Powell v. State
| Decision Date | 18 June 2002 |
| Docket Number | No. 49S00-0009-CR-562.,49S00-0009-CR-562. |
| Citation | 769 N.E.2d 1128 |
| Parties | Myron A. POWELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Supreme Court |
Eric K. Koselke, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
A jury convicted Indianapolis police officer Myron Powell of felony murder for his role in the attempted robbery and shooting death of a suspected drug dealer. The trial court sentenced him to sixty-five years imprisonment. In this direct appeal, Powell raises four issues for our review, which we rephrase as follows: (1) is Powell's conviction for felony murder inconsistent with his acquittal for robbery; (2) did the trial court err in refusing Powell's tendered instruction on accomplice liability; (3) did the trial court err in sentencing Powell; and (4) is Powell's sentence manifestly unreasonable. We affirm.
The facts most favorable to the verdict show that in the evening hours of December 11, 1997, David Hairston was present at his home in Indianapolis. Also present were twenty-year-old Khalalah and fifteen-year-old Michael. When the doorbell rang, Khalalah answered and observed two men, one of whom was wearing a police uniform. She also observed an Indianapolis Police Department patrol car parked in front of the house. The man wearing the uniform asked to speak with "Big C," which was Hairston's nickname. Khalalah shut the door, leaving the men outside, and yelled to Hairston that the police wanted to talk to him. In the meantime, the two men entered the house and waited in the foyer. Hairston came to the door and inquired, "What's the problem, Officers?" R. at 1373. The man in the uniform responded, "We just busted one of your friends and [he] said you had a lot of drugs over here." R. at 1374. When Hairston asked to see a search warrant, the uniformed officer replied that additional police officers were en route to the house with the document. Hairston then told the pair to wait outside until the other officers arrived. However, the two men refused to leave. Hairston then demanded their names and badge numbers. The officer in uniform stated that his name was "Thompson." Suspecting something was amiss, Hairston brushed aside the officer's coat and saw a nametag that read "Powell." R. at 1291.
At that point, the second man, later identified as Michael Highbaugh, produced a handgun, placed the barrel against Hairston's temple, and ordered him to lie on the floor. Hairston refused, and Highbaugh shot him once in the head. He died as a result. In the meantime, Khalalah and Michael had run from the foyer into the kitchen. Highbaugh shot Michael in the head as he was trying to exit through a kitchen window. The resulting wound was not fatal, and Michael lay motionless pretending to be dead. Highbaugh then placed the barrel of the gun against Khalalah's head and pulled the trigger. When it misfired, he grabbed a knife and stabbed her several times in the neck. She survived and identified Powell as the man in the uniform.
From his position on the kitchen floor, Michael heard footsteps running throughout the house. After several minutes, he saw Powell rushing out the front door carrying three bags, one of which appeared to contain marijuana. When Powell and Highbaugh were finally gone, Michael locked the door and called the police. Officers from the Indianapolis Police Department arrived and observed a large safe that had been moved from Hairston's bedroom closet to the front porch. It contained $75,000 in cash, a semi-automatic handgun, jewelry, and a $5000 Certificate of Deposit. Officers also recovered from the house a scale used to weigh narcotics, $22,000 in cash, and a large quantity of cocaine and marijuana.
The State charged Powell with murder, felony murder, two counts of attempted murder, and robbery. The State also sought the death penalty but later amended its complaint and sought life imprisonment without parole.1 After a jury trial, Powell was convicted of felony murder and acquitted of the remaining charges. The trial court sentenced Powell to sixty-five years imprisonment. This appeal followed.
Because the jury found Powell guilty of felony murder but acquitted him of robbery, Powell argues these verdicts are inconsistent because robbery was "the only... underlying felony used to support his felony murder conviction." Br. of Appellant at 8. Therefore, the argument continues, this Court should reverse his felony murder conviction.
When this Court reviews a claim of inconsistent jury verdicts, "we will take corrective action only when the verdicts are extremely contradictory and irreconcilable." Mitchell v. State, 726 N.E.2d 1228, 1239 (Ind.2000) (quotation omitted). A jury's verdict may be inconsistent or even illogical but nevertheless permissible if it is supported by sufficient evidence. Totten v. State, 486 N.E.2d 519, 522 (Ind. 1985); see also Hodge v. State, 688 N.E.2d 1246, 1248-49 (Ind.1997) (). In resolving such a claim, we neither interpret nor speculate about the thought process or motivation of the jury in reaching its verdict. Mitchell, 726 N.E.2d at 1239.
Powell's argument is based on a faulty premise. Rather than relying solely on the commission of a robbery as the crime underlying the felony murder charge, the record shows the State relied on alternative theories, namely: robbery or attempted robbery.2 Evidence that a locked safe in Hairston's home had been moved from the closet to the front porch was sufficient for the jury to conclude that Powell intended to rob Hairston but simply did not complete the job. Powell's conviction for felony murder with attempted robbery as the underlying felony is not inconsistent with his acquittal for robbery.
Powell tendered the following jury instruction on accomplice liability:
The criminal liability of an accomplice is negated by the principal's commission of an offense greater in severity than the offense originally planned if the resulting offense is not a probable and natural consequence of the planned offense.
R. at 969 (emphasis in original). The trial court refused to give Powell's tendered instruction and instead gave its own, which read in pertinent part:
In order to be held responsible for the actions of another, [a defendant] need only have knowledge that he is helping in the commission of the charged crime. He does not have to personally participate in the crime nor does he have to be present when the crime is committed.
R. at 1004-05 (Instruction No. 10 B). Powell complains the trial court erred in refusing to give his proposed tendered instruction.
The manner of instructing a jury lies largely within the sound discretion of the trial court, and we review the trial court's decision only for an abuse of that discretion. Cline v. State, 726 N.E.2d 1249, 1256 (Ind.2000). The test for reviewing the trial court's decision to refuse a tendered instruction is: (1) whether the instruction correctly states the law; (2) whether there was evidence in the record to support the giving of the instruction; and (3) whether the substance of the instruction is covered by other instructions given by the court. Id. Although Powell contends otherwise, the substance of his instruction—accomplice liability—is contained in the instruction given by the trial court. We find no error on this issue.
In a related argument, Powell also complains the trial court erred in refusing to give his tendered instruction on accomplice liability after the jury sent a note to the trial court. The facts are these. In the late evening hours during the first day of deliberations, the jury sent two questions to the trial court. The one at issue here read as follows:
Could we have clarification in relationship to Instruction 10B? Does the sentence, ["]a person is responsible for the actions of another person when either before or during the commission of a crime, he knowingly aids, induces, or causes the other person to commit a crime, even if the other person ... ["] does this crime, underlined, have to be the exact crime that eventually was committed, robbery, murder?
R. at 1763-64. After discussing the matter with the parties outside the jury's presence, the trial court returned the jury to the courtroom, advised them that court would be adjourned for the day, and that the trial court would answer the jury's questions the following morning. The next day, over Powell's objection, the trial court responded, R. at 1791. In this appeal, Powell contends the trial court should have re-read all of the final instructions along with his previously rejected tendered instruction.3
Indiana Code section 34-36-1-6 provides:
If, after the jury retires for deliberation:
(1) there is a disagreement among the jurors as to any part of the testimony; or
(2) the jury desires to be informed as to any point of law arising in the case;
the jury may request the officer to conduct them into court, where the information required shall be...
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