Tyre Mark Bradbury v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
May 15 2017, 9:07 am
Pursuant to Ind. Appellate Rule 65(D), this CLERK
Memorandum Decision shall not be regarded as Indiana Supreme Court
Court of Appeals
precedent or cited before any court except for the and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Charles W. Lahey Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tyre Mark Bradbury, May 15, 2017
Appellant-Defendant, Court of Appeals Case No.
71A05-1606-CR-1280
v. Appeal from the St. Joseph
Superior Court.
State of Indiana, The Honorable Elizabeth C.
Hurley, Judge.
Appellee-Plaintiff. Cause No. 71D08-1405-MR-5
Shepard, Senior Judge
[1] A jury found Tyre Mark Bradbury guilty of murder as an accessory and
concluded he had participated in the crime as part of a criminal gang. The trial
judge sentenced him to the minimum penalty for murder, forty-five years, and
doubled it as required by the gang statute.
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Issues
[2] Bradbury raises the following issues:
I. Whether the trial court erred in admitting the recording of
Bradbury’s interrogation;
II. Whether the court erred while instructing the jury;
III. Whether there is sufficient evidence to sustain Bradbury’s
conviction for murder;
IV. Whether there is sufficient evidence to sustain a sentence
enhancement for participation in a criminal organization;
V. Whether Bradbury should have been sentenced as a
juvenile; and
VI. Whether Bradbury’s sentence is unconstitutional.
Facts and Procedural History
[3] On April 8, 2014, a fistfight broke out among several young men at a public
park in South Bend. Fifteen-year-old Tyre Bradbury and another juvenile, L.B.,
participated in the fight on opposing sides. The next day, Bradbury and
numerous companions, including Robert Griffin and juvenile T.B., returned to
the park. Bradbury had obtained a handgun and a shotgun; he gave the
handgun to Griffin and the shotgun to another companion. The group again
encountered L.B., and, during a confrontation, Griffin and T.B. pulled out
handguns and shot at L.B. multiple times. No one fired the shotgun. None of
the shots hit L.B., but one of Griffin’s bullets traveled 390 yards and struck two-
year-old J.S. in the chest as he was playing with his sister in the front yard of his
house. J.S. died from the gunshot.
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[4] These dreadful events rightly led to multiple prosecutions. Griffin, who fired
the shot that killed J.S. and was an adult at the time of the shooting, received a
flat sixty years for murder. T.B., the other shooter, received a forty-year
sentence with five years suspended for attempted murder. Bradbury’s other
companions, including Josh Hodge, Xavier Primm, M.B., D.W., and C.W.,
received sentences of ten years or less. The State argued that most of
Bradbury’s companions were also members of the gang, but only C.W. was
convicted of the criminal organizations enhancement. M.B. and D.W. were
also charged with the enhancement, but the enhancement was later dismissed
as to them.
[5] As for Bradbury, the police arrested him on April 10, and an officer
interrogated him with his mother present. The State charged Bradbury with
1
murder as an accessory and sought a sentencing enhancement for participation
2
in a criminal organization. The juvenile court waived jurisdiction and
transferred the case to the St. Joseph Superior Court. In a bifurcated
proceeding, the jury determined that Bradbury was guilty of murder and that he
was subject to the criminal organizations enhancement. The court sentenced
Bradbury to an aggregate of ninety years.
1
Ind. Code §§ 35-42-1-1 (2013), 35-41-2-4 (1977).
2
Ind. Code § 35-50-2-15 (2006).
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Discussion and Decision
1. Admitting the Recording of Interrogation
[6] Bradbury argues the trial court should have granted his motion to suppress the
recording of his interrogation, claiming his incriminating statements were
3
coerced. The issue is more appropriately framed as whether the court abused
its discretion by admitting the recording. Lanham v. State, 937 N.E.2d 419 (Ind.
Ct. App. 2010). Abuse of discretion involves a decision that is clearly against
the logic and effect of the facts and circumstances before the court. Id.[7] When a defendant challenges the admissibility of his or her statement, the State
must prove by a preponderance that the statement was voluntary. Williams v.
