Opinion
23A-CR-2337
08-09-2024
Cody A. Wade, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT LISA D. MANNING MANNING LAW OFFICE PLAINFIELD, INDIANA ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL COURTNEY STATON 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Clay Superior Court The Honorable Robert A. Pell, Judge Trial Court Cause No. 11D01-2006-MR-000525
ATTORNEY FOR APPELLANT LISA D. MANNING MANNING LAW OFFICE PLAINFIELD, INDIANA
ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL COURTNEY STATON DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
Felix, Judge
Statement of the Case
[¶1] After consuming methamphetamine and alcohol, Cody Wade stabbed his mother's boyfriend Clay Haviland to death in his mother's home. Wade was arrested within hours and attacked three law enforcement officers after he was taken into custody. Three years later, a jury convicted Wade of Haviland's murder, among other charges, and the trial court sentenced him to 85 years of incarceration. Wade now appeals his convictions and sentence, raising two issues for our review:
1. Whether the trial court abused its discretion by denying Wade's motion for expert witness funding; and
2. Whether Wade's sentence is inappropriate under Indiana Appellate Rule 7(B).
[¶2] We affirm.
Facts and Procedural History
[¶3] In June 2020, Wade was at a cookout in Clay County, Indiana. Wade was drinking whiskey, had used methamphetamine, and was "really hyped up, like really antsy," Tr. Vol. III at 227-28. Wade asked one of the guests at the cookout about the relationship between Wade's mother, Michelle Tincher, and Haviland, whom he believed was using Tincher for a place to live. As the day went on, Wade became convinced that Haviland was cheating on Tincher. At approximately 11:30 p.m., Tincher's upstairs neighbor Kodey Bowman was outside, and Wade approached him. Wade told Bowman that "he [Wade] was gonna cut somebody, he was gonna catch a case, he's dead." Tr. Vol. III at 127. Bowman tried to dissuade Wade, but he was unsuccessful.
[¶4] Wade then went to Tincher's residence, where Tincher and Haviland were in the kitchen. Wade entered the residence, yelled for Haviland, walked up to him in the kitchen, pushed him against the wall, and began punching him and stabbing him in the chest. As he was doing so, Wade told Haviland that he "was going to kill him [Haviland]." Tr. Vol. III at 98. Tincher testified that she "tried to pull [Wade] off of [Haviland]. I fought so hard.... I was grabbing the knife and trying to pull it out but I couldn't.... I just tried to get [Wade] to quit." Id. at 98-99. While Wade and Tincher struggled for the knife, Wade "kept . . . saying, 'die ni[**]a die.'" Id. at 99. At one point, Tincher got in between Wade and Haviland, and Wade attempted to stab Haviland over top of Tincher. Once Wade stopped attacking Haviland, Wade went to leave but turned around, came back to the kitchen, and kicked Haviland while Haviland was still on the floor. As he left, Wade said to Tincher, "What do you think of me now, b[*]tch, what do you think of me now. I gotta murder charge. I killed a motherf[***]er." Id. at 100.
[¶5] Tincher called 911. When law enforcement officers arrived at her residence, she informed them that Wade was the one who attacked Haviland. Officers quickly located Wade and took him into custody, but Wade was not cooperative. Wade lunged and kicked at several officers, kicking one officer at least three or four times in the knee and chin areas, and headbutting another officer in the face. After arriving at the jail, an officer was trying to replace a leg restraint Wade had managed to remove when Wade kicked that officer in the chest.
[¶6] In total, Wade stabbed Haviland four times in the chest: three times in the left lung and once in the heart. Haviland also sustained defensive wounds on his hands and arms. Haviland died from these injuries. The State charged Wade with one count of murder, two counts of battery resulting in bodily injury to a public safety official as Level 5 felonies, one count of battery on a public safety official as a Level 6 felony, and one count of resisting law enforcement as a Class A misdemeanor. The State also alleged that Wade was a habitual offender. Due to his indigency, Wade was appointed a public defender.
Id. § 35-42-2-1(c)(1), (g)(5)(A).
Id. § 35-42-2-1(c)(1), (e)(2).
Id. § 35-44.1-3-1(a)(3).
Id. § 35-50-2-8.
[¶7] In May 2023, Wade filed a motion seeking public funds to hire an expert witness (the "Expert Witness Motion"). In particular, Wade wanted to hire a pharmacologist "to examine the evidence in this case regarding the interaction of the medications of Remeron and Celexa in the Defendant on June 18, 2020" and opine on the effects of those prescription medications. At the hearing on this motion, Wade argued that although his post-arrest blood test showed he had alcohol and methamphetamine in his system when he murdered Haviland, the Remeron and Celexa he allegedly had been taking could have caused him to blackout and act aggressively. The trial court denied the Expert Witness Motion, concluding that a pharmacologist's testimony about the effects of Remeron and Celexa would be irrelevant and immaterial, and that any intoxication that may have resulted from Wade's alleged use of those prescription medications was voluntary. In late July 2023, Wade renewed the Expert Witness Motion, and the trial court denied it again.
