OPINION
Case Summary
After his first trial for murder resulted in a hung jury, Chad McKinney (“McKinney”) was retried, convicted, and sentenced to fifty-five years in prison. On appeal, he contends that the trial court clearly erred in' denying his motion for change of judge, that the trial court abused its discretion in denying his motion for mistrial, that the prosecutor committed misconduct by failing to notify the defense of changes in the testimony of certain witness from the first trial to the second trial, that the evidence is insufficient to support his conviction, that the trial court abused its discretion in refusing to instruct the jury on the lesser included offenses of reckless homicide and criminal recklessness, that the trial court abused its discretion in sentencing him, and that his sentence is inappropriate in light of the nature of the offense and his character. Because McKinney’s motion for change of judge was not filed within ten days of his plea of not guilty in accordance with Indiana Rule of Criminal Procedure 12(D), the trial court did not clearly err in denying it. We affirm the judgment of the trial court in this and all other respects.
Facts and Procedural History
On the night of December 19, 2003, Dominick Bruno (“Dominick”) and Anthor ny Laurenzo (“Laurenzo”), who had been a groomsman in Dominick’s wedding, procured some LSD and then went to Dancer’s Show Club in Indianapolis. Both men consumed some of the LSD before entering the club. After a few minutes, Lau-renzo began acting abnormally, alternating between periods of quiet with his head between his, knees and periods where he had a great deal of energy, was shaking, and was yelling, “Oh, Jesus.” Tr. p. 222. The club’s doorman saw Laurenzo crying and rubbing his chest and believed that Laurenzo was hallucinating. Eventually, the doorman asked Dominick to take Lau-renzo out of the club.
About that time, Dominick’ received a call from his wife, Connie. Connie, who was eight-and-a-half months pregnant, was at the couple’s trailer home with 'their young son, Joseph. Connie told Dominick that McKinney, who had also been a groomsman in Dominick’s wedding, was at the home and needed to see him. According to Connie, McKinney had been drinking whiskey and seemed sad. Dominick and Laurenzo left the club and drove to the Brunos’ home. During the drive, Lau-renzo was swinging his arms and talking with God and Jesus. Twice during the drive, Dominick pulled over to calm Lau-renzo.
After they arrived at Dominick’s home, Dominick led Laurenzo inside. McKinney was lying on the floor near the door, and Laurenzo stepped on him. Laurenzo was still swinging his arms, and he hit McKinney. McKinney pulled Laurenzo onto a
McKinney eventually left the trailer, but he returned approximately ten minutes later with a purple Crown Royal bag and a white glove. By that point, Laurenzo had “actually started to listen” to Dominick “a little bit.” Id. at 232. Nonetheless, McKinney removed a small pistol from the purple bag and pointed it at Laurenzo. McKinney then fired a shot while the gun was pointed at the ground. Dominick told McKinney, “Look, you just shot a bullet. You need to go. I got a son here, I’ve got a pregnant wife. You know this is not good. You need to leave now.” Id. at 236-37. McKinney placed the gun on an entertainment center but did not leave. Laurenzo was still standing and claiming to be God and the most powerful man in the world. Connie told Laurenzo to sit down, and Laurenzo approached her “like he was going to hit [her] or something.” Id. at 88. Connie told Laurenzo, “I’m pregnant and you’re not going to hit me,” and Laurenzo did not do anything to her. Id.
Connie then called 911 to get help for Laurenzo. While she was on the phone, McKinney approached Laurenzo, put him in a headlock, pushed the gun against his temple, and shot him in the head. Lau-renzo immediately fell to the floor. Dominick saw McKinney drop the gun, and McKinney left the trailer. Laurenzo died of “a through-and-through contact gunshot wound to the head.” Id. at 322. Dominick and Connie gave statements to the police and identified McKinney as the shooter. Police found a gun broken into several pieces on the floor of the trailer.
