Roderick Ramone Wiggins v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
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:
MARK A. BATES GREGORY F. ZOELLER
Appellate Public Defender Attorney General of Indiana
Lake County Public Defender
Crown Point, Indiana BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
FILED
May 17 2012, 9:40 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
RODERICK RAMONE WIGGINS, )
)
Appellant-Defendant, )
)
vs. ) No. 45A05-1106-CR-291
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Clarence D. Murray, Judge
Cause No. 45G02-0707-MR-5
May 17, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Roderick Ramone Wiggins (“Wiggins”) appeals after a jury trial from his convictions
and sentence for three counts of murder,1 a felony. Wiggins presents the following issues for
our review:
I. Whether the trial court abused its discretion when it denied Wiggins’s
motion for mistrial based on alleged prosecutorial misconduct;
II. Whether the trial court abused its discretion by limiting some cross-
examination;
III. Whether the trial court abused its discretion by admitting evidence of
Wiggins’s prior firearm possession;
IV. Whether the trial court abused its discretion by excluding certain
hearsay statements;
V. Whether the trial court abused its discretion by admitting a photograph
of one of the victims; and
VI. Whether Wiggins’s sentence is inappropriate in light of the nature of the
offense and the character of the offender.
We affirm.
FACTS AND PROCEDURAL HISTORY
On December 19, 2005, Latrina Cobb (“Cobb”) went to Leonard (“Pops”)
Thomason’s house, which was often used as a location for smoking cocaine. Cobb observed
that the door to Pops’s house was open, and when she looked inside, she saw Pops, Anthony
Hamilton (“Anthony”), and Monica Bailey-Gilbert (“Monica”), on the floor with pools of
blood around their heads. Cobb left Pops’s house and attempted to contact the victims’
relatives, but did not contact law enforcement officers. A neighbor, however, did call 911,
1
Ind. Code § 35-42-1-1.
2
and law enforcement officers arrived at about 11:30 p.m. that night.
Detective Christopher Stark (“Detective Stark”) and Officer John Allen (“Officer
Allen”) of the Gary Police Department responded to the dispatch regarding a homicide.
When Detective Stark and Officer Allen arrived at the scene of the dispatch, they noticed
nothing unusual at the address given. As they returned to their squad cars, however, they
observed another house nearby where the lights were on, and a door was standing open.
They investigated that house because those circumstances were unusual on a snowy night,
and they had been dispatched to investigate the report of a homicide in the area. When the
officers entered the home, they saw three bodies lying on the floor, two of which were male,
and one which was female. Each person had died from gunshot wounds, and shell casings
and blood surrounded the bodies. The Lake County Sheriff’s Department’s Crime Lab later
determined that three different firearms were used in the shootings, a .40 caliber firearm, a
.45 caliber firearm, and “something from the [.]35 caliber family.” Tr. at 352. Drug
paraphernalia, including syringes and a spoon, and some pills, were located in the house.
Law enforcement officers had no successful leads in the investigation until an
individual came forward in 2007, more than a year later, implicating Wiggins’s involvement
in the triple homicide, and also providing the names of Anthony Floyd (“Tony”), Joshua
Hopkins (“Joshua”), and Percy Hughes (“Percy”). Gary Police Detective James Bond
(“Detective Bond”) interviewed Wiggins on three occasions. In the last two statements,
Wiggins confessed that he had killed Pops. In the first two statements, he implicated Tony
and Joshua as the other shooters. In the third, he implicated Tony and Percy, and exonerated
3
Joshua.
The details that emerged from Wiggins’s statements and confessions were that Corey
Taylor (“Corey”) had ordered a contract killing of the victims because they were cooperating
with law enforcement in their investigation of Tony and Joshua. In December 2003, the State
had charged Pops with one count of attempted murder, two counts of dealing in cocaine, two
counts of possession of cocaine, and one count of dealing in marijuana. Pops entered into a
plea agreement in March 2004 wherein he agreed to cooperate and testify in the cases against
Tony and Joshua. Pops was also to testify against Corey.
