Opinion
24A-CR-1168
12-04-2024
Sherman M. Whitener, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Christopher J. Petersen Elkhart, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Kathy J. Bradley Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Elkhart Circuit Court The Honorable Michael A. Christofeno, Judge Trial Court Cause No. 20C01-2210-MR-9
ATTORNEY FOR APPELLANT
Christopher J. Petersen Elkhart, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Kathy J. Bradley Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
MATHIAS, JUDGE
[¶1] The Elkhart Circuit Court sentenced Sherman M. Whitener, Jr., to sixty-three years in the Department of Correction after a jury found him guilty of murder. Whitener appeals, raising three issues:
I. Whether the trial court committed fundamental error when it allowed Whitener's co-defendant to testify;
II. Whether Whitener presented sufficient evidence to support his claim of self-defense; and,
III. Whether the trial court abused its discretion in its consideration of the aggravating and mitigating circumstances before ordering Whitener to serve sixty-three years in the Department of Correction.
[¶2] We affirm.
Facts and Procedural History
[¶3] On July 8, 2021, at approximately 8:00 p.m., Tyren Allen was driving his vehicle on West Cleveland Street in Elkhart when he saw Whitener walking toward Cleveland Street from an alleyway. Allen pulled his vehicle up to Whitener's location. Allen exited the vehicle, and he and Whitener stood on the street near Allen's car.
[¶4] Whitener had received phone calls from Deontae Harris at approximately 8:00 p.m. and 8:45 p.m. At 8:52 p.m., Allen called Harris. Approximately thirty seconds later, a vehicle driven by Delanos Johnson pulled up near Allen's vehicle. Harris was a passenger in Johnson's vehicle. Harris's window was rolled down, and he spoke to Allen and Whitener as the vehicle continued to pass them at a slow rate of speed.
[¶5] After the vehicle passed Whitener, he moved into the street behind it. Whitener pulled out an automatic weapon and raised his arms. Before Johnson's vehicle came to a stop, Harris began to exit the vehicle. Whitener then began shooting at Harris. Whitener fled from the area. Harris later died from injuries suffered from the gunshot wounds.
[¶6] The State charged Whitener with murder. Before trial, Whitener filed a motion in limine seeking to exclude, in part, co-defendant Allen's testimony at trial. The trial court denied Whitener's request. Whitener's three-day jury trial commenced on February 19, 2024. On the second day of trial, the State filed a request to grant immunity to Allen, which the trial court granted. Allen then testified that, when Harris exited Johnson's vehicle, Harris "stood there like he was mad or something. Like, aggressive." Tr. Vol. 2, p. 245. Allen stated that he could not "recall who was shooting. [He] just heard shots." Id. at 247. Allen also testified that he took a gun from Harris and "tossed" it. Id. at 250. Allen was asked if he called Whitener the day of the shooting and he said he could not remember. Tr. Vol. 3, p. 6. He also stated that he did not know Whitener well. Id. Allen eventually testified that he did not shoot Harris so Whitener must have shot him. Id. at 15.
[¶7] During closing arguments, Whitener conceded that he had shot Harris but argued that he had done so in self-defense. Tr. Vol. 4, p. 22. Whitener further argued that Harris had a gun when he exited Johnson's vehicle. Id. at 25-26. The only witness who testified that Harris had a gun was Allen. The State argued that Allen was not a credible witness and that it had presented evidence that Whitener had positioned himself behind the car, took out his gun, and assumed a shooter's stance before Harris exited Johnson's vehicle. Id. at 39-41. The jury found Whitener guilty of murder.
[¶8] The trial court held Whitener's sentencing hearing on April 25, 2024. The court considered Whitener's expression of remorse, his young age, and his issues with addiction as mitigating circumstances. Id. at 87-88. The court found the following aggravating circumstances: Whitener's prior criminal history, his failure to appear at a hearing, his two violations of probation, the fact that Whitener had fled from Indiana to Tennessee, his illegal alcohol and drug use, his juvenile history, his use of an automatic firearm, and the number of shots Whitener fired at Harris. The court also observed that Whitener's IRAS score placed him in the "very high risk category to reoffend" and that other "sanctions have proved to be unsuccessful in keeping" Whitener "from engaging in criminal activity." Appellant's App. p. 102. The court concluded that the "aggravators, taken individually or as a whole, outweigh any mitigating factors ...." Tr. Vol. 4, p. 90. The trial court then ordered Whitener to serve sixty-three years executed in the Department of Correction. Whitener now appeals.
