Lemond v. State
| Decision Date | 21 December 2007 |
| Docket Number | No. 63A04-0702-CR-105.,63A04-0702-CR-105. |
| Citation | 878 N.E.2d 384 |
| Parties | Billy J. LEMOND, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Terry A. White, Olsen, White & Hambidge, LLP Evansville, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Joby D. Jerrells, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Billy J. Lemond appeals his convictions of and sentences for attempted murder, a Class A felony,1 and criminal recklessness, a Class D felony.2 We affirm.
In the fall of 2005, Lemond's ex-wife, Rhonda Mattingly, sought a protective order for herself and their daughter, A.N.L. Lemond did not want A.N.L.'s name to appear on the protective order because he wanted to be able to exercise his visitation rights. On September 6, 2005, Lemond, Mattingly, and A.N.L. attended a hearing concerning the protective order. After the hearing, Mattingly and A.N.L. waited in the hallway while the court finished some paperwork. They were laughing about something when Lemond walked past them and said, "[Y]ou may be laughing now but tomorrow, it's going to be a really rough day." (Tr. at 231.)
The next day, Lemond was to appear in the Dubois Circuit Court to face an intimidation charge Mattingly initiated. Mattingly and A.N.L. planned to attend the hearing. As they were driving along the Winslow-Cato Road toward Jasper, Lemond stepped out of the woods on the right side of the road. He fired two shots, which went through the windshield and caused Mattingly to swerve off the road. After quickly checking to see where Lemond was, Mattingly sped away, and Lemond fired some additional shots. Mattingly stopped at the nearest gas station and called 911. Neither she nor A.N.L. had been shot, but A.N.L. had some cuts from the glass.
Both Mattingly and A.N.L. identified Lemond as the shooter. Lemond was arrested and charged with attempted murder of Mattingly, attempted murder of A.N.L., and criminal recklessness with a deadly weapon.
Through taped phone conversations Lemond made from the jail, it was discovered that Lemond's brother-in-law, Kenneth Myers, had found the gun Lemond used. Jeremy Arnold, who was engaged to Myers' daughter, disposed of the gun in a river. Myers and Arnold were given immunity in exchange for their cooperation in finding the gun and testifying at trial. The gun was never found, but excerpts from the tape were played at the trial.
Lemond testified he did not intend to kill Mattingly or A.N.L., but wanted to scare Mattingly so she would drop the intimidation charge and stop permitting A.N.L. to date an older man. He testified he was aiming for the radiator, but his hand jerked upwards when he fired the gun.
The jury found Lemond guilty of attempted murder of Mattingly and criminal recklessness. Lemond was sentenced to forty-five years for attempted murder and two-and-a-half years for criminal recklessness, to be served concurrently.
Lemond raises several issues, which we restate as follows: (1) whether the failure to give instructions on lesser included offenses was fundamental error; (2) whether the jury verdicts were inconsistent; (3) whether the trial court abused its discretion by disallowing questions submitted by the jury; (4) whether counsel was ineffective; (5) whether the trial judge was biased; and (6) whether his sentence is inappropriate.
Lemond asserts the jury should have been instructed on battery with a deadly weapon and criminal recklessness as lesser included offenses of attempted murder. Lemond acknowledges counsel did not submit instructions on these offenses. See Ortiz v. State, 766 N.E.2d 370, 375 (Ind.2002) (). Therefore, he argues the lack of instruction was fundamental error.
The fundamental error doctrine provides a vehicle for the review of error not properly preserved for appeal. In order to be fundamental, the error must represent a blatant violation of basic principles rendering the trial unfair to the defendant and thereby depriving the defendant of fundamental due process.
The error must be so prejudicial to the defendant's rights as to make a fair trial impossible. In considering whether a claimed error denied the defendant a fair trial, we determine whether the resulting harm or potential for harm is substantial.
Id. (citations omitted).
In deciding whether to give an instruction on lesser included offenses, the trial court should determine if the offense is inherently included in the charged offense. Wright v. State, 658 N.E.2d 563, 566 (Ind.1995). If it is not inherently included, the court should determine whether it is factually included. Id. at 567. If the offense is either inherently or factually included, the court must give the instruction if there is a serious evidentiary dispute about the elements distinguishing the offenses. Id.