After McKinney was arrested, he reported to a doctor at the Marion County Jail that he had a bullet lodged in his hand. He subsequently removed the bullet himself using a razor blade and gave it to a guard. Testing showed that the bullet had been fired from the gun recovered by police. Furthermore, McKinney’s wound was consistent with the exit wound on Laurenzo’s head because the exit wound indicated that something was resting against Laurenzo’s skin, possibly McKinney’s hand. Finally, DNA testing showed that Laurenzo’s blood was on the barrel of the recovered gun and on McKinney’s jacket.
The State charged McKinney with murder, a felony. 1 A jury trial was held on August 15-17, 2005. During the noon recess on August 15, Judge Patricia Gifford (“Judge Gifford”) became aware that Lau-renzo’s mother had worked for her in the early 1980s. Judge Gifford brought counsel into her chambers and advised them of her former relationship with Laurenzo’s mother. McKinney’s attorney indicated that she had known this information from the beginning and had not asked for recu-sal because she felt that Judge Gifford is fair.
During the trial, Connie testified that she heard a “pop” then looked over and saw Laurenzo falling. Ex. p. 304. The
Not in my opinion. One, the magazine has to be out of the gun. Two, the safety has to be forward or to a firing position, then the slide has -to be drawn all the way back before it can be lifted up and in my opinion that couldn’t be done with — in a dropping situation. Has to be — that would have to be done on purpose.
Id. at 614-15. On August 17, 2005, the last day of the trial, the jury was unable to reach a verdict, and the trial court declared a mistrial and scheduled another pre-trial conference.
Two days later, McKinney’s attorney filed a motion asking Judge Gifford to grant a change of judge pursuant to Indiana Rule of Criminal Procedure 12(B) (“Criminal Rule 12(B)”) based upon Judge Gifford’s former relationship with Lauren-zo’s mother. Judge Gifford denied the motion, finding that McKinney had failed to file it within ten days of his plea of not guilty as required by Indiana Rule of Criminal Procedure 12(D) (“Criminal Rule 12(D)”) and that “[n]o facts have been alleged that would cause an objective person to have a reasonable basis for doubting the judge’s impartiality[.]” Appellant’s SuppApp. p. 3.
The second jury trial commenced on April 24, 2006. When the prosecutor asked Connie whether she saw a gun after hearing a gunshot, she testified, in contrast to her testimony at the first trial, “When [McKinney] turned around — when he turned around he had his hands — he opened his' hands like this and he said, “What do you want me to do?’ And the gun fell and hit the floor.” Tr. p. 91. On cross-examination, McKinney’s counsel asked Connie whether her testimony “differs radically” from her testimony during the first trial, and Connie responded, “Yes.” Id. at 140. This exchange led to the following question from the jury: “[I]f your testimony is different today than it was previously, why did you change it?” Id. at 142. Connie answered, “Because I was assured that no matter what happened, me and my children were going to be safe.” Id. McKinney’s counsel immediately moved for a mistrial, arguing that Connie’s response to the jury’s question implied that McKinney is dangerous and had threatened her. The trial court denied the motion. Later in the trial, the defense called Connie as a witness and asked her whether McKinney had ever threatened her, and she said, “No.” Id. at 583.
Dominick also gave new testimony at the second trial. Specifically, he testified that before McKinney shot Laurenzo, McKinney had said, referring to Laurenzo, “We don’t need him anymore” and that McKinney had put the gun in Laurenzo’s mouth and said, “Do you want me to blow your head off, m* * * * * f* * * * *?” Id. at 234.
