Opinion
No. 2:06cv0176 AS.
January 4, 2007
MEMORANDUM, OPINION AND ORDER
On or about May 9, 2006, pro se petitioner, Luther Carl Young an inmate at the Indiana State Prison (ISP), Michigan City, Indiana, filed a petition seeking relief under 28 U.S.C. § 2254. The Response filed on behalf of the respondent by the Attorney General of Indiana on November 22, 2006, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982).
A good beginning point is the unpublished memorandum decision of the Court of Appeals of the State of Indiana entered on February 27, 2004. For the immediate reference of all concerned, the memorandum decision is marked as Appendix "A", attached hereto and incorporated herein. The underlying conviction was in the courts of Lake County, Indiana in 2003 where this petitioner was convicted of two counts of murder and two counts of attempted murder. He is serving a 100-year sentence therefor at the ISP in this district.
The extensive findings of fact set out by the Attorney General of Indiana on pages two and three of the memorandum filed November 22, 2006 are certainly entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1), and this petitioner has the burden of rebutting that presumption by clear and convincing evidence which he has failed to do. After the aforesaid opinion entered by the Court of Appeals of Indiana on February 27, 2004, this petitioner returned to the state trial court and filed for post-conviction relief. Later in February 2006, that proceeding was withdrawn without prejudice. The Attorney General, however, indicates that the claims raised here were also raised on the direct appeal and the petition to transfer with reference to the Court of Appeals opinion entered February 27, 2004. The Supreme Court of Indiana denied transfer on May 13, 2004.
It is indicated that this petitioner raises basically three issues, one with reference to the admission of his confession, the second with regard to a so-called accomplice instruction, and, third, raises an Eighth Amendment issue with regard to the 100-year sentence entered regarding the two murders.
What the petitioner's arguments seem to come down to revolves around so-called unreasonable application of federal law under Williams v. Taylor, 529 U.S. 362 (2000). The focus is not on violations of state law. See Estelle v. McGuire, 502 U.S. 62 (1991). See also Holman v. Gilmore, 126 F.3d 876 (7th Cir. 1997). With regard to the so-called accomplice liability instruction, it was held to have been waived on direct review, and this court cannot gainsay that decision here.
The petitioner argues that his confession was the product of an unreasonable delay occasioned by the state authority's need to establish probable cause. The Court of Appeals of Indiana determined that there was indeed probable cause for his arrest, and he was brought before a magistrate judge within 48 hours. The state court facts would undermine any application of Gerstein v. Pugh, 420 U.S. 103 (1975). The treatment of this issue does not appear to be an unreasonable application of clearly established federal law. With regard to the accomplice liability instruction, there appears to be an adequate independent ground for the denial of state habeas corpus. See Lee v. Davis, 328 F.3d 896 (7th Cir. 2005). The Court of Appeals of Indiana found the claim with regard to accomplice liability instruction procedurally barred from any review, and certainly did not consider it fundamental error. Even aside from the arguments about a procedural bar, and looking at the entirety of the record, it is hard to find an unreasonable application of established federal law under any decision of the Supreme Court of the United States.
The Ninth Amendment claim needs to be viewed through the prism of Harmelin v. Michigan, 501 U.S. 957 (1991). See also Solem v. Helm, 463 U.S. 277 (1983). As indicated by the Court of Appeals of Indiana, the sentence challenged was less than the presumptive term on each of the murder convictions. It would appear that the state courts have given appropriate consideration to this case. Of some basic importance here are the twin unanimous cases decided on the same day by the Supreme Court of the United States in Woodford v. Visciotti, 537 U.S. 19 (2002) and Early v. Packer, 537 U.S. 3 (2002). See also Rice v. Collins, 125 S.Ct. 969 (2006), Bell v. Cone, 543 U.S. 447 (2005), reversing Cone v. Bell, 359 F.3d 785 (6th Cir. 2004), and Charlton v. Davis, 439 F.3d 369 (7th Cir. 2006).