There was no basis for an instruction on battery with a deadly weapon, which is defined as follows:
(a) A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is:
* * * * * *
(3) a Class C felony if it ... is committed by means of a deadly weapon[.]
Ind.Code § 35-42-2-1. Lemond's defense was that he never intended to hit Mattingly or A.N.L., but was trying only to scare Mattingly. There was no evidence Lemond tried to hit, but not kill, either Mattingly or A.N.L. Therefore, even assuming this offense is factually included in attempted murder, there was no evidentiary dispute to support an instruction.
The jury was instructed on the elements of criminal recklessness. Apparently Lemond believes the jury should have specifically been told criminal recklessness was a lesser included offense of attempted murder. He argues he was prejudiced in that "the jury was never given the opportunity to determine that [his] acts amounted to something less than the charged crime of attempted murder." (Appellant's Reply Br. at 3.) If the jury believed Lemond's actions constituted some offense of lesser culpability, it had the opportunity to find him not guilty of attempted murder. The jury was properly instructed it must find Lemond not guilty of attempted murder unless the State proved specific intent to kill beyond a reasonable doubt. We presume a properly instructed jury follows those instructions. Chandler v. State, 581 N.E.2d 1233, 1237 (Ind.1991). Therefore, failure to give the instructions suggested by Lemond on appeal was not fundamental error.
Lemond argues the jury's verdicts were inconsistent because it found the same conduct simultaneously intentional and reckless. "When reviewing the consistency of jury verdicts, we will take corrective action only when the verdicts are `extremely contradictory and irreconcilable.'" Jones v. State, 689 N.E.2d 722, 724 (Ind.1997) (citation omitted). The jury verdicts in this case are not irreconcilable. There was evidence Lemond was upset with Mattingly, but had some affection for A.N.L. The jury could logically conclude Lemond had specific intent to kill Mattingly, but not A.N.L. Nevertheless, A.N.L. was sitting next to Mattingly in the car as Lemond was shooting, so the jury could conclude his conduct was reckless toward A.N.L.
Next, Lemond asserts the trial court should have permitted witnesses to answer certain questions submitted by the jury. In the preliminary instructions, the trial court informed the jurors that if they had questions for a witness, they could submit written questions after the attorneys finished questioning the witness, but before the witness left the stand. See Ind. Jury Rule 20 (); Ind. Evidence Rule 614(d) (). After each witness testified, the court asked the jurors if they had questions.
The jurors had no questions during the presentation of evidence. After the close of the evidence, the bailiff informed the trial court the jurors had submitted two questions. The trial court decided not to permit the questions because the jurors had been instructed to submit them while the witnesses were on the stand. Lemond wished to permit the questions because the witnesses were still available. No offer of proof was made, so the record does not indicate the nature of the jury's questions. It is not clear the trial court or either counsel read the questions. (See Tr. at 514-15.)
Whether to propound a juror's question is within the discretion of the trial court. Dowdy v. State, 672 N.E.2d 948, 953 (Ind.Ct.App.1996), trans. denied 683 N.E.2d 584 (Ind.1997). Accordingly, we review the decision for abuse of discretion. See Sleck v. State, 175 Ind.App. 22, 369 N.E.2d 963, 965 (1977).
A trial court has discretion to adopt various procedures for eliciting jury questions. See Howard v. State, 818 N.E.2d 469, 479 (Ind.Ct.App.2004), trans. denied 831 N.E.2d 735 (Ind.2005). Here, the trial court had instructed the jurors that they could submit written questions after the attorneys finished questioning the witness, but before the witness left the stand. The jurors did not do that, and we cannot say the trial court abused its discretion by not reopening the case and recalling witnesses to the stand. Id.3
Further, this issue has been waived by Lemond's failure to make an offer of proof. "Error may not be predicated upon a ruling which ... excludes evidence unless . . . the substance of the evidence was made known to the court by a proper offer of proof, or was apparent from the context within which questions were asked." Evid. R. 103(a).
Lemond claims his counsel was ineffective in that he: (1) did not...
To continue reading
Request your trial
- Bethea v. State
- Turkette v. State
- Hogan v. State
- Heyen v. State