MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           May 31 2017, 8:42 am
court except for the purpose of establishing
                                                                         CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ross G. Thomas                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Katherine Cooper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

William Russell,                                        May 31, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        69A01-1608-CR-1873
        v.                                              Appeal from the Ripley Circuit
                                                        Court
State of Indiana,                                       The Honorable Ryan King, Judge
Appellee-Plaintiff.                                     Trial Court Cause No.
                                                        69C01-1509-F1-2



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 69A01-1608-CR-1873 | May 31, 2017          Page 1 of 12
                                             Case Summary
[1]   William Russell appeals his convictions and sentence for Level 1 felony

      attempted murder and Class A misdemeanor carrying a handgun without a

      license. We affirm.


                                                    Issues
[2]   The issues Russell raises are:


              I. whether the trial court abused its discretion by denying his
              motion for mistrial following an alleged violation of his right to
              remain silent under the Fifth Amendment to the United States
              Constitution; and


              II. whether his sentence is inappropriate in light of the nature of
              the offenses and the character of the offender.


                                                     Facts
[3]   In 2015, Dennis Ryker hosted Friday night parties at his parents’ home in

      Ripley County. Russell regularly attended the parties. Larry Hurd and

      Jonathan Smith also attended the parties. On Friday evening, September 4,

      2015, Ryker hosted a party, and Russell, Hurd, and Smith attended. All four

      men consumed alcohol at the party. Around 2:00 a.m., the men left the house

      to find something to eat. Russell drove himself and Ryker, and Hurd and Smith

      drove separately in Hurd’s car. They found an open bar and ordered a round of

      drinks. While the men were drinking, two other bar patrons began to argue




      Court of Appeals of Indiana | Memorandum Decision 69A01-1608-CR-1873 | May 31, 2017   Page 2 of 12
      with each other. Smith interceded and coaxed the larger of the two patrons,

      Jamie Craft, outside. Craft eventually left the bar.


[4]   Smith returned to the bar. Shortly thereafter, around 3:00 a.m. when the bar

      was closing, he, Russell, Ryker, and Hurd walked out of the bar’s side door and

      toward their vehicles. As the men walked, Smith vented to the group about

      Craft’s behavior. Russell told Smith, “Quit being [an] idiot. Quit being a dumb

      a**.” Tr. Vol. III p. 30. Smith shook his fist as he walked toward Russell and

      said “if [Russell] didn’t stop talking to [him] that way, that [he’d] knock

      [Russell’s] F-ing teeth out.” Id. at 155. Russell, who now was standing at his

      vehicle, with one foot in the vehicle and one foot on the ground, reached into

      the vehicle, retrieved a handgun, and shot Smith in the chest. Smith staggered,

      and then brought his hands up and crossed his arms in an X-shape in front of

      his face. Russell fired a second time, and the second shot hit Smith in the hand

      and forearm and then traveled to Smith’s chest.


[5]   Russell threw the gun into his vehicle and drove away from the scene. Smith

      was transported to a hospital and survived his injuries. Based upon the

      information provided by witnesses at the scene of the shooting, the police began

      to search for Russell. Russell evaded the police for two days.


[6]   On September 7, 2015, Russell appeared with his attorney at the Ripley County

      jail and surrendered to authorities. Two days later, the State charged Russell

      with Level 1 felony attempted murder, Level 3 felony aggravated battery, Level

      5 felony battery with a deadly weapon, and Class A misdemeanor carrying a


      Court of Appeals of Indiana | Memorandum Decision 69A01-1608-CR-1873 | May 31, 2017   Page 3 of 12
       handgun without a license. Following a four-day jury trial, Russell was found

       guilty as charged.


[7]    At sentencing, the trial court vacated the Level 3 and Level 5 convictions due to

       double jeopardy concerns. The trial court, finding no mitigating factors and

       several aggravating factors, imposed consecutive thirty-seven-year and one-year

       executed sentences on the remaining convictions for attempted murder and

       carrying a handgun without a license, for an aggregate executed sentence of

       thirty-eight years.


[8]    Russell now appeals. Additional facts will be provided as necessary.