Brundage again served as the State’s firearms expert during the second trial. During the course of the testimony, he disassembled the gun and realized, contrary to his testimony at the first trial, that it could be disassembled without the magazine having been removed. When asked again whether dropping the gun would cause it to break into pieces, he responded, contrary to his testimony at the first trial, “Not normally, but in my business anything can happen, and I would
McKinney tendered lesser included offense instructions for the crimes of reckless homicide and criminal recklessness. The trial court refused to give the instructions, concluding that the evidence would not support convictions for these offenses. The jury found McKinney guilty of murder. Judge Gifford made the following statement at the sentencing hearing:
I think it’s unlikely to believe that the victim facilitated this crime by his actions since it was very much in evidence that he was not in control of his actions, that [McKinney] acted under a strong provocation. The evidence did show that he did go out and get the gun and return after a period of time. That circumstances are not likely to happen again. These circumstances aren’t, but I’m not sure that another set might not. I would agree that in fact it might be a hardship to his children, however, I’ve not really seen any evidence that he was financially supporting the children. I’m not sure that they need his other support. There was one mitigator, the fact that his criminal history is minimal, at best. However, taking into consideration the evidence presented to the jury in which they found [McKinney] knowingly killed the victim in this matter, would override any mitigation[J
Tr. p. 624-25. Judge Gifford sentenced McKinney to a prison term of fifty-five years, the presumptive sentence for murder. McKinney now appeals.
Discussion and Decision
On appeal, McKinney raises the following issues: (1) whether the trial court’s denial of McKinney’s motion for change of judge was clearly erroneous; (2) whether the trial court abused its discretion by denying McKinney’s motion for mistrial; (3) whether the prosecutor committed misconduct by failing to notify the defense of the changes in testimony; (4) whether the evidence is sufficient to support McKinney’s conviction; (5) whether the trial court abused its discretion in refusing to give the lesser included offense jury instructions on the offenses of criminal recklessness and reckless homicide; and (6) whether the trial court properly sentenced McKinney.
I. Motion for Change of Judge
McKinney first argues that Judge Gifford erred in denying his motion for change of judge. Indiana Rule of Criminal Procedure 12(B) provides:
In felony and misdemeanor cases, the state or defendant may request a change of judge for bias or prejudice. The party shall timely file an affidavit that the judge has a personal bias or prejudice against the state or defendant. The affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be accompanied by a certificate from the attorney of record that the attorney in good faith believes that the historical facts recited in the affidavit are true. The request shall be granted if the historical facts recited in the affidavit support a rational inference of bias or prejudice.
We will reverse a trial judge’s decision on a motion for change of judge under Indiana Criminal Rule 12 only if it is clearly erroneous, that is, when we are left with a definite and firm conviction that a mistake has been made.
Sturgeon v. State,
(D) Time Period for Filing Request for Change of Judge or Change of Venue. In any criminal action, no change of judge or change of venue from the county shall be granted except within the time herein provided.
(1) Ten Day Rule. An application for a change of judge or change of venue from the county shall be filed within ten (10) days after a plea of not guilty, or if a date less than ten (10) days from the date of said plea, the case is set for trial, the application shall be filed within five (5) days after setting the case for trial....
McKinney argues that Judge Gifford erred in denying his motion based on the ten-day rule because that time period began anew when the first trial ended in a mistrial. In other words, McKinney argues that the motion was timely “as it related to the second trial.” Appellant’s Br. p. 2. We cannot agree.
Criminal Rule 12(D) explicitly gives the parties ten days from the date on which the defendant pleads not guilty to request a change of judge. Here, McKinney pled not guilty on December 23, 2003, and requested a change of judge on August 19, 2005. The only exception to the ten-day rule is “subsequently discovered grounds.” Criminal Rule 12(D)(2) provides, in pertinent part:
If the applicant first obtains knowledge of the cause for change of venue from the judge or from the county after the time above limited, the applicant may file the application, which shall be verified by the party specifically alleging when the cause was first discovered, how it was discovered, the facts showing the cause for a change, and why such cause could not have been discovered before by the exercise of due diligence ....
McKinney does not allege any subsequently discovered grounds in this case. Indeed, it is undisputed that the ground claimed by McKinney in his request for change of judge — Judge Gifford’s former work relationship with Laurenzo’s mother — was known to all parties at the beginning of the first trial. Furthermore, McKinney’s attorney specifically indicated that recusal was unnecessary because Judge Gifford is fair. And the fact that McKinney had to be retried has no effect on the operation of Criminal Rule 12(D); he was still being tried on the same charge and under the same cause number. He had a clear opportunity to invoke the subsequently discovered grounds exception during the first trial, and he declined. We will not sanction a second bite at the apple.
