Tunstill v. State

TUNSTILL, Appellant, Melvin Indiana, Appellee.

STATE

No. 49S00-8810-CR-884. Indiana.

Supreme Court of

March Indianapolis, for Gilroy,

Richard D. pellant. Gen., Pearson, D. Atty. John

Linley E. Gen., Indianapolis, Shuman, Atty. Deputy appellee. visit, during used cocaine the second DeBRULER, Justice. evening. Appel- was at about 6:00 charge jury Appellant was tried Haggard again did not see until their lant of volun guilty murder and was parking early lot in the encounter felony, B I.C. manslaughter, a Class tary morning. hours of the next executed sen He received an 35-42-1-8.1 years. ap 19, In this direct twenty July approximately tence At 1:45 a.m. on challenges validity the peal, appellant both appellant walked from his house to B & B propriety of his and the Liquors buy closing conviction some to wine before already employees time. The had locked sentence. door, people congre- and several were argues the evi Appellant first Allen, gated parking in the lot. Keith a support a conviction dence is insufficient to B, appellant in clerk at B & let because it manslaughter. Specifically, appellant quite 2:00 and he knew was not at trial established claims that the evidence appellant regular to a customer. Short be in Where the that he acted self-defense. necessary purchase of the cash to make his by a self-defense is asserted defen issue of a loan or credit from and unable to obtain evidence, support in the dant and finds employees present, appellant any of the negating then has the burden of State store, talking out of the still to backed necessary or more of the presence of one backward, appel- step Allen. As he took a the defen elements of the defense: Haggard. Appellant lant brushed into fault, in acted without that he was dant Haggard, "Hey, what's turned and said to be, right to and that place where he had happening?", whereupon Haggard kicked apprehension he acted in reasonable fear or groin. Appellant appellant in the backed bodily injury. death or serious Ashford man, "Hey, going away, repeating, what's 1298; (1984), Ind., 464 N.E.2d wrong you?" Hag- and on? What's with 579, Johnson Ind. again. Haggard him kicked gard kicked The of review for N.E.2d 123. standard time, in the appellant a third this time sufficiency of self- claims where issue shins, pushed Haggard and back- in defense is raised is the same as stumbled, Haggard and ward. re other context. This Court will neither and, backing up but pulled out a knife still credibility weigh fudge the evidence nor in swinging knife from side to side witnesses, but will affirm the convie him, said, wrong with front of "What's tion if the evidence most favorable to you die. Do want you? You must want to inferences to verdict and the reasonable die, Haggard continued ad- nigger?" to provide probative evi drawn therefrom "clenched," according to vancing, from which a reasonable trier of fact the two dence witness, staggered Haggard back one then guilt beyond infer a reasonable could body against his pressed his hands 464 N.E.2d 1298. Ashford, doubt. shortly parked car. He died and fell onto a produced at trial most scene Appellant ran from the thereafter. to the verdict shows favorable home with- police at his and surrendered victim, Jerry Wayne Haggard, died of day. out incident later single by appellant inflicted stab wound failed in Appellant argues that the State a little during a scuffle which occurred at beyond a negate reasonable its burden July a.m. on after 2:00 stabbing Haggard that his act doubt Liquors Indianapo B B in parking lot of & response in reasonable was committed Haggard had ac Appellant lis. and been serious apprehension of death or fear or quainted years or seven and often six argument, support of this and, fact, bodily injury. together drank socialized and testimony by scene witnesses he cites Haggard stopped by appellant's house had repeatedly and Haggard kicked him Hag day the incident. twice on the before during gard drinking both visits well as his a hand as struck blows with felony if a Class A to make the offense Subsequent and sen- amended conviction deadly weapon. manslaughter means of a tencing, voluntary statute considerable knife with upon the paled larger of the was the feet, Haggard force." to be appeared Haggard two, and that incident throughout aggressor initiates an victim a homicide where Even of alcohol influence to be peared defendant, fact "the trier of attack and cocaine. is not deadly force that the use may find same person in the if a reasonable justified however, was testimony, own Appellant's placed been not have cireumstances only three times him kicked Haggard bodily great death or fear of in reasonable Appellant at all. his hands used never at 1800-01. N.E.2d Ashford, 464 harm." pocket- that, than also testified uniformly that testified here The witnesses Haggard to known knife, had never he the conflict initiated Haggard wit- any sort. Scene weapon of carry a jury The continuing it. on intent seemed not Haggard did that testified nesses that, given nonetheless found have could police and night, that armed pear to be appellant in which cireumstances weapon was that no testified witnesses was not deadly force himself, of his use bag paper in a person, Haggard's found on death or fear of by a reasonable justified in the vicini- anywhere carrying, or he was on the evidence bodily injury based serious scene All of the altercation. ty of the well, knew each men the two that appellant that further testified witnesses intoxicated, extremely was Haggard that in or bruised appear to be bloodied not did appellant and not armed Haggard was that limp as not even that he did and the scuffle carry a typically did not that he knew who Every witness parking lot. he fled the only three Haggard struck that weapon, appel- including night, that Haggard saw of part lower to the his feet with blows visibly "high," lant, he was that testified hands, body and none appellant's pathologist testimony a forensic of and no discernible caused the blows and that extremely victim was indicated was sufficient This appellant. injuries