                                                   Analysis
                                  I. Fifth Amendment Right to Silence

[9]    Russell first contends that the trial court abused its discretion by denying his

       motion for mistrial following an alleged violation of his Fifth Amendment right

       to remain silent. He maintains that the State’s “use [during trial] of [his] post-

       arrest silence and lack of cooperation [with the investigation] both substantively

       and in an attempt to impeach [him] violated his rights under the [Fifth] and

       Fourteenth Amendments to the United States Constitution and denied him a

       fair trial.” Appellant’s Br. p. 14.


[10]   At trial, Indiana State Police Detective Kip Main testified during the State’s

       case-in-chief that he read the arrest warrant to Russell when Russell arrived at

       the jail with his lawyer and surrendered to the authorities. Detective Main


       Court of Appeals of Indiana | Memorandum Decision 69A01-1608-CR-1873 | May 31, 2017   Page 4 of 12
       stated that, after Russell was taken into custody, “[t]he investigation continued.

       Even, even with the arrest of that day, part of the process is interviewing people

       and, you know, I wanted to get a statement from William Russell.” Tr. Vol. IV p. 21

       (emphasis added). Russell objected and moved for a mistrial. The trial court

       denied the motion but admonished the jury not to consider Detective Main’s

       comment regarding wanting to take a statement from Russell.


[11]   “A mistrial is an extreme remedy that is warranted only when less severe

       remedies will not satisfactorily correct the error.” Banks v. State, 761 N.E.2d

       403, 405 (Ind. 2002). A decision on a motion for mistrial lies within the sound

       discretion of the trial court, and we reverse only upon a showing of an abuse of

       that discretion. Francis v. State, 758 N.E.2d 528, 532 (Ind. 2001). To prevail,

       the appellant must show that he was placed in a position of grave peril to which

       he should not have been subjected. Id. The gravity of peril is measured by the

       probable persuasive effect on the jury’s decision. Oliver v. State, 755 N.E.2d 582,

       585 (Ind. 2001). The trial judge is in the best position to gauge the surrounding

       circumstances and the potential impact on the jury when deciding whether a

       mistrial is appropriate. Id.


[12]   The Fifth Amendment to the U.S. Constitution, made applicable to the states

       through the Fourteenth Amendment, provides that no person shall be

       compelled in any criminal case to be a witness against himself. U.S. Const.

       amend. V; Cox v. State, 854 N.E.2d 1187, 1193 (Ind. Ct. App. 2006). A suspect

       is informed of this right to remain silent, among others, when given what is



       Court of Appeals of Indiana | Memorandum Decision 69A01-1608-CR-1873 | May 31, 2017   Page 5 of 12
                                                                1
       commonly known as the Miranda rights. Using as evidence of guilt that the

       suspect remained silent during police questioning can be a violation of the Fifth

       Amendment. See United States v. Hernandez, 948 F.2d 316, 322 (7th Cir. 1991).

       Determining whether the use of the defendant’s silence is a violation of the

       Fifth Amendment turns on the manner in which the prosecution used the

       evidence and if the silence was before or after the defendant was read the
                             2
       Miranda rights.


[13]   In Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240 (1976), the United States Supreme

       Court held that using a defendant’s silence, which occurred after arrest and

       receiving Miranda warnings, for impeachment purposes violates the Due

       Process Clause of the Fourteenth Amendment. Id. at 619, 96 S. Ct. at 2245.

       The underlying rationale was that use of a defendant’s post-arrest, post-Miranda

       silence to impeach an explanation subsequently offered at trial would be

       contrary to the Miranda warnings’ implicit assurance to an individual in police

       custody that silence will carry no penalty. Id. at 618, 96 S. Ct. at 2245. The

       United States Supreme Court has also held a defendant’s post-arrest, post-

       Miranda silence could not be used substantively in the prosecution’s case-in-

       chief. See Wainwright v. Greenfield, 474 U.S. 284, 295, 106 S. Ct. 634, 641, 88 L.




       1
        See Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694 (1966) (“He must be
       warned prior to any questioning that he has the right to remain silent, that anything he says can be used
       against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford
       an attorney one will be appointed for him prior to any questioning if he so desires.”).

