MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 20 2019, 5:44 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brent R. Dechert Curtis T. Hill, Jr. Kokomo, Indiana Attorney General of Indiana Jesse R. Drum Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Emmanuel Arrington, November 20, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-94 v. Appeal from the Howard Superior Court State of Indiana, The Honorable Hans Pate, Judge Appellee-Plaintiff, Trial Court Cause No. 34D04-1602-F1-31
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 1 of 30 Case Summary and Issues [1] Following a jury trial, Emmanuel Arrington was convicted of attempted
murder, a Level 1 felony, and unlawful possession of a firearm by a serious
violent felon, a Level 4 felony. The trial court sentenced Arrington to forty
years for his attempted murder conviction and twelve years for his unlawful
possession conviction, to be served concurrently. Arrington appeals his
convictions and sentence and raises four issues for our review: (1) whether
Arrington knowingly, intelligently, and voluntarily waived his Sixth
Amendment right to counsel; (2) whether the trial court committed
fundamental error when it did not remove the jury following the refusal of a
State’s witness to testify; (3) whether the State presented sufficient evidence to
support Arrington’s convictions; and (4) whether the trial court abused its
discretion in sentencing Arrington. Concluding Arrington knowingly,
intelligently, and voluntarily waived his right to counsel, the State presented
sufficient evidence to support Arrington’s convictions, and the trial court did
not commit fundamental error or abuse its discretion in sentencing Arrington,
we affirm.
Facts and Procedural History [2] Steven Landrum, Jeremy Wilson, and Arrington have known each other for
many years. Early on the morning of February 2, 2016, all three men were at
Big Daddy’s Show Club in Kokomo, Indiana. At some point, Wilson and
Landrum got into an argument and began to physically fight. Arrington
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 2 of 30 jumped in and hit Landrum in the back of his head. Security broke up the fight
and removed Arrington and Wilson from the club.
[3] After the fight, Landrum also left the club and went to Shanika Anderson’s
house located on East Mulberry Street. At the house, Landrum called Wilson,
accused him of trying to have sex with Landrum’s wife, and stated that “if
[Arrington] wanted to fight me he could fight me one on one.” Transcript,
Volume II at 222. At the time of the call, Wilson and Arrington were together
and Landrum could hear Arrington calling him names in the background.
Wilson asked Landrum where he was, and Landrum stated he was “over on
Mulberry” Street. Id. at 223. Gentry Gittings, Anderson, and Yardana Horton
were all present at the Mulberry Street house during the phone call and
Landrum believed they could overhear the conversation because it was on
speaker phone. Fifteen to twenty minutes later, someone knocked on the door
of Anderson’s house and “it turned out to be [Arrington and Wilson] and
another guy. There was three of them, one on the sidewalk, two on the porch.”
Id. The front door of the house was open, but the storm door was closed.
Landrum walked over to the door and “tried to open the [storm] door and then
when I couldn’t get the door open Emanuel Arrington pulled, had his pistol in
his hand. He up’d it and shot me in the shirt” through the door. Id. at 224.
After Landrum was shot in the chest, he turned around and both Anderson and
Horton heard Landrum say that Arrington “just shot me.” Id. at 186, 205.
[4] Around 2:30 a.m., officers of the Kokomo Police Department (“KPD”) were
dispatched to the scene. Three officers wore body cameras, which recorded
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 3 of 30 their actions. Officers discovered a spent .380 caliber shell casing near a ramp
that leads to the porch of the home and observed the bottom half of the glass
storm door had been “shot out” but the top half remained intact. Id. at 146.
Landrum was taken to St. Vincent’s Hospital in Indianapolis and ultimately
survived his gunshot wound. However, the bullet remains lodged in Landrum’s
back and spinal cord because removing it could paralyze him. Landrum
initially refused to tell officers who shot him but later, while in the hospital,
identified Arrington as the shooter. See Tr., Vol. III at 4.
[5] On February 3, 2016, the State charged Landrum with attempted murder, a
Level 1 felony, and unlawful possession of a firearm by a serious violent felon,
a Level 4 felony. A jury trial was scheduled for November 13, 2018.
Throughout the proceedings, Arrington had been represented by multiple
private attorneys. On October 5, 2018, Arrington filed a motion to proceed pro
se, in which he stated: “I . . . feel[] compe[tent] enough to represent myself[,]”
“I have been researching and preparing my case since I have been
incarcerated[,]” and “I am prepared and ready to go forth with my trial [set] for
November 13, 2018[.]” Appellant’s Appendix, Volume 8 at 102. The trial
court held a status hearing on October 30 and addressed Arrington’s motion:
[Court]: OK. So you absolutely do not want to proceed with an attorney representing you, is that correct?
