MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                         Sep 30 2015, 10:15 am
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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kristina J. Jacobucci                                    Gregory F. Zoeller
LaPorte, Indiana                                         Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Wilbert T. Sturgis,                                      September 30, 2015
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         46A03-0506-CR-304
        v.                                               Appeal from the LaPorte Superior
                                                         Court
State of Indiana,                                        The Honorable Thomas J.
Appellee-Plaintiff.                                      Alevizos, Judge, The Honorable
                                                         Walter Chapala, Judge
                                                         Trial Court Cause No.
                                                         46C01-0409-MR-129
                                                         46D01-0409-MR-129




Court of Appeals of Indiana | Memorandum Decision 46A03-0506-CR-304 | September 30. 2015   Page 1 of 16
      Barnes, Judge.


                                             Case Summary
[1]   Wilbert Sturgis appeals his conviction and sentence for murder. We affirm.


                                                    Issues
[2]   The issues before us are:


              I.       whether the prosecutor committed misconduct during voir
                       dire;


              II.      whether the trial court properly admitted Sturgis’s
                       statement to police into evidence;


              III.     whether the trial court abused its discretion in sentencing
                       Sturgis; and


              IV.      whether Sturgis’s sixty-five-year sentence is inappropriate.


                                                     Facts
[3]   On the morning of September 20, 2004, teenager Barbara Day was dismissed

      early from Michigan City High School because of an earlier altercation she had

      with another teenager known only by his nickname, “Spider.” Tr. p. 324. Day

      went to her home in Michigan City and was joined there by at least eight other

      individuals, including twenty-six-year-old Sturgis. Day came up with a plan, to

      which everyone agreed, to go to the westside of Michigan City to look for

      Spider and to fight him.


      Court of Appeals of Indiana | Memorandum Decision 46A03-0506-CR-304 | September 30. 2015   Page 2 of 16
[4]   The group at Day’s house agreed to go to a school bus stop near 9 th and Willard

      in Michigan City at about the time the bus was scheduled to drop off students.

      The group drove there in two cars, with Sturgis riding in a car driven by

      Natasha Harris. After arriving at the intersection, the group parked and got out

      of the cars. Day believed she saw Spider’s cousin in a group of boys that

      included fifteen-year-old Blake Kelly walking along the sidewalk.


[5]   Day approached the group of boys and began asking Spider’s supposed cousin

      where he was. This boy denied knowing where Spider was. Kelly then told

      Day and her friends that they were not going to “jump him,” and Day told him

      to be quiet because he had nothing to do with it. Id. at 330. One of Day’s

      cousins, Willie Martin, began threatening to fight Kelly but Day told him to

      leave Kelly alone.


[6]   While Day and her group were arguing with Kelly and his group, Sturgis

      walked up to Kelly and shot him in the jaw with a handgun. Kelly was

      unarmed, as was everyone else in the two groups besides Sturgis. This initial

      shot did not kill Kelly. Sturgis then put the handgun up against the side of

      Kelly’s head and shot him again, this time killing him. Police soon obtained

      several statements identifying Sturgis as Kelly’s killer, and they obtained a

      warrant for Sturgis’s arrest.


[7]   On September 21, 2004, Sturgis turned himself into the Gary Police

      Department. He was housed in the Lake County Jail before being transported

      to the Michigan City Police Department for an interview on September 22,


      Court of Appeals of Indiana | Memorandum Decision 46A03-0506-CR-304 | September 30. 2015   Page 3 of 16
      2004. During the drive from the jail, officers did not engage in any

      conversation with Sturgis regarding the case. After arriving at the police

      station, Sturgis signed a waiver of rights form and submitted to an unrecorded

      interview. On the written waiver of rights form, next to the question “Has any

      force, threats or promises of any kind or nature been used by anyone to

      influence you to waive these rights,” Sturgis originally wrote “yes” but crossed

      it out and wrote “no” along with his initials. Ex. 1. Initially during the

      unrecorded interview, Sturgis said he had been out of town when Kelly was

      shot so he could not have done it. He later retracted that statement, however,

      and admitted to what had happened.


[8]   Police then began an audiotaped interview of Sturgis, approximately one-and-a-

      half hours after he had arrived at the police station. At the outset of the

      recording, Sturgis was asked if any force, threats, or promises had been made to

      secure his statement, and Sturgis responded “No.” Ex. 2, p. 6. Sturgis then

      proceeded to describe, in cogent detail, the events leading up to and including

      his shooting and killing of Kelly. Toward the end of the interview, Sturgis was

      asked if there was anything he wanted to add to his statement, and he replied,

      “I think I need some psychiatric help I really do.” Id. at p. 35.