In December 2005, law enforcement searched Pops’s house. Wiggins, Corey, and
Tony discussed the search shortly after it happened. Wiggins viewed Tony as an associate
and Corey as a friend. Because of Pops’s cooperation with law enforcement, Corey and Tony
“felt that the heat was drawing down on both of them.” Tr. at 440. Corey told Wiggins that
“it’s getting to [sic] hot but I got money on theirs [sic] heads.” Id. Corey correctly believed
that Pops was cooperating with federal law enforcement in a case against Corey. Corey
ordered a contract killing of Pops.
On December 19, 2005, Wiggins, Tony, and Percy, another of Corey’s associates,
smoked a blunt and started to walk towards Pops’s house to kill Pops, Anthony, who was a
confidential informant living at Pops’s house, and Monica. When they arrived, they knocked
on the door, and Pops allowed them to enter. When Wiggins, Tony, and Percy sat on a couch
in the living room, Anthony and Monica left for a room in the back of the house. Tony then
confronted Pops about whether he was going to testify against him. Pops refused to answer
4
and started to walk away.
Tony demanded that Pops remain in the living room, to which Pops replied that he
was not going to talk about testifying. Tony then drew a gun on Pops and ordered him to
remain in the living room. Tony also yelled at Anthony and Monica, ordering them to return
to the living room. Tony then ordered the three to lie face-down on the living room floor,
and the three complied. Wiggins shot Pops in the back of the head, killing him. Wiggins
stated that Percy then shot Monica, and Tony shot Anthony.
The State charged Wiggins with three counts of murder. At the conclusion of a five-
day jury trial, Wiggins was found guilty on all three counts. The trial court sentenced
Wiggins to forty-five years executed on each count, to be served consecutively for an
aggregate sentence of 135 years. Wiggins now appeals. Additional facts will be supplied as
necessary.
DISCUSSION AND DECISION
I. Motion for Mistrial
Wiggins argues that the trial court abused its discretion when it denied his motion for
mistrial. Wiggins claims that the State engaged in prosecutorial misconduct during closing
argument by a statement made in an objection to defense counsel’s closing argument.
Wiggins did not testify at trial and did not call any witnesses to testify in his defense at trial.
During Wiggins’s closing argument, the following argument was made with respect to
Wiggins’s statements and confessions to law enforcement:
5
DEFENSE: Roderick is there for what, at a minimum it’s a three-
hour sit down at the jail. Roderick, nineteen years old at
the time, an unsophisticated guy, in many respects.
STATE: Judge, I’m going to object to counsel’s characterization
of the defendant as unsophisticated. There’s been no
evidence to that affect at all.
***
THE COURT: The objection is overruled.
***
DEFENSE: Somebody who is perhaps strong minded, somebody who
just knows better, if you will, is not going to commit to
something like this. But we have Roderick who, there’s
no indication that he’s strong minded. He’s dirty, he’s
got his long hair, you might say he’s weak minded and
he’s someone who is missing something in his life.
STATE: Judge, again, I’m going to object. Defense counsel is
inviting the jury to speculate. His client had the right to
take the stand - -
DEFENSE: Your Honor, that - -your Honor, your Honor, they are
burden shifting. We have - - may we approach?
THE COURT: No. Your objection is sustained.
DEFENSE: Your Honor, may I please approach and make a record.
THE COURT: A record of what, Mr. Scheele?
DEFENSE: Your Honor, I’d rather not state it out loud in open court
in front of the jury.
THE COURT: The State indicated that he has the right to take the stand.
DEFENSE: Yes, your Honor. That’s burden shifting. That is
fundamentally improper.
6
THE COURT: That is his right to do so, as is his right not to do so.
That’s already been explained to the jury.
Tr. at 633-38. Counsel for Wiggins then continued to speak to the jury about the State’s
burden of proof and how that burden cannot be shifted to the defense.