2
See Flowers v. State,
738 N.E.2d
Furthermore, even if McKinney’s motion had been timely filed, he failed to make a showing of bias or prejudice. “The law presumes that a judge is unbiased and unprejudiced.”
Garland v. State, 788
N.E.2d 425, 433 (Ind.2003). Under Criminal Rule 12, “[a] party is entitled to a change of judge only if the historical facts recited in the affidavit support a rational inference of bias or prejudice.” Voss
v. State,
II. Motion for Mistrial
McKinney next argues that the trial court abused its discretion in denying his motion for a mistrial based upon Connie’s response to the jury’s question as to why Connie changed her testimony to reflect that she saw McKinney drop a gun after she heard the second gunshot. Connie answered, “Because I was assured that no matter what happened, me and my children were going to be safe.” Tr. p. 142. McKinney contends that the trial court should have granted the motion for mistrial because Connie’s response to the jury’s question left the jury “with the lingering impression that McKinney had threatened her and was dangerous.” Appellant’s Br. p. 11.
A mistrial is an extreme remedy that is only justified when other remedial measures are insufficient to rectify the situation.
Shouse v. State,
We conclude that any error in allowing Connie to explain the conflict in her testimony was largely cured when McKinney’s counsel asked Connie later in the trial whether McKinney had ever threatened her, and Connie answered, “No.” Tr. p. 534. This clarification sufficiently mitigated any peril in which McKinney was placed.
See Donnegan v. State,
Furthermore, “[a] trial error may not require reversal where its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect a party’s substantial rights.”
Bassett v. State,
III. Prosecutorial Misconduct
McKinney also argues that “[cjhanges in testimony of key witnesses and the failure to notify the defense resulted in a denial of due process.” Appellant’s Br. p. 9. Specifically, McKinney asserts that the prosecutor committed misconduct by failing to notify the defense that Connie and other witnesses would be changing their testimony from the first trial to the second trial. In addition to Connie’s changed testimony about the gun, McKinney directs us to Dominick’s testimony at the second trial that McKinney, referencing Laurenzo, had said, “We don’t need him anymore” and had put the gun in Laurenzo’s mouth and said, “Do you want me to blow your head off m* ⅞ ⅜ ⅜ ⅜ ⅜ ⅜ ⅜ Ti* p 934 McKinney claims that Dominick did not testify to any such statements during the first trial.
McKinney acknowledges that his trial counsel did not make contemporaneous objections during the second trial to the changes in Dominick’s and Connie’s testimony. “A party’s failure to present a contemporaneous trial objection asserting prosecutorial misconduct precludes appellate review of the claim.”
Booher v. State,
With regard to the changes in Dominick’s and Connie’s testimony, we need not reach the question of fundamental error because we conclude that the prosecutor did not commit any misconduct. McKinney does not dispute the State’s contention that the prosecution only has an affirmative duty to disclose evidence favorable to the defendant.
See Brady v. Maryland,
McKinney also maintains that the prosecution committed misconduct by failing to disclose the change in the testimony of Brundage, the State’s firearms expert. Brundage testified during the first trial that the gun — which was found on the floor of the trailer in several pieces — could not have broken apart merely by being dropped on the floor, but he testified during the second trial that dropping the gun could have caused it to break apart. McKinney again acknowledges that his trial counsel did not make a contemporaneous objection to this change during the second trial, and he again seeks to invoke the fundamental error doctrine.
The change in Brundage’s testimony presents a closer question. Brund-age’s new testimony, like that of Dominick and Connie, was not favorable to McKinney, so the failure to disclose the changes did not violate McKinney’s constitutional rights under
Brady.