State, 997 N.E.2d 1154 (Ind. Ct. App. 2013). On review, we look to the totality
of the circumstances surrounding the giving of the statement, and our focus is
whether the statement was free and voluntary, not induced by any violence,
threats, promises, or other improper influences. Id. Among other factors, we
consider the length of the interrogation, its location, its continuity, and the
defendant’s maturity, education, physical condition, and mental health. Pruitt
v. State, 834 N.E.2d 90 (Ind. 2005). Coercive police activity is a necessary
prerequisite to finding a confession is not voluntary within the meaning of the
Due Process Clause of the Fourteenth Amendment. Scalissi v. State, 759 N.E.2d
3The State claims Bradbury has waived this issue for appellate review. Based on our review of the record,
we disagree and consider the merits of Bradbury’s claim.
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618 (Ind. 2001). If there is substantial evidence to support the trial court’s
conclusion of voluntariness, we affirm. Williams, 997 N.E.2d at 1154.
[8] The police took fifteen-year-old Bradbury into custody on the morning of April
10, 2014, and Officer Brian Cook of the St. Joseph County Sheriff’s Department
questioned him at a police station. Bradbury had attended some high school
and had no mental illnesses or cognitive disabilities. The interrogation
occurred over three sessions that day.
[9] The first session lasted from 11:34 a.m. to 2:30 p.m., with several breaks of
around ten minutes each. At the beginning, Officer Cook read the Miranda
rights to Bradbury and his mother, who signed a form acknowledging same.
The officer then left the room and turned off the recording to allow Bradbury
and his mother to confer in private. When Officer Cook returned and
reactivated the recorder, he re-read the form, and Bradbury’s mother signed it
again.
[10] Officer Cook then questioned Bradbury. Bradbury’s mother repeatedly urged
him to cooperate, asking him to name persons who were involved. Bradbury
initially refused to provide details, saying Officer Cook “didn’t know [s**t].”
Ex. 30 at 11:51. After a break, Bradbury told the officer he had shot at L.B.
using a chrome Taurus handgun. He said a person named “Ace” also shot at
L.B. with a handgun. Bradbury further claimed he brought a shotgun to the
park but threw it under some bushes, where he left it. During this discussion,
Officer Cook expressed skepticism that Bradbury was one of the shooters, and
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Bradbury’s mother repeatedly urged him not to claim responsibility so as to
protect someone else.
[11] Officer Cook brought Bradbury a meal at the end of the first session, saying he
and his fellow officers wanted to go find the shotgun and “Ace.” Almost four
hours later, at 6:19 p.m., the questioning resumed. Officer Cook told Bradbury
the shotgun was not where he said it would be. To the contrary, Officer Cook
said an eyewitness saw someone matching the description of Bradbury and two
of his companions carrying a shotgun as they entered a car and left the scene of
the shooting. He also informed Bradbury that “Ace” was at work during the
shooting. After Officer Cook confronted Bradbury about his lies, Bradbury
laughed. Cook ended the session by telling Bradbury he was going to jail.
[12] The final session began at 6:52 p.m. after a thirty-minute break. Officer Cook
stated for the record that Bradbury had asked to talk to him again. Cook re-
read Miranda rights to Bradbury and his mother, she signed it, and then Officer
Cook left the room and turned off the recording so Bradbury and his mother
could talk privately. When Cook returned and reactivated the recording,
Bradbury’s mother signed the form again. Bradbury admitted he had lied about
being one of the shooters, stating he was trying to be loyal to his friends and
“was not thinking of the consequences.” Ex. 30 at 19:05. Bradbury conceded
one of his friends fired one handgun and another person he knew as “Josh”
fired a second handgun. Officer Cook ended the session at 7:54 p.m.
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[13] Bradbury argues his statement was involuntary because, during the first session,
Officer Cook stated that due to his young age, if Bradbury went to prison he
was likely to be sexually assaulted. Although this type of remark to a minor
suspect is not to be condoned, the recording shows that Bradbury laughed after
Cook said it and further stated he would not give any names to Cook.
