William Russell v. State of Indiana (mem. dec.), 69A01-1608-CR-1873

In Sept. 2015 William Russell, after a bar altercation, retrieved a handgun from his vehicle and fired two shots at Jonathan Smith, hitting Smith in the chest and hand/forearm; Smith survived with lasting injuries.
Russell fled the scene, evaded police for two days, then surrendered with counsel; he was charged with Level 1 attempted murder, Level 3 aggravated battery, Level 5 battery with a deadly weapon, and Class A misdemeanor carrying a handgun without a license.
A jury convicted Russell; the trial court vacated two convictions on double jeopardy grounds and sentenced Russell to consecutive 37-year (Level 1) and 1-year (Class A) executed terms (aggregate 38 years), finding several aggravators and no mitigators.
At trial, an Indiana State Police detective testified he “wanted to get a statement from William Russell” after arrest; defense moved for mistrial based on Fifth Amendment silence concerns and the court admonished the jury but denied mistrial.
On appeal Russell challenged (1) denial of mistrial for alleged use of his post-arrest silence and (2) the appropriateness of his 38-year sentence under Indiana Appellate Rule 7(B).

Issue	Plaintiff's Argument (State)	Defendant's Argument (Russell)	Held
Whether denial of mistrial for detective’s statement violated Russell’s Fifth Amendment right to remain silent	The detective’s brief testimony did not indicate Russell refused to speak; any error was cured by a timely jury admonition	Use of Russell’s post-arrest silence (or failure to cooperate) was used substantively and to impeach, violating Doyle and the Fifth Amendment; mistrial required	Court held no reversible error: statement was brief/nonspecific, jury admonition sufficient, no grave peril shown; mistrial denial not an abuse of discretion
Whether Russell’s 38-year aggregate sentence is inappropriate under Rule 7(B)	The sentence was within statutory range, supported by aggravators (serious injuries, victim/family hardship, lack of remorse, probation violation); nature/character justify sentence	Sentence is excessive given provocation, limited criminal history, remorse, employment history and disability; should be reduced	Court held sentence not inappropriate: offense severity and Russell’s character (flight, flippant jail calls, illegal weapon possession) support the sentence

Doyle v. Ohio, 426 U.S. 610 (1976) (post-arrest, post-Miranda silence cannot be used to impeach without violating due process)
Wainwright v. Greenfield, 474 U.S. 284 (1986) (post-arrest, post-Miranda silence cannot be used substantively in prosecution’s case-in-chief)
United States v. Hernandez, 948 F.2d 316 (7th Cir. 1991) (using a suspect’s silence as evidence of guilt can violate the Fifth Amendment)
Rowe v. State, 717 N.E.2d 1262 (Ind. Ct. App. 1999) (post-arrest, pre-Miranda silence not admissible as substantive evidence in State’s case-in-chief in Indiana)
Akard v. State, 924 N.E.2d 202 (Ind. Ct. App. 2010) (discussing limits on use of post-arrest silence), aff’d in part and rev’d in part, 937 N.E.2d 811 (Ind. 2010)
Banks v. State, 761 N.E.2d 403 (Ind. 2002) (mistrial is an extreme remedy; review for abuse of discretion)
Alvies v. State, 795 N.E.2d 493 (Ind. Ct. App. 2003) (jury admonition ordinarily cures prejudicial statements)
Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (procedures and considerations for sentencing review)
Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008) (Rule 7(B) emphasizes nature of offense and character of offender)
Reid v. State, 876 N.E.2d 1114 (Ind. 2007) (defendant bears burden to show sentence inappropriate)