[Arrington]: Mr. Rosselot is a paid attorney. I won’t have the money to go forward.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 4 of 30 ***
[Court]: OK. And again, like I said, just because you didn’t pay doesn’t mean, given the timing of where we’re at, I don’t have to, again, I know I don’t have to, the law doesn’t allow me to allow him to withdraw, you understand?
[Arrington]: Right.
[Court]: So is it because you want to proceed and represent yourself or is it because you can’t afford to pay Mr. Rosselot to represent you, moving forward?
[Arrington]: I can’t afford to pay Mr. Rosselot.
[Court]: So you would like to have an attorney, you just can’t afford one?
Tr., Vol. II at 83-84. The trial court asked Arrington a series of questions,
determined that he was indigent, and appointed David Rosselot as a special
public defender. However, Arrington again requested to proceed pro se. The
trial court and Arrington engaged in the following colloquy:
[Court]: So, Mr. Arrington, why don’t you tell the Court what it is that you want at this point in time? Go ahead.
[Arrington]: I would like to represent myself with standby counsel[.]
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 5 of 30 ***
[Court]: So now you’re saying that you want to proceed pro se, that’s your position right now?
[Arrington]: Yes, sir.
***
[Court]: Alright. Now, your trial is currently set for November 13th, 2018. You’ve indicated to me that you want to represent yourself at that trial. I want you to understand that you do have the right to represent yourself at trial, just as you have the right to have counsel represent you and to have the court- appointed counsel for trial . . . if you cannot afford an attorney. Before you make that decision final, I want you to understand what you will be giving up. You may have any number of defenses which apply to your case and which an attorney is trying to know. Should you be convicted of this offense you are facing a penalty anywhere between 45 and 65 years in jail. There are factors which the Court can consider in increasing your sentence within that range or in decreasing your sentence within that range. These are factors which an attorney would know about. An attorney has developed certain skills to assist you in presenting a defense to the charge against you. These include investigating your case, interrogating witnesses against you, and finding favorable witnesses and obtaining their testimony, explaining charges in any lesser included offenses, gathering documents and other kinds of written evidence, preparing and filing motions before trial, such as motions for speedy trial, motions for discovery or motions to keep unfavorable information from being received as evidence, examining and cross-examining witnesses at trial, recognizing objectionable and unfavorable evidence and promptly objecting to its use, presenting favorable sentencing information and attacking
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 6 of 30 unfavorable sentencing information. In jury trials presenting favorable opening and closing statements, preparing appropriate written jury instructions and selecting a jury, and training, knowledge and skill at properly preserving the record of the case for purposes of appeal. An attorney can also evaluate the strengths or weaknesses of the case against you and give expert advice on whether you should attempt to seek a plea agreement with the State of Indiana, which may result in the dismissal of some, or [all] of the charges against you and a recommendation for a favorable sentence in return for your guilty plea. Do you understand each and everything that I have said to you at this point?
[Court]: You must understand that if you decide not to have an attorney, you will not receive any special treatment with your defense. You will have to follow all the same rules and procedures in your case as an attorney would have to. The State will be represented by an attorney and will have the advantage that an attorney presents. If you decide to represent yourself and the result turns out badly, you need to know that you will not be able to complain that you were not an effective attorney in your own defense. Do you understand that?
[Court]: OK. As I have told you, you have a right to decide against having an attorney but you must be aware that deciding not to have an attorney can turn out to be a very bad decision. Experienced lawyers almost always decide to be represented by another lawyer in a criminal case. There are some . . . things that you should consider before you appear at trial without an attorney and I want to ask you about them now. What skills or knowledge do you have that would be helpful to you if you
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 7 of 30 represent yourself? Do you have any special skills or knowledge about the law or about your case that would help you represent yourself at this time?
[Arrington]: About my case, sir.
[Court]: Alright. Do you have any special skills or knowledge about the law?
[Arrington]: No, sir.
[Court]: Have you ever studied criminal law?
[Court]: Have you had previous experiences with the criminal justice system?
[Court]: OK. Have you ever participated in a jury trial before?
[Court]: Alright. And how much education have you had?
[Arrington]: To eleventh grade, sir.
[Court]: OK. Are you able to read and write?
[Arrington]: Yes, sir. Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 8 of 30 [Court]: OK. Do you believe you’re a good speaker?
[Court]: Alright. And do you believe that you can quickly become familiar with large numbers of special rules and procedures and use them the right way in a pressure situation, such as your own trial?
[Court]: Alright. Have there been any promises or suggestions from anyone that you will receive special treatment or a milder sentence if you do not have an attorney?
[Court]: Alright. Have there been any threats to you that you or another will be harmed or disadvantaged in any way if you do have an attorney?
[Court]: OK. You’re not under the influence of any alcohol or drugs today, are you?