[14] Further, Cook’s comment was an isolated remark over the course of three
sessions, with a lengthy break between the first and second. Bradbury did not
cooperate with Cook immediately after he made the remark. Instead, Bradbury
continued to lie about being one of the shooters in order to protect a friend,
falsely claimed “Ace” was the other shooter, and falsely stated he left a shotgun
at the park. He persisted in these statements through the end of the first session
of questioning. Bradbury did not change his story until after Officer Cook
confronted him with his lies, some five hours after Cook had warned him about
sexual assault in prison. Further, before beginning the third session, Cook
again advised Bradbury and his mother of his Miranda rights. Finally, even at
the end of the third session Bradbury was never fully cooperative with Officer
Cook because he never named Griffin as a shooter, claiming that a person
named “Josh” did it. There is substantial evidence to support the trial court’s
determination that Officer Cook’s isolated comment about sexual assault did
not render Bradbury’s statement involuntary.
[15] Bradbury cites Arizona v. Fulminante, 499 U.S. 279 (1991), for the proposition
that a threat of sexual assault in prison must be considered unduly coercive, but
that case is factually distinguishable. In Fulminante, a prisoner confessed to a
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fellow inmate, while in prison, that he had committed a murder, after the fellow
inmate told the defendant that he could protect him from ongoing harassment
by other inmates if the defendant told him the truth. In Bradbury’s case, he was
not in prison, was not subjected to harassment from inmates, and Officer
Cook’s remark, while troubling, did not imply immediate danger and was
merely one statement in the course of a lengthy interrogation. The trial court
did not abuse its discretion in admitting Bradbury’s interrogation.
2. Jury Instruction
[16] Bradbury claims the trial court failed to properly instruct the jury on the
elements of the offense of murder. The State says Bradbury waived any error.
We agree with the State.
[17] Jury instructions are left to the sound discretion of the trial court, and we may
not reverse unless the court abuses that discretion. Davis v. State, 892 N.E.2d
156 (Ind. Ct. App. 2008). A trial court abuses its discretion if a jury instruction
misstates the law or otherwise misleads the jury. Elliott v. State, 786 N.E.2d 799(Ind. Ct. App. 2003).
[18] Bradbury claims that several instructions were erroneous, but he identifies only
the instruction on the elements of murder. The instruction said:
There were in force the following statutes of the State of Indiana:
I.C. 35-42-1-1 Murder
The crime of murder is defined by law as follows:
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A person who knowingly or intentionally kills another human
being commits murder, a felony.
I.C. 35-41-2-4 Aiding, inducing or causing
Aiding, inducing, or causing murder is defined by statute as
follows:
A person who, knowingly or intentionally aids, induces or causes
another person to commit an offense commits that offense. A
person may be convicted of aiding, inducing or causing murder
even if the other person has not been prosecuted for the murder,
has not been convicted of the murder, or has been acquitted of
the murder.
I.C. 35-41-2-2 Culpability
A person engages in conduct intentionally if, when he engages in
the conduct, it is his conscious objective to do so.
A person engages in conduct knowingly if, when he engages in
this conduct, he is aware of a high probability that he is doing so.
Appellant’s App. Vol. 2, p. 179.
[19] Bradbury’s claim on appeal is that the instruction should have required his
actual knowledge the handgun would be used to shoot. This Court has held
otherwise. See Boney v. State, 880 N.E.2d 279 (Ind. Ct. App. 2008) (instruction
not erroneous for failure to state specifically that defendant gave weapon to
shooter with knowledge or intent it would be used to kill), trans. denied.
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[20] In any event, we need not resolve the claim. Initially, Bradbury’s counsel had
4
no objection to the court’s instruction. March 28-30 Tr. p. 180. Later, after
the State raised a challenge to it, Bradbury stated he had concerns and
requested the chance to dictate his objections into the record after trial. March
31 Tr. p. 12. When the presentation of evidence ended, the court offered
counsel an opportunity to dictate any objections, and he declined. Id. at 265.
5
The issue is waived.
3. Sufficiency of the Evidence - Murder
[21] Bradbury argues there is insufficient evidence to support his conviction for
murder as an accomplice, saying the State failed to prove he intended for
anyone to be killed. In reviewing a sufficiency claim, this court does not
reweigh the evidence or judge the credibility of the witnesses. Green v. State, 937
N.E.2d 923 (Ind. Ct. App. 2010), trans. denied. Reversal is appropriate only
when reasonable persons would not be able to form inferences as to each
material element of the offense. Id.[22] To convict Bradbury of murder as an accessory, the State was required to prove
beyond a reasonable doubt that (1) Bradbury (2) knowingly or intentionally (3)
4
The volumes of the transcript are not designated by number, so we cite to them by the date of the hearing.
