Monegan v. State

Decision Date30 December 1999
Docket NumberNo. 89S00-9703-CR-186.,89S00-9703-CR-186.
PartiesJoseph C. MONEGAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

721 N.E.2d 243

Joseph C. MONEGAN, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below)

No. 89S00-9703-CR-186.

Supreme Court of Indiana.

December 30, 1999.


721 N.E.2d 246
Douglas Norris, Cambridge City, Indiana, Attorney for Appellant

Jeffrey A. Modisett, Attorney General of Indiana, Suzann Weber Lupton, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

721 N.E.2d 244

721 N.E.2d 245
SULLIVAN, Justice

Defendant James Monegan was convicted of murder. We affirm that conviction, finding no reversible error in either the trial court's or defense counsel's performance. But we vacate Monegan's sentence of life without parole and remand for re-sentencing to a term of years. This is because the sole "aggravating circumstance" that supported the sentence—that Monegan committed another murder— cannot be constitutionally applied where, as here, the defendant has not been convicted of the other murder.

This Court has jurisdiction over this direct appeal because the sentence exceeds 50 years. Ind. Const. art. VII; § 4; Ind. Appellate Rule 4(A)(7).

Background

There is no factual dispute that Defendant Joseph Monegan, a juvenile, shot and killed Tyrone Deloney. The facts are in dispute, however, as to whether the killing was "accidentally" or "intentionally" executed. On June 7, 1995, Defendant and Deloney were seen arguing over money in front of an apartment building. Defendant and Deloney then walked to the back of the apartment building where, Defendant testified, they were planning to rob an individual who had taken drugs from Deloney. Defendant testified that while waiting for the individual to appear, Defendant pulled a gun out from his pocket to demonstrate how he would use the gun against the targeted individual. In his testimony, Defendant claimed that he pressed the gun to Deloney's side and clicked the trigger while holding the hammer. He then "accidentally" released the hammer, discharging the gun and shooting Deloney to death.

Immediately after hearing a gunshot, James York, who was in a nearby apartment, heard a male voice shout, "I told you not to fuck with me, mother fucker." In addition, several people saw Defendant run from the apartment building. As he fled, he pointed his gun at a woman and threatened to shoot her. Defendant took the bullets from the gun to wipe them clean and then threw the gun into a wooded area. Defendant called the police and surrendered. Defendant told the police that he had accidentally shot someone.

Shortly thereafter, Officer Steven Brown read Defendant Miranda rights and then Officer Brown and Juvenile Officer Michael French took Defendant into custody. While en route to the police station, Defendant asked them, "How much time do you think I'm going to get?" The facts are in dispute as to whether the officers or Defendant initiated communications after the Miranda warnings were given. After consulting with his mother at

721 N.E.2d 247
the police station, Defendant requested counsel and made no other statements.

At trial, Defendant asserted the affirmative defense of accident. The trial court permitted the State to rebut this defense with evidence that Defendant had previously killed two other persons pursuant to the "intent" or "absence of mistake or accident" exceptions of Ind. Evidence Rule 404(b). On October 17, 1996, a jury found Defendant guilty of Murder.1 The next day, the same jury recommended a sentence of life imprisonment without parole. The trial court agreed with the jury's recommendation and sentenced Defendant to life imprisonment without parole. Defendant appeals his conviction and sentence.

Additional facts will be provided as needed.

Discussion

I

Defendant contends that the trial court committed reversible error by admitting into evidence two prior murders allegedly committed by Defendant—one in Atlanta, Georgia, and the other in Chicago, Illinois. We agree with the State that the evidence of the Atlanta killing was properly admitted under the "intent" exception of Evid. R. 404(b), rebutting the defense of accident. We also find that although the trial court erred in admitting the evidence pertaining to the Chicago murder, the error was harmless.

A

The Killing in Atlanta, Georgia. At trial, the court permitted the State to present the following evidence. Barbara Gipson testified that on March 25, 1995, Robert Harris was shot and killed in his home in Atlanta, Georgia. Gipson, Harris's common law wife, witnessed the killing. Gipson further testified that Defendant demanded money from her and Harris for the purpose of purchasing cocaine but neither had any money. Defendant, armed with a handgun, pressed the gun against Gipson's neck and threatened to kill Gipson if Harris did not produce the money. In attempting to save Gipson's life, Harris tried to grab Defendant but instead tripped and fell to the ground. Defendant then shot Harris, smiled, and walked away.