Allen's Testimony
[¶9] Whitener argues that the trial court committed fundamental error when it allowed Allen to testify at his jury trial. Typically, we review the admission of evidence for an abuse of the court's discretion, but Whitener did not object to Allen's testimony. Therefore, Whitener waived appellate review of that possible argument. Batchelor v. State, 119 N.E.3d 550, 556 (Ind. 2019). He therefore claims fundamental error. Tate v. State, 161 N.E.3d 1225, 1229 (Ind. 2021).
[¶10] "An error is fundamental, and thus reviewable on appeal, if it 'made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm.'" Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018) (quoting Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014)). In other words, the doctrine applies when "the error is so flagrant that the trial judge should have corrected the error on [their] own, without prompting by defense counsel." Tate, 161 N.E.3d at 1229. The appellant "faces the heavy burden of showing that the alleged errors are so prejudicial to [his] rights as to 'make a fair trial impossible.'" Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)).
[¶11] In his brief, the only argument Whitener makes attempting to support his claim of fundamental error is as follows: "Allen's testimony was devastating, especially the point at . . . which Allen testified that the only other person at the scene who was able to shoot Harris was Whitener." Appellant's Br. at 11. This argument is nonsensical. At trial, Whitener conceded that he shot Harris. Tr. Vol. 4, p. 22. Moreover, Allen was the only witness who testified that Harris had a gun. And Whitener significantly relied on Allen's testimony to attempt to convince the jury that he acted in self-defense. Id. at 25-27. For all of these reasons, Whitener has not persuaded us that the trial court committed fundamental error when it allowed Allen to testify at trial.
Whitener devotes much space in his brief to his argument that he was not given the opportunity to depose Allen before trial and that the State failed to follow the proper procedures before requesting immunity for Allen. Whitener does not argue how these alleged errors made a fair trial impossible, however, and he therefore has not met his burden on appeal to show any error in these assertions.
Self-Defense
[¶12] To convict him of murder, the State was required to prove that Whitener knowingly or intentionally killed Harris. See Ind. Code § 35-42-1-1. At trial, Whitener claimed that he had acted in self-defense. And, on appeal, he argues that the State did not negate his claim of self-defense.
[¶13] A defendant's challenge to the adequacy of the State's evidence rebutting a self defense claim is reviewed like any other sufficiency of the evidence claim. Brown v. State, 738 N.E.2d 271, 273 (Ind. 2000). We do not reweigh the evidence or judge the credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Rather, we view the evidence in a light most favorable to the judgment, examining whether a reasonable factfinder could have found the defendant guilty beyond a reasonable doubt. Id. So long as there is substantial evidence of probative value supporting each element of the offense, we will affirm. Lehman v. State, 203 N.E.3d 1097, 1104 (Ind.Ct.App. 2023), trans. denied.
[¶14] Self-defense is a legal justification for an otherwise criminal act. Ind. Code § 35 41-3-2; Larkin v. State, 173 N.E.3d 662, 670 (Ind. 2021). A person is justified in using reasonable force, including deadly force, against another person to protect himself "if the person reasonably believes that the force is necessary to prevent serious bodily injury to the person[.]" Ind. Code § 35-41-3-2(c). To prevail on his self-defense claim, Whitener was required to show that he: "(1) was in a place where he had a right to be; (2) did not provoke, instigate, or participate willingly in the violence; and (3) had a reasonable fear of death or great bodily harm." Quinn v. State, 126 N.E.3d 924, 927 (Ind.Ct.App. 2019).
[¶15] When a claim of self-defense is made, and the claim finds support in the evidence, the State bears the burden of negating at least one of the necessary elements. Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). "The State may meet its burden by rebutting the defense directly, by affirmatively showing the defendant did not act in self-defense, or by relying on the sufficiency of the casein chief." Quinn, 126 N.E.3d at 927. Whether the State has met its burden is a question for the trier of fact. Kimbrough v. State, 911 N.E.2d 621, 635 (Ind.Ct.App. 2009). If a defendant is convicted despite his claim of self-defense, we will reverse only if no reasonable person could say that self-defense was negated beyond a reasonable doubt. Hollowell v. State, 707 N.E.2d 1014, 1021 (Ind.Ct.App. 1999).