For all of these reasons, the petitioner has presented no basis here for relief under 28 U.S.C. § 2254. Such relief is now DENIED. IT IS SO ORDERED. Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata collateral estoppel, or the law of the case. ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE MARK A. BATES STEVE CARTER JERRY T. JARRETT MONIKA PREKOPA TALBOT IN THE COURT OF APPEALS OF INDIANA
: : Attorney General of Indiana Crown Point, Indiana Deputy Attorney General Indianapolis, Indiana LUTHER C. YOUNG, ) ) Appellant-Defendant, ) ) vs. ) No. 45A05-0304-CR-180 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. ) APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Richard W. Maroc, Judge Cause No. 45G01-0102-CF-00035 February 27, 2004 MEMORANDUM DECISION — NOT FOR PUBLICATION BAILEY, JudgeAppendix "A" Case Summary
Appellant-Defendant Luther Young ("Young") appeals his convictions for two counts of murder, a felony, and two counts of attempted murder, a Class A felony. We affirm.Issues
Young presents three issues for review:
I. Whether his confession was properly admitted into evidence;
II. Whether the jury was properly instructed on accomplice liability; and
III. Whether his sentence is inappropriate.
Facts and Procedural History
On December 31, 2000, at approximately 1:15 a.m., Kal Gary ("Gary") was driving a vehicle in East Chicago, Indiana, in which Gary Porter ("Porter"), Ray Grant ("Grant") and Demarcus Bonds ("Bonds") were passengers, when a black Chevy Suburban truck with a red pinstripe and tinted windows pulled up. next to Gary's vehicle. Someone from the Suburban truck fired multiple shots into Gary's vehicle, killing Gary and Grant, and wounding Bonds and Porter. Porter drove until he found a police officer, and requested an ambulance. Bonds then fled the scene, but Porter gave a statement to the police.Later that day, Gary Police Officer Michael Shannon ("Officer Shannon") saw Young in the vicinity of 44th and Maryland Streets in Gary, Indiana, "hanging out of a vehicle. (Tr. 432.) As Officer Shannon approached, Young drove off. However, Officer Shannon signaled to Young to pull over, which Young did. Young was unable to produce a driver's license and vehicle registration at Officer Shannon's request, but identified himself as Luther Young. When Young exited his vehicle, he looked back at the area from which he had driven. Following Young's gaze, Officer Shannon saw smoke billowing from a Suburban truck. The Suburban truck burst into flames. Officer Shannon arrested Young because he suspected Young of arson involving the Suburban truck, and because a record check revealed that Young's driver's license was suspended. Young was later released from custody.
On February 2, 2001, Kevin Stokes ("Stokes") was arrested by East Chicago police officers for possession of a controlled substance. Stokes advised police officers that he had information regarding a double murder that occurred on December 31, 2000. In his statement, Stokes implicated Young and Derrick Jones ("Jones"). On February 6, 2001, Officer Shawn Pitts ("Officer Pitts") brought Young to the East Chicago police station, where Young gave a statement to Detective Isaac Washington ("Detective Washington"), denying any involvement in the murders.
Detective Washington subsequently learned that Young had been arrested in Gary on suspicion of burning a Suburban truck that had been linked to the East. Chicago murders. On February 14, 2001, at approximately 3:15 p.m., Officer Pitts arrested Young for the East Chicago murders.
In police custody, Young asked to speak with East Chicago Juvenile Detective Danny Rias ("Detective Rias"), who was, unbeknownst to Young, the second cousin of one of the victims. Young wanted to know "what the police had on him." (Tr. 201-02.) Detective Rias asked about Young's involvement in the murders and urged Young to "tell the truth." (Tr. 208-09.) Young did not provide any information about the murders, and the conversation ended. Young received no Miranda warnings before or during the conversation.