5
Bradbury also argues the prosecutor committed misconduct by claiming during opening and closing
arguments, without evidentiary support, that Griffin was recruited by Bradbury or his companions to come to
the park on April 9, 2014 because he was willing to kill. Bradbury did not object to the prosecutor’s
statements at trial, so the issue is not preserved. See Lacy v. State, 58 N.E.3d 944 (Ind. Ct. App. 2016) (claim
of prosecutorial misconduct waived where defendant did not request admonishment or mistrial).
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aided, induced, or caused (4) Griffin (5) to shoot J.S. Ind. Code §§ 35-42-1-1(murder), 35-41-2-4 (aiding, inducing or causing an offense). Intent is a mental
function, and, absent a confession, it often must be proved by circumstantial
evidence. Hightower v. State, 866 N.E.2d 356 (Ind. Ct. App. 2007), trans. denied.
[23] The State was required to show more than Bradbury’s mere presence at the
scene of the shooting. Wright v. State, 690 N.E.2d 1098 (Ind. 1997). It had to
establish that Bradbury’s conduct before, during, and after the crimes, in
addition to his presence, tended to show complicity and thus supported an
inference of participation in the crimes. Id. In addition, Bradbury’s murder
conviction is based in part on the doctrine of transferred intent. If a person
deliberately attempts to kill one person but in the process kills another, the
intent to kill is transferred and he may be found guilty of murdering the person
who was killed. Williams v. State, 690 N.E.2d 162 (Ind. 1997).
[24] Bradbury, L.B., and others were involved in a fistfight at a public park in South
Bend on April 8, 2014. Bradbury later told a fellow inmate there was an
ongoing dispute between his east side friends and people from the west side of
town, including L.B. After the fight, the participants continued to discuss the
dispute on social media.
[25] On April 9, 2014, Bradbury took a handgun and a rifle from the home of a
friend, D.W., before gathering with companions at a house near the park.
Griffin was present at the house near the park, although he had not been
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involved in the fight the previous day. Griffin did not usually hang out with
Bradbury and his friends.
[26] Bradbury gave the handgun to Griffin and the shotgun to another companion.
D.W. recognized the guns as coming from his house. While the group was at
the house near the park, a person from the west side of town came by and
showed them a handgun, saying he brought it in case “anything got out of
hand” at the park. March 28-30 Tr. p. 201. Griffin pulled out his own
handgun, saying “it ain’t going to happen like that.” Id.[27] Later, Bradbury and his associates went to the park. Bradbury’s mother was
looking for him and brought Joshua Hodge and Xavier Primm to the park to
help. They found Bradbury with his companions, and Primm asked Bradbury
to go to his mother’s car. Bradbury refused.
[28] Next, Bradbury and company stopped L.B. as he was riding by on a bicycle.
L.B. was informed that he would have to fight M.B. or Griffin. He chose M.B.
because M.B. was unarmed, while Griffin had a handgun tucked in his pants.
L.B. handed his phone to T.B., but T.B. threw it on the ground, breaking it. At
that point, Griffin and T.B. pulled out their handguns and shot at L.B. as he
fled, firing around fifteen shots. One of Griffin’s shots killed J.S.
[29] After the shooting, everyone scattered. Bradbury, Hodge and Primm got into
Bradbury’s mother’s car and left the scene. Later, when Bradbury, Hodge and
others watched the news and saw that a two-year-old had been killed, Bradbury
said, “It’s my fault.” March 28-30 Tr. p. 221.
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[30] During the questioning that followed his arrest, Bradbury went to great lengths
to avoid implicating Griffin. He lied to Officer Cook for hours by claiming that
someone named “Ace,” and later someone named “Josh,” were the shooters.
He later told a fellow inmate, “he did it, but he didn’t mean to do it.” Id. at
322. Bradbury further said, “if he would have never brought the guns over
there it would have never happened.” Id. He said he had been having
problems with L.B.
