Taylor v. State

Citation681 N.E.2d 1105
Decision Date12 June 1997
Docket NumberNo. 49S00-9511-CR-1260,49S00-9511-CR-1260
PartiesDenon A. TAYLOR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Supreme Court

M.E. Tuke, Indianapolis, for appellant.

Pamela Carter, Attorney General, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, for appellee.

BOEHM, Justice.

A jury convicted Denon A. Taylor of one count of murder, one count of attempted murder, a Class A felony, and carrying a handgun without a license, a Class A misdemeanor. The State initially sought the death penalty, but withdrew that request before trial. Taylor was sentenced to a combined term of 100 years in prison. In this direct appeal, he raises five issues for our review:

I. Did the trial court commit reversible error in its instruction that "lying in wait" can be proof of specific intent to commit murder?

II. Did the instruction's "emphasis on lying in wait" impermissibly shift the burden of persuasion to the defendant as to intent?

III. Did the presence in the jury room of a withdrawn death sentence request constitute reversible error?

IV. Were the convictions supported by sufficient evidence?

V. Was the sentence imposed manifestly unreasonable?

We affirm.

Factual and Procedural Background

Denon Taylor was convicted by a jury of murdering his wife, Dorthea Taylor. Dorthea was killed in the early morning hours of December 6, 1992, outside the Indianapolis apartment building where she had taken an apartment the day before. She had filed for divorce on September 29, 1992, and had obtained a restraining order against Taylor on November 23, 1992, based on his physical abuse and threats to kill her.

Cecil Holly also had an apartment in Dorthea's new building. On the evening before her death, Dorthea was to attend an office Christmas party. She lent her car to Holly who dropped her off at a friend's house to proceed to the party. Holly then picked up his youngest brother and a friend. As the three were driving in downtown Indianapolis, they coincidentally passed Taylor, who recognized Dorthea's car and pursued it. At one stop, Taylor initiated a verbal exchange with Holly and challenged Holly's use of Dorthea's car. At a second stop Holly could see Taylor possessed a handgun. With Taylor following, Holly then drove to a nearby nightclub where he knew off-duty police served as security guards and informed a guard in the parking lot of the club that Taylor had a handgun. The officer searched Taylor, but found no gun on his person. The guard then told Holly to leave while he spoke with Taylor. Holly returned to his home where Taylor telephoned him three times within an hour. Among other things, Taylor said that if he could not have Dorthea, nobody could, and that he would kill her. After the last of the calls, Holly received a page from Dorthea and went to pick her up at her friend's house.

In the meantime, after the last of his calls to Holly, Taylor telephoned Alif Rogers, a friend, and asked him to come over to Taylor's home, which Rogers did. When Rogers arrived, Taylor got in the car, and told Rogers to drive to Dorthea's apartment building. On arrival, the two drove around the parking lot looking for Dorthea's car. When they did not find the car, at Taylor's instruction, Rogers backed into a parking space facing the apartment house to await Dorthea's return.

Holly and Dorthea arrived in Dorthea's car about thirty or forty minutes later. Once more at Taylor's instruction, Rogers followed the car until Holly parked and Holly and Dorthea proceeded on foot toward the building. At that point Taylor jumped from Rogers' car and ran toward them yelling, "Yeah, yeah I got you now. I got you now, bitch. You're going with me." Dorthea refused, and Taylor struck her with a gun he had removed from his waistband. Dorthea told Holly to call the police and, as Holly ran, Taylor fired a shot at Holly. Holly first dove for the ground, then fled to the building. From the building Holly could see Taylor drag Dorthea by her hair and hear both continuing to shout. Finally, Taylor first threatened to kill Dorthea if she did not come with him, then pulled her head up to the pistol and fired.

The foregoing is largely taken from Holly's testimony. Rogers' version of these events is that he stayed in his car listening to a loud tape after Taylor got out to confront Holly and Dorthea. At the time he removed the tape to listen to the other side, he heard a muffled gunshot. As he turned to look, Taylor jumped in the car. Rogers asked Taylor if he was trying to scare Dorthea. Taylor responded that he had shot her.