Id. at 88-91. The trial court granted Arrington’s request to proceed pro se with
Rosselot as standby counsel.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 9 of 30 [6] At Arrington’s jury trial, the State called Gittings as a witness. Gittings stated
his name and that he was being held at a correctional facility for an unrelated
matter. When the State asked Gittings whether he was at the Mulberry Street
house on the night of the shooting, Gittings responded, “I don’t have nothing to
say. I don’t have nothing to say.” Id. at 212. Gittings repeatedly refused to
answer any questions. The trial court explained, “unless there is some basis or
some right you’re asserting in not providing this testimony that you simply
can’t willfully disregard the questions that are being asked. You’ve been
lawfully subpoenaed. You’re required to be here, you’re required to answer.”
Id. at 214. The trial court informed Gittings that he could be held in contempt.
Gittings did not assert a right or privilege and Arrington did not request a
hearing outside the presence of the jury. Instead, Gittings chose contempt, the
trial court held him in contempt, and he was escorted from the courtroom in the
presence of the jury.
[7] The trial continued and the jury found Arrington guilty as charged. The trial
court found Arrington’s criminal history and the seriousness of the crime to be
aggravating circumstances and did not find any mitigating circumstances. The
trial court sentenced Arrington to forty years for his attempted murder
conviction and twelve years for his unlawful possession of a firearm by a serious
violent felon conviction and ordered his sentences to run concurrently.
Arrington now appeals. Additional facts will be supplied as necessary.
Discussion and Decision Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 10 of 30 I. Waiver of Counsel [8] Arrington first argues that he did not knowingly, intelligently, and voluntarily
waive his right to counsel. The Sixth Amendment to the United States
Constitution and Article 1, Section 13 of the Indiana Constitution guarantee a
defendant the right to be represented by counsel. Kowalskey v. State, 42 N.E.3d
97, 102 (Ind. Ct. App. 2015). “The purpose of the constitutional guaranty of a
right to counsel is to protect an accused from conviction resulting from his own
ignorance of his legal and constitutional rights[.]” Johnson v. Zerbst, 304 U.S.
458, 465 (1938). This court has previously noted the right to counsel is
“probably the most important right a defendant has because that right can affect
a defendant’s ability to assert all his other rights and because most defendants
do not have the professional legal skills necessary to represent themselves
adequately.” Henson v. State, 798 N.E.2d 540, 543-44 (Ind. Ct. App. 2003),
trans. denied.
[9] And a defendant’s right to self-representation is implicit in the Sixth
Amendment right to counsel. Faretta v. California, 422 U.S. 806, 819-20 (1975)
(“[T]he right to self-representation – to make one’s own defense personally – is
thus necessarily implied by the structure of the [Sixth] Amendment. The right
to defend is given directly to the accused; for it is he who suffers the
consequences if the defense fails.”) (footnote omitted). “[F]orcing a lawyer
upon an unwilling defendant is contrary to his basic right to defend himself if he
truly wants to do so.” Id. at 817. When a criminal defendant waives his right
to counsel and elects to proceed pro se, we must evaluate whether the trial court
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 11 of 30 properly determined that the defendant’s waiver was knowing, voluntary, and
intelligent. Jones v. State, 783 N.E.2d 1132, 1138 (Ind. 2003). The defendant
should be made aware of the dangers and disadvantages of self-representation,
Hopper v. State, 957 N.E.2d 613, 618 (Ind. 2011), and ultimately, the record
should establish the defendant made his choice to proceed pro se with his eyes
open, Henson, 798 N.E.2d at 544.
[10] “Waiver of assistance of counsel may be established based upon the particular
facts and circumstances surrounding the case, including the background,
experience, and conduct of the accused.” Jones, 783 N.E.2d at 1138. There are
no “prescribed talking points” that a trial court is required to include when
advising a defendant. Poynter v. State, 749 N.E.2d 1122, 1126 (Ind. 2001).
Instead, a trial court need only determine that the defendant is making a
knowing, voluntary, and intelligent waiver of counsel, acknowledging the law
indulges every reasonable presumption against a waiver of this fundamental
right. Id. To determine whether a defendant’s waiver is knowing, voluntary,
and intelligent, we employ a four-factor test:
(1) the extent of the court’s inquiry into the defendant’s decision, (2) other evidence in the record that establishes whether the defendant understood the dangers and disadvantages of self- representation, (3) the background and experience of the defendant, and (4) the context of the defendant’s decision to proceed pro se.
Id. at 1127-28; Hopper, 957 N.E.2d at 618. When applying these factors, we
acknowledge that the trial court “is in the best position to assess whether a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 12 of 30 defendant has knowingly and intelligently waived counsel[.]” Poynter, 749
N.E.2d at 1128 (quoting United States v. Hoskins, 243 F.3d 407, 410 (7th Cir.
2001)). In addition,
we will most likely uphold the trial judge’s decision to honor or deny the defendant’s request to represent himself where the judge has made the proper inquiries and conveyed the proper information, and reached a reasoned conclusion about the defendant’s understanding of his rights and voluntariness of his decision.