Tests time of his death. at the intoxicated of self- claim appellant's negate autopsy showed part of the as conducted Id. defense. diluted had been that, his blood after even during emer- given mur charged with transfusions by blood Appellant was for treatment, reg- a conviction the victim returned der, jury medical and gency trier of fact The manslaughter. voluntary content, which is alcohol .21 blood istered to establish required the level this lesser of twice over a defendant convict or inten knowingly cocaine a blood he driving, and had if it finds that fense drunken deciliter, under sudden acting per milligrams tionally .11 killed while level The evidence very high. noted was IC. 85-42-1-8. pathologist heat. unanticipated at of the at trial presented flat- testimony, his own In by he considered one on tack Haggard at he meant to stab ly denied conclusion jury's supports the be his friend fact, he would and, all, in stated sudden acting under appellant was He as self-defense. his actions describe evi Haggard. he stabbed heat when charged him Haggard rather testified support sufficient dence was in front held it knife as he onto the and ran manslaughter. voluntary conviction Haggard himself, attempting to warn propriety challenges the also Appellant positing hypothetical response off. enhanced court The trial his sentence. testified situation, pathologist such a Class ten-year sentence standard to the have pressure would deal of great years ten by an additional felony length B a wound to cause be exerted sentence. executed twenty-year imposed and that Haggard's wound depth of court hearing, the trial sentencing death theAt unlikely that thought it Haggard's an enhanced imposition running onto stated by his caused have been could presence of by "re- was warranted that scenario sentence knife because 1) appel- circumstances: firmly in a two very held the knife be quire that the time at probation im- lant body was position while stationary cannot considered 2) such a violation appellant's criminal crime instant imposing sentence for a sub court which prior three arrests. consisting of history, Appellant's sequently committed offense. any mitigat- mention of made no The court period tolled until the time probation argues ag- Appellant ing factors. final determination on the violation that a by the trial cited gravating circumstances made, af which occurred well petition error, in considered court were pres- failing charged crime. in to find the erred commission of the trial court ter the weight, appel cireumstances, not entitled to much and While mitigating ence of continuing probationer lant's status as a manifestly imposed was that the sentence by the trial could be considered unreasonable. aggravating circumstance. court as an argues that the trial Appellant first Appellant next contends that the tri considering him to have been erred in by citing committed error three al court at the time the instant of probationer finding prior arrests as basis for its to the events committed. Prior fense was history ag constituted an that his criminal here, appellant was convicted of at issue failing gravating circumstance He heroin and methadone. possession of mitigating circum consider evidence sentence, suspended was or received a apparent on the record. The state stances costs, pay a fine and court dered to $820.00 rationale setting ment out the trial court's probation placed year's on a which and was read in imposing for an enhanced sentence 7, 1986, 7, to March run from March was to entirety its as follows: 1987, months be In March of four judgment of con The Court would enter crime, petition a was filed fore the instant against the defendant for volun viction in charging appellant was violation that felony. B tary manslaughter as a Class paid had not the probation because he pre-sentence, The Court has read 85-88-2-8(b), I.C. fine and costs. Under testimony hear the that was Court did 1987, upon in statute in effect the relevant matter. during the trial on this submitted petition and the is filing of such a following aggra The Court does find summons, peri or suance of a warrant the defen vating circumstances: That until the final probation od of is tolled probation at the time dant was on charge.2 Appellant determination defen That the offense was committed. that he received no war does not contend consisting history, prior criminal dant's that therefore rant or summons and 8, 1970, February on of an arrest tolled, probation had not been period of his weapon, an arrest carrying a concealed the record indicates that the final hear 18, 1971, battery assault and May for held ing probation on the violation was 13, kill, March an arrest on with intent to week before the sentenc approximately a battery injury, and other 1983 charge. Appel ing hearing on the instant indicating that the defendant's arrests state argument is that "the Court's lant's ment that he carry in fact escalated conduct was time probation was on at the fact, in volun weapon, to ing a concealed in error of the incident was because tary manslaughter. probation that a violation records indicate sentencing hear March, appellant's only At the time of in was filed back pay 35-88-1-7, repealed in a the defendant did ing, which 1.C. 35-88-1-7.1,3 surpris costs." Not replaced with I.C. fine and court $320.00 1990 and cite au ingly, appellant is unable to which the court the factors identified imposing sen in into consideration failure to to take thority proposition that imposed tence. Subsections (b) (c) cir fine and costs set out pay a court-ordered not consti allowed to probation does the court was as a condition which cumstances mitigation; aggravation in probation that consider of that or tute a violation (d), (b)(2) and language of subsections provision 3. The is now codified at I.C. 35-38-2- 2. This same in both 3(c). here, is relevant precisely statutes. 544 defendant fact that a The historical list "the criteria (d) stated subsection crime, may that it such a committed has (c) limit the (b) do not ed in subsections to constitute properly be then in may consider