At the conclusion of the closing arguments, the trial court held a bench conference
with both the State and defense counsel. The trial court explained its policy of allowing the
parties to make their closing arguments without many interruptions and noted that several
objections were made. The trial court then allowed the parties to make a record regarding
their objections to conduct of opposing counsel during closing argument. Defense counsel
argued that the State’s comment about Wiggins’s right to testify, made during her objection,
constituted fundamental error. The State replied that the comment was made in response to
defense counsel’s argument that Wiggins was unsophisticated and weak-minded. The State
asserted that there was no evidence in the record to support that argument, and that Wiggins
could have made such a record by testifying. Defense counsel moved for a mistrial, which
the trial court denied, and in so doing stated as follows:
Well, I’m going to deny your motion. In the heat of a closing argument, a
great many things are said and sometimes the parties cross the line somewhat.
Now, the Court is going to give an instruction as to the defendant’s right to
testify or not. I believe that would cure any comment that the State made. The
State correctly stated the law. He does have the right to testify. He has the
right not to testify. I don’t see where that comment standing alone amounts to
fundamental error. Now, perhaps had the State gone further with that, then we
may be in a bit of a gray area on that issue. But the State stopped at that one
particular statement. It is a correct statement of the law. Had the defense said
the defendant has an absolute right not to testify, that too is a correct statement
of the law. So, while you found the statement troublesome during your
closing, I don’t see how, I don’t see what’s objectionable about it.
7
Id. at 682-84.
Final Instruction 15, which was given by the trial court, instructed the jury that they
were to presume that the defendant was innocent unless the prosecution proves the
defendant’s guilt beyond a reasonable doubt, and that the defendant is not required to present
any evidence to prove his innocence or to prove or explain anything. Final Instruction 16,
which also was given by the trial court, instructed the jury that the defendant may choose to
testify or not and that in this case, the defendant’s decision not to testify should not be
considered as evidence of guilt.
When reviewing a claim of prosecutorial misconduct, we must first consider whether
the prosecutor engaged in misconduct. Williams v. State, 724 N.E.2d 1070, 1080 (Ind. 2000).
We then consider whether the alleged misconduct placed the defendant in a position of grave
peril to which he should not have been subjected. Id. “Whether a prosecutor’s argument
constitutes misconduct is measured by reference to case law and the Rules of Professional
Conduct.” Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). “The gravity of the peril is
measured by the probable persuasive effect of the misconduct on the jury’s decision rather
than the degree of impropriety of the conduct.” Id.A prompt objection to alleged prosecutorial misconduct allows the trial court an
opportunity to prevent or remedy any prejudice to a defendant without the waste of time and
resources involved in the reversal of a conviction. Etienne v. State, 716 N.E.2d 457, 461
(Ind. 1999) (citing Maldonado v. State, 265 Ind. 492, 498, 355 N.E.2d 843, 848 (1976)). If a
defendant does not object to the alleged misconduct, any claim of error is waived. Id. In
8
addition to objecting to alleged misconduct, a defendant must also request an appropriate
remedy. Id. In general, the correct procedure involves a request for an admonishment. Id.If trial counsel is not satisfied that an admonishment will be sufficient to cure the error, then
counsel may move for a mistrial. Id. The failure to request either an admonishment or
mistrial results in waiver of the issue. Id.Defense counsel did object to the State’s comment and presented his argument in the
presence of the jury. The trial court pointed out that the State said the defendant had a right
to testify and that statement was a correct statement of the law. The trial court also noted that
the defendant had a right not to testify. After the exchange, defense counsel continued with
his closing argument, reiterating to the jury the State’s burden of proof beyond a reasonable
doubt, and that the burden could not be shifted to the defendant.
Wiggins twice confessed to killing Pops and admitted on three occasions that he was
present when the murders took place. During closing argument, defense counsel attempted to
explain to the jury that the reason Wiggins confessed was because he was unsophisticated
and weak-minded. The State objected to that characterization of Wiggins because there was
no evidence in the record to support it, and that if Wiggins wished to present that evidence,
he had the right to testify. We agree with the trial court that the State’s comment was not a
suggestion to infer guilt from Wiggins’s silence at trial, but rather a comment on the lack of
evidence to support that theme in the defense’s closing argument. As such, the statement did
not constitute prosecutorial misconduct.