Id. This court has suggested several guidelines for advising the defendant when
he considers self-representation, which include:
The defendant should know of the nature of the charges against him, the possibility that there may be lesser included offenses within these charges, and the possibility of defenses and mitigating circumstances surrounding the charges. The defendant should be aware that self-representation is almost always unwise, that the defendant may conduct a defense which is to his own detriment, that the defendant will receive no special indulgence from the court and will have to abide by the same standards as an attorney as to the law and procedure, and that the State will be represented by experienced professional legal counsel.
Dowell v. State, 557 N.E.2d 1063, 1066-67 (Ind. Ct. App. 1990), cert. denied, 502
U.S. 861 (1991); see also Jones, 783 N.E.2d at 1138. However, these guidelines
“do not constitute a rigid mandate setting forth specific inquiries that a trial
court is required to make before determining whether a defendant’s waiver of
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 13 of 30 right to counsel is knowing, intelligent, and voluntary.” Jones, 783 N.E.2d at
1138 (internal quotation omitted).
[11] The first two Poynter factors focus on whether the defendant had sufficient
information about the dangers and disadvantages of self-representation, one
through the trial court’s inquiry, and the other through any other evidence in
the record. Drake v. State, 895 N.E.2d 389, 393 (Ind. Ct. App. 2008). Arrington
concedes that the trial court reviewed “many advantages [that] being
represented by an experienced attorney could bring” but takes issue with the
trial court’s alleged use of a “bench book” advisement. Amended Brief of
Appellant at 17. He maintains that the trial court failed to engage in a
meaningful colloquy and did not dive “into the many pitfalls that a layperson
would expect to experience in representing himself, especially in a complicated
and serious criminal matter[.]” Id. We disagree.
[12] At the status hearing, the trial court emphasized that, before Arrington made
the decision to proceed pro se, it “want[ed Arrington] to understand what [he]
will be giving up.” Tr., Vol. II at 89. The trial court informed Arrington of the
following: that an attorney would be aware of any applicable defenses; an
attorney would be aware of the factors the trial court would consider in
imposing his sentence; and an attorney has skills to assist in defending his case,
including investigating the case, interrogating witnesses, finding favorable
witnesses, obtaining documents and written evidence, explaining lesser
included offenses, preparing and filing motions before trial such as for speedy
trial or discovery, examining and cross-examining witnesses, recognizing and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 14 of 30 objecting to certain evidence, preparing jury instructions, preserving the record
for appeal, evaluating the strengths and weaknesses of the case, and
determining whether a plea agreement is wise. The trial court advised
Arrington that, if convicted, he faces forty-five to sixty-five years of
imprisonment, he would not receive special treatment if he proceeded pro se, he
must follow the same rules and procedures as an attorney is required to do, he
could not later claim ineffective assistance of counsel, and the State would have
the advantage of being represented by an attorney. The trial court also
informed Arrington that “deciding not to have an attorney can turn out to be a
very bad decision . . . [and e]xperienced lawyers almost always decide to be
represented by another lawyer in a criminal case.” Id. at 90. Because the trial
court thoroughly explained the dangers and disadvantages of self-
representation, this factor weighs in favor of a knowing, intelligent, and
voluntary waiver of counsel.
[13] The record also reveals that Arrington was “no stranger to the criminal justice
system” and confirms that he is an experienced criminal litigant. See Taylor v.
State, 944 N.E.2d 84, 90-91 (Ind. Ct. App. 2011). The trial court confirmed
with Arrington that he has had “previous experiences” with the criminal justice
system, which, according to Arrington’s presentence investigation report,
includes sixteen felony convictions and ten misdemeanor convictions. Tr., Vol.
II at 90-91; Appellant’s App., Vol. 8 at 121. The evidence in the record
demonstrates that Arrington had the requisite background and experience to
make a knowing, voluntary, and intelligent waiver of counsel. Therefore, this
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 15 of 30 factor weighs in favor of a knowing, voluntary, and intelligent waiver of
counsel.
[14] The third factor concerns whether the defendant has the background and
experience necessary to make a voluntary, knowing, and intelligent waiver of
his or her right to counsel. Drake, 895 N.E.2d at 394. After the trial court
explained the many dangers of self-representation, it engaged in a colloquy with
Arrington regarding his background. The trial court asked Arrington whether
he had ever studied criminal law, had any special skills or knowledge about the
law, had ever participated in a jury trial, and had the ability to read and write.
The trial court also asked about the extent of his education. Although
Arrington confirmed that he did not have any special skills or knowledge about
the law or a jury trial, he did confirm that he had an eleventh grade education,
can read and write, believed he was a good speaker, and that he believed he
would be able to quickly become familiar with the large number of special rules
and procedures applicable to a jury trial. The trial court also confirmed that
Arrington was not under the influence of any substance and had not been
promised special treatment or a lesser sentence to proceed pro se.
