Smith v. State
| Decision Date | 07 April 2022 |
| Docket Number | 21A-CR-905 |
| Parties | Floyd Smith, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff, |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata collateral estoppel, or the law of the case.
Appeal from the Tippecanoe Superior Court The Honorable Randy J Williams, Judge Trial Court Cause No. 79D01-2003-MR-3
ATTORNEY FOR APPELLANT
Bruce W. Graham
Graham Law Firm P.C.
Lafayette, Indiana
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Ellen H. Meilaender
Supervising Deputy Attorney General
Indianapolis, Indiana
[¶1] Following a jury trial, Floyd Smith was convicted of murder. The trial court sentenced Smith to sixty years to be served in the Indiana Department of Correction ("DOC").
[¶2] Smith now appeals his conviction and sentence, raising multiple issues for our
review which we restate as: (1) whether the trial court abused its discretion by failing to give a lesser-included offense instruction; (2) whether the information charging Smith with murder constituted fundamental error; and (3) whether Smith's sentence is inappropriate in light of the nature of his offense and his character. Concluding the trial court did not abuse its discretion by refusing to instruct the jury of a lesser-included offense, the charging information did not constitute fundamental error, and Smith's sentence was not inappropriate, we affirm.
[¶3] On March 7, 2020, Smith, Joseph Wilkerson, and Nathan Reene met at a sports bar in Lafayette, Indiana, to have a drink. While they were drinking, Smith suggested to Wilkerson that they should kill a mutual friend named Donnie Alkire and Wilkerson agreed. Smith offered to drive Reene home but stated they needed to stop at Alkire's apartment first. When the three men arrived at Alkire's residence, Reene was told to wait on the porch. While still in the vehicle, Smith gave Wilkerson a knife and "threatened [his] family" if Wilkerson did not go along with the plan to kill Alkire. Transcript, Volume II at 175. Smith told Wilkerson that he would give him a signal when to kill Alkire. See id. at 177. Smith and Wilkerson then went to Alkire's apartment and were let inside by Alkire.
[¶4] The men spoke for several minutes until Smith gave Wilkerson "[a] little head nod and wink" which signaled Wilkerson to stand up and stab Alkire in the neck. Id. at 180. Wilkerson and Smith then exited the apartment, during which Wilkerson dropped the knife. John Tankersley, the building manager, and Robert LaCosse, Alkire's neighbor, heard the commotion in Alkire's room and found Alkire in his apartment profusely bleeding from his neck and mouth. Tankersley ran downstairs and saw Smith, Wilkerson, and Reene driving away. LaCosse called the police. After Smith dropped Reene off at his home, Reene also called the police and reported the incident. Alkire was transported to the hospital where he died from his injury. Both Smith and Wilkerson were arrested later that night.
[¶5] On March 12, 2020, the State charged Smith with conspiracy to commit murder, a Level 1 felony; assisting a criminal, a Level 5 felony; and murder. The charging information for Smith's murder charge stated the following:
On or about March 7, 2020, in Tippecanoe County, State of Indiana, Floyd Wayne-Lenord Smith and/or Joseph Zachariah Wilkerson did knowingly or intentionally kill another human being, to-wit: Donald Lawrence Alkire[.]
Appellant's Appendix, Volume II at 16 (emphasis added). Smith did not object to the charging information or move to have it dismissed.
[¶6] At trial, Smith tendered an instruction for reckless homicide as a lesser-included offense of murder which read:
[¶7] The trial court gave the jury an instruction on the murder charge and then instructed them regarding accomplice liability stating, "A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense." Id. at 181. The jury found Smith guilty on all counts. At the sentencing hearing, the trial court vacated Smith's conspiracy to commit murder and assisting a criminal charges due to double jeopardy concerns and entered judgment of conviction only for murder.
[¶8] The trial court found Smith's history of employment and family support to be mitigating circumstances. As aggravating circumstances, the trial court found Smith's criminal and substance abuse history and his failed attempts at rehabilitation. The trial court sentenced Smith to sixty years in the DOC. Smith now appeals. Additional facts will be provided as necessary.
[¶9] Smith argues that the trial court erred by refusing to instruct the jury regarding the lesser-included offense of reckless homicide as a Level 5 felony. When a defendant requests a lesser-included offense instruction, the trial court applies a three-part analysis:
(1) determine whether the lesser-included offense is inherently included in the crime charged; if not, (2) determine whether the lesser-included offense is factually included in the crime charged; and, if either, (3) determine whether a serious evidentiary dispute exists whereby the jury could conclude that the lesser offense was committed but not the greater.
Miller v. State, 720 N.E.2d 696, 702 (Ind. 1999) (citation omitted).
[¶10] The only element distinguishing murder and reckless homicide is the defendant's state of mind: reckless homicide occurs when the defendant "recklessly" kills another human being, and murder occurs when the killing is done "knowingly" or "intentionally." Compare Ind. Code § 35-42-1-5, with Ind. Code § 35-42-1-1(1). Reckless conduct is action taken in "plain, conscious, and unjustifiable disregard" of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct. Ind. Code § 35-41-2-2(c). By contrast, a person engages in conduct "intentionally" if, when he engages in the conduct, it is his "conscious objective" to do so, Ind. Code § 35-41-2-2(a), and a person engages in conduct "knowingly" if, when the person engages in conduct, the person is aware of a "high probability" that he or she is doing so, Ind. Code § 35-41-2-2(b). The State concedes that reckless homicide is inherently included in murder. See Brief of Appellee at 17. Thus, the determinative issue here is whether the evidence produced a serious evidentiary dispute concerning Smith's state of mind that would justify giving the requested instruction.
[¶11] When the trial court makes a finding as to the existence or absence of a substantial evidentiary dispute, we review the rejection of a tendered instruction for an abuse of discretion. Brown v. State, 703 N.E.2d 1010, 1019 (Ind. 1998). This finding need be no more than a statement on the record that reflects that the trial court considered the evidence and determined no serious dispute existed. Id. The trial court did not make an express finding that there was not a substantial evidentiary dispute; however, the court did state that reckless homicide is "inherently a lesser included" and it is clear from the transcript that both parties made arguments regarding Smith's state of mind and whether "a serious evidentiary dispute exists[.]" Amended Transcript, Volume III at 23-24.
[¶12] Here, the record shows that Smith suggested to Wilkerson that they should kill Alkire. Smith gave Wilkerson a knife and "threatened [his] family" if he didn't go along with the plan to kill Alkire. Tr., Vol. II at 175. And Smith gave Wilkerson "[a] little head nod and wink" which signaled Wilkerson to stab Alkire in the neck. Id. at 180. We conclude Smith's actions were conducted knowingly or intentionally and there was no appreciable evidence of recklessness and therefore no serious evidentiary dispute on the element distinguishing murder from reckless homicide. Accordingly, the trial court did not abuse its discretion by refusing to instruct the jury of the lesser-included offense of reckless homicide.
Grimes v. State, 84 N.E.3d 635, 640 (Ind.Ct.App. 2017) (internal citations and quotations marks omitted), trans. denied.
[¶14] The State...
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