[31] Later, Bradbury talked with a different inmate about the inmate’s tattoo of a
handgun. Bradbury said he was facing a case involving the same type of
handgun, but no one would find the gun because “somebody got rid of it.” Id.
at 329. After the shooting, C.W. retrieved the gun Griffin had used and
brought it to D.W. at the home of D.W.’s brother. The police later arrested
C.W. and found shell casings from the gun on his person. They also retrieved
the handgun from the home of D.W.’s brother, where it had been hidden in
attic insulation.
[32] This is sufficient evidence from which the jury could have concluded beyond a
reasonable doubt that Bradbury knowingly or intentionally aided, induced, or
caused Griffin to shoot at L.B., striking and killing J.S. instead. Bradbury
argues that he opposed the shooting, pointing to L.B.’s testimony that Bradbury
shouted “don’t shoot” immediately before Griffin shot at L.B. March 28-30 Tr.
p. 140. One of Bradbury’s fellow inmates testified that Bradbury had said his
family was attempting to make a deal with L.B.’s family so that L.B. would
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testify that he heard Bradbury shouting at his companions not to shoot during
the confrontation. Bradbury’s argument is a request to reweigh the evidence.
[33] Bradbury cites Rosemond v. U.S., 134 S. Ct. 1240 (2014), in support of his claim,
but that case is distinguishable. There, the Supreme Court was called upon to
apply principles of accomplice liability to a federal statute barring use of a gun
during a violent crime or drug dealing and to determine whether “aiding and
abetting” liability applied only to the use of a gun or also to the predicate
violent or drug-related offense. By contrast, this case presents a murder charge
without a predicate offense.
[34] We affirm Bradbury’s conviction for murder.
4. Sufficiency of the Evidence – Sentence Enhancement
[35] Bradbury argues the State failed to prove he was part of a gang. Our standard
of review is the same as for reviewing the murder conviction: we consider only
the probative evidence and reasonable inferences supporting the verdict.
Armstrong v. State, 22 N.E.3d 629 (Ind. Ct. App. 2014), trans. denied.
[36] At the time of the incident in question, the governing statute, Indiana Code
section 35-50-2-15 (2006), provided in relevant part:
(b) The state may seek, on a page separate from the rest of a
charging instrument, to have a person who allegedly committed a
felony offense sentenced to an additional fixed term of
imprisonment if the state can show beyond a reasonable doubt
that the person knowingly or intentionally:
(1) was a member of a criminal gang while committing the
offense; and
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(2) committed the felony offense at the direction of or in
affiliation with a criminal gang.
[37] If the State makes that proof, the trial court must sentence the offender to an
additional, non-suspendable term equal to the sentence for the underlying
offense. Id. The Code provides guidance on possible evidence that might
support a gang finding:
(g) For purposes of subsection (c), evidence that a person was a
member of a criminal gang or committed a felony at the direction
of or in affiliation with a criminal gang may include expert
testimony pursuant to the Indiana Rules of Evidence that may be
admitted to prove that particular conduct, status, and customs
are indicative of criminal gang activity. The expert testimony
may include the following:
(1) Characteristics of persons who are members of criminal
gangs.
(2) Descriptions of rivalries between criminal gangs.
(3) Common practices and operations of criminal gangs.
(4) Behavior of criminal gangs.
(5) Terminology used by members of criminal gangs.
(6) Codes of conduct, including criminal conduct, of particular
criminal gangs.
(7) Types of crimes that are likely to be committed by a
6
particular criminal gang.
6
The General Assembly later amended the statute to replace all references to gangs with references to
criminal organizations.
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Id.[38] Bradbury claims he was not a member of a criminal gang and did not act as an
accomplice at the direction of or in affiliation with a gang. Several officers with
the South Bend Police Department who were trained in organized crime
testified they were aware of a gang called Evil Side that was based on South
Bend’s east side. According to the officers, Evil Side’s members worked
together to commit felonies. In addition, the members of the group used a
specific hand gesture to indicate affiliation with Evil Side. The State submitted
to the jury numerous photos of Bradbury’s companions flashing the gesture.
[39] And, during the interrogation by Officer Cook, Bradbury admitted he affiliated
with Evil Side. Bradbury also told a fellow inmate he was a member of Evil
Side and that the April 9 shooting was the result of a dispute between Evil Side
and a west side gang. Another witness who was present at the shooting, D.W.,
testified that he, Bradbury, and several other young men claimed affiliation
with Evil Side, were loyal to each other, and would fight together if necessary.