[9]   The State charged Sturgis with murder and Class A felony kidnapping. Sturgis

      never filed any motions related to his competency or any alleged mental illness.

      However, he did file a motion to suppress his statement to police on the basis

      that it was allegedly involuntary. After conducting a hearing, the trial court

      denied this motion.

      Court of Appeals of Indiana | Memorandum Decision 46A03-0506-CR-304 | September 30. 2015   Page 4 of 16
[10]   Sturgis’s jury trial was held on April 11-14, 2005. During voir dire, the

       prosecutor read the charging information to the prospective jurors. The

       prosecutor also stated that the case involved “Mr. Blake Kelly, who was 15

       years old at the time, [who] was shot shortly after leaving the school bus . . . .”

       Voir Dire Tr. p. 7. The prosecutor also noted that there had been “a lot of news

       media reports about that incident” and questioned prospective jurors whether

       they recalled reading or hearing any of that coverage. Id. The prosecutor also

       referred to Kelly’s killing as a “terrible tragedy.” Id. at 11. He also asked

       prospective jurors whether they knew Kelly, and one person responded that he

       did and that Kelly “seemed to be a good person.” Id. at 12. Defense counsel

       made no objections during voir dire.


[11]   The jury found Sturgis guilty of murder but not guilty of kidnapping.

       Additionally, the jury entered a finding for sentencing purposes that Sturgis had

       a history of criminal or delinquent activity. On May 12, 2005, the trial court

       sentenced Sturgis to a term of sixty-five years after finding no mitigating

       circumstances and that his criminal history was aggravating. Although a notice

       of appeal was timely filed on June 9, 2005, there have been various delays in

       bringing this appeal to fruition. It is now finally fully-briefed and ready to be

       decided.




       Court of Appeals of Indiana | Memorandum Decision 46A03-0506-CR-304 | September 30. 2015   Page 5 of 16
                                                   Analysis
                                                  I. Voir Dire

[12]   The first issue we address is whether the prosecutor committed misconduct

       during voir dire. When reviewing a claim of prosecutorial misconduct, we

       must determine: (1) whether the prosecutor engaged in misconduct, and if so,

       (2) whether the misconduct had a probable persuasive effect on the jury.

       Gregory v. State, 885 N.E.2d 697, 706 (Ind. Ct. App. 2008), trans. denied. A

       claim of improper argument to the jury is measured by the probable persuasive

       effect of misconduct on the jury and whether there were repeated instances of

       misconduct. Id. When a party fails to object to alleged misconduct, appellate

       review of the claim is precluded. Id. In such a case, the defendant must

       establish that misconduct occurred and that it amounted to fundamental error.

       Id. “For a claim of prosecutorial misconduct to rise to the level of fundamental

       error, the defendant must demonstrate that the misconduct made a fair trial

       impossible or constitutes clearly blatant violations of basic and elementary

       principles of due process and presents an undeniable and substantial potential

       for harm.” Id.


[13]   Voir dire’s purpose is to determine whether prospective jurors can render a fair

       and impartial verdict in accordance with the law and the evidence. Id. (quoting

       Joyner v. State, 736 N.E.2d 232, 237 (Ind. 2000)). Examination during voir dire

       is used to discover whether any prospective juror has an opinion, belief, or bias

       that would affect or control his or her determination of the issues to be tried, in

       which case the prospective juror could be challenged peremptorily or for cause.

       Court of Appeals of Indiana | Memorandum Decision 46A03-0506-CR-304 | September 30. 2015   Page 6 of 16
       Id. However, it is improper to use voir dire as an opportunity to “‘brainwash’

       or attempt to condition the jurors to receive the evidence with a jaundiced eye.”

       Id. at 706-07 (quoting Robinson v. State, 266 Ind. 604, 610, 365 N.E.2d 1218,

       1222 (1977), cert. denied).


[14]   Because Sturgis failed to object at any point during voir dire, he must establish

       both that prosecutorial misconduct occurred and that it constituted fundamental

       error. We conclude Sturgis has not cleared the first hurdle. First, Sturgis takes

       issue with the prosecutor having read the charging information to the jury pool

       at the outset of voir dire. The reading of a charging information during voir

       dire is not improper and does not constitute misconduct. See Thompson v. State,

       690 N.E.2d 224, 228 (Ind. 1997) (holding there was no error in reading

       charging information to jury pool prior to voir dire, but it was erroneous to read

       death penalty information and its aggravating circumstances).