On February 16, 2001, Detective Washington spoke with Young about the murders, after advising Young of his Miranda rights and showing Young a waiver form. Young signed the waiver form, and confessed to the following facts. Young desired to retaliate for a shooting the previous summer, in which he was the victim, and the more recent shooting of Herman Dates. Young requested that Daviante Dunham ("Dunham") drive him to Guthrie Street, where Young's suspected shooters lived. Young saw Grant in a vehicle on Guthrie Street. Young rolled down his window and opened fire into Grant's vehicle. Young later "torched" the Suburban truck in an alley. (Def. Ex. 11.)
The State charged Young with two counts of murder, two counts of attempted murder and one count of battery. On January 7, 2003, Young moved to suppress any statements made to police officers after his contact with Detective Rias. On January 28, 2003, the trial court held a suppression hearing and denied Young's motion to suppress.
Young was tried before a jury in a trial that commenced on January 27, 2003 and ended on February 4, 2003. Young was convicted of two counts of murder and two counts of attempted murder. The trial court imposed upon Young fifty-year sentences, to be served consecutively, for each of the murder convictions. Further, the trial court imposed concurrent thirty-year sentences for each of the attempted murder convictions. Young now appeals his convictions and aggregate one hundred-year sentence.
Discussion and Decision I. Admission of Confession
Young contends that his confession to Detective Washington is the product of police coercion and is therefore inadmissible. Specifically, Young claims he was arrested without probable cause, detained an unreasonable amount of time, and deceived by Detective Rias.
Additionally, this Court granted Young permission to file a belated Reply Brief, in which he argues that the Indiana Constitution, unlike the United States Constitution, encompasses a requirement that law enforcement officers must record custodial interrogations in places of detention. He urges the adoption of persuasive precedent from other jurisdictions that institutes mandatory electronic recording to safeguard the voluntariness of confessions. See e.g., Stephan v. State, 711 P.2d 1156 (Alaska 1985). However, two separate panels of this Court have previously determined that the Due Course of Law requirement of the Indiana Constitution, analagous to the Due Process Clause of the Fourteenth Amendment, does not require mandatory electronic recording of confessions, although recording should be strongly encouraged. See Whitfield v. State, 699 N.E.2d 666 (Ind.Ct.App. 1998); Stoker v. State, 692 N.E.2d 1386 (Ind.Ct.App. 1998). We find the reasoning of those decisions to be sound, and likewise decline to find that Young's confession was obtained in violation of his rights under the Indiana Constitution because it was not electronically recorded.
This Court reviews challenges on questions of law under a de novo standard. Griffith v. State, 788 N.E.2d 835, 839 (Ind. 2003). The denial of a motion to suppress is reviewed as a matter of sufficiency. Id. In reviewing the trial court's ruling on the validity of a warrantless arrest, we consider the evidence favorable to the trial court's ruling and any uncontradicted substantial evidence to the contrary to determine whether there is sufficient evidence to support the ruling. Id.
A trial court has broad discretion in ruling on the admissibility of evidence, and we will disturb its rulings only where it is shown that the court abused that discretion. Id. We view the circumstances in their totality and, without reweighing evidence and considering conflicting evidence most favorable to the trial court's ruling, determine if there was substantial evidence of probative value to support the trial court's ruling.Id.
Initially, Young claims that the trial court should have suppressed his confession because it was the product of a warrantless arrest without probable cause. Probable cause sufficient to support a warrantless arrest exists when, at the time of the arrest, the officer has knowledge of facts and circumstances that would warrant a person of reasonable caution to believe that the suspect committed a criminal act. Id. at 840. The amount of evidence necessary to meet the probable cause requirement for a warrantless arrest is determined on a case-by-case basis, and can rest on collective information known to the law enforcement organization as a whole. Id.
Here, Stokes informed Detective Washington that Young and Jones committed the murders of Gary and Grant. Porter advised police officers that the shooter was in a black Suburban truck, which had a red pinstripe and tinted windows. Officer Shannon observed Young behaving suspiciously in the vicinity of a black Suburban that burst into flames. The Suburban was later inked to the murders. Consequently, at the time Young was arrested, the police had probable cause to believe that Young committed the murders.