[¶8] After a four-day trial, a jury found Wade guilty as charged and determined he was a habitual offender. The trial court imposed a total aggregate sentence of 85 years executed at the Indiana Department of Correction ("DOC"). This appeal ensued.
Discussion and Decision
1. The Trial Court Did Not Abuse Its Discretion by Denying the Expert Witness Motion
[¶9] Wade contends that the trial court abused its discretion when it denied the Expert Witness Motion. Wade is not entitled to hire at public expense "any and all experts [he] believes might be helpful"; rather, "he bears the burden of showing a need." Griffith v. State, 59 N.E.3d 947 (Ind. 2016) (alteration in original) (quoting Tidwell v. State, 644 N.E.2d 557, 560 (Ind. 1994)). We review a trial court's decision about whether to hire an expert witness at public expense for an abuse of discretion. Id. (citing Scott v. State, 593 N.E.2d 198, 200 (Ind. 1992)).
[¶10] The trial court's central inquiries are (a) "whether the services are necessary to assure an adequate defense" and (b) "whether the defendant specifies precisely how he would benefit from the requested expert services." Schuck v. State, 53 N.E.3d 571, 574 (Ind.Ct.App. 2016) (quoting Tidwell, 644 N.E.2d at 560). In addressing these inquiries, the trial court may consider the following 11 factors, among others:
(1) whether the services would bear on an issue generally regarded to be within the common experience of the average person, or on one for which an expert opinion would be necessary; (2) whether the requested expert services could nonetheless be performed by counsel; (3) whether the proposed expert could demonstrate that which the defendant desires from the expert; (4) whether the purpose for the expert appears to be only exploratory; (5) whether the expert services will go toward answering a substantial question in the case or simply an ancillary one; (6) the seriousness of the charge; (7) whether the State is relying upon an expert and expending substantial resources on the case; (8) whether a defendant with monetary resources would choose to hire such an expert; (9) the costs of the expert services; (10) the timeliness of the request for the expert and whether it was made in good faith; and (11) whether there is cumulative evidence of the defendant's guilt.Id. (quoting Kocielko v. State, 938 N.E.2d 243, 254-55 (Ind.Ct.App. 2010), on reh'g, 943 N.E.2d 1282 (Ind.Ct.App. 2011), trans. denied). "Even where there are factors present militating toward appointment of an expert, [those] factors may be insufficient to require the trial court to approve the hiring of an expert at public expense." Watson v. State, 972 N.E.2d 378, 385 (Ind.Ct.App. 2012) (quoting Kocielko, 938 N.E.2d at 254-55).
[¶11] Wade specifically argues that a pharmacologist was necessary to his defense that he did not have the requisite intent for murder due to the effects of Remeron and Celexa. However, Wade did not produce any evidence in the Expert Witness Motion or at the hearing that he had ever been prescribed those medications, let alone that he was taking them. Instead, the first time he filed the Expert Witness Motion, Wade stated in the motion that when he was questioned by law enforcement officers after his arrest, he informed them that he had been taking Remeron and Celexa. The Expert Witness Motion was not a verified filing, so the allegations therein are not evidence. See Ind. Trial Rule 11(C). Moreover, Wade chose not to present any evidence at the hearing on this motion and instead provided only argument. When Wade renewed the Expert Witness Motion a few days before trial, he submitted an affidavit from an attorney in support thereof, but that affidavit says nothing about whether Wade had been prescribed Remeron and Celexa or whether Wade was taking those medications around the time of the murder.
[¶12] Even if we assume that Wade presented evidence that he had been prescribed and was taking Remeron and Celexa at the time of the murder, Wade still failed to show a need for the pharmacologist. We note that the State concedes the "potential interactions of medications is not within the common experience of the average person." Appellee's Br. at 15. Likewise, the State does not argue that Wade's counsel could perform the expert services or that Wade's proposed expert could not demonstrate that Remeron and Celexa could potentially cause blackouts and aggression when taken together. However, the question of how these two prescription medications may have affected Wade was an ancillary one because voluntary intoxication is not a defense to a crime and cannot be considered in determining whether the defendant had the requisite mens rea. See I.C. § 35-41-3-5; Berry v. State, 969 N.E.2d 35, 38 n.1 (Ind. 2012). Assuming arguendo that Wade did not know that these prescription medications might cause intoxication, see I.C. § 35-41-3-5(2), Wade voluntarily consumed alcohol and methamphetamine shortly before the murder. This renders ancillary and irrelevant any testimony the pharmacologist could have provided about the effects of Remeron and Celexa. There was also cumulative evidence of Wade's guilt, including his planning of the murder and his choice to see that plan through despite multiple people attempting to stop him. Based on the foregoing, Wade failed to carry his burden of showing a need for a pharmacologist in this case, so we cannot say the trial court abused its discretion by denying the Expert Witness Motion.