       2
           We note that no evidence was presented at trial as to when Russell received his Miranda warnings.


       Court of Appeals of Indiana | Memorandum Decision 69A01-1608-CR-1873 | May 31, 2017                  Page 6 of 12
       Ed. 2d 623 (1986). Whether a defendant’s post-arrest, pre-Miranda silence may

       be used substantively has yet to be addressed by the United States Supreme

       Court, but Indiana courts have held that post-arrest, pre-Miranda silence cannot

       be used as substantive evidence in the State’s case-in-chief. See Rowe v. State,

       717 N.E.2d 1262, 1267 (Ind. Ct. App. 1999); see also Akard v. State, 924 N.E.2d

       202, 209 (Ind. Ct. App. 2010), aff’d in part and reversed in part on other grounds,

       937 N.E.2d 811 (Ind. 2010).


[14]   Here, the record does not reveal when Russell received his Miranda warnings.

       Regardless of whether Russell’s silence was pre-Miranda or post-Miranda, we

       find no reversible error.


[15]   The statement elicited from Detective Main during the State’s case-in-chief, “I

       wanted to get a statement from William Russell,” was brief, nonspecific, and

       did not indicate that Russell had refused to speak with the detective. Tr. Vol.

       IV p. 21. Russell’s counsel objected immediately and moved for a mistrial.

       After discussion at sidebar, the trial court denied the mistrial motion but did

       admonish the jury by stating: “Ladies and gentlemen of the jury, the Court

       directs you to, uh, disregard the last statement that was made by the witness

       testifying.” Id. at 33.


[16]   Reversible error is seldom found when the trial court has admonished the jury

       to disregard a statement made during the proceedings. Alvies v. State, 795

       N.E.2d 493, 506 (Ind. Ct. App. 2003), trans. denied. A timely and accurate

       admonition to the jury is presumed to sufficiently protect a defendant’s rights


       Court of Appeals of Indiana | Memorandum Decision 69A01-1608-CR-1873 | May 31, 2017   Page 7 of 12
       and remove any error created by the objectionable statement. Id. Here, the trial

       court determined that an admonishment was sufficient and that mistrial was

       not warranted. Russell has not shown that the detective’s statement placed him

       in a position of grave peril to which he should not have been subjected. We

       presume the trial court’s timely and accurate admonishment in this case

       sufficiently protected Russell’s rights.


[17]   We find that no violation of Russell’s Fifth or Fourteenth Amendment rights

       occurred. We conclude that the trial court did not abuse its discretion when it

       denied his motion for a mistrial.


                                      II. Appropriateness of Sentence

[18]   Russell argues that his thirty-eight-year sentence is inappropriate in light of the

       nature of the offenses and his character. According to Russell, when the trial

       court sentenced him, it should have considered that, at the time of the shooting,

       Russell “acted under strong provocation and that the victim played a role in

       facilitating the offense” by threatening Russell with bodily harm. Appellant’s

       Br. p. 16. Russell also contends that his general character is not one of

       violence, that he demonstrated a strong history of employment prior to

       suffering medical problems that left him with a permanent disability, he

       expressed remorse that the shooting occurred and a willingness to pay

       restitution, and his risk to reoffend is low.


[19]   We may revise a sentence if it is “inappropriate in light of the nature of the

       offense and the character of the offender.” Ind. Appellate Rule 7(B). Whether


       Court of Appeals of Indiana | Memorandum Decision 69A01-1608-CR-1873 | May 31, 2017   Page 8 of 12
       the reviewing court regards a sentence as inappropriate turns on a “sense of 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.” Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008). This Court “must give ‘deference to a

       trial court’s sentencing decision, both because Rule 7(B) requires us to give due

       consideration to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions.’” Gil v. State,

       988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013) (quoting Stewart v. State, 866

       N.E.2d 858, 866 (Ind. Ct. App. 2007)). Russell bears the burden of persuading

       us that his sentence is inappropriate. Reid v. State, 876 N.E.2d 1114, 1116 (Ind.

       2007).