[15] Finally, we evaluate the context of Arrington’s decision to represent himself. If
a defendant’s decision to proceed without counsel appears tactical, then this
factor weighs in favor of finding a knowing and intelligent waiver. Drake, 895
N.E.2d at 395. Arrington argues that the context in which he elected to
represent himself reveals that he proceeded pro se solely to avoid further delays
in his trial as he had been incarcerated since his arrest on February 11, 2016.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 16 of 30 He maintains that the record demonstrates that he clearly wanted an attorney;
however, the record reveals otherwise.
[16] Arrington’s lead attorney, Fred Grady, filed a motion to withdraw due to
medical issues on July 30, 2018, one week prior to a scheduled trial date. In his
motion, Grady stated that over a year before, Rosselot had entered his
appearance as “local counsel” on behalf of Arrington and had been assisting
Grady. Appellant’s App., Vol. 8 at 84. The trial granted Grady’s motion and
the trial was continued. On October 5, 2018, Arrington filed a motion to
proceed pro se, in which he stated: “I . . . feel[] compe[tent] enough to represent
myself[,]” “I have been researching and preparing my case since I have been
incarcerated[,]” and “I am prepared and ready to go forth with my trial[.]” Id.
at 102. On October 20, 2018, Rosselot filed a motion to withdraw his
appearance as Arrington wished to represent himself. The same day, the trial
court held a status hearing and engaged in a colloquy with Arrington regarding
his decision to proceed pro se. Arrington initially stated he could no longer
afford Rosselot and the trial court found Arrington indigent and offered to
appoint a public defender to represent him. Ultimately, the trial court
appointed Rosselot as Arrington’s stand by public defender.
[17] The evidence in the record supports a strategic decision by Arrington to proceed
pro se, rather than to avoid further delay. Arrington stated that he had been
researching his case, felt prepared for trial, and declined the appointment of
Rosselot as counsel. Instead, Arrington wanted to represent himself with
Rosselot as standby counsel. The context of Arrington’s decision to proceed
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 17 of 30 pro se weighs in favor of a knowing, voluntary, and intelligent waiver of
[18] Arrington is an experienced criminal litigant, had stand by counsel throughout
his trial, and had been sufficiently warned of the dangers and disadvantages of
representing himself. Based on all four factors, Arrington’s decision to waive
counsel and proceed pro se was knowing, voluntary, and intelligent.
II. Fundamental Error [19] Arrington next claims the trial court committed fundamental error by failing to
remove the jury after Gittings refused to testify and by failing to conduct a
hearing on Gittings’ refusal outside the presence of the jury. Arrington
concedes that he did not object to the trial court’s procedure and therefore must
demonstrate fundamental error.
[20] A claim that has been forfeited by a defendant’s failure to raise a
contemporaneous objection can nonetheless be reviewed on appeal if
fundamental error has occurred. Brown v. State, 929 N.E.2d 204, 207 (Ind.
2010). Fundamental error allows this court to “address an error that 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[.]” Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014)
(internal quotations and alterations omitted), cert. denied, 135 S.Ct. 970 (2015).
The fundamental error exception is “extremely narrow,” Matthews v. State, 849
N.E.2d 578, 587 (Ind. 2006), and a “daunting standard[,]” applicable only in
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 18 of 30 egregious circumstances, Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014), cert.
denied, 135 S.Ct. 978 (2015).
[21] Indiana Code section 35-37-3-1 provides the proper procedure when a witness
refuses to testify:
(a) If a witness, in any hearing or trial occurring after an indictment or information has been filed, refuses to answer any question . . . , the court shall remove the jury, if one is present, and immediately conduct a hearing on the witness’s refusal. After such a hearing, the court shall decide whether the witness is required to answer the question[.]
(b) If the prosecuting attorney has reason to believe that a witness will refuse to answer a question . . . during any criminal trial, the prosecuting attorney may submit the question or request to the trial court. The court shall hold a hearing to determine if the witness may refuse to answer the question[.]
Although we recognize that the trial court did not remove the jury and
immediately conduct a hearing on Gittings’ refusal to testify as required by the
statute, Arrington fails to demonstrate that this deprived him of the opportunity
for a fair trial.
[22] The State claims the statute contemplates that the jury would hear a witness’
refusal to testify at least once and therefore, a witness’ continued refusal to
testify, in the presence of the jury, does not rise to the level of fundamental
error. Arrington asserts that “[i]t appears likely that the State knew Gittings
would refuse to testify” based on the following statement Gittings’ made: “I
tried to contact, I mean as you know, I’ve been trying to contact and have my Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 19 of 30 people contact me and I still got forced to come here so I don’t have nothing to
say.” Amended Br. of Appellant at 20 (citing Tr., Vol. II at 212). Arrington
maintains that, because of Gittings’ refusal to testify, the jury could infer that
Gittings was “somehow unduly influenced by Arrington into not cooperating.