[15]   Sturgis also contends it was improper to tell prospective jurors Kelly’s age and

       where he lived. To the extent the prosecutor revealed such information, it was

       geared towards determining whether any of the prospective jurors knew Kelly

       personally. Determining whether a prospective juror has a relationship with

       someone related to a case clearly is a proper subject for voir dire. See Joyner,

       736 N.E.2d at 238-39. We also do not believe the prosecutor was improperly

       attempting to try the case before evidence had been presented. Cf. Steelman v.

       State, 602 N.E.2d 152, 158 (Ind. Ct. App. 1992). This also was not an instance

       in which a prosecutor was attempting to allude to prejudicial evidence that

       would not be introduced at trial; such evidence regarding Kelly was in fact

       Court of Appeals of Indiana | Memorandum Decision 46A03-0506-CR-304 | September 30. 2015   Page 7 of 16
       introduced at trial. Cf. Hopkins v. State, 429 N.E.2d 631, 634-35 (Ind. 1981)

       (quoting Phelps v. State, 266 Ind. 66, 69, 360 N.E.2d 191, 193 (1977), cert.

       denied). There was no misconduct on this point.


[16]   Sturgis further argues the prosecutor committed misconduct by referring to

       media coverage of the killing and asking whether any of the prospective jurors

       had been exposed to any of it. Again, attempting to gauge a jury pool’s

       exposure to pretrial publicity is a vital part of voir dire when there has been

       such publicity. See Elsten v. State, 698 N.E.2d 292, 294 (Ind. 1998). There was

       no misconduct in questioning prospective jurors about pretrial publicity.


[17]   Finally, Sturgis notes that the prosecutor referred to the “terrible tragedy” of

       Kelly’s killing. Voir Dire Tr. p. 11. It suffices to say that Sturgis cites no

       authority for the proposition that referring to a youth’s killing as a “terrible

       tragedy” is prosecutorial misconduct, as opposed to stating the obvious, i.e. that

       it is tragic. Nothing in referring to Kelly’s killing as a tragedy implicated Sturgis

       as the cause of it. We see no prosecutorial misconduct here or in any of the

       other instances alleged by Sturgis.


                              II. Motion to Suppress Statement to Police

[18]   Next, we address Sturgis’s contention that the trial court erred in refusing to

       suppress his statement to police. Because Sturgis proceeded to trial rather than

       pursuing an interlocutory appeal of the denial of his motion to suppress and

       objected at trial to introduction of his statement into evidence, the issue is

       properly framed as whether the trial court abused its discretion in admitting it.

       Court of Appeals of Indiana | Memorandum Decision 46A03-0506-CR-304 | September 30. 2015   Page 8 of 16
       See Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). The admission of evidence

       is within the discretion of the trial court. Id. at 259-60. We will reverse a ruling

       on the admission of evidence only for an abuse of that discretion, which occurs

       only when the ruling is clearly against the logic and effect of the facts and

       circumstances and the error affects a party’s substantial rights. Id. at 260.


[19]   Sturgis contends his statement was involuntary and thus inadmissible per the

       Fifth Amendment to the United States Constitution. “If a defendant challenges

       the voluntariness of a confession under the United States Constitution, the state

       must prove the statement was voluntarily given by a preponderance of the

       evidence.” Pruitt v. State, 834 N.E.2d 90, 114 (Ind. 2005) (citing Colorado v.

       Connelly, 479 U.S. 157, 167-69, 107 S. Ct. 515, (1986)), cert. denied.1 When

       evaluating a claim that a statement was involuntarily given, we must examine

       the totality of the circumstances, including whether there is any evidence of

       police coercion, the length of the interrogation, its location, its continuity, as

       well as the defendant’s maturity, education, physical condition, and mental

       health. Id. at 115. On appeal we will not reweigh the evidence and must

       examine the record for substantial, probative evidence of voluntariness in a light

       most favorable to the State. Id.


[20]   Sturgis’s claim of involuntariness hinges almost entirely upon his statement

       toward the end of the interview, after he had already described Kelly’s murder




       1
           Sturgis makes no separate argument under the Indiana Constitution.


       Court of Appeals of Indiana | Memorandum Decision 46A03-0506-CR-304 | September 30. 2015   Page 9 of 16
       in detail, that “I think I need some psychiatric help I really do.” Ex. 2, p. 35.