This is sufficient evidence from which the jury could have concluded beyond a
reasonable doubt that Bradbury was a member of a criminal gang and
participated in J.S.’s murder in affiliation with a criminal gang.
5. Treatment Under the Juvenile Code
[40] Bradbury argues the trial court should have imposed a juvenile sentence
pursuant to Indiana Code section 31-30-4-2 (2013). At the time Bradbury
committed his offense, that statute provided that when an offender under age
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eighteen is convicted of a felony in criminal court: “The court may, upon its
own motion, a motion of the prosecuting attorney, or a motion of the offender’s
legal representative, impose a sentence upon the conviction of the offender
under this chapter” and may:
(1) impose an appropriate criminal sentence on the offender
under IC 35-50-2;
(2) suspend the criminal sentence imposed, notwithstanding IC
35-50-2-2 and IC 35-50-2-2.1;
(3) order the offender to be placed into the custody of the
department of correction to be placed in the juvenile facility of
the division of youth services . . . .
Indiana Code § 31-30-4-2.
[41] According to the plain language of the statute, the trial court “may” impose a
juvenile sentence but is not obligated to do so. Id. As a result, a panel of this
Court reviewed a trial court’s rejection of juvenile sentencing under this statute
pursuant to an abuse of discretion standard. Legg v. State, 22 N.E.3d 763 (Ind.
Ct. App. 2014), trans. denied.
[42] In Legg, the trial court declined to impose juvenile sentencing upon a sixteen-
year-old who murdered another juvenile, considering the defendant’s juvenile
history, his challenging childhood, and the nature of the offense. Id. Similarly,
in the current case the trial court declined to impose juvenile sentencing, citing
the heinous nature of the offense (including the victim’s young age), Bradbury’s
juvenile record, the fact that he was on probation at the time of the offense, and
his failure to benefit from several different juvenile justice rehabilitation
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programs. Based on this record, we cannot conclude that the trial court’s
decision was an abuse of discretion.
6. Was Bradbury’s Sentence Proportional?
[43] Bradbury raises several statutory and constitutional challenges to his ninety-
year sentence. We conclude that most of them do not warrant any relief and
thus turn to the only one that does.
[44] Bradbury claims his sentence amounts to cruel and unusual punishment in
violation of the Eighth Amendment to the United States Constitution and
article I, section 16 of the Indiana Constitution because his sentence is
disproportionate to his companions’ sentences. The Eighth Amendment
provides: “Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.” Section 16 states, in relevant
part, “Cruel and unusual punishments shall not be inflicted. All penalties shall
be proportioned to the nature of the offense.”
[45] As Justice David recently reminded us, article I, section 16 requires reviewing
not only whether a sentence is within statutory parameters, but also
constitutional as applied to the particular defendant. Shoun v. State, 67 N.E.3d
635 (Ind. 2017). For penalties not based on prior offenses, a court must
consider whether the penalty is “‘graduated and proportioned to the nature of
[the] offense.’” Id. at 641 (quoting Knapp v. State, 9 N.E.3d 1274, 1290 (Ind.
2014)). As Justice DeBruler once noted, while the nature and extent of penal
sanctions are primarily legislative considerations, an appellant nevertheless has
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a right to have the proportionality of his penalty reviewed under the Indiana
Constitution. Clark v. State, 561 N.E.2d 759 (Ind. 1990). The protections of
section 16 go beyond those contained in the Eighth Amendment, and
vindicating those protections may on rare occasion require setting aside a
sentence even when it is inside the statutory parameters. Conner v. State, 626
N.E.2d 803 (Ind. 1993).
[46] Bradbury, a juvenile, was convicted as an accessory of the murder of a two-
year-old, who was the victim of a gang dispute. Bradbury had intended to kill
another juvenile, L.B., and brought guns to the park to give to his companions.
He had ample opportunity to avoid the confrontation but chose to persist. At
the time Bradbury committed his crime, the advisory sentence for murder was
fifty-five years, with a maximum sentence of sixty-five years and a minimum of
forty-five. Ind. Code § 35-50-2-3 (2007). In addition, a person subject to a
criminal organizations enhancement must receive “an additional fixed term of
imprisonment equal to the sentence imposed for the underlying felony.” Ind.
