Tidmore v. State

637 N.E.2d 1290, 1994 Ind. LEXIS 89, 1994 WL 387379
CourtIndiana Supreme Court
DecidedJuly 21, 1994
Docket27S00-9309-CR-1029
StatusPublished
Cited by9 cases

This text of 637 N.E.2d 1290 (Tidmore v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tidmore v. State, 637 N.E.2d 1290, 1994 Ind. LEXIS 89, 1994 WL 387379 (Ind. 1994).

Opinions

GIVAN, Justice.

Appellant was convicted of Felony Murder,for which he received a sixty (60) year sentence and Conspiracy to Commit Robbery, for which he received a fifty (50) year sentence, the sentences to be served concurrently-

The facts are: Appellant and one Shawn Cook were friends who spent time together and used cocaine. Cook was the middleman who obtained the cocaine from a supplier. On February 17, 1992, appellant and Cook wanted to buy some cocaine but did not have any money. They discussed how they would obtain money. They decided they would commit a robbery by calling in an order for pizza, have it delivered to a vacant house where appellant once lived, and would rob the pizza delivery man when he arrived.

Cook obtained an aluminum baseball bat while appellant armed himself with a sawed-off billiard cue. Appellant sat on the front porch of the house awaiting the delivery while Cook hid around the side of the house. When the delivery man arrived, appellant engaged him in conversation while Cook slipped up behind him and hit him on the head with the bat. The victim fell partially on a chair. Appellant pulled him from the chair onto the floor of the porch. Cook handed appellant the bat and proceeded to take money from the victim.

When the victim started making noise and acting as though he were trying to get up, appellant struck him in the head at least three times with the bat. When a car drove in to a neighboring driveway, appellant and Cook fled taking the pizza and money from the victim. They acquired $350 from the victim, spent $100 for cocaine, gave two of their friends $25 each and split the remainder between them. The victim suffered extensive fractures to his skull and severe damage to his brain. He lived for about thirteen days in the hospital where he died of cardiac arrest brought on by the severe brain damage.

Appellant claims his enhanced sentences are unreasonable because they are not supported by proper aggravating factors and that mitigating factors were not properly considered by the trial court.

In sentencing appellant, the trial court listed the following aggravating factors:

1. The crime was committed by ambush while lying in wait:
2. It was premeditated;
3. The purpose was to obtain illegal drugs; and
4. Any reduced sentence would depreciate the seriousness of this senseless, brutal crime.

The court also listed the following mitigating factors:

1. Tidmore was not the actual striker of the deceased;
2. That he has no previous record;
3. That the intent was not to kill Mr. Bolner, although that was the result;
4. That Jeremy Tidmore was not the leader, he was the follower in this operation; and
5. That he (Tidmore) has no history of violence.

Appellant claims the acts of lying in wait, premeditation, and planning were relied upon by the State in establishing an element of the conspiracy. Thus it was improper for the court to use those factors as aggravators when they were an element proved by the State to establish conspiracy, citing Townsend v. State (1986), Ind., 498 N.E.2d 1198.

In the case at bar, there was considerable evidence concerning the conspiracy between appellant and Cook before they entered into [1288]*1288the actual commission of the crime which included lying in wait. In Townsend, we held that the court may consider an element of an offense such as the possession of a deadly weapon as an aggravating factor if the court specifies why the use of the weapon or the threats with it constituted an aggravating factor.

Although advanced planning and agreement are elements of the conspiracy, the extent and vicious manner of the ambush and premeditation may be considered by the trial court as aggravating factors. See Concepcion v. State (1991), Ind., 567 N.E.2d 784, see also Bewley v. State (1991), Ind.App., 572 N.E.2d 541.

In the case at bar, the trial judge adequately set forth aggravating circumstances and considered mitigating circumstances. Although he sentenced appellant to enhanced time on both convictions, he did take mitigating factors into consideration in that he ordered the sentences to be served concurrently. We see no error in the manner in which appellant was sentenced.

Appellant also claims his sentence is manifestly unreasonable. This Court has held that a sentence is not manifestly unreasonable unless no reasonable person could find such sentence appropriate to the particular offense and offender for which the sentence was imposed. The consideration of mitigating and aggravating circumstances is discretionary with the trial court. Bish v. State (1981), Ind., 421 N.E.2d 608. The sentences imposed by the trial court are within the applicable statutes and justified by the evidence in this case as found by the trial judge when he imposed the sentences. We find no error.

Appellant contends he was denied effective assistance of counsel. Appellant cites a number of instances during the trial in which he claimed counsel fell below the required standard. First, he contends counsel failed to request that the trial court admonish the jury to disregard certain testimony elicited by the prosecutor from the victim’s wife.

In examining the victim’s wife, the prosecutor brought out that she and her husband had two children, one of whom had to have special care because of a medical accident in a dental office and that the child had been left comatose. At that point, counsel for appellant objected, which objection was sustained, and the trial court warned the prosecutor that he was getting into an area of fundamental error and he should cease this type of question. Whereupon the prosecutor withdrew the question.

Appellant’s point is that his counsel failed to ask the judge to admonish the jury to disregard the testimony up to that point. We cannot say this constituted ineffective counsel. Counsel’s objection was sustained and his decision not to belabor the point by having the court further instruct the jury on the subject does not demonstrate any unreasonableness on his part nor is there any showing that his failure to so act would have altered the outcome of the case. Thus his conduct does not fall below the standard required in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

Appellant also claims his trial counsel failed to depose any of the State’s witnesses and failed to interview the State’s key witness, Shawn Cook, prior to trial. The mere fact that trial counsel did not depose witnesses or interview Cook prior to trial does not in and of itself demonstrate ineffective counsel. Appellant has made no showing that any of the witnesses made prior statements which were inconsistent to their trial testimony.

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Garland v. State
855 N.E.2d 703 (Indiana Court of Appeals, 2006)
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679 N.E.2d 1322 (Indiana Supreme Court, 1997)
State v. Moore
678 N.E.2d 1258 (Indiana Supreme Court, 1997)
Johnson v. State
675 N.E.2d 678 (Indiana Supreme Court, 1996)
Edgecomb v. State
673 N.E.2d 1185 (Indiana Supreme Court, 1996)
Tidmore v. State
637 N.E.2d 1290 (Indiana Supreme Court, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
637 N.E.2d 1290, 1994 Ind. LEXIS 89, 1994 WL 387379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tidmore-v-state-ind-1994.