9
Even if we were to decide that the trial court erred, a decision we do not reach,
Wiggins was not placed in a position of grave peril by the comment. Wiggins confessed to
killing Pops. Furthermore, the trial court correctly instructed the jury about Wiggins’s right
to remain silent. Final instructions are presumed to cure such error alleged to have occurred
during closing argument. Hudgins v. State, 451 N.E.2d 1087, 1091 (Ind. 1983). The trial
court correctly denied the motion for mistrial.
II. Limitation on Cross-Examination
Wiggins claims that the trial court committed reversible error by limiting his cross-
examination of Detective Bond. In particular, Wiggins wanted to question Detective Bond
about inconsistencies in the three statements Wiggins gave to police.
Before the first interview on July 18, 2007, Detective Bond read Wiggins his Miranda
warnings, and Wiggins initialed a consent form. In his statement, Wiggins provided details
about the murders that were not available to the general public. Wiggins claimed that Corey
had ordered the contract murders. Wiggins stated that he was present at Pops’s house when
Tony murdered Pops and Anthony and Joshua murdered Monica, but only served as a
lookout for them. Wiggins correctly identified Corey, Tony, and Joshua from separate photo
arrays. Wiggins signed the statement after reviewing it for errors.
Wiggins was interviewed a second time the next day. Detective Bond read Wiggins
his Miranda warnings, and Wiggins initialed a second consent form. In this statement,
Wiggins admitted that he was the one who murdered Pops and was present when Joshua and
Tony murdered Anthony and Monica on behalf of Corey. He also described to Detective
10
Bond how he had disposed of the gun used in the murder and the clothes he wore. He
attempted to explain the discrepancies between his statements. Wiggins then signed the
second statement after reviewing it for errors.
The last time Detective Bond interviewed Wiggins was on July 23, 2007, and Wiggins
had been charged with Pops’s murder. Detective Bond read Wiggins his Miranda warnings,
and Wiggins initialed a third consent form. Wiggins acknowledged that he had been charged
with murdering Pops. In his third statement, Wiggins confessed to shooting Pops and
claimed that Tony had murdered Anthony, but exonerated Joshua. Instead, Wiggins claimed
that Percy was the one who used Wiggins’s gun to murder Monica. Wiggins signed the third
statement after reviewing it for errors. Wiggins was charged with three counts of murder.
The right to cross-examination is guaranteed by the Sixth Amendment to the United
States Constitution and is one of the fundamental rights of our criminal justice system.
Washington v. State, 840 N.E.2d 873, 886 (Ind. Ct. App. 2006). However, this right is
subject to reasonable limitations imposed at the discretion of the trial court. Id. Trial courts
retain wide latitude to impose reasonable limits on the right to cross-examination based on
concerns about, among other things, harassment, prejudice, confusion of the issues, the
witness’s safety, or interrogation that is repetitive or only marginally relevant. Id. We will
find an abuse of discretion when the trial court controls the scope of cross-examination to the
extent that a restriction substantially affects the defendant’s rights. Id. The Indiana
Constitution affords criminal defendants a similar guarantee, providing that “the accused
shall have the right . . . to meet the witnesses face to face.” Ind. Const. art. I, § 13(a). Our
11
supreme court has interpreted this amendment as requiring that a defendant has the right to
cross-examine witnesses against him at trial. Pigg v. State, 603 N.E.2d 154, 155 (Ind. 1992).
During cross-examination, Wiggins asked Detective Bond: 1) if he agreed that a
certain portion of one of the statements was the most pivotal or crux of the statement; 2) what
he thought was the most important part of one of the statements; 3) whether he agreed that
the first statement was riddled with inaccuracies; and 4) what was true or false about one of
the statements. The trial court sustained the State’s objections to those lines of questioning.
Wiggins claims that the trial court abused its discretion by so limiting his cross-examination
of Detective Bond.