Code § 35-50-2-15. The enhancement must be served consecutively to the
underlying sentence and cannot be suspended. Id.[47] Here, the trial court determined that it “would be well within [its] discretion to
enter a sentence [of] at least the advisory 55 years.” May 16, 2016, Tr. p. 346.
Due to the sentencing enhancement, the court instead chose to impose the
minimum sentence of forty-five years for murder, plus the mandatory,
consecutive equal amount for the sentencing enhancement, for an aggregate of
ninety years.
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[48] Taking the Shoun/Knapp/Conner tests described above, we proceed to consider
whether the penalty is “graduated and proportioned to the nature of the
offense.”
[49] To be sure, murder is the most serious offense of all, and the victim in this
instance is the most innocent and unintended target. Still, the offenders as a
group went to the park intending on homicide and bear responsibility for the
outcome. Though Bradbury was not the shooter, he supplied weapons for the
event, and the jury found that he intended the death of a fellow teenager, L.B.
Based on these and other aggravating and mitigating factors, the trial judge
observed that if the murder conviction were the only grounds for sentencing,
the advisory sentence or a little more would be within reasonable discretion.
[50] The doubling of that sentence required by the gang enhancement sits on
different grounds. That automatic doubling was the leading reason the judge
elected to impose the minimum sentence for murder, declaring that she needed
to look at the whole forest rather than at each individual tree. We think the
judge was correct about that, but we also conclude that as with the automatic
thirty-year addition in Clark v. State, the result is not proportionate to the nature
of the offense.
[51] We thus conclude that the trial court’s forty-five-year sentence for murder as an
accomplice should stand, but direct that the gang enhancement be set at fifteen
years.
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Conclusion
[52] The trial court carefully considered the facts and circumstances of the case in
imposing a sentence that is within statutory limits, but we conclude Bradbury’s
sentence is constitutionally disproportionate to the nature of the offense and his
companions’ culpability for J.S.’s death. We reverse his sentence and remand
with instructions to resentence Bradbury for a total sentence of sixty years.
[53] Affirmed in part, reversed in part, and remanded.
Riley, J., concurs.
Vaidik, C.J., concurs in part and dissents in part with opinion.
Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017 Page 21 of 26
IN THE
COURT OF APPEALS OF INDIANA
Tyre Mark Bradbury,
Appellant-Defendant, Court of Appeals Case No.
71A05-1606-CR-1280
v.
State of Indiana,
Appellee-Plaintiff
Vaidik, Chief Judge, concurring in part, dissenting in part.
[54] I concur with the majority as to all issues except one. That is, I disagree with
the majority’s conclusion that “Bradbury’s [ninety-year] sentence is
constitutionally disproportionate to the nature of the offense and his
companions’ culpability for J.S.’s death” and its decision to resentence him to
sixty years. Slip op. at 21. Given the circumstances in this case, including that
Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017 Page 22 of 26
a two-year-old child was killed and Bradbury’s juvenile history, I would affirm
Bradbury’s ninety-year sentence.
Article 1, Section 16 of the Indiana Constitution provides in part: “All penalties
shall be proportioned to the nature of the offense.” Although “we cannot set
aside a legislatively sanctioned penalty merely because it seems too severe,”
Article 1, Section 16 requires us to review whether a sentence is not only within
statutory parameters but also constitutional as applied to the particular
defendant. Knapp v. State, 9 N.E.3d 1274, 1290 (Ind. 2014) (quotation omitted).
For penalties not based on prior offenses, the inquiry is whether the penalty is
graduated and proportioned to the nature of the offense. Id. “Stated
differently, a legislatively determined penalty will be deemed unconstitutional
by reason of its length only if it is so severe and entirely out of proportion to the
gravity of the offense committed as to shock public sentiment and violate the
judgment of reasonable people.” Foreman v. State, 865 N.E.2d 652, 655 (Ind.
Ct. App. 2007) (quotation omitted), reh’g denied, trans. denied.