Taylor appeals his convictions and sentence. We have jurisdiction under Indiana Appellate Rule 4(A)(7).

I. The Instruction on Lying in Wait

Taylor argues that the trial court erred in Instruction 17 by instructing the jury, assertedly over defense objection, that lying in wait can be proof of a defendant's specific intent to commit murder. Specifically, the court instructed the jury that

[l]ying in wait with a deadly weapon can be proof of a defendant's specific intent to commit the crime of murder, lying in wait includes the elements of waiting, watching, and concealment in order to take the victim by surprise with the intent to kill the victim.

Taylor contends this instruction was an incorrect statement of law as it applies to the facts of this case and that it was not supported by the evidence.

The State contends that Taylor failed to object to the jury instruction at trial and has waived the issue. The State also argues that the instruction is a correct statement of law. Taylor asserts he objected to Instruction 17, but as supporting record evidence he cites only to a copy of the instruction as tendered by the State which contains an anonymous handwritten annotation, "given over [Defendant's] obj." The record discloses no other reference to a defense objection to this instruction. Indiana Criminal Rule 8(B) provides that no error regarding the giving of instructions is available on appeal unless specifically stated at trial, or submitted in writing to the court, prior to argument: "All instructions given or refused, and all written objections submitted thereto, shall be filed in open court and become a part of the record in the cause.... Objections made orally shall be taken by the reporter and may be made a part of the record by a ... bill of exceptions." Ind.Crim. Rule 8(C). In Ford v. State, 555 N.E.2d 829, 831 (Ind.1990), we found that an alleged error regarding the giving of an instruction was waived because the appellant had not provided a sufficient record of the arguments to the trial court regarding the challenged instruction. Thus, regardless of whether objection was made at trial, the absence of a record reflecting the specific objections precludes our consideration of the alleged error.

Second, since the evidence demonstrated that Taylor placed a gun against his victim's head and fired, there can be little issue over his intent to kill. As a result, even if not waived, the instruction would not constitute reversible error. Third, the instruction cannot be the basis of reversible error because it is at best circular. It permits the inference of intent to kill from the fact that the perpetrator lay in wait "with intent to kill." If the jury found the elements required by this instruction, there is no need to infer anything more with respect to defendant's intentions in the parking lot of Dorthea's apartment. Because Holly testified to Taylor's threats to kill Dorthea shortly before the event, the jury had evidence from which it could find the lying in wait to have been for that purpose.

II. The Burden of Persuasion

Taylor argues that the "emphasis on lying in wait" in Instruction 17 impermissibly had the effect of shifting the burden of persuasion from the State to the defendant as to the intent required for a murder conviction. If this were correct, the instruction would be impermissible under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

"A jury instruction will be found to violate the Fourteenth Amendment [under Sandstrom and its progeny] where it is reasonably likely that the jury interpreted the instruction as shifting to the defendant a burden of persuasion on the intent element." Winegeart v. State, 665 N.E.2d 893, 903 (Ind.1996). In Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), following Sandstrom, the U.S. Supreme Court held that a reviewing court

must determine whether the challenged portion of the instruction creates a mandatory presumption, or merely a permissive inference.... A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.

... A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.

Id. at 314-15, 105 S.Ct. at 1971, 85 L.Ed.2d at 353-54 (citations and footnote omitted). In this case, Instruction 17 uses the term "can." This, like "may" in Winegeart, is a permissive term that does not require the jury to reach any particular conclusions, but merely permits the jury to draw appropriate inferences from the evidence. The instruction was permissible under Sandstrom.

III. Jury Access to Death Penalty Request

Taylor also contends that the cumulative effect of Instruction 17 and the presence in the jury room of the withdrawn death sentence request "was to permit the State to have a de facto additional partial closing argument" with the effect of "tipping the balance from a finding of sudden heat by improperly highlighting one portion of the evidence and by urging an improper legal conclusion." In support of this contention, Taylor relies on Thomas v. State, 259 Ind. 537, 289 N.E.2d 508 (1972) (reversible error to allow written witness statements to...

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