Young also claims that his Constitutional rights were violated because his confession was made after his detention for forty-three hours without a probable cause hearing. The Indiana Supreme Court explained, in Griffith, the detained individual's right to a prompt judicial determination of probable cause, as follows:
An individual detained following a warrantless arrest is entitled to a "prompt" judicial determination of probable cause as a prerequisite to any further restraint on his liberty. Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The promptness requirement is satisfied under Gerstein when the "administrative steps incident to arrest" are completed. Id. In Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (citations omitted), the Court was more specific about the Gerstein standard: "a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein."
The law of Due Process acknowledges that delays cannot always be avoided, but the government must justify such delays. "Where an arrested individual does not receive a probable cause determination within 48 hours, . . . the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance." Id. at 57, 111 S.Ct. 1661. The fact that in a particular case it may take longer than forty-eight hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Id.788 N.E.2d at 840-41. Young does not claim that he was held more than forty-eight hours without a judicial determination of probable cause. Thus, the State was not burdened with demonstrating extraordinary circumstances. Rather, Young was required to demonstrate that his confession was the product of an unreasonable delay in bringing him before a judge or magistrate He has not done so.
Third, Young argues that his communication with Detective Rias rendered his subsequent confession to Detective Washington involuntary. Admissibility of a confession is governed by the totality of the circumstances relative to whether or not the confession was made voluntarily. Id. at 841. Standard indicators for voluntariness include whether the confession was freely self-determined, the product of a rational intellect and free will, without compulsion or inducement of any sort, and whether the will of the accused was overborne. Id. Although the State at trial is required to prove the voluntariness of a confession, we review the question on appeal as other sufficiency matters. Id.
Young initiated the conversation with Detective Rias, and attempted to gain information as to "what the police had on him." (Tr. 201-02.) Before speaking with Detective Washington, Young received a Miranda warning and executed a waiver of rights form. He then made a detailed confession, without invoking his right to remain silent. Young reviewed, signed and dated the written version of his confession, and initialed each page. There is substantial evidence to support the trial court's finding that Young's confession was voluntary. Too, there is an absence of evidence that Detective Rias overcame Young's free will.
Young's confession was voluntary and properly admitted into evidence.
II. Accomplice Instruction
Next, Young alleges that he trial court erred in instructing the jury on accomplice liability. Instructing the jury generally lies within the discretion of the trial court, and appellate reversal is appropriate only for abuse of discretion. Driver v. State, 760 N.E.2d 611, 612 (Ind. 2002). Thus, we will reverse only if the instructions, considered as a whole and with reference to each other, misstate the law or otherwise mislead the jury. Lewis v. State, 759 N.E.2d 1077, 1080-81 (Ind.Ct.App. 2001), trans. denied.
The trial court gave the following accomplice liability instruction:
It is a fundamental principle of law that where two or more persons engage in the commission of an unlawful act, each person may be criminally responsible for the actions of each other person which were a probable and natural consequence of any common plan, even though not intended as part of any original plan. Under these circumstances it is not essential that participation of any one person to each element of the crime be established.
Under Indiana law: A person who knowingly or intentionally aids, induces or causes another person to commit an offense, commits that offense, even if the other person
(1) has not been prosecuted for the offense;
(2) has not been convicted of the offense; or
(3) has been acquitted of the offense.
To aid under the law is to knowingly aid, support, help or assist in the commission of a crime. Mere presence at the scene of the crime and knowledge that a crime is being committed are not sufficient to allow an inference of participation. It is being present at the time and place and knowingly doing some act to render aid to the actual perpetrator of the crime. The presence of a person at the scene of the commission of a crime and companionship with another person engaged in the commission of the crime and a course of conduct before and after the offense are circumstances which may be considered in determining whether such person aided and abetted the commission of such crime.