Barbara's daughter, Cynthia Gipson, and Cynthia's companion, Chad Carswell, heard the shot from a nearby room. Cynthia testified that she ran to where she heard the gunshot and saw Defendant exiting the room. As Defendant was leaving the room, he told Cynthia that he did not mean to shoot Harris, her step-father. Shortly after Defendant fled from the scene, Harris died from the gunshot wound.2

Detective Walter Mortlock investigated the Atlanta shooting. He testified that Barbara Gipson identified Defendant in a photo array as the perpetrator who killed her husband. Although Defendant was never formally charged for the murder of Harris, the State of Georgia had an outstanding warrant for his arrest.

Defendant objected to the use of the Atlanta murder evidence. He contended that it should be excluded under Evid. R. 404 on grounds that it was character evidence, offered to prove action and conformity therewith. He also argued that the evidence should be excluded under Evid. R. 403 because its probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence.3

721 N.E.2d 248
On appeal, Defendant also argues that the uncharged killing of Harris and the killing of Deloney are too unrelated and remote in time to be admissible under the "intent" or "absent mistake or accident" exceptions of Evid. R. 404(b).

Indiana Evidence Rule 404(b) provides, "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident...." "`The well established rationale behind Evidence Rule 404(b) is that the jury is precluded from making the "forbidden inference" that the defendant had a criminal propensity and therefore engaged in the charged conduct.'" Charlton v. State, 702 N.E.2d 1045, 1050 (Ind.1998) (quoting Thompson v. State, 690 N.E.2d 224, 233 (Ind.1997)); see also Hicks v. State, 690 N.E.2d 215, 218-19 (Ind.1997). When a defendant objects to the admission of evidence on the grounds that it violates Evid. R. 404(b), we: (1) determine whether the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act; and (2) balance the probative value of the evidence against its prejudicial effect pursuant to Evid. R. 403.4 Hicks, 690 N.E.2d at 221. We review the relevance and balancing issues for an abuse of discretion. See Thompson, 690 N.E.2d at 233.

Evid. R. 404(b) does not authorize the general use of prior conduct evidence as proof of the general or specific intent element in criminal offenses. See Wickizer v. State, 626 N.E.2d 795, 799 (Ind.1993). However, the "intent" exception contemplated in Evid. R. 404(b) may be available when a defendant goes beyond merely denying the charged culpability and affirmatively presents a claim of particularly contrary intent in opening argument, by cross-examination of State's witnesses, or by defendant's case-in-chief presentation. Id. In some circumstances, the State may be allowed to respond by offering evidence of prior crimes, wrongs, or acts to the extent genuinely relevant to prove the defendant's intent at the time of the charged offense. Id. But, as we previously held, the "intent" exception of Evid. R. 404(b) is narrowly construed. Id.

In this case, Defendant affirmatively asserted in opening argument that he accidentally shot Deloney, putting at issue the "intent" element of the homicide offense. Intent and knowledge are elements which the State must establish to prove Murder under Ind.Code § 35-42-1-1 (1993).5 As such, extrinsic evidence that Defendant intentionally killed another person but then later claimed it was an accident was relevant to Defendant's claim that the Deloney murder was also an accident. That is, the evidence that Defendant had previously intentionally killed another but claimed that it was an accident has a tendency to make the credibility of his claim of accident in this case less probable than it would be without the evidence. See Evid. R. 401. This meets the test of relevance required by Hicks and comports with similar holdings in this and other jurisdictions. See McEwen v. State, 695 N.E.2d 79, 88 (Ind.1998) (finding that a defendant's prior assaults on his girlfriend were relevant to assessing the defendant's claim that he accidentally stabbed and killed his girlfriend); Clemens v. State, 610

721 N.E.2d 249
N.E.2d 236, 242 (Ind.1993) (holding that evidence that a father abused one child was properly admitted to rebut his claim that accidental injuries caused another child's death pursuant to Evid. R. 404(b) absence of mistake or accident), reh'g denied; Davidson v. State, 558 N.E.2d 1077, 1083-84 (Ind.1990) (declaring that the defendant's previously uncharged...

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