matters may history, be a criminal aggravator sentence." determining the that the defen evidence upon established appel- sentencing court found If the crime, of another convicted has been dant or delin- criminal history of a lant "ha[d] Ind., (1986), 490 see, v. State e.g., Smith authorized the court activity," quent convictions (two felony prior 748 N.E.2d cir- an fact as consider sentencing court's sufficiently supported 85-388-1-7(b)(2), and I.C. cumstance im history, therefore finding of criminal sentencing state- court's from the it is clear aggravator not an record as arrest pact of prior it considered ment Ind., (1984), addressed); v. State Hoelscher behavior of criminal instances to be arrests (misdemeanor convictions 715 N.E.2d 465 this, history. establishing such history); criminal to constitute sufficient arrest, A record in error. court was guilt of another admission upon his own the histor- more, not establish does without crime, see, eg., Randall committed the defendant ical fact (defendant admitted Ind., 916 N.E.2d occasion previous aon dealer, drug offense user and criminal drug he was a as considered properly that it such testimony); Holmes in trial car thief history has a N.E.2d that the defendant Ind. (1980),272 evidence enhance in other In order to activity. involvement (defendant admitted of criminal based, or upon in whole or burglaries); sentence home criminal crime another the 'defendant history of criminal defendant's part, on the under an at trial admitted in- find must sentencing court activity, a against prohibition general exception shown to the conduct specific criminal of stances acts, see, Brooks e.g., prior bad of to be attributable by probative evidence (evi Ind., 49 N.E.2d (1990), 560 v. arrest will State record of A bare the defendant. other molested had defendant dence that standard. to meet this suffice not vic testimony of other children based in- sexual depraved under admitted person tims taking of a "the An arrest is as an considered properly exception stinet answer may held to be custody, that into Ind., (1989), v. State arrest is Mitchell aggravator); An 35-388-1-5. 1.0. for a crime." uncharged (evidence of 265 541 N.E.2d if the arrest a warrant without permissible cocaine, as admitted crime, of possession arrest, had, time of at the ing officer proper crime charged gestae of of res part person to believe probable cause aOnce aggravator). as an ly considered felony. Collins a had committed es crime is guilt of the defendant's An 829-380. Ind., N.E.2d (1987), 509 admission, prop conviction, or tablished pursuant made may also be arrest evidence, not or whether erly admitted upon either warrant, based is itself which irrele arrest is placed ever he was proba upon or of an indictment the return aggravator, substance The vant. 85-88-2-1(c) Probable I.C. cause. ble fact activity," is the "history of criminal when, the warrant at the time cause exists the other committed defendant that made, the arrest is the arrest sought or it. arrested crime, he was that facts knowledge of has ing officer record say that a not to This is a man warrant circumstances one, should lengthy arrests, particularly that to believe caution reasonable ques may act in that it weight or criminal person carry no A sentencing court. by not be considered The act Collins, N.E.2d at 509 tion. holds this Court of cases long indicates line arrest person under placing activity prior criminal allegations the arrest belief, strong, albeit only a before to conviction reduced not be need crime, does not but guilty of a person is ed aggra as considered properly they be his of the a determination itself constitute sentencing by a vating circumstances guilt. person's fact of torical 545 by sentencing being court as Ind., reflective of Creasy v. State court. (one pending charge, four ar N.E.2d 785 the defendant's character and as indicative (1986), Ind., rests); Dillon State of the risk that he will commit other crimes charges); (pending felony N.E.2d 661 in the future. (1979), 271 Ind. McNew v. State above, As noted sentencing arrests). (long record of N.E.2d 607 statement at issue here it makes clear that however, must, place type this court the court inferred that actually proper information in the context when committed the crimes for which he was determining considering it and its relative arrested, and this inference constitutes er A cannot weight. record of arrests be ror. juvenile weapons The error as to the aggravator under considered as an L.C.85- charge pre-sen- is harmless because the 38-1-7(b)(2) it does not reveal because sentencing court that the defendant has report tence reveals admit guilt engaged part disposition in the kind of behavior which the ted his as legislature aggravator in identified as an properly matter and therefore could 85-38-1-7(d), considered as evidence of a criminal histo subsection. I.C. how ry. ever, gives appellant's guilt sentencing No such evidence of the flexibili ty factor which reflects on consider arrests, however, as exists other two character, bad, good the defendant's or court did not attach the expressly addition to set out in the those circumstances, proper significance to these determining rest of the statute when necessary a remand is for the court to appropriate impose sentence to on that de sentencing hearing conduct a new and then category fendant. It is in this that a to issue an order which reflects that the record of arrests is considered. aggravators nature of the and their rela While a record of arrests does not establish weights correctly tive were assessed and prior the historical fact of criminal behav found to merit an enhanced sentence or to ior, such a record does reveal to the court impose a standard