(App. 367.) At trial, Young's attorney objected as follows:
My client is the only one implicated in this crime. He's not being charged as an accessory. He's being charged as the perpetrator. . . . We're talking about inviting jury confusion or compromise, when we look at this instruction. The State has not alleged to any extent that my client was an accomplice.
(Tr. 1186-87.) As counsel observed, the State's principal theory of prosecution was that Young was the shooter, assisted by a driver. Nevertheless, it is well settled that a person can be charged as a principal and convicted as an accomplice. Clark v. State, 732 N.E.2d 1225, 1230 (Ind.Ct.App. 2000) As there was evidence that Young and Dunham acted in concerted retaliation against the victims for earlier shootings, the trial court was within its discretion to instruct the jury on accomplice liability.
Although he did not object on this basis at trial, and so must demonstrate fundamental error, Young also contends that the instruction is a mandatory instruction, which violated his due process rights by shifting from the State the burden of proving his guilt beyond a reasonable doubt. Recently, in McCorker v. State, 797 N.E.2d 257, 264. (Ind. 2003), the Indiana Supreme Court concluded that a substantially similar accomplice liability instruction did not violate the defendant's due process rights by shifting the burden of proof from the State on an essential element of the charged offense. Furthermore, in Final Instructions 2 and 3, the trial court properly instructed the jury that the State bore the burden of proving beyond a reasonable doubt every essential element of the crimes charged and that Young was presumed innocent and not required to prove his innocence. As such, Young has not demonstrated fundamental error in the language of the accomplice liability instruction.
Here, the challenged instruction employs more permissive language than that examined in McCorker. The jury was instructed that Young "may be criminally responsible" for certain acts, while the McCorker jury was instructed that a defendant "is criminally responsible" for such acts.
However, the Court observed that the instruction was so poorly drafted that it should not be given in the future. Id.
III. Sentencing
Finally, Young seeks revision of his one-hundred-year aggregate sentence as inappropriate in light of his youth and limited criminal history, pursuant to Indiana Appellate Rule 7(B), which provides as follows:
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.
Pursuant to Indiana Code Section 35-50-2-3, the presumptive sentence for murder is fifty-five years, to which not more than ten years may be added for aggravating circumstances or not more than ten years may be subtracted for mitigating circumstances. Young received less than the presumptive sentence upon each of his murder convictions; thus, he challenges the imposition of consecutive sentences.
Young received the presumptive sentence prescribed by Indiana Code Section 35-50-2-4 for each of his Class A felony convictions for attempted murder; however, these sentences were to be served concurrently and also concurrent with the sentences for murder, and thus did not extend Young's aggregate sentence.
Trial courts are empowered with the discretion, within statutory limits, to determine the appropriate sentence for a defendant, including the discretion to find and weigh the aggravating and mitigating factors, if any. Corbett v. State, 764 N.E.2d 622, 630 (Ind. 2002). We review the trial court's determination for an abuse of that discretion. Id. In order to impose consecutive sentences, a trial court must find at least one aggravating circumstance. Sanquenetti v. State, 727 N.E.2d 437, 442 (Ind. 2000). Where the trial court imposes consecutive sentences when not required to do so by statute, this Court will examine the record to insure that the court explained its reasons for selecting the sentence imposed. Lander v. State, 762 N.E.2d 1208, 1214 (Ind. 2002).
Here, the trial court found as aggravating circumstances: Young was on probation when the instant offenses were committed, he had a history of criminal activity and delinquency, he supported himself by dealing drugs and the offenses were apparently gang-related. In mitigation, the trial court found that Young expressed remorse and did not have a history of felony convictions.
The character of the offender is such that prior rehabilitative efforts failed. The nature of the offense is that there were multiple victims in a gang-related shooting. We do not conclude that the imposition of consecutive sentences is inappropriate in light of the nature of the offense and the character of the offender.
Conclusion
The trial court did not abuse its discretion in admitting Young's confession into evidence, instructing the jury, or imposing consecutive sentences.
Affirmed.
RILEY, J., and DARDEN, J., concur.