McCorker v. State

• Decision Date: 16 October 2003
• Docket Number: No. 45S05-0305-CR-224.,45S05-0305-CR-224.
• Citation: 797 N.E.2d 257
• Parties: Christopher McCORKER, Appellant (Defendant below), v. STATE of Indiana, Appellees (Plaintiff below).
• Court: Indiana Supreme Court

797 N.E.2d 257

Christopher McCORKER, Appellant (Defendant below), v. STATE of Indiana, Appellees (Plaintiff below).

No. 45S05-0305-CR-224.

Supreme Court of Indiana.

October 16, 2003.

Marce Gonzalez, Jr., Merrillville, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. SULLIVAN, Justice.

Defendant Christopher McCorker appeals his multiple convictions for robbery and confinement and his resulting sentence of 65 years. Our principal concern in this case is a jury instruction that Defendant contends, and the Court of Appeals agreed, relieved the State of its burden of proof by creating an impermissible mandatory presumption. Although we find the instruction to have been inartfully worded in several respects, we affirm the convictions because the instruction is a correct statement of law. To the extent the instruction creates a mandatory presumption, it is a permissible one. This conclusion is contrary to that of the Court of Appeals in its recent case, Walker v. State,¹ which we now disapprove.

Background

The evidence most favorable to the judgment indicates that on December 26, 2000, an armed robbery took place at the Cash Indiana Pawn Shop in Lake Station. Three employees were working at the time of the robbery. Three men entered the store. One man, whom the first employee later identified as Defendant, jumped over the counter towards the second employee. The employee attempted to pull his own gun until he saw the other men pointing guns at him. The employee then placed his gun on the floor. Defendant held the employee at gunpoint and retrieved his gun from the floor. Defendant pushed the employee toward the bathroom. Though the employee struggled, Defendant overpowered him and shoved him against the counter. Defendant fired his gun into the air and threw the employee to the ground saying, "If you move again, mother fucker, I'll shoot you." Defendant then put his gun in the first employee's face and ordered him to get down. After the employee got down, Defendant cocked the gun, placed it in the employee's mouth, and threatened to shoot him if he said a word. At gunpoint, the third employee was ordered to the safe and instructed to remove an envelope full of money. Defendant also sought the security tape but the employee gave him a dummie tape. The robbers confined the three employees and two customers in the bathroom. The bathroom door was shut and the people in the restroom heard glass breaking. Once it was quiet, the victims exited the bathroom and pushed the security button. The first employee later identified Defendant and Teddia Caldwell as the robbers from photo arrays.

A second armed robbery occurred on January 27, 2001, at the Smoke Shop in Hammond, Indiana. As an employee who was working at the time was giving a man change from a cigarette purchase, the man and another who was with him pulled their guns. Both men announced that it was a robbery. Caldwell went around the corner of the counter, undid the chain, and ordered the employee to open the cash register. After the employee opened the cash register, Caldwell began taking out money. Defendant meanwhile pointed his gun at the employee and said repeatedly, "I'm going to kill you." Defendant and Caldwell then told the employee to open the safe. However, upon learning that the employee did not know the combination, Defendant ordered him to go to the back with him. Again, Defendant pointed his gun at the employee and repeated, "I'm going to kill you, I'm going to kill you." Caldwell then tied the employee up with duct tape in the back room. Defendant and Caldwell removed items from the store, including the security video. After the two men left, the employee hit a "panic" button. He later identified Defendant and Caldwell from photo arrays.

A few hours later, another armed robbery took place at the Cigarettes Cheaper Store in Hobart, Indiana. The store manager was working at the time of the robbery. Defendant and another man entered the store and Defendant put his gun in the manager's side. Defendant took the manager into the back room at gunpoint, threw her onto the floor, and told her he would kill her if she did anything. The manager begged for her life. Meanwhile, a customer entered the store to buy cigarettes and saw Caldwell. After getting her cigarettes, the customer waited at the cash register. When a few minutes passed, the customer asked Caldwell how much longer the clerk was going to be. Defendant than walked up to the customer with a gun in his hand and told her to go to the back room. She went to the back and sat down with the manager. Defendant then instructed the manager to open the cash register and she gave Defendant the keys to do so. After getting the keys, Defendant pulled the door to the back room shut. Defendant and Caldwell left the scene before removing money from the cash register but they still had the register keys in their possession.

