Mitchell v. State

• Decision Date: 22 November 2004
• Docket Number: No. 49A05-0312-CR-625.,49A05-0312-CR-625.
• Citation: Mitchell v. State, 821 N.E.2d 390 (Ind. App. 2004)
• Parties: Larry D. MITCHELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

821 N.E.2d 390

Larry D. MITCHELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A05-0312-CR-625.

Court of Appeals of Indiana.

November 22, 2004.

Publication Ordered January 18, 2005.

Kurt A. Young, Nashville, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Judge.

Appellant-defendant Larry D. Mitchell appeals his convictions for three counts of Murder,¹ a felony, one count of Attempted Murder,² a class A felony, one count of Robbery,³ a class B felony, and one count of carrying a Handgun Without a License,⁴ a class C felony. Specifically, Mitchell claims that the trial court committed fundamental error in instructing the jury that it could convict him as an accessory to attempted murder by finding that he knowingly aided, induced or caused another person to shoot Ashmore, one of the victims, as attempted murder requires specific intent to kill. Mitchell also claims that erroneous identification evidence offered by a victim was admitted at trial, and that the evidence was insufficient to support the convictions. Finally, Mitchell contends that the ninety-three-year enhanced sentence violated his Sixth Amendment right to a jury trial under the United States Constitution because the aggravating circumstances used to support the sentence were neither admitted by him nor found by a jury, thus contravening the rule announced in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Concluding that no reversible error occurred, we affirm the trial court's judgment.

FACTS

The facts most favorable to the judgment are that beginning in October 2001, Anthony Ashmore — a freshman at Arlington High School in Indianapolis — began living with his sister Latanya, her two children, and Latanya's boyfriend, Edward Green.

On October 5, 2001, Ashmore arrived at the residence, and eventually fell asleep on a couch shortly after Latanya left the house. At some point, Ashmore was awakened by a gunshot and observed Brian Baxter in the doorway holding a revolver. He also saw an African-American male carrying a grocery bag walk from the kitchen to the door. Terrance Thomas was standing next to Green, who was holding his side and moaning, "You already shot me." Tr. p. 143, 148-49. Thomas was observed holding Green's handgun. Baxter then began following the individual who was carrying the grocery bag outside. Thomas pointed Green's gun at him and demanded "everything." Tr. p. 152. The two men then struggled for control of the pistol, but Thomas ultimately shot Green in the head.

Thomas then pointed the gun at Ashmore and McGregor on the couch, but another individual — Edward Gilbert — entered the room, and Thomas shot him twice. Thomas then began shooting at Ashmore and McGregor. Ashmore was rendered unconscious but when he awoke, he noticed that McGregor appeared to be dead. Ashmore was then able to contact the police.

An autopsy report determined that McGregor died from two gunshot wounds. Gilbert also suffered two injuries, and it was revealed that he died from a shot to the shoulder that had perforated an artery. Green died from the gunshot wound to the head.

Later that evening — and after the shootings — several Indianapolis Police Department officers became involved in a car chase following a report that several suspects had fled from a stolen sport utility vehicle. The chase led to a neighborhood near Wishard Hospital. At some point, Officer Kenneth Kunz observed two African-American males running between some apartment buildings and directly toward his vehicle. Officer Kunz directed his spotlight on the two individuals, but they continued to flee from him. Officer Kunz exited his police vehicle, identified himself as a police officer, and ordered the individuals to stop a number of times. Officer Kunz continued to chase the men and observed one of them carrying a white bag. He then followed the suspects into an apartment building and heard a door slam on the first floor. Officer Kunz knocked on one of the doors and, when it opened, Baxter was standing there with his hands up. He was arrested, and Thomas was also apprehended in the apartment.

The police also encountered Latanya in the apartment, whereupon she requested Officer Kunz to conduct a search of the residence. The officers eventually recovered the white bag that one of the suspects had been carrying. The bag contained the two handguns that were used to shoot the victims, along with a white sheet and some liquor. The police eventually interviewed Baxter, and he stated that he, Thomas and another individual who went by the nickname "Loc" had planned to rob Green. The police conducted a computer search, and it was revealed that Mitchell had the nickname of "Loc." Appellant's App. p. 35. Thomas and Baxter also identified Mitchell in a photo array as the third individual involved in the incident.