No witness, lay or expert, is competent to testify that another witness is or is not
telling the truth. Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012). Indeed, Indiana
Evidence Rule 704(b) provides that witnesses may not testify to their opinions of guilt or
innocence in a criminal case, legal conclusions, the truth or falsity of allegations, or whether
a witness has testified truthfully. In this case, the three statements with their attendant
inconsistencies were admitted in evidence. Those statements, two of which contained
Wiggins’s confession, were the best evidence of the inconsistencies and evolution of
Wiggins’s story about the events surrounding the murders. Although the State did object
during closing argument to Wiggins’s counsel’s characterization of Wiggins as weak-minded
and unsophisticated, defense counsel was not denied the opportunity to expose the
inconsistencies among the statements. The trial court did not abuse its discretion in limiting
cross-examination of Detective Bond.
12
III. Admission of Evidence
Wiggins contends that the trial court committed reversible error by failing to redact a
portion of one of Wiggins’s statements wherein he stated he had carried or used a gun in the
past, and that he was being held on charges that he had no permit to carry a handgun when he
gave the statements to Detective Bond. Wiggins claims that the trial court abused its
discretion in admitting that unredacted statement.
Our standard of review of a trial court’s admission or exclusion of evidence is an
abuse of discretion. Speybroeck v. State, 875 N.E.2d 813, 818 (Ind. Ct. App. 2007). A trial
court abuses its discretion only if its decision is clearly against the logic and effect of the
facts and circumstances before the court. Id. In reviewing the admissibility of evidence, we
consider only the evidence in favor of the trial court’s ruling and any unrefuted evidence in
the defendant’s favor. Dawson v. State, 786 N.E.2d 742, 745 (Ind. Ct. App. 2003). A claim
of error in the admission or exclusion of evidence will not prevail on appeal unless a
substantial right of the party is affected. Pruitt v. State, 834 N.E.2d 90, 117 (Ind. 2005).
Even if the trial court errs in admitting or excluding evidence, this court will not reverse the
defendant’s conviction if the error is harmless. Fleener v. State, 656 N.E.2d 1140, 1141-42
(Ind. 1995).
Wiggins objected when the State sought to introduce the statement in which he
admitted carrying a .45 caliber handgun on a previous occasion. The evidence adduced at
trial showed that a .45 caliber handgun was used in the murders. Also over objection,
Detective Bond testified that Wiggins was being held on a gun charge when Detective Bond
13
questioned him about the murders. Wiggins argues that the evidence was inadmissible
evidence of prior misconduct.
Indiana Evidence Rule 404(b) provides as follows regarding evidence of prior
misconduct:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident,
provided that upon request by the accused, the prosecution in a criminal case
shall provide reasonable notice in advance of trial, or during trial if the court
excuses pre-trial notice on good cause shown, of the general nature of any such
evidence it intends to introduce at trial.
When evidence is challenged under Rule 404(b), the trial court should determine: (1)
whether the evidence is relevant to a matter at issue rather than just the defendant’s
propensity to commit the crime; and (2) whether the probative value outweighs the
prejudicial effect. Dickens v. State, 754 N.E.2d 1, 4 (Ind. 2001).
Prior bad acts may not be used to show propensity to commit the crime charged, but
they may be allowed for other purposes, such as those set forth in the non-exclusive list set
forth in Indiana Evidence Rule 404(b). Id. Our Supreme Court has held that “[i]t is by no
means clear that weapons possession, evidence of gun sales, and the like, are necessarily
prior ‘bad acts’ for 404(b) purposes.” Williams v. State, 690 N.E.2d 162, 174 (Ind. 1997).
The handgun evidence did not constitute evidence of a prior bad act.
Furthermore, the evidence that Wiggins had previously carried a .45 caliber handgun
was relevant evidence since a .45 caliber handgun was used in the murders. Additionally, the
evidence of gun possession was relevant to show Wiggins’s opportunity to commit the
14
murders or supply the handgun to the others. Dickens, 754 N.E.2d at 4. The evidence that a
defendant had access to a weapon of the same type used in the charged crime is relevant
evidence. Pickens v. State, 764 N.E.2d 295, 299 (Ind. Ct. App. 2002). We agree with the
trial court that the probative value of this evidence outweighs any prejudicial effect.