       We note that the mere fact a statement is given by a mentally ill defendant does

       not render it per se inadmissible. Pruitt, 834 N.E.2d at 115. A defendant

       claiming mental impairment must show specific instances where his or her

       alleged impaired abilities had an effect on the voluntariness of a statement. Id.

       “[A] defendant’s mental state is not enough to render a confession inadmissible

       in the absence of coercive police activity.” Smith v. State, 689 N.E.2d 1238,

       1248 (Ind. 1997).


[21]   Here, we observe that there is no evidence in the record that Sturgis actually

       suffers from any mental illness. Sturgis never filed any notice of an insanity

       defense or of an alleged lack of competency to stand trial. His police statement

       likewise contains no indicators that he was mentally ill, up until the very end

       when he claimed that he needed a psychiatrist. Certainly, there is no evidence

       that police were aware of and attempted to take advantage of any mental

       illness. Thus, there is a lack of police coercion that would render Sturgis’s

       statement involuntary. See id. (noting “defendant has made no claim that the

       police who interrogated him knew that he was slow or unusually susceptible to

       pressure”).


[22]   Sturgis also points to his having originally writing “yes” on the written waiver

       of rights form next to the question, “Has any force, threats or promises of any

       kind or nature been used by anyone to influence you to waive these rights?”

       Ex. 1. He relies upon this as evidence that he was coerced into waiving his

       rights. We disagree. The evidence most favorable to the trial court’s ruling is

       Court of Appeals of Indiana | Memorandum Decision 46A03-0506-CR-304 | September 30. 2015   Page 10 of 16
       that this was a mistaken entry on the form, which he corrected and initialed

       with the word “no.” Also, when orally asked at the outset of the recorded

       interview whether he had been forced or threatened into waiving his rights,

       Sturgis answered “no” without hesitation. As for other indicators of

       voluntariness, the interview—including the unrecorded portion—was not

       particularly long.2 We see no clear evidence of force or coercion in Sturgis’s

       first, crossed-out response on the written waiver form. The trial court did not

       abuse its discretion in admitting Sturgis’s statement into evidence.


                                   III. Sentencing—Abuse of Discretion

[23]   Next, we address the first of Sturgis’s two challenges to his sixty-five-year

       sentence, which is the maximum possible term-of-years sentence for murder.

       See Ind. Code § 35-50-2-3(a). At the outset, we note the timing of Sturgis’s

       offense and sentencing. He committed this offense on September 20, 2004. On

       that date, sentencing in Indiana was governed by a “presumptive” scheme. See

       Anglemyer v. State, 868 N.E.2d 482, 485-86 (Ind. 2007). Sturgis was not

       sentenced until May 12, 2005. On April 25, 2005, the legislature had enacted a

       revised version of the sentencing law to replace “presumptive” sentences with

       “advisory” sentences, in response to the holdings in Blakely v. Washington, 542

       U.S. 296, 124 S. Ct. 2531 (2004), and Smylie v. State, 823 N.E.2d 679 (Ind.

       2005). However, the presumptive sentencing scheme in effect at the time of




       2
        Although Sturgis suggests to the contrary, there was no evidence that police discussed the case with Sturgis
       during his ride from the jail to the police station.

       Court of Appeals of Indiana | Memorandum Decision 46A03-0506-CR-304 | September 30. 2015        Page 11 of 16
       Sturgis’s offense is controlling here. See Robertson v. State, 871 N.E.2d 280, 286

       (Ind. 2007).


[24]   Under the presumptive scheme, trial courts were required to impose the

       designated presumptive sentence for each class of felony unless the court

       justified deviating from the presumptive upon a finding of aggravating or

       mitigating circumstances. Id. at 486. To facilitate this sentencing scheme,

       whenever a trial court deviated from a presumptive sentence, “it was required

       to ‘(1) identify all significant mitigating and aggravating circumstances; (2) state

       the specific reason why each circumstance ha[d] been determined to be

       mitigating or aggravating; and (3) articulate the court’s evaluation and

       balancing of circumstances.’” Id. (quoting Prickett v. State, 856 N.E.2d 1203,

       1207 (Ind. 2006)). Sturgis specifically contends the trial court erred in failing to

       find his age and purported remorse as mitigating circumstances. It was within

       the trial court’s discretion whether to find any mitigating circumstances. Rascoe

       v. State, 736 N.E.2d 246, 248-29 (Ind. 2000). A defendant claiming that the trial

       court failed to identify or find a mitigating circumstance had to establish that

       the circumstance was both significant and clearly supported by the record. Id.

       at 249. Trial courts were not obligated to accept a defendant’s contentions as to

       what constituted a mitigating circumstance. Id.