The State made a conscious and flagrant attempt to build its case on this
inference.” Amended Br. of Appellant at 20-21. As the State notes, there are
numerous explanations as to why Gittings may have decided not to testify and
we are not at liberty to speculate. Ultimately, we are unpersuaded that this sole
statement presents evidence that the State knew before trial that Gittings would
refuse to testify and then made the conscious decision to demonstrate that
Arrington convinced or unduly influenced Gittings into not testifying.
[23] In State v. Eubanks, a panel of this court held that the witnesses’ invocations of
the Fifth Amendment did not prejudice the defendant or deprive him of a fair
trial. 729 N.E.2d 201, 206-07 (Ind. Ct. App. 2000). There, the trial court had
concluded that the witnesses’ invocations of their Fifth Amendment privilege
was fundamental error. Id. at 206. In post-conviction proceedings, the
defendant argued that the State called the witnesses to the stand knowing they
would invoke the privilege, which constituted fundamental error as he failed to
object at trial. Id. This court looked to the United States Supreme Court’s
decision in Namet v. United States, 373 U.S. 179 (1963), in which it indicated that
to determine whether prejudicial error occurred, courts should look to the
particular circumstances of each case. Id. at 207. In doing so, courts should
focus on two factors: (1) error may result from prosecutorial misconduct when
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 20 of 30 the government makes a “conscious and flagrant” attempt to build its case out
of inferences arising from a witness’s invocation of the privilege; and (2)
prejudicial error may occur when the inferences from a witness’s refusal to
testify add “critical weight to the prosecution’s case.” Id. (quoting Namet, 373
U.S. at 186-87). Although this court disproved of the prosecution’s tactics in
calling witnesses they knew would invoke the Fifth Amendment, it determined
there was no evidence that the State attempted to build its case out of the
inferences, that the State relied on their assertions of privilege to establish the
elements of the offenses, or that the testimony added critical weight to the
State’s case. Id. at 207-08. We held that the defendant was not deprived of a
fair trial because any adverse inference that could be drawn from the witnesses’
invocations was merely cumulative, the State’s questioning was of a limited
nature, and there were a substantial number of witnesses presented. Id. at 208.
And thus, no fundamental error occurred.
[24] Such is the case here. Even if the State knew Gittings would refuse to testify, as
Arrington maintains, there is no evidence in the record that the State made a
“conscious and flagrant” attempt to build its case out of the adverse inferences
arising from Gittings refusal to testify, that the State relied on Gittings’ refusal
to establish the elements of the offenses, or that the inferences added critical
weight to its case. Unlike the witnesses in Eubanks, Gittings did not invoke his
Fifth Amendment privilege, which would have been arguably more prejudicial
than his refusal to testify. Given the numerous witnesses who testified at trial
and the evidence admitted, including the officers’ body camera footage, we
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 21 of 30 cannot conclude that Arrington was deprived of a fair. He has failed to prove
that the trial court’s failure to remove the jury and conduct a hearing on
Gittings’ refusal to testify was a “blatant violation of [his] basic and elementary
principles of due process presenting an undeniable and substantial potential for
harm[.]” Brewington, 7 N.E.3d at 974. Accordingly, no fundamental error
occurred.
III. Sufficiency of the Evidence [25] Our standard of reviewing a sufficiency claim is well-settled. Brent v. State, 957
N.E.2d 648, 649 (Ind. Ct. App. 2011), trans. denied. In reviewing the sufficiency
of the evidence required to support a criminal conviction, we do not reweigh
the evidence or judge the credibility of the witnesses. Bailey v. State, 907 N.E.2d
1003, 1005 (Ind. 2009). Instead, we consider only the evidence most favorable
to the verdict and the reasonable inferences supporting it. Id. Therefore, it is
not necessary that the evidence overcome every reasonable hypothesis of
innocence. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). “[W]e will affirm
the conviction unless no reasonable trier of fact could have found the elements
of the crime beyond a reasonable doubt.” Id.
[26] The State must prove all elements of the charged crime beyond a reasonable
doubt. Taylor v. State, 587 N.E.2d 1293, 1301 (Ind. 1992); Ind. Code § 35-41-4-
1(a) (“A person may be convicted of an offense only if his guilt is proved
beyond a reasonable doubt.”). A person who “knowingly or intentionally kills
another human being” commits murder, a felony. Ind. Code § 35-42-1-1(1).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 22 of 30 Indiana’s attempt statute provides: “A person attempts to commit a crime
when, acting with the culpability required for commission of the crime, the
person engages in conduct that constitutes a substantial step toward
commission of the crime. . . . [A]n attempt to commit murder is a Level 1
felony.” Ind. Code § 35-41-5-1(a).