sentence. subsequent antisocial behavior on the sentencing The trial court's state part of the defendant has not been deterred having subject police even after been mitigating no reference to ment made cir cumstances, specify authority of the and made neither to aware of oversight its of the activities of its citizens. court found none to exist nor to state that This information is relevant to the court's outweighed existing mitigators were by argues the character aggravators. Appellant assessment of defendant's that the erroneously trial court failed to consider and the risk that he will commit another properly crime and following statutory mitigators: ap is therefore considered the tending pellant grounds had "substantial by determining a court sentence. IC. though failing justify 35-38-1-T(a)(1) (a)(8)(B). excuse or the crime and See also Wil defense," 85-88-1-T(c)(4), (1990), Ind., to establish a 1.C. loughby 552 N.E.2d 462, J., strong provocation," (DeBruler, concurring that he "acted under 471 and dis (1983), Ind., senting); Chamness State 85-88-1-7(c)(5), and that the "victim of .C. (DeBruler, J., or facilitated the of 447 N.E.2d con the crime induced result). curring in fense," 35-38-1-7(c)(8). In Wilkins v. 1.0. (1986), Ind., 500 N.E.2d this This Court has also held that crimi challenge presented with a Court was charges pending nal which are at the time sentencing sufficiency of a statement the sentencing hearing may of a defendant's devoid of mention or discussion of likewise be considered as an explained: mitigating We circumstances. Dillon, 661; circumstance. 492 N.E.2d required The trial court is to render a (1986), Ind., N.E.2d 48. Stark v. State arrests, Pending charges, like mitigating circumstances do not estab description of presumptive sen it reduces the when lish the fact the defendant historical mitigating circum or it uses tence when but, alleged, the crime like ar rests, may are relevant and be considered aggravating circum- to offset stances men- to even trial court plete failure sen- to enhance serve which stances circumstance, which mitigating tion this tence. record, leads by the clearly supported circumstances, use of Under it was overlooked. to believe this Court in the determi- mitigating circumstances therefore, Wilkins, with is not In accordance sentence the ultimate of nation sentencing is instructed trial court discretionary with mandatory; it is sentenc- resulting the new ar- from a defendant When statement sentencing court. reflect consid- to the tri- is to hearing on remand ing circumstances mitigating gues is not obli- sentencing judge court, and the evidence mitigating al this eration of the court. to it not weight accorded chosen why he has explain gated This is mitigation. finding of to make to order decision this Court's of Because of an examination when true particularly on the trial hearing sentencing based a new highly record shows underlying aggrava- of consideration erroneous court's mitigating nature disputable argument mitigators, tors and not Moreover, court is the trial factors. manifestly imposed the sentence defen- weigh the or to credit obligated be addressed. need not unreasonable circum- mitigating dant's voluntary man- conviction Appellant's way the defendant the same stances affirmed, cause is this and slaughter a trial However, the failure does. instructions remanded circumstances mitigating find sentencing hearing newa court conduct by the clearly supported are which sentencing statement a new to issue reasonably give rise record of an en- imposition supports they overlooked were belief standard impose the or to sentence hanced properly considered. not hence sentence. ten-year mitigating circum- significant If SHEPARD, C.J., and DICKSON by the supported clearly are stances JJ., KRAHULIK, concur. with in- remand record, proper to it [is] the sentence to reconsider structions separate GIVAN, J., dissents with in com- sentencing statement new enter a opinion. requirements. foregoing with the pliance Justice, dissenting. GIVAN, omitted). and citation (quotation at 749 Id. majority respectfully dissent I Wilkins, discussion the absence sentenc- in that court's factors mitigating accept the recitation I this case. opinion in however, require I majority opinion; ing statement facts disputable highly of law conclusion with the agree remand do not the miti- significance of facts. nature, weight and to those applied Id. by the defendant. proferred gators appellant clearly shows record alleged by mitigators of the two While be, right to had a he place in a where was had sub- here, namely, that he appellant unprovoked an perpetrated victim justifying excusing or grounds stantial larger him, the victim upon attack strong he acted and that actions during the attack appellant, that than dispute, to some subject are provocation, victim, away from to back continued alleged mitigator, third of his the evidence times several struck appellant was or facilitat- induced the victim namely, that appellant It is true victim. by the by offense, clearly supported ed the off his ward in order to knife produced a The uncontradicted the record. However, despite assailant. larger at the scene present every witness charged knife, the assailant presence the vio- initiated Haggard crime was This force. great appellant with into inadvertently brushed lence after knife wound. fatal resulted collision deliv- on and he advanced him and that into a claim when ap- recognize that appellant as fully I blows unprovoked ered raised, question has been self-defense The com- away him. from pellant backed negated that has the State whether question for the is a self-defense claim of Ind., (1982), Spinks v. State of fact. trier Further, a conviction