As for Wiggins’s argument concerning the evidence that he was in custody at the time
he made the statements to Detective Bond, we conclude that Wiggins opened the door to the
evidence. “Inadmissible evidence may become admissible where the defendant ‘opens the
door’ to questioning on that evidence.” Wales v. State, 774 N.E.2d 116, 117 (Ind. Ct. App.
2002). “Generally, when a defendant injects an issue into the trial, he opens the door to
otherwise inadmissible evidence.” Stokes v. State, 908 N.E.2d 295, 302 (Ind. Ct. App. 2009).
Such was the case here.
During Wiggins’s cross-examination of Detective Bond, Wiggins’s counsel elicited
Detective Bond’s confirmation that the first statement was taken at the Gary Police
Department and that Wiggins was in custody at the time. When asked if Wiggins was there
voluntarily, Detective Bond responded in the negative. The inference left by that questioning
was that Wiggins’s statement was in fact coerced. That line of questioning opened the door
to the State’s questioning on re-direct examination clarifying why Wiggins was in custody.
Detective Bond responded that Wiggins was in custody for a charge involving the failure to
have a permit for a handgun. The trial court correctly concluded that Wiggins opened the
door to evidence that Wiggins was in custody, and that the State should be allowed to clarify
that evidence. The trial court did not abuse its discretion.
15
IV. Exclusion of Hearsay Statements
Wiggins asserts that the trial court committed reversible error by failing to allow
defense counsel to question Cobb about a conversation she overheard between two of the
victims. During the cross-examination of Cobb, Wiggins asked if she had observed Anthony
and Monica having an argument. Wiggins claimed that, according to Cobb, Monica had once
told Anthony that she was going to tell everyone on the street that Anthony was an informant
and that he was going to be a dead man. Cobb claimed that Monica indicated she was going
to tell an individual named Reggie. Ultimately the State’s objection on both relevance and
hearsay grounds was sustained by the trial court. Wiggins claims that this was error.
In general, the decision to admit or exclude evidence, including purported hearsay, is
within a trial court’s sound discretion and is afforded great deference on appeal. Ballard v.
State, 877 N.E.2d 860, 861-62 (Ind. Ct. App. 2007). We will not reverse the trial court’s
decision unless it represents an abuse of discretion that results in the denial of a fair trial. Id.
at 862. An abuse of discretion in this context occurs where the trial court’s decision is
clearly against the logic and effect of the facts and circumstances before the court or it
misinterprets the law. Id.Hearsay is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered to prove the truth of the matter asserted. Ind. Evidence Rule 801(c).
Hearsay, generally, is inadmissible. Evid. R. 802. Statements not offered for their
truthfulness are not hearsay. Treadway v. State, 924 N.E.2d 621, 635 (Ind. 2010).
16
Wiggins was attempting to elicit one of Monica’s statements through Cobb’s
testimony at trial. The particular statement by Monica sought to be admitted would have
been inadmissible hearsay. Although Wiggins argues that there are exceptions to the hearsay
rule, he does not advance which of those exceptions would apply here. Furthermore,
Wiggins has failed to show that the evidence he sought to introduce was relevant. Whether
Corey or Reggie ordered the murder-for-hire is irrelevant. Wiggins proceeded to act on the
murder-for-hire regardless of who ordered it. The trial court did not err by excluding the
irrelevant, hearsay evidence.
V. Photographic Evidence
Wiggins contends that the trial court abused its discretion when it admitted a
photograph of one of the victims. Monica’s father testified at trial, and the State sought to
introduce a photograph of Monica through his testimony in order to establish her identity.
Monica’s father identified the photograph as a family portrait. Defense counsel objected that
the photograph was previously produced in discovery, that it was irrelevant, and that it was
objectionable on hearsay grounds. The trial court overruled the objection. Monica’s father
identified her in the photograph. Wiggins claims on appeal that the trial court erred because
the admission of the photograph was unduly prejudicial.