[27] The only element Arrington challenges is his identity as the shooter. He argues
that the State failed to produce sufficient evidence identifying him as the alleged
shooter and therefore, his convictions should be reversed. The State produced
the following testimony and circumstantial evidence to prove Arrington was the
shooter:
• Wilson and Landrum got into an altercation at Big Daddy’s and
Arrington jumped in and hit Landrum in the back of the head. Tr., Vol.
II at 220.
• Following the altercation, Landrum called Wilson and told him if
Arrington “wanted to fight me he could fight me one on one.” Id. at 222.
Arrington was with Wilson at the time and Landrum could hear
Arrington calling him names in the background. Landrum subsequently
told them he was “over on Mulberry.” Id. at 223.
• Landrum testified that when he heard a knock on the door, he walked to
the door, witnessed Arrington at the door holding a pistol in his hand,
and then shot him in the chest. Id. at 224.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 23 of 30 • Anderson and Horton both testified that, after Landrum was shot, he
turned around and stated,“[Arrington] just shot me.” Id. at 186, 205.
• Following the shooting, Detective James Nielson presented a photo array
of six individuals to Anderson and she identified Arrington as the
shooter. She wrote her initials and date next to the photo she identified
as Arrington. See id. at 200-01; Exhibits Volume at 10-11.
• KPD Officers Brent Wines and Ryan Shuey testified that, at the scene,
Anderson stated that Arrington shot Landrum. Tr., Vol. II at 133-34,
170-72. Officer Wines also testified that Anderson stated that she
witnessed Arrington with a gun on the porch of her home but did not see
Arrington fire the weapon. Id. at 149.
• On or around February 4, 2016, KPD Officer Purtee visited Landrum in
the hospital to take his statement during which time Landrum stated that
Arrington shot him. Tr., Vol. III at 4. Officer Purtee also showed
Landrum a photo array and asked him to identify who shot him.
Landrum positively identified Arrington as the shooter.
• Expert Glenn Bard analyzed and mapped the cell phone records for
Wilson and Arrington between 2:27 and 2:32 a.m. on February 2, 2016,
placing them in the area of the scene of the crime. Id. at 18; Exhibit Vol.
at 83-93.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 24 of 30 [28] Arrington argues that because Landrum had consumed alcohol the night of the
shooting, he is an unreliable witness and his testimony is “so unbelievable and
incredible” that it falls under the incredible dubiosity rule. Amended Br. of
Appellant at 22.
The incredible dubiosity rule allows this court to impinge upon a fact finder’s responsibility to judge the credibility of the witnesses only when confronted with “inherently improbable” testimony. The rule is applied in limited circumstances, namely where there is 1) a sole testifying witness; 2) testimony that is inherently contradictory, equivocal, or the result of coercion; and 3) a complete absence of circumstantial evidence. Application of the incredible dubiosity rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.
Morris v. State, 114 N.E.3d 531, 536 (Ind. Ct. App. 2018) (emphasis added)
(internal citations omitted), trans. denied. The second prong is satisfied only
when the witness’s trial testimony is inconsistent within itself, not when it is
inconsistent with other evidence or prior testimony. Smith v. State, 34 N.E.3d
1211, 1221 (Ind. 2015). Accordingly, this rule is inapplicable to the present case
because, as demonstrated above, the State presented witnesses who
corroborated Landrum’s testimony and his testimony was not inconsistent
within itself.
[29] In sum, the State presented sufficient evidence from which the trier of fact could
have found the elements of the crimes, including Arrington’s identity as the
shooter, beyond a reasonable doubt. Arrington argues that it was factually
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 25 of 30 impossible for him to have shot Landrum given Landrum’s height and the fact
that only the bottom portion of the storm door, not the top half, was shattered.
Arrington’s argument constitutes a request for this court to reweigh the
evidence, which we cannot do. See Bailey, 907 N.E.2d at 1005. We conclude
there was sufficient evidence to support Arrington’s convictions.
IV. Sentencing [30] Finally, Arrington asserts that the trial court erred by issuing an inadequate
sentencing statement, finding an improper aggravating factor, and failing to find
one mitigating factor. We disagree.
[31] Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218. Thus, we review only for an abuse of discretion, which occurs if the trial
court’s decision is “clearly against the logic and effect of the facts and
circumstances before [it], or the reasonable, probable, and actual deductions to
be drawn therefrom.” Id. A trial court may abuse its discretion by: (1) failing
to enter a sentencing statement; (2) entering a sentencing statement that
explains reasons for imposing the sentence that are unsupported by the record;
(3) omitting reasons clearly supported by the record and advanced for
consideration; or (4) finding factors that are improper as a matter of law.
Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012). The identification or
omission of reasons provided for imposing a sentence are reviewable on appeal
for an abuse of discretion, but the weight given to those reasons is not subject to
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 26 of 30 appellate review. Weedman v. State, 21 N.E.3d 873, 893 (Ind. Ct. App. 2014),
[32] Here, the trial court found Arrington’s criminal history and the seriousness of
the crime as aggravating circumstances and did not find any mitigating
circumstances. Arrington argues that the “seriousness of the crime” is an
improper aggravating circumstance absent “some detailed explanation as to
how it was more significant than the crime itself.” Amended Appellant’s Br. at
25. “[A] material element of a crime may not also constitute an aggravating
circumstance to support an enhanced sentence, but the particularized individual
circumstances may be considered as a separate aggravating factor.” Williams v.
State, 619 N.E.2d 569, 573 (Ind. 1993). Although the trial court did not expand
on this particular aggravating factor, a reasonable interpretation, based on the
evidence in the record, is that the trial court viewed the nature of the crime and
injury to the victim, rather than the elements of the crime itself, as very serious.
The record reveals that the bullet entered Landrum’s chest three inches from his
heart and remains lodged in his back and spinal cord because removal of the
bullet could paralyze him. The trial court did not abuse its discretion with
respect to this aggravating factor. Even so, Arrington does not challenge the
trial court’s finding that his criminal history, which is comprised of sixteen
felonies and ten misdemeanors, was an aggravating circumstance. And a single
valid aggravating circumstance is adequate to justify an enhanced sentence.
Hawkins v. State, 748 N.E.2d 362, 363 (Ind. 2001). Accordingly, we find no
error.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 27 of 30 [33] Arrington also maintains that the trial court failed to identify the undue
hardship of his incarceration on his four children as a mitigating circumstance.
First, as the State points out, Arrington did not proffer this as a mitigating
circumstance to the trial court at the sentencing hearing. See Tr., Vol. III at
196-98. Therefore, Arrington has waived any alleged error with respect to this
issue. Banks v. State, 841 N.E.2d 654, 659 (Ind. Ct. App. 2006) (defendant
waived claims of error regarding the trial court’s failure to identify mitigating
circumstances because the defendant failed to raise them to the trial court at the
sentencing hearing), trans. denied; see also Bryant v. State, 802 N.E.2d 486, 501
(Ind. Ct. App. 2004) (failure to present claim that the defendant’s drug abuse
history should have been a mitigating circumstance rather than an aggravating
circumstance at the sentencing hearing resulted in waiver on appeal), trans.
denied.
[34] Waiver notwithstanding, Arrington’s argument fails. We begin by noting that
the determination of mitigating circumstances is within the trial court’s
discretion. Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App. 2012), trans.
denied. A trial court is not obligated to accept a defendant’s claim as to what
constitutes a mitigating circumstance, Weedman, 21 N.E.3d at 893, nor is it
required to weigh a mitigating factor as heavily as the defendant requests, Field
v. State, 843 N.E.2d 1008, 1010 (Ind. Ct. App. 2006), trans. denied. “An
allegation that the trial court failed to identify or find a mitigating factor
requires the defendant to establish that the mitigating evidence is both
significant and clearly supported by the record.” Anglemyer, 868 N.E.2d at 493.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 28 of 30 [35] Indeed, we recognize many families of incarcerated individuals suffer hardship
as a result of their incarceration. As this court has explained, “[m]any people
convicted of serious crimes have one or more children, and absent special
circumstances, trial courts are not required to find that imprisonment will result
in an undue hardship.” Ware v. State, 816 N.E.2d 1167, 1178 (Ind. Ct. App.
2004). Arrington has failed to demonstrate that the undue hardship on his
children involves special circumstances. Cf. Anglin v. State, 787 N.E.2d 1012,
1018 (Ind. Ct. App. 2003) (no abuse of discretion in failing to consider the
impact of the defendant’s incarceration on his child as a mitigating
circumstance where the mother had care and custody of their ill child and there
was no evidence that the child’s needs would not be met during defendant’s
incarceration), trans. denied.
[36] In sum, the trial court properly identified aggravating circumstances and there
is no evidence in the record revealing special circumstances with respect to the
undue hardship on Arrington’s children as a result of his incarceration.
Accordingly, the trial court did not abuse its discretion in sentencing Arrington.
Conclusion [37] For the reasons set forth above, we conclude Arrington knowingly, intelligently,
and voluntarily waived his right to counsel and the State present sufficient
evidence to support Arrington’s convictions for attempted murder and unlawful
possession of a firearm by a serious violent felon. We also conclude that the
trial court did not commit fundamental error when it did not remove the jury
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 29 of 30 from the courtroom following a State’s witness’ refusal to testify. Finally, the
trial court did not abuse its discretion in sentencing Arrington. Accordingly,
the judgment of the trial court is affirmed.
[38] Affirmed.
Mathias, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 30 of 30