10, 1992.

Steven C. Litz, Monrovia, for appellant.

Linley E. Pearson, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Murder, for which he received the maximum sentence of sixty (60) years.

The facts are: In the fall of 1989, appellant and Sherry Miller were business partners operating Indy Ionics, a water treatment firm, where Doug Hauhn, Sherry's former husband, the victim in this case, worked as an installer. In the months prior to the killing, Doug and Sherry, who had split up in part due to Doug's substance abuse, resumed their relationship to some degree, to the chagrin of appellant, who saw Sherry socially, knew her friends and family, developed a relationship with her young son, let her use his Visa card for a Florida vacation with her son, named her the beneficiary of his life insurance policy, and wanted an exclusive relationship. A romantic triangle developed involving episodes such as appellant poisoning the flowers Doug sent to Sherry. Whenever appellant discovered Sherry had gone out with someone, he would become angry and scream at her.

In the last month of his life, Doug resumed his alcohol and drug abuse and began behaving erratically. He harassed Sherry's sister Peggy, blaming her for his failure to reunite with Sherry and repeatedly threatening her life. On Wednesday, December 13, 1989, according to appellant, Doug went to appellant's apartment, threatened him with a pistol, shot his television set and asked for money in exchange for leaving Sherry alone. The following day, Doug created such a disturbance at Peggy's house that it resulted in his arrest, whereupon he was found to have two firearms and a knife in his possession. That same day, Peggy's husband Nathan went to Sherry's apartment, discovered the door kicked in, and found a note from Doug explaining he had dropped in to get his work shoes. Doug was jailed that day.

Two days later, on Saturday, Doug was released from jail. He telephoned Sherry and repeated threats to kill both Sherry and Peggy. These threats were made known to appellant. That evening when Peggy and Nathan returned home, Doug was waiting in the parking lot of their apartment complex; the police were called, came and talked to Doug, and he left.

The next day, Sunday, appellant stopped by his apartment, where he discovered a log had been thrown through the balcony sliding door. Appellant called the police and apartment security and reported a television set had been stolen, along with a .22 caliber revolver from his night stand. He alerted Sherry and Peggy to be on the lookout for Doug and then proceeded to Sherry's apartment.

Some time later, Nathan received a call from appellant, who stated he had just shot Doug and had called the police. Nathan ran over to Sherry's apartment, which was only three units away, and had to step over Doug's body just inside the doorway. When officers arrived, appellant explained that Doug had knocked on the door, pretending to be apartment security, and had been let inside; but when he had reached inside his coat pocket suddenly, appellant had shot him three times in the abdomen and once in the head with a Colt .45 automatic, killing him in self-defense. A steak knife was found beneath Doug's body and his hand appeared to have been cut by it. No charges were filed at that time.

Subsequent events and investigation, however, brought to light facts tending to cast doubt on appellant's version of the shooting. After autopsy results revealed some of the wounds angled upward, Detective Sergeant Michael Kelley re-examined the shooting scene and found a groove in the entryway linoleum--a "bullet track"--marking its path along the floor from where Doug's head had rested to where a dent was found in the metal edging strip at the lip of the foyer closet; upon opening the closet door, he discovered the expended bullet just inside, indicating the gunshot wound to the head had been inflicted while the victim was lying there on the floor.

The Wednesday following the shooting, appellant drove Vicky Spencer, the secretary at Indy Ionics, on some errands and explained he needed her help in getting Sherry to understand "why he had to do this and why these things had to happen." He explained he had needed to fire four shots because he had been trained as a soldier in Vietnam to "make sure they're dead." He also suggested to Vicky that "maybe I should find Bobby [Sherry's other former husband]. Maybe then Sherry would understand. Maybe if I take care of him." When Vicky responded, "No, Tim, that's crazy. You can't shoot everybody that Sherry goes out with," he replied, "I just won't wait so long the next time."