On October 10, 2001, the State charged Mitchell with three counts of Murder, three counts of Felony Murder, Attempted Murder, Conspiracy to Commit Robbery as a class A felony, Robbery as a class A felony, Unlawful Possession of a Firearm by a Serious Violent Felon as a class B felony, and Carrying a Handgun Without a License as a class C felony.

Mitchell was arrested on October 22, 2001. From October 27 through November 1, 2001, Mitchell was incarcerated at the City-County Building lockup in Indianapolis in the same holding cell as Danny Bradley. It was revealed that Mitchell and Bradley had known each other for several years. At some point, Mitchell told Bradley that he had some "drama" and stated that he had "three M-1's." Tr. p. 277-778. Mitchell related to Bradley that he and two other men were planning to steal cash and cocaine from another individual. He went on to state that the robbery occurred in an apartment with three other males inside. Mitchell then told Bradley that after the robbery was completed, one of the victims grabbed for a gun but that one of the other individuals involved in the episode shot that person and two others. Mitchell also acknowledged to Bradley that he shot one of the victims who was admitted to the hospital in critical condition. Mitchell then told Bradley that he did not believe that the victim who had been hospitalized for gunshot wounds would be able to identify him because the victim had never met Mitchell before the robbery and shootings had occurred.

A jury trial was held on October 20, 2003. At one point, the State questioned Latanya about whether Mitchell had ever been in her apartment prior to the October 5, 2001 shootings. Latanya answered "no," and further testified that she saw an individual resembling Mitchell at a bus stop sometime prior to October 22, 2001. Tr. p. 110. Latanya stated that this individual appeared to have painted a mustache on his face, and was wearing a "hoodie." Tr. p. 112. Latanya then testified that she reported the incident to the police.

At the conclusion of the trial, Mitchell was found guilty of three counts of felony murder, one count of attempted murder, one count of robbery, and one count of carrying a handgun without a license. At the sentencing hearing on November 14, 2003, the trial court observed:

Sir, at this time, the Jury having found you guilty as charged of Count One, the Felony Murder of Mr. Green — on that count, the Court is going to sentence you to sixty-five (65) years. The Court's going to order that you serve sixty-five (65) years executed in the Department of Corrections on count Three. The Court will sentence you to sixty-five (65) years in the Department of Corrections on Count Five. On Count Seven, the Attempt Murder of Anthony Ashmore, the Court is going to sentence you to fifty (50) years in the Department of Corrections. Robbery, Count Nine, a `B' Felony. On that count, the Court is going to sentence you to twenty (20) years executed in the Department of Corrections. And on Count Sixteen, Carrying a Handgun Without a License as a Class C Felony, the Court is going to ... sentence you to eight (8) years executed in the Department of Corrections. The Court is going to order that Counts 1, 9 and 16 be served consecutive to one another — all the other counts will be concurrent.

Appellant's Br. p. 3-4. In light of the above, Mitchell was sentenced to an aggregate term of ninety-three years.

When deciding the sentence, the trial court found no mitigating circumstances and found the following aggravating factors: (1) Mitchell's "horrible criminal history of violent criminal activity beginning as a juvenile;" (2) Mitchell was on probation at the time that the instant offenses were committed; (3) the nature and circumstances of the offense, in that this was a particularly heinous crime; (4) the planning and conspiracy to commit the robbery; and (5) the fact that Mitchell was a major participant in the crime. Tr. p. 462-63. Mitchell now appeals.

DISCUSSION AND DECISION

I. Jury Instructions

Mitchell first contends that his conviction for attempted murder must be reversed because the jury was improperly instructed. Specifically, Mitchell claims that it was error to instruct the jury that it could convict him as an accessory to the offense of attempted murder by finding only that he knowingly aided, induced or caused another person to shoot Ashmore, inasmuch as attempted murder requires specific intent to kill.

In addressing Mitchell's contentions, we initially observe that the manner in which a jury is instructed rests with the trial court's discretion, and we will reverse only when an abuse of that discretion occurs. Powell v. State, 769 N.E.2d 1128, 1132 (Ind.2002). Instructions should inform the jury regarding the law applicable to the facts without misleading it and should enable the jury to understand the case and arrive at a just, fair, and correct verdict. Turner v. State, 755 N.E.2d 194, 198 (...