The customer's husband saw these events while waiting in the car. He called the police on his cell phone. The police apprehended Defendant and Caldwell after a pursuit. The manager and the customer's husband later identified Defendant from a photo array.

As a result of these three incidents, Defendant was charged with four counts of robbery as Class B felonies² and eight counts of criminal confinement³ and was alleged to be a habitual offender. He was tried on all these counts in a single proceeding.

At trial, Caldwell testified against Defendant. Caldwell said that he had been charged with robbery in the three incidents and had entered a plea agreement with the State where he pled guilty to one count in each. Caldwell further testified that Defendant had been with him at each of the three robberies and that Defendant was the most forceful during at least one of the robberies; Defendant had carried guns during each robbery and had actually fired his gun on one occasion; Defendant had threatened to harm or kill those present in the three locations; and that Defendant had participated in removing items from the premises of the three stores. Each of these statements was corroborated by the testimony given by the various individuals present in the three stores at the time of the individual robberies.

At the time of Defendant's trial, Caldwell had not yet been sentenced. On cross-examination, Defendant's counsel attempted to question Caldwell regarding the sentence he was facing pursuant to the plea agreement. At a bench conference, the trial judge refused to let Defendant question Caldwell about a possible sentence and then proceeded to advise the jury that the potential sentence was within the sole discretion of the court.

When the court gave its instructions to the jury, included among those instructions was jury instruction no. 8, which will be set forth in its entirety and discussed at length infra. The instruction advised the jury on the law of accomplice liability. Defendant did not object to this instruction. The jury found Defendant guilty of all counts. The trial court sentenced Defendant to 20 years on each of the two robbery counts in the Cash Indiana Pawn Shop incident, to be served concurrently. In addition, Defendant was sentenced to 20 years for each of the robbery counts in the Smoke Shop and Cigarettes Cheaper Store incidents, to be served concurrently with each other but consecutively to the sentence for the Cash Indiana Pawn Shop incident. Finally, Defendant pled guilty to being a habitual offender. Consequently, the trial court sentenced him to 25 years on the habitual offender count, to be served consecutively to the robbery sentences. Thus, Defendant was sentenced to a total of 65 years.

The Court of Appeals reversed Defendant's convictions, holding that jury instruction no. 8 constituted fundamental error. McCorker v. State, 783 N.E.2d 801 (Ind.Ct.App.2003) (mem.). In doing so, the Court of Appeals followed the reasoning of its recent decision, Walker v. State, 779 N.E.2d 1158 (Ind.Ct.App.2002) (opinion on reh'g),⁴ trans. denied, 792 N.E.2d 33 (Ind.2003). We granted the State's petition to transfer in McCorker. 792 N.E.2d 47 (Ind.2003).

Discussion

I

Defendant contends that the trial court committed reversible error when it gave jury instruction no. 8, arguing that the instruction shifted the State's burden of proof to Defendant. Because no objection was made to the giving of the instruction at trial, Defendant invokes the "fundamental error" doctrine. See Goodwin v. State, 783 N.E.2d 686, 687 (Ind.2003) (fundamental error doctrine permits reversal of a conviction even though defendant did not object at trial or otherwise preserve the claim for appeal). Fundamental error occurs when there has been a "blatant violation of basic principles" that denies a defendant "fundamental due process." Id. (quoting Wilson v. State, 514 N.E.2d 282, 284 (Ind.1987)

).

A

We examine the procedural aspects of this claim before moving to the substantive. In Walker v. State, 779 N.E.2d 1158, the Court of Appeals granted petitioner Walker post-conviction relief on grounds that he had been denied his Sixth Amendment right to the effective assistance of counsel when counsel failed to object to an instruction identical to instruction no. 8.

As noted, Walker's relief was granted in a post-conviction proceeding on grounds of ineffective assistance of counsel. Defendant here seeks relief in a direct appeal on grounds of fundamental error. The Court of Appeals here followed Walker's conclusion by finding the instruction to be erroneous and Walker's result by granting relief. This is not surprising. While we frame the standard for ineffective assistance of counsel and fundamental error in somewhat different terms—appropriately so, since the first is a standard of Federal Constitutional law and the second of state criminal procedure⁵—they will invariably operate to...