Kameron Wesley Martin v. State of Indiana ( 2019 )

FILED
Oct 11 2019, 9:13 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Darren Bedwell Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Samantha M. Sumcad
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kameron Wesley Martin, October 11, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-183
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark D. Stoner,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G06-1604-MR-13185
Altice, Judge.
Case Summary
[1] A jury found Kameron Martin guilty of, among other things, murder and
robbery as a Level 2 felony, elevated based on the serious bodily injury
sustained by the murder victim when he was shot and killed. To avoid a double
Court of Appeals of Indiana | Opinion 19A-CR-183 | October 11, 2019 Page 1 of 9
jeopardy violation, the trial court entered the robbery conviction as a Level 3
felony rather than a Level 2 felony. On appeal, Martin argues that the robbery
conviction should have been reduced to a Level 5 felony because the use of a
deadly weapon element, relied upon by the trial court as the basis for the Level
3 felony, was not found by the jury beyond a reasonable doubt.
[2] We vacate the sentence for Level 3 felony robbery and remand for sentencing
on Level 5 felony robbery.
Facts & Procedural History
[3] On the evening of March 11, 2016, Martin and Anthony Breaziel planned the
robbery of a liquor store a few blocks away from Martin’s residence in
Indianapolis. Martin and Breaziel, both armed with handguns, left the
residence with Corey Spurlock. An unidentified woman drove them to the
liquor store and stayed outside waiting in the car.
[4] The three men entered the liquor store around 1:45 a.m. on March 12, wearing
masks and hoods, and quickly dispersed throughout the store. There were two
employees, Walter Woods and Diana Montgomery, and the owner, Joe Klein,
inside. Spurlock went behind the counter, while Breaziel approached
Montgomery who was stocking shelves. He pointed his gun at her and
requested that she open the safe. Because she could not access the safe,
Breaziel directed her to the register to open the cash drawer.
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[5] In the meantime, Martin went into the back office where Klein was working at
his desk. Martin quickly pocketed a revolver that Klein had on the desk and
then pointed his own gun at Klein, who raised his hands and stood up. Martin
backed out of the office as Klein followed at gunpoint as directed. When he
reached the door, however, Klein tried to close the door between him and
Martin and reached for a shotgun that rested behind the door, but Martin fired
two shots. One of the bullets passed through the door and into the left side of
Klein’s chest. Klein collapsed to the floor and died at the scene.
[6] Upon hearing the shots, Spurlock ran out of the store and, after grabbing the
entire cash register drawer, Breaziel followed. Martin also fled. The three men
and the woman went back to Martin’s residence and split the proceeds of the
robbery after opening the cash register drawer with a hammer. Thereafter,
Martin burned the clothes he had been wearing and gave away Klein’s revolver.
[7] On April 7, 2016, the State charged Martin with four counts – murder (Count
1), felony murder (Count 2), Level 2 felony robbery (Count 3), and Level 4
felony unlawful possession of a firearm by a serious violent felon (Count 4). On
June 8, 2016, the State amended the information to include a charge of Level 3
felony conspiracy to commit robbery (Count 5). Following a three-day trial in
early December 2018, 1 the jury found Martin guilty on all counts as charged,
except that the bifurcated portion relating to the serious violent felon
1
Martin’s two prior jury trials in this case each ended in mistrial. The first was due to the malfunctioning of
the trial court’s recording system. The second resulted in a hung jury.
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determination had yet to be held. On the State’s motion, the trial court
dismissed Count 4.
[8] The sentencing hearing was held on December 20, 2018, at which the parties
and the trial court discussed double jeopardy issues regarding the four
remaining counts. Ultimately, the trial court entered judgment of conviction on
only two counts, explaining:
Count 1 is entered as a conviction. Count 2 is shown as – again
proven, but not entered as a conviction for double jeopardy
purposes. Count 3, by agreement of the parties[,] is reduced for
double jeopardy considerations to a Level 3 felony. Count 4 was
dismissed by the State of Indiana. Count 5, the Court finds
merges … because the overt act for the conspiracy was in fact the
robbery in which conviction was entered.