[55] Here, Bradbury, who was fifteen years old at the time of the offense and a
member of a gang, intended to kill L.B., another juvenile, and brought guns to
the park to give to his companions. Griffin and T.B. fired approximately fifteen
shots that missed L.B., killing a two-year-old child instead. Bradbury was
charged with two counts: murder and committing the offense of murder at the
direction of or in affiliation with a criminal organization. Bradbury had a jury
trial and was convicted of both counts. At sentencing, the trial court found the
following aggravators: Bradbury’s juvenile history, including that he was on
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probation at the time of the offense and had tried every option that the juvenile
system had to offer (including home detention with electronic monitoring and
Boys School) with no success; Bradbury’s ongoing substance abuse, including
the “substantial use of marijuana” on the day of the offense; other children were
playing in the yard with the two-year-old when he was shot; and the “ridiculous
beef” that Bradbury had with L.B. that led to this tragedy. May 16, 2016 Tr.
pp. 344-45. The court found two mitigators: Bradbury’s age at the time of the
offense and his difficult upbringing. It specifically rejected Bradbury’s role as
an accomplice as a mitigator in light of the jury’s “specific finding” that
Bradbury intended to kill L.B. Id. at 346. The court sentenced Bradbury to
forty-five years for murder and then enhanced his sentence by forty-five years
because of his membership in a criminal organization. See Ind. Code § 35-50-2-
15 (explaining that the trial court “shall . . . sentence the person to an additional
fixed term of imprisonment equal to the sentence imposed for the underlying
felony . . . .”). Although the court considered imposing the advisory sentence
for murder of fifty-five years, because of the mandatory sentencing
enhancement it decided to impose the minimum sentence for murder of forty-
five years, resulting in an aggregate sentence of ninety years. May 16, 2016 Tr.
p. 346.
[56] I agree with the majority that the minimum sentence of forty-five years for
murder is constitutionally proportionate in light of Bradbury’s role in the crime.
The issue then is whether Bradbury’s forty-five-year criminal-organization
sentencing enhancement is also constitutionally proportionate. I believe that it
Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017 Page 24 of 26
is. Bradbury was convicted of the most serious offense, murder, and the victim
was a two-year-old child. Although the child was not the intended victim, the
jury found that Bradbury intended to kill another minor, L.B. In addition,
Bradbury has two juvenile adjudications, one of which would have been a
felony if committed by an adult. As the trial court explained, Bradbury had
been on probation and “home detention with electronic monitoring,” “detained
at the . . . juvenile justice center,” and “sent to Indiana Boys School at the
department of correction”—none of which “have resulted in a change of
behavior.” Id. at 341. Given Bradbury’s role in the tragic murder of the two-
year-old child, I believe that his forty-five-year criminal-organization sentencing
enhancement is graduated and proportioned to the underlying offense. See
Armstrong v. State, 22 N.E.3d 629, 639 (Ind. Ct. App. 2014) (affirming sixty-five-
year criminal-organization sentencing enhancement for sixty-five-year murder
sentence because it was graduated and proportioned to the nature of the offense
and “the circumstances surrounding the murder”), trans. denied; cf. Clark v. State,
561 N.E.2d 759, 766 (Ind. 1990) (finding that a thirty-year habitual-offender
enhancement for operating while intoxicated was “not proportionate to [the]
offense and therefore violate[d] Article [1], § 16 of the Indiana Constitution”
because it was based on “conduct that the legislature has classified as a
Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017 Page 25 of 26
misdemeanor” and there was “no injury to person or property”). Accordingly,
I would affirm Bradbury’s ninety-year sentence. 7
7
The majority notes that the actual shooters received shorter sentences than Bradbury. But the
proportionality analysis requires us to look at whether the sentence is proportional to the nature of the
offense, not to the sentences of any accomplices. In any event, Griffin, who fired the fatal shot, was not
charged with the criminal-organization sentencing enhancement because he was not a member of a gang.
May 16, 2016 Tr. p. 325. Griffin was convicted of murder and sentenced to sixty years. T.B., the other
shooter, was charged with murder, attempted murder, and the criminal-organization sentencing
enhancement. T.B. pled guilty to attempted murder, and the criminal-organization sentencing enhancement
and murder charge were dismissed. He was then sentenced to forty years with five years suspended.
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