Wiggins’s argument on appeal is different from his argument at trial. A party may not
object on one ground at trial and then assert a different ground on appeal. Warren v. State,
725 N.E.2d 828, 833 (Ind. 2000). Waiver notwithstanding, assuming arguendo that it was an
abuse of discretion for the trial court to admit a photograph of Monica with her family when
17
a non-family photograph was readily available and later introduced into evidence, such error
was harmless in light of Wiggins’s confession. “An error in the admission of evidence does
not justify setting aside a conviction unless the erroneous admission appears inconsistent
with substantial justice or affects the substantial rights of the parties.” Udarbe v. State, 749
N.E.2d 562, 567 (Ind. Ct. App. 2001). “Such error is harmless when substantial independent
evidence of guilt supports the conviction such that the reviewing court is satisfied that the
erroneous admission of evidence played no role in the conviction.” Id. Wiggins gave three
statements in two of which he confessed to committing murder and provided details
unavailable to the general public. We find no reversible error in the admission of the
photographic evidence.
VI. Inappropriate Sentence
Wiggins claims that his aggregate sentence of 135 years executed is inappropriate in
light of the nature of the offense and the character of the offender. Trial courts are required
to enter sentencing statements whenever imposing sentence for a felony offense. Anglemyer
v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E2.d 218 (Ind. 2007).
The statement must include a reasonable detailed recitation of the trial court’s reasons for
imposing a particular sentence. Id. If the recitation includes a finding of aggravating or
mitigating circumstances, then the statement must identify all significant mitigating and
aggravating circumstances and explain why each circumstance has been determined to be
mitigating or aggravating. Id.Appellate courts may revise a sentence after careful review of the trial court’s decision
18
if they conclude that the sentence is inappropriate based on the nature of the offense and the
character of the offender. Ind. Appellate Rule 7(B). Even if the trial court followed the
appropriate procedure in arriving at its sentence, the appellate court still maintains a
constitutional power to revise a sentence it finds inappropriate. Hope v. State, 834 N.E.2d
713, 718 (Ind. Ct. App. 2005). The defendant has the burden of persuading the appellate
court that his sentence is inappropriate. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App.
2008).
Although Rule 7(B) does not require us to be extremely deferential to the 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. Whether a sentence is
inappropriate in the final analysis turns on the culpability of the defendant, the severity of the
crime, the damage done to others, and innumerable other factors. Cardwell v. State, 895
N.E.2d 1219, 1224 (Ind. 2008).
We initially observe that despite the trial court’s finding that the aggravating
circumstances outweighed those in mitigation, the trial court imposed the minimum sentence
of forty-five years for each of the counts of murder. See Ind. Code § 35-50-2-3 (fixed term
of between forty-five and sixty-five years with the advisory sentence being fifty-five years).
Nonetheless, Wiggins argues on appeal that his youth at the time of the murders, i.e.,
seventeen years of age, in part, warrants the imposition of concurrent, not consecutive
sentences. The imposition of consecutive sentences can be justified by the fact that there are
19
multiple victims in the case and recognizes the separate harms against separate victims.
Townsend v. State, 860 N.E.2d 1268, 1273 (Ind. Ct. App. 2007).
Regarding the character of the offender, Wiggins murdered a man because the man
agreed to be a witness against one of Wiggins’s friends. Wiggins has one misdemeanor
conviction involving a handgun offense, but also admitted to using marijuana on a daily basis
since he was fifteen years old, and using cocaine for at least a year. Wiggins was only
seventeen years old at the time he committed the murder, and thus, youthful; however, this
fact establishes that he had little time in those seventeen years to accrue a criminal history
prior to taking part in a contract murder. He admitted to substance abuse, but had not been
prosecuted for that prior to the murder. Wiggins has never had any gainful, lawful
employment, but instead befriended those involved in drug-dealing activities.
Regarding the nature of the offense, Wiggins carried out a murder-for-hire during the
course of which the victims were shot in the back of the head while lying face-down on the
floor. Wiggins’s friends were starting to feel pressure from the investigation into drug-
dealing activities and ordered that a witness in the case against them be killed. Even though
Wiggins was not a target of the investigation, he carried out the contract killing. Wiggins has
failed to carry his burden of persuading this court that his sentence is inappropriate. King,
894 N.E.2d at 267.
Affirmed.
BAKER, J., and BROWN, J., concur.
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