[¶16] Whitener argues that he presented evidence that Harris was the perpetrator who instigated the violent exchange. And Whitener claims that he presented evidence that he had a legitimate fear of death or bodily harm. The reasonableness of Whitener's "belief that he was entitled to act in self-defense is determined from that point in time at which the defendant takes arguably defensive action. That belief must be supported by evidence that the alleged victim was imminently prepared to inflict bodily harm on the defendant." See Henson v. State, 786 N.E.2d 274, 278 (Ind. 2003).
[¶17] The portions of the record that Whitener cites in his brief do not support his assertions. Whitener directs our attention to Johnson's testimony that Harris had told Johnson to drive him to the area near 7th and Cleveland where Whitener and Allen were located. When they arrived at that location, Johnson slowly pulled his vehicle up to Whitener and Allen. Harris rolled his window down and spoke to Whitener and Allen. But there was no evidence presented that Harris had threatened Whitener. And the State presented evidence that Whitener had assumed a shooting stance and pointed his gun at Johnson's vehicle before Harris had exited the car. Finally, only Allen testified that Harris had a gun.
[¶18] It was within the province of the fact-finder to weigh the credibility of Allen's testimony. The jury considered Allen's testimony against Johnson's testimony that Harris did not have a gun. Tr. Vol. 3, pp. 238-40. And the State presented evidence that the police were not able to find a gun in the area where Allen said he had thrown it. Tr. Vol. 3, pp. 27-28, 168-69.
[¶19] For all of these reasons, we conclude that Whitener failed to present sufficient evidence that he acted without fault and reasonably believed that deadly force was necessary to prevent serious bodily harm. And, therefore, the jury was free to discredit his claim of self-defense.
Sentencing
[¶20] Whitener appeals his sixty-three-year sentence and argues that the trial court abused its discretion in its consideration of the aggravating and mitigating circumstances. Initially, we observe that the trial court was authorized to impose a sentence anywhere between forty-five to sixty-five years, and the advisory sentence for murder is fifty-five years. See Ind. Code § 35-50-2-3.
[¶21] Sentencing decisions rest within the sound discretion of the trial court, and we review such decisions for an abuse of discretion. Hudson v. State, 135 N.E.3d 973, 979 (Ind.Ct.App. 2019). "An abuse of discretion will be found where the decision is clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable, and actual deductions to be drawn therefrom." Id. For example, a trial court may abuse its discretion by:
(1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that includes aggravating and mitigating factors that are unsupported by the record; (3) entering a sentencing statement that omits reasons that are clearly
supported by the record; or (4) entering a sentencing statement that includes reasons that are improper as a matter of law.Id. "In cases where the trial court has abused its discretion, we will remand for resentencing only 'if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.'" Bryant v. State, 959 N.E.2d 315, 322 (Ind.Ct.App. 2011) (quoting Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.), clarified on reh'g 875 N.E.2d 218 (Ind. 2007)).
[¶22] First, Whitener claims that, because his criminal history consists of non-violent offenses and misdemeanor battery, the "trial court should have not treated his criminal history as a significant aggravator or, at all, as an aggravator." Appellant's Br. at 17. The trial court did not abuse its discretion when it found Whitener's criminal history to be an aggravating circumstance. See I.C. § 35-38-1-7.1(a)(2). And to the extent that Whitener is arguing that the trial court assigned too much aggravating weight to his criminal history, we will not review that claim on appeal. See Anglemyer, 868 N.E.2d at 491.
[¶23] Whitener also argues that the trial court "abused its discretion at sentencing when it failed to find as a mitigator, facts supporting that the victim induced or facilitated his killing." Appellant's Br. at 17. Whitener argued this mitigating circumstance at the sentencing hearing, but, like the jury, given the absence of evidence that Harris had instigated the shooting or that he was armed with a weapon, it was within the trial court's discretion to find that Whitener's proposed mitigating circumstance was not supported by the record.
[¶24] Whitener has not persuaded us that the trial court abused its discretion in its consideration of the aggravating and mitigating circumstances. We therefore affirm his sixty-three-year sentence.
Conclusion
[¶25] Whitener has not persuaded us that the trial court committed fundamental error when it allowed co-defendant Allen to testify. And it was within the province of the jury to discredit Whitener's purported evidence of self-defense. Finally, the trial court did not abuse its discretion when it sentenced Whitener. We therefore affirm his conviction and sixty-three-year sentence.
[¶26] Affirmed.
Brown, J., and Kenworthy, J., concur.