[¶13] Assuming for the sake of argument that Wade carried his burden of showing a need for a pharmacologist in this case, it was harmless error for the trial court to deny the Expert Witness Motion. See Ind. Appellate Rule 66(A). "An error is harmless when it results in no prejudice to the 'substantial rights' of a party." Hall v. State, 177 N.E.3d 1183, 1193 (Ind. 2021) (quoting Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018)). Harmless error analysis embodies "the principle that courts should exercise judgment in preference to the automatic reversal for error and ignore errors that do not affect the essential fairness of the trial." Id. (quoting Durden, 99 N.E.3d at 652). Here, Wade testified at trial that he took his prescriptions the evening of the murder, but when questioned further about what medications he had taken, Wade testified that had taken neither Remeron nor Celexa before the murder. As to whether Wade was taking Remeron, the following colloquy took place:
[DEFENSE COUNSEL]: Did you stop taking one of them for an odd day?
[WADE]: The- the one I did.
[DEFENSE COUNSEL]: Alright and why was that?
[WADE]: Because I had to work nights and it was a sleeping medication.Tr. Vol. V at 75. As to whether Wade was taking Celexa, he stated:
The medication I was on was generic Celexa, it was a- a mood stabilizer, PTSD medication. I was prescribed other medications while incarcerated that I continued to take at home because when you leave prison, they give you your prescription until you can see a physician to get it filled. That is the medication that I stopped taking.Id. at 76 (emphases added).
[¶14] Based on this testimony, it appears that Wade was taking neither Remeron nor Celexa; at the very least, Wade's testimony about the medications he was taking around the time of the murder is confusing and contradictory. Therefore, a pharmacologist's testimony about the effects of Remeron and Celexa would not have been relevant, and Wade's substantial rights were not prejudiced by not being able to present such testimony. We thus conclude that even if the trial court abused its discretion by denying the Expert Witness Motion, any resulting error was harmless.
2. Wade's Sentence Is Not Inappropriate Under Appellate Rule 7(B)
[¶15] Wade argues his sentence is inappropriate under Appellate Rule 7(B) and should be revised. The Indiana Constitution authorizes us to independently review and revise a trial court's sentencing decision. Faith v. State, 131 N.E.3d 158, 159 (Ind. 2019) (citing Ind. Const. art. 7, §§ 4, 6; McCain v. State, 88 N.E.3d 1066, 1067 (Ind. 2018)). That authority is implemented through Appellate Rule 7(B), which permits us to revise a sentence if, after due consideration of the trial court's decision, we find that the sentence is "inappropriate in light of the nature of the offense and the character of the offender." Faith, 131 N.E.3d at 159 (quoting Ind. Appellate Rule 7(B)).
[¶16] Sentencing is "principally a discretionary function in which the trial court's judgment should receive considerable deference." Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008)). To overcome this deference, the defendant must present "compelling evidence portraying in a positive light the nature of the offense and the defendant's character." Id. (internal quotation marks omitted) (quoting Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023)).
Our role is primarily to "leaven the outliers" and identify "guiding principles" for sentencers, rather than to achieve the "perceived 'correct' result" in each case. Cardwell, 895 N.E.2d at 1225. As such, we "focus on the forest-the aggregate sentence-rather than the trees-consecutive or concurrent, number of counts, or length of the sentence on any individual count." Id. Ultimately, we rely on our "collective judgment as to the balance" of all the relevant considerations involved, which include "the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case." Id. at 1224, 1226.Lane, 232 N.E.3d at 122. In conducting this analysis, "we are not limited to the mitigators and aggravators found by the trial court." Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014).
[¶17] When considering the nature of the offense, we start with the advisory sentence. Brown, 10 N.E.3d at 4 (citing Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007)). Here, Wade was convicted of and sentenced on one count of murder, two Level 5 felonies, one Leve 6 felony, and one Class A misdemeanor. "A person who commits murder shall be imprisoned for a fixed term of between forty-five (45) and sixty-five (65) years, with the advisory sentence being fifty-five (55) years." I.C. § 35-50-2-3(a) (emphasis added). For his murder conviction, the trial court sentenced Wade to 60 years executed at the DOC. Because the jury determined that Wade was a habitual offender, the trial court had to enhance Wade's murder sentence by 8 to 20 years, I.C. § 35-50-2-8(i)(1); the trial court chose to enhance that sentence by 15 years executed at the DOC.