[20]   When considering the nature of the offense, the advisory sentence is the starting

       point to determine the appropriateness of a sentence. See Anglemyer v. State, 868

       N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

       Russell was found guilty of Level 1 felony attempted murder and Class A

       misdemeanor carrying a handgun without a license. The sentencing range for a

       Level 1 felony is “a fixed term of between twenty (20) and forty (40) years, with

       the advisory sentence being thirty (30) years.” Ind. Code § 35-50-2-4(b). The

       sentencing range for a Class A misdemeanor is “a fixed term of not more than

       one (1) year.” Ind. Code § 35-50-3-2. The trial court found as aggravating

       circumstances that the victim, Smith, suffered significant injuries greater than

       the elements necessary to prove the attempted murder count, that Smith’s

       family will suffer hardship, that Russell showed a total lack of remorse, and that


       Court of Appeals of Indiana | Memorandum Decision 69A01-1608-CR-1873 | May 31, 2017   Page 9 of 12
       Russell had misdemeanor criminal history and a prior probation violation. The

       court imposed consecutive sentences of thirty-seven years for the Level 1 felony

       and one year for the Class A misdemeanor. The sentence for the Level 1 felony

       was above the advisory sentence but below the maximum advised by the

       General Assembly.


[21]   Regarding the nature of Russell’s handgun offense, he allowed his license to

       carry the handgun to lapse and he did not bother to renew it. As for the

       attempted murder offense, it was indisputably callous. After a verbal

       altercation, Russell reached into his vehicle, pulled out his handgun, and fired

       two shots – aiming for Smith’s chest. The first shot hit Smith in his chest.

       Because Smith attempted to shield himself by raising his arms and hands into

       an X-shape, the second shot hit the pinky finger of his right hand and his left

       forearm, and then lodged into his chest. Smith’s forearm was shattered, his

       pinky finger was amputated, and the bullet remains lodged in Smith’s chest.

       Smith has undergone multiple surgeries to repair his forearm. He has lost fifty

       percent of the strength he had in his right hand. Based on the foregoing, we

       conclude that the nature of Russell’s offenses did not render his sentence

       inappropriate.


[22]   Our review of the character of the offender reveals that Russell’s criminal

       history consisted of three misdemeanor driving while suspended convictions

       from 2009 and 2010. Russell had one prior probation violation in 2010. The

       trial court found several aggravators including Russell’s lack of remorse,

       evidenced by statements Russell uttered when he made calls from the Ripley

       Court of Appeals of Indiana | Memorandum Decision 69A01-1608-CR-1873 | May 31, 2017   Page 10 of 12
       County jail: “that’s what happens when you’re my friend . . . I miss,” and “this

       [shooting someone] was bound to happen some time.” App. p. 59. The trial

       court gave “substantial weight” to all of the aggravators except Russell’s

       criminal history, to which the court gave “little weight,” finding that it was not

       a “substantial aggravating factor.” App. p. 59; Tr. Vol. VII p. 48. The court

       considered the evidence presented at trial that Smith might have provoked

       Russell; however, the court determined that this could not serve as a mitigator

       because Russell possessed a handgun without a license, and “[b]ut for that

       illegal possession of a handgun, nobody’s ever here [before the trial court].” Tr.

       Vol. VII p. 49.


[23]   Russell carried a handgun for which he had no license. After a verbal

       altercation, he shot Smith twice in the chest, causing significant injuries,

       immediately left the scene of the shooting, and hid from the police for two days.

       During jail-house phone calls, Russell spoke of the shooting in a flippant

       manner. Russell’s criminal history, though light, showed a pattern for

       disregarding the law. Russell’s character does not persuade us to modify his

       sentence. We find that Russell’s thirty-eight-year sentence is not inappropriate

       in light of the nature of the offenses and his character.


                                                 Conclusion
[24]   The trial court properly denied Russell’s motion for a mistrial, and his sentence

       is not inappropriate. We affirm.


[25]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 69A01-1608-CR-1873 | May 31, 2017   Page 11 of 12
Kirsch, J., and Robb, J., concur.




Court of Appeals of Indiana | Memorandum Decision 69A01-1608-CR-1873 | May 31, 2017   Page 12 of 12