Transcript Vol. 4 at 159. The trial court then sentenced Martin to consecutive
terms of sixty-two years for murder and ten years for Level 3 felony robbery.
On appeal, Martin challenges only his robbery conviction, arguing that it
should have been entered as a Level 5 rather than a Level 3 felony.
Discussion & Decision
[9] There is no dispute that Martin could not be convicted of both murder and
robbery as a Level 2 felony without violating principles of double jeopardy.
That is because the same evidence that supported the murder conviction was
used to elevate the robbery conviction to a Level 2 felony based on the serious
bodily injury sustained by the murder victim. See, e.g., Logan v. State, 729
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N.E.2d 125, 136 (Ind. 2000) (Class A felony robbery conviction could not stand
where “[t]he serious bodily injury alleged and proven by the State in this case
was [the victim’s] death, the same fact used to convict Logan of murder”);
Kingery v. State, 659 N.E.2d 490, 495-96 (Ind. 1995) (“Where a single act …
forms the basis both for the upgrade … of the robbery conviction and also the
act element of the murder charge, a defendant cannot be twice sentenced for
committing this single act. To do so would violate the prohibition against
double jeopardy.”).
[10] Of course, as Martin concedes, this did not entitle him to escape conviction and
punishment for the robbery of which he was convicted. There are three felony
classes of robbery that are relevant here:
Except as provided in subsection (b), a person who knowingly or
intentionally takes property from another person or from the
presence of another person:
(1) by using or threatening the use of force on any person;
or
(2) by putting any person in fear;
commits robbery, a Level 5 felony. However, the offense is a
Level 3 felony if it is committed while armed with a deadly
weapon or results in bodily injury to any person other than a
defendant, and a Level 2 felony if it results in serious bodily
injury to any person other than a defendant.
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Ind. Code § 35-42-5-1(a). 2 Robbery as a Level 5 felony is a lesser-included
offense of robbery as a Level 2 felony, as is robbery as a Level 3 felony when
elevated based on bodily injury to the victim. But robbery as a Level 3 felony
based on the use of a deadly weapon is not necessarily a lesser-included offense
of robbery as a Level 2 felony.
[11] Here, because the only injury alleged by the State was the gunshot wound that
resulted in the victim’s death, the robbery conviction could not be elevated to a
Level 3 felony based on the bodily injury suffered by the victim. See Logan, 729
N.E.2d at 137. The trial court recognized this and, therefore, entered the
robbery conviction as a Level 3 felony on the basis that Martin was armed with
a deadly weapon when he committed the robbery. The fundamental problem
with this is that the State did not allege the use of a deadly weapon as an
enhancement of the robbery offense, and the jury was never instructed on the
use of a deadly weapon as an enhancement of the robbery offense.3 As a result,
reduction of the robbery conviction to a Level 5 felony was the proper remedy.
See Spears v. State, 735 N.E.2d 1161, 1165 n.2 (Ind. 2000) (jury not instructed on
use of a deadly weapon and thus reduction to the lowest felony robbery (then a
Class C felony) was the proper remedy for a double jeopardy violation); Logan,
2
Subsection (b) of the statute addresses the robbery of a pharmacist/pharmacy and sets out different felony
levels.
3
The jury instructions set forth the elements of robbery as a Level 5 felony and provided that the charge
could be enhanced to a Level 2 felony if the State proved beyond a reasonable doubt that Martin caused
serious bodily injury to the victim. There was no instruction on robbery as a Level 3 felony or, in particular,
the element of use of a deadly weapon.