However, prosecutors have a separate duty, under Indiana Trial Rule 26(E)(1), “to seasonably supplement discovery responses with respect to the subject-matter and substance of an expert witness’ expected testimony.”
Camm v. State,
IV. Sufficiency of the Evidence
Next, McKinney argues that the evidence is insufficient to support his murder conviction. Upon a challenge to the sufficiency of evidence to support a conviction, a reviewing court does not reweigh the evidence or judge the credibility of witnesses.
McHenry v. State,
McKinney’s entire argument is based on the fact that Dominick’s, Connie’s, and Brundage’s testimony during the second trial was not entirely consistent with their testimony during the first trial. Based on these differences, McKinney asserts that these three witnesses are “unreliable.” Appellant’s Br. p. 16. In light of the overwhelming evidence discussed above, we need not belabor this point. We simply note that whether a witness is reliable is a pure question of credibility, and McKinney is asking us to judge the credibility of witnesses. This we clearly cannot do.
See McHenry,
In a separate argument, McKinney urges that the State failed to put forth sufficient evidence to rebut his claim of self-defense and defense of others. “A valid claim of defense of oneself or another person is legal justification for an otherwise criminal act.”
Wilson v. State,
McKinney asserts that his actions “were in defense of Connie and Joseph[,] and he harbored a reasonable fear that either himself, Dominick, Connie[,] or Joseph were [sic] in danger of great bodily harm from [Laurenzo].” Appellant’s Br. p. 18. McKinney focuses on Connie’s testimony that Laurenzo walked toward her “like he was going to hit [her] or something.” Tr. p. 88. However, Connie also testified that she then said to Laurenzo “I’m pregnant and you’re not going to hit me” and that Laurenzo did not hit her.
Id.
It was not until after this point, when Laurenzo’s aggression toward Connie had ceased, that McKinney put Laurenzo in a headlock, placed the gun against his temple, and shot him in the head. Based on this evidence, the jury could have reasonably concluded that the deadly force used by McKinney was not proportionate to the requirements of the situation.
See Geralds,
V. Jury Instructions
Next, McKinney maintains that the trial court abused its discretion in refusing to instruct the jury on reckless homicide and criminal recklessness as less
A requested instruction for a lesser included offense of the crime charged should be given if the lesser included offense is either inherently or factually included in the crime charged, and if, based upon the evidence presented in the case, there existed a serious eviden-tiary dispute about the element or elements distinguishing the greater from the lesser offense such that a jury could conclude that the lesser offense was committed but not the greater.
Ellis v. State,
When an instruction is refused on grounds that there is no serious evidentia-ry dispute, we review that refusal for an abuse of discretion.
Id.
at 702. Reckless conduct is action taken in “plain, conscious, and unjustifiable disregard of harm that might result.” Ind.Code § 35MT-2-2(c). That disregard must involve a substantial deviation from the acceptable standards of conduct.
Id.
In contrast, a person engages in conduct “knowingly” if the person “is aware of a high probability that he [or she] is doing so.” Ind.Code § 35-41-2-2(b). Here, the evidence shows that McKinney held a gun to Laurenzo’s head and pulled the trigger. It cannot be seriously disputed that he did so with at least an awareness of a high probability that he would kill Laurenzo.
See, e.g., Sanders v. State,
VI. Sentencing
Finally, McKinney challenges his sentence. 4 The murder sentencing statute in effect at the time of McKinney’s crime provided that “[a] person who commits murder shall be imprisoned for a fixed term of fifty-five (55) years, with not more than ten (10) years added for aggravating circumstances or not more than ten (10) years subtracted for mitigating circumstances.” Ind.Code § 35-50-2-3 (2003). The trial court sentenced McKinney to the presumptive term of fifty-five years. McKinney contends that the trial court abused its discretion in identifying the aggravating and mitigating circumstances and that his sentence is inappropriate in fight of the nature of his offense and his character.