487 N.E.2d can be re- self-defense of a claim of

spite per- if reasonable appeal only no

versed negated say that self-defense can

son a reasonable doubt. beyond

by the State Ind., supra; Lilly v. State

Spinks, N.E.2d 23. bar, nothing in the I find at

In the case recitation of the facts nor in the

record negates appellant's majority I therefore

claim of self-defense. lack of evidence this case for

reverse discharged. order guilt and STRUTZ, Appellant

Donald F.

(Defendant Below), C.P.A., ROBINSON, Jr.,

Jay R. Below). (Plaintiff

Appellee

No. 02S03-9103-CV-220. Indiana. Supreme Court of Gemmer, Indianapolis, H. Arthur pellant. 21, 1991. March Johnson, John- Devoss Seott Joseph M. Decatur, Baker, appellee.

son & TO TRANSFER PETITION ON KRAHULIK, Justice. C.P.A., Jr., (Plaintif{- Robinson,

Jay R. to transfer this Court Appellee) petitions Ap- the Indiana Court this cause Court, after a Superior The Allen peals. court, fa- judgment entered to the F. against Donald vor of Robinson finding that (Defendant-Appellant), Strutz Robinson directly indebted to Strutz was to the trustee rendered services for C.P.A. The Court family trusts. of Strutz's decision, reversed split Appeals, in a holding that Robin- its judgment based and not trustee with the son had contracted

Case Details

Case Name: Tunstill v. State

Court Name: Indiana Supreme Court

Date Published: Mar 21, 1991

Citation: 568 N.E.2d 539

Docket Number: 49S00-8810-CR-884

Court Abbreviation: Ind.