[¶18] "A person who commits a Level 5 felony . . . shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years." I.C. § 35-50-2-6(b) (emphasis added). For each of his Level 5 felony convictions, the trial court sentenced Wade to five years executed at the DOC. "A person who commits a Level 6 felony . . . shall be imprisoned for a fixed term of between six (6) months and two and one-half (2 %) years, with the advisory sentence being one (1) year." I.C. § 35-50-2-7(b) (emphasis added). For his Level 6 felony conviction, the trial court sentenced Wade to two-and-a-half years executed at the DOC. "A person who commits a Class A misdemeanor shall be imprisoned for a fixed term of not more than one (1) year." I.C. § 3550-3-2. For his Class A misdemeanor conviction, the trial court sentenced Wade to one year executed at the DOC. The trial court ran Wade's enhanced murder sentence and his two Level 5 felony sentences consecutively, and it ran Wade's Level 6 felony and Class A misdemeanor convictions concurrently, resulting in a total aggregate sentence of 85 years executed at the DOC.
[¶19] Where, as here, the trial court deviated from the advisory sentence, one factor we consider is "whether there is anything more or less egregious about the offense committed by the defendant that makes it different from the 'typical' offense accounted for by the legislature when it set the advisory sentence." T.A.D.W. v. State, 51 N.E.3d 1205, 1211 (Ind.Ct.App. 2016) (quoting Holloway v. State, 950 N.E.2d 803, 806-07 (Ind.Ct.App. 2011)), as amended (May 26, 2023). We also consider whether the offense was "accompanied by restraint, regard, and lack of brutality." Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[¶20] Wade planned to murder Haviland, going so far as to tell Bowman that he was going to kill someone and ignoring Bowman's advice not to do so. Wade then repeatedly stabbed Haviland in the chest in Tincher's home, in front of Tincher, and in spite of Tincher's efforts and pleas for Wade to stop. Wade used racial slurs and taunted Haviland about his impending death. As Wade started to leave Tincher's residence, he stopped himself to go back and kick Haviland. Additionally, when law enforcement officers apprehended Wilson a short time later, Wilson was aggressive and physically violent with several officers, injuring three officers.
[¶21] Nevertheless, Wade claims his sentence should be reduced because his murder of Haviland "was not well planned, hastily executed, and not especially heinous in comparison to other murders." Appellant's Br. at 15. As demonstrated by the facts of this case, none of Wade's crimes, but especially not his murder of Haviland, were accompanied by restraint, regard, or lack of brutality. See Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Although this murder may be less heinous than others, it is still heinous.
[¶22] In considering the character of the offender, "we engage in a broad consideration of a defendant's qualities," T.A.D.W., 51 N.E.3d at 1211 (citing Aslinger v. State, 2 N.E.3d 84, 95 (Ind.Ct.App. 2014), clarified on other grounds on reh'g), including whether the defendant has "substantial virtuous traits or persistent examples of good character," Stephenson, 29 N.E.3d at 122.
[¶23] Wade's criminal history spans 14 years and began when he was a juvenile. Wade was twice adjudicated a delinquent. As an adult, Wade was convicted of eight misdemeanors-including a conviction for violence towards another- and five felonies-including convictions for theft, burglary, domestic battery, and arson. Wade was placed on probation in 11 of his adult criminal cases, and he violated the terms of his probation in at least 7 of those cases. Notably, Wade was on probation for his arson conviction when he committed the instant offenses.
[¶24] Wade was "suspended/expelled" from high school "for skipping school, smoking marijuana, and having sex in the bathrooms"; he later obtained his GED while incarcerated in the Hamilton County Jail. Appellant's App. Vol. IV at 70. Wade began using drugs when he was 15 years old and began drinking alcohol regularly when he was 17 years old. According to Wade, his "drug of choice" is methamphetamine, which he was using daily prior to murdering Haviland. Id. at 71. Additionally, Wade was previously diagnosed with bipolar disorder and had previously attempted suicide.
[¶25] Based on the serious nature of Wade's offense and his history of criminal or otherwise deviant behavior, we cannot say that Wade has produced compelling evidence demonstrating that the nature of his offense or his character renders his sentence inappropriate. See Hayko v. State, 211 N.E.3d 483, 487 n.1 (Ind. 2023), reh'g denied (Aug. 18, 2023).
Conclusion
[¶26] In sum, the trial court did not abuse its discretion by denying the Expert Witness Motion, and even if it did, any resulting error was harmless. In addition, the trial court did not impose an inappropriate sentence. We therefore affirm the trial court on all issues raised.
[¶27] Affirmed.
Riley, J., and Kenworthy, J., concur.