A. Aggravators and Mitigators
McKinney challenges the trial court’s finding of aggravating and mitigat
McKinney first argues that the trial court abused its discretion in identifying as an aggravating circumstance the fact the McKinney knowingly killed Lau-renzo. McKinney directs us to the trial court’s statement that “taking into consideration the evidence presented to the jury in which they found [McKinney] knowingly killed the victim in this matter, would override any mitigation[.]” Tr. p. 625. McKinney is correct that the knowingly
mens rea
is an element of the crime with which McKinney was charged and that “[a] factor constituting a material element of a crime cannot be considered an aggravating circumstance in determining sentence.”
Johnson v. State,
McKinney next maintains that the trial court abused its discretion in failing to find several significant mitigating circumstances. The finding of mitigating factors is within the discretion of the trial court.
Cotto v. State,
McKinney contends that the trial court should have found as a mitigating circumstance the fact that his incarceration will result in undue hardship on his children. We reject this argument for two reasons. First, as the trial court noted, McKinney did not present any evidence that he was supporting his children financially.
See
Tr. p. 624. McKinney does not direct us to any such information on appeal. Second, McKinney fails to explain how the minimum sentence of forty-five years would cause any less hardship on his children than the fifty-five-year presumptive sentence actually imposed. Indeed, the difference between those two sentences “hardly can be argued to impose much, if any, additional hardship” on McKinney’s children.
See Abel v. State,
McKinney also asserts that the trial court abused its discretion by failing to find as a mitigating circumstance the fact that Laurenzo’s “drug induced aggression ... facilitated the crime.” Appellant’s Br. p. 24. It is undisputed that Laurenzo was incapacitated and acting out. However, Dominick told McKinney multiple times that Laurenzo did not intend to hurt anybody and that he was only having a negative reaction to the drugs in his system. In addition, McKinney had several opportunities to remove himself from
Finally, McKinney maintains that the trial court abused its discretion by failing to consider his “steady employment” as a mitigating circumstance. Appellant’s Br. p. 24. However, McKinney did not proffer this mitigating circumstance to the trial court. As such, he has waived consideration of this circumstance.
Pennington v. State,
B. Appropriateness
McKinney also argues that his sentence is inappropriate in light of the nature of his offense and his character. Indiana Rule of Appellate Procedure 7(B) states: “The Court may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light, of the nature of the offense and the character of the offender.” “Although appellate review of sentences must give due consideration to the trial court’s sentence because of the special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied.”
Purvis v. State,
As an initial matter, we note McKinney’s contention that “this offense is riot the worst offense and McKinney is not the worst offender.” Appellant’s Br. p. 22. McKinney is apparently alluding to the proposition that “[m]aximum sentences are reserved for the worst offenders and offenses.”
Johnson v. State,
There is nothing particularly appalling about McKinney’s character. His criminal record consists only of arrests for misdemeanor crimes, none of which was ever reduced to a conviction. However, McKinney’s crime was strikingly brutal. What started off as a relatively minor scuffle between two friends turned tragic when McKinney drew a firearm and shot Lau-renzo in the head at point blank range. One last time, we reiterate that even if Laurenzo’s own behavior provoked McKinney, the deadly force used by McKinney was not proportionate to the requirements of the situation. In light of the heinous nature of McKinney’s crime, we cannot say that the presumptive sentence of fifty-five years is inappropriate.
Affirmed.
Notes
. Ind.Code§ 35-42-1-1.
. McKinney directs us to
Denton v. State,
. Our General Assembly made several amendments to Indiana Code § 35-41-3-2 in 2006, but those amendments are not relevant to our discussion. See P.L. 189-2006, § 1.
. Between the date of McKinney’s offense, December 19, 2003, and the date of sentencing, May 17, 2006, the General Assembly replaced the former presumptive sentencing scheme with the current advisory sentencing scheme.
See
P.L. 71-2005 (eff. April 25, 2005). Nonetheless, because "the sentencing statute in effect at the time a crime is committed governs the sentence for that crime,"
Gutermuth v. State,