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729 N.E.2d at 137 (Class B felony robbery was not a lesser-included offense
where the State did not allege use of a deadly weapon as an enhancement);
Kingery, 659 N.E.2d at 496 (“The Class B requisite element, committing
robbery while armed with a deadly weapon, is absent from the Class A/Class C
instruction given to the jury.”). 4
[12] The State argues that Martin invited this error by expressly agreeing with the
State’s suggestion at sentencing that the robbery conviction should be reduced
to a Level 3 felony. 5 We agree with Martin, however, that the State seems to
conflate two distinct concepts – waiver and invited error. In Batchelor v. State,
119 N.E.3d 550, 556-59 (Ind. 2019), our Supreme Court discussed the
distinctions between these two doctrines. The distinctions are important
because “whereas waiver generally leaves open an appellant’s claim to
fundamental-error review, invited error typically forecloses appellate review
altogether.” Id. at 556.
4
Each of these cases involved convictions for murder and robbery with a shooting as the basis of the victim’s
death and serious bodily injury. Yet the Indiana Supreme Court consistently held that the robbery conviction
could not be elevated based on the defendant’s use of a deadly weapon (a firearm) unless the jury was
specifically instructed on this element. Accordingly, we reject the State’s assertion that Level 3 felony
robbery was a lesser-included offense “[b]ecause the jury necessarily had to find that Martin was armed with
a deadly weapon to shoot Klein with a gun…” Appellee’s Brief at 10. We also find inapposite the cases cited
by the State in support of this assertion because in those cases the jury was expressly instructed on the
enhancement element. See, e.g., Robinson v. State, 775 N.E.2d 316, 320 (Ind. 2002) (“The jury was instructed
that to convict Robinson it must find that Robinson acted ‘while armed with a deadly weapon.’ Accordingly,
enhancement of the [robbery] offense to a B felony was proper.”).
5
After the State made its sentencing argument, the trial court asked defense counsel whether she agreed that
Count 3 should be a Level 3 felony. Counsel responded, “Yes, Judge I agree.” Transcript Vol. 4 at 154.
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[13] The Court made clear the limited application of the invited error doctrine.
[W]e have consistently required something more than mere
“neglect” before applying the automatic rule of preclusion:
evidence of counsel’s strategic maneuvering at trial. Indeed, this
Court has long held that the “policy behind” the doctrine is to
prohibit a party, privy to an “erroneous action of the court,” from
alleging “prejudicial error” following an adverse decision.
In reaffirming this precedent, we emphasize today that, to
establish invited error, there must be some evidence that the error
resulted from the appellant’s affirmative actions as part of a
deliberate, “well-informed” trial strategy. A “passive lack of
objection,” standing alone, is simply not enough. And when
there is no evidence of counsel’s strategic maneuvering, we are
reluctant to find invited error based on the appellant’s neglect or
mere acquiescence to an error introduced by the court or
opposing counsel….
To be sure, cases often arise when either the source of the error or
counsel’s motives at trial are less than clear. And appellate
courts should exercise their judgment in deciding the issue. But
when a careful reading of the record fails to disclose enough
information, courts should resolve any doubts against a finding
of invited error rather than engage in speculation.
Id. at 557-58 (internal citations omitted).
[14] Our review of the record in this case reveals that defense counsel’s
acquiescence, though affirmatively stated, was not part of a deliberate trial
strategy and amounted only to mere neglect. Thus, Martin’s claim on appeal is
not foreclosed by the doctrine of invited error.
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[15] Martin was sentenced for a crime – Level 3 Felony robbery – for which he had
not been convicted. This amounted to fundamental error. See Kingery, 659
N.E.2d at 496 (“A person cannot be sentenced for a crime for which that person
has not been convicted.”). Accordingly, we vacate Martin’s sentence for Level
3 felony robbery and remand for a new sentencing hearing on the Level 5 felony
robbery conviction.
[16] Judgment vacated in part and remanded for a new sentencing hearing on the
Level 5 felony robbery conviction.
Brown, J. and Tavitas, J., concur.
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