Later that winter, appellant and Sam Cobb, an installer for Indy Ionics, were driving to Farmland, Indiana on business. Cobb, who since the shooting had been hearing innuendoes of vindication from appellant, asked him the details of the incident. Appellant told him that after preparing the lighting in Sherry's apartment to blind anyone entering, donning a bulletproof vest and arming himself with a .45 caliber automatic and a .25 caliber back-up pistol, he telephoned Doug and lured him over to the apartment with an offer of cash to leave Sherry alone. When Doug arrived, he came in, realized the situation, and asked whether appellant was going to shoot him. When told no, he asked if he could smoke a cigarette and was told yes.

When Doug reached into his jacket pocket for his cigarettes (which in fact were found in that pocket), appellant shot him in the abdomen with the .45. Seeing no blood, appellant fired two more rounds into Doug's abdomen as he fell to the entryway floor; he lay there moaning until appellant walked over and fired his fourth round into Doug's face. When Cobb asked why, appellant replied that "if you're going to shoot someone to kill them, to make sure they are dead so they cannot come back on you;" and that "Sherry thought Doug was so good looking--how good looking was he now?" After shooting the victim, appellant hid his vest and backup weapon in Sherry's son's closet, obtained a steak knife from the kitchen and put it beneath the body, and called 911 to report the shooting.

The following April, upon learning of appellant's admissions to Vicky Spencer and Sam Cobb, Detective Kelley sought and obtained a warrant for appellant's arrest for murder.

Appellant contends his conviction must be reversed due to ineffective assistance of trial counsel. He cites our standard adopted in Lawrence v. State (1984), Ind., 464 N.E.2d 1291 and acknowledges that to prevail on appeal, he must demonstrate both that counsel's performance fell below that of prevailing professional norms and that the result of the proceeding would have been different but for counsel's deficiencies. As appellant notes, we look to the totality of the evidence in reviewing the prejudicial impact of counsel's errors; in reviewing the performance, we assess each allegation of substandard assistance independently. Smith v. State (1989), Ind., 547 N.E.2d 817.

Appellant argues trial counsel was substandard in failing to effectively impeach the testimony of Sam Cobb. Appellant claims counsel did nothing to negate the impact of Cobb's testimony, neglecting even to question Cobb on cross-examination concerning appellant's remarks to him. However, unlike the ineffective impeachment condemned in Smith, supra, the omissions complained of here are not supported by assertions of prior inconsistent statements or other bases for impeachment. As the State points out, trial counsel did attempt to demonstrate that Cobb might have learned details of the crime from sources other than appellant. Counsel's refusal to reinforce the damaging allegations related by Cobb by repeating them further may be considered as a reasonable exercise of trial strategy, which we will not subject to hindsight analysis on review. See Van Evey v. State (1986), Ind., 499 N.E.2d 245.

Appellant argues his counsel was deficient in failing on direct examination to question him about the confession he allegedly had made to Cobb or about his admissions to Vicky Spencer. The State notes that Cobb and Spencer were the first and third witnesses, respectively, of a total of twenty called by the prosecution during their case-in-chief, while appellant was the only defense witness, and so counsel's decision not to resurrect the details of appellant's inculpatory remarks before the jury was a reasonable exercise of trial strategy. Appellant maintains in reply that "there comes a point where it simply does not make sense for an attorney not to ask certain questions," and declares that point was reached in this case when counsel failed to afford him the opportunity to negate the testimony of Cobb and Spencer. Appellant fails to demonstrate what counsel could have elicited through his testimony of such import for its omission to rise to the level of unprofessional error.

Appellant argues his counsel was deficient in failing to object to the State's introduction of his bulletproof vest and Cobb's testimony concerning it. After taking Cobb's statement, police obtained a search warrant for appellant's residence and recovered his bulletproof vest. On direct examination, appellant testified he had bought it ten or fifteen years previously after having been shot in the leg. He now asserts that since Cobb's testimony linked the jacket to the killing, counsel should have objected to its admission as irrelevant. Cobb's testimony, however, in fact did link the vest to the killing; it thus was relevant to rebut the self-defense claim. To show substandard performance in failure to object, an appellant must show that an objection, if made, would have been sustained. Hunter v. State (1991), Ind.,...