[25]   Regarding Sturgis’s purported remorse for murdering Kelly, he notes that he

       turned himself into police, cooperated with police in providing a confession,

       and expressed remorse in that statement. The trial court’s determination of the

       genuineness of a defendant’s remorse is similar to any other credibility

       Court of Appeals of Indiana | Memorandum Decision 46A03-0506-CR-304 | September 30. 2015   Page 12 of 16
       determination that normally is accepted by an appellate court. See Pickens v.

       State, 767 N.E.2d 530, 535 (Ind. 2002). Here, although Sturgis did turn himself

       into police, there was already a warrant out for his arrest based on several

       identifications of him as Kelly’s killer. Sturgis also never expressed remorse

       personally to any of Kelly’s family at the sentencing hearing. We do not believe

       the trial court was required to find that Sturgis’s purported remorse was a

       significant mitigating circumstance.


[26]   Sturgis also contends the trial court should have assigned mitigating weight to

       his age—twenty-six when he murdered Kelly. Sturgis cites no cases that have

       assigned mitigating to such a relatively advanced age. Indeed, we have looked

       unfavorably upon claims that a twenty-one year-old deserved special

       consideration in sentencing. See Coleman v. State, 952 N.E.2d 377, 385 (Ind. Ct.

       App. 2011). We perceive no reason why they trial court was required to assign

       mitigating weight to Sturgis’s age. In sum, the trial court did not abuse its

       discretion in sentencing Sturgis.


                                     IV. Sentencing—Appropriateness

[27]   Finally, we address Sturgis’s argument that his sentence is inappropriate

       pursuant to Indiana Appellate Rule 7(B) in light of his character and the nature

       of the offense.3 Although Rule 7(B) does not require us to be “extremely”




       3
        Sturgis makes no argument that his sentencing under the presumptive scheme and the dictates of Blakely
       and Smylie affects our review of his sentence under Rule 7(B).

       Court of Appeals of Indiana | Memorandum Decision 46A03-0506-CR-304 | September 30. 2015     Page 13 of 16
       deferential to a trial court’s sentencing decision, we still must give due

       consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

       App. 2007). We also understand and recognize the unique perspective a trial

       court brings to its sentencing decisions. Id. “Additionally, a defendant bears

       the burden of persuading the appellate court that his or her sentence is

       inappropriate.” Id.


[28]   The principal role of Rule 7(B) review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We “should 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. Whether a sentence is inappropriate

       ultimately turns on 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. When reviewing the appropriateness of a sentence

       under Rule 7(B), we may consider all aspects of the penal consequences

       imposed by the trial court in sentencing the defendant, including whether a

       portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

       1025 (Ind. 2010).


[29]   Regarding the nature of the offense, Sturgis, a twenty-six-year-old man, got

       involved in a high school dispute between two teenagers. He shot Kelly twice,

       with the second shot being at point-blank range after the first shot in Kelly’s jaw

       Court of Appeals of Indiana | Memorandum Decision 46A03-0506-CR-304 | September 30. 2015   Page 14 of 16
       failed to kill him. Kelly was unarmed and was not even the subject of the

       dispute, but essentially found himself in the wrong place at the wrong time.

       Kelly also was only fifteen years old, had just gotten off the school bus, and was

       on his way to practice music when he was shot and killed. This crime was

       utterly senseless and egregious.


[30]   As for Sturgis’s character, he has prior adult convictions for Class D felony

       possession of cocaine, Class B felony armed robbery, and misdemeanor illegal

       consumption of alcohol. Sturgis failed to satisfactorily complete probation for

       the alcohol offense. Sturgis also admitted to having a juvenile history in Illinois

       related to marijuana possession. In sum, there is substantial evidence of

       Sturgis’s negative character attributes and no evidence of any positive attributes.

       Given the egregious nature of the offense and Sturgis’s criminal history, with no

       evidence of any counterbalancing positive attributes, we cannot say that

       Sturgis’s maximum term-of-years sentence of sixty-five years is inappropriate.


                                                 Conclusion
[31]   Sturgis has failed to establish that prosecutorial misconduct occurred during

       voir dire or that the trial court abused its discretion in allowing his statement to

       police into evidence. Also, the trial court did not abuse its discretion in

       sentencing Sturgis, and his sentence of sixty-five years is not inappropriate. We

       affirm.


       Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 46A03-0506-CR-304 | September 30. 2015   Page 15 of 16
Kirsch, J., and Najam, J., concur.




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