Maurice Louis McCoy v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Aug 25 2016, 8:02 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas W. Vanes Gregory F. Zoeller
Office of the Public Defender Attorney General of Indiana
Crown Point, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Maurice Louis McCoy, August 25, 2016
Appellant-Defendant, Court of Appeals Case No.
45A04-1512-CR-2349
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Plaintiff Judge
Trial Court Cause No.
45G01-1412-F3-20
Bailey, Judge.
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Case Summary
[1] Maurice Louis McCoy (“McCoy”) appeals his conviction for Robbery, as a
Level 3 felony.1 He presents the sole issue of whether the trial court abused its
discretion in instructing the jury. We affirm.
Facts and Procedural History
[2] At around 5:30 p.m. on December 8, 2014, Thomas O’Neill (“O’Neill”) left his
home in Hammond, Indiana to walk to a nearby convenience store. Before
O’Neill was able to reach his destination, three young men exited a gray SUV
and confronted O’Neill. One demanded that O’Neill “give it up” and a second
man pulled out a handgun and pointed it at O’Neill’s stomach. (Tr. at 85.)
Two of the men rifled through O’Neill’s pockets and retrieved $60.00. The
young man with the handgun boasted to O’Neill: “we’re the new police around
here now.” (Tr. at 94.)
[3] When the young men left, O’Neill ran to a nearby auto sales business, opened
the door, and yelled for someone to call 9-1-1. The responding officer took
O’Neill to a nearby street where four individuals had been detained. O’Neill
identified three of the four men as the men who had robbed him, and they were
arrested.
1
Ind. Code § 35-42-5-1.
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[4] McCoy and his companions were charged with Robbery 2 and tried in a jury
trial. At the trial, O’Neill identified McCoy as the robber “on my right side,
going through my pockets.” (Tr. at 93.) McCoy was convicted as charged, and
sentenced to ten years imprisonment. He now appeals.
Discussion and Decision
[5] At the conclusion of the evidence, one co-defendant proffered an instruction
and the other two joined in requesting that instruction, providing as follows:
The indictment/information names multiple persons who are on
trial together. In reaching a verdict, however, you must bear in
mind that guilt is individual. Your verdict as to each Accused
must be determined separately with respect to him/her, solely on
the evidence, or lack of evidence, presented against him/her
without regard to the guilt or innocence of anyone else. In
addition, some of the evidence in this case was limited to one
Accused. Let me emphasize that any evidence admitted solely
against one Accused may be considered only as against that
person and may not in any respect enter into your deliberations
on any other accused.
(App. at 106.)
[6] The trial court elected to give the “multiple persons” instruction that the trial
court considered “standard,” as follows:
2
The offense was elevated to a Level 3 felony because of the use of the handgun.
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Although the defendants are being tried jointly, you must give
separate consideration to each defendant. In doing so, you must
analyze what the evidence in the case shows with respect to each
defendant. Each defendant is entitled to have his case decided on
the evidence and the law applicable to him.
(Tr. at 350; App. at 53.)
[7] The trial court has broad discretion in instructing the jury; we generally review
that discretion only for an abuse. McCowan v. State, 27 N.E.3d 760, 763 (Ind.
2015). In making a determination of whether an instruction was properly
refused, we consider: (1) whether the tendered instruction correctly states the
law; (2) whether there was evidence presented to support giving the instruction;
and (3) whether the substance of the instruction was covered by the instructions
given. Id. at 763-64. We will consider the instruction as a whole, and will
reverse only if the instructions as a whole mislead the jury as to the law in the
case. Id. at 764.
[8] McCoy candidly acknowledges Indiana precedent contrary to his claim. See
Buie v. State, 633 N.E.2d 250 (Ind. 1994), abrogated on other grounds. In Buie, our
Indiana Supreme Court found an instruction substantially similar to that
tendered by McCoy to be “at least arguably a correct statement of law.” Id. at
255. However, the Court concluded that there was no error in the refusal of
Buie’s tendered instruction because another instruction was given that
“conveyed to the jury that culpability is individual.” Id.
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[9] Upon acknowledging Buie, McCoy “urges this Court to re-examine the issue.”
Appellant’s Br. at 6. According to McCoy, his tendered instruction was
preferable to that given by the trial court because it used the term “accused” as
opposed to “defendant,” consistent with the terminology in the United States
Constitution and the Indiana Constitution. McCoy argues that “defendant”
unacceptably implies a need on the part of an accused to disprove, excuse or
justify his conduct.
[10] Although McCoy expresses a preference for the term “accused” as opposed to
“defendant,” we are mindful that our standard of review focuses not upon an
isolated choice of words but rather, whether the jury was misled as to the law in
the case. McCowan, 27 N.E.3d at 764. Here, the instruction given conveyed to
the jury the premise that culpability is individual, and we are not at liberty to
“re-examine” the law with disregard for our Indiana Supreme Court’s guidance.
Minor v. State, 36 N.E.3d 1065, 1074 (Ind. Ct. App. 2015).
Conclusion
[11] McCoy has not demonstrated an abuse of discretion in the trial court’s
instruction of the jury.
[12] Affirmed.
Riley, J., and Barnes, J., concur.
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