Shewmaker v. State

20 N.E.3d 926 (Table)

Ronald Wayne SHEWMAKER, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 10A05–1401–CR–2.

Court of Appeals of Indiana.

Sept. 29, 2014.

Matthew J. McGovern, Anderson, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

BROWN, Judge.

Ronald Wayne Shewmaker appeals his conviction and sentence for murder. Shewmaker raises two issues, which we revise and restate as follows:

I. Whether the trial court abused its discretion in denying his motion for mistrial;

II. Whether the court abused its discretion in sentencing him; and

III. Whether his sentence is inappropriate.

We affirm.

FACTS AND PROCEDURAL HISTORY

Shewmaker first met Lisa McQuirt at a strip or dance club, and they were later engaged to be married. Shewmaker was unaware that McQuirt was married and that she was also in a relationship with Norman Wolfe. Shewmaker gave McQuirt and her children money and gifts, including money toward a down payment for a car and a rental house so she could move out of the motel where she was living.¹

In the early morning of February 18, 2013, Shewmaker visited a strip club where a friend of McQuirt told him that she had known McQuirt for a long time, that McQuirt was married, and that she had also scammed someone else. Shewmaker “was agitated” and “p––––– off and went to look for McQuirt. Transcript at 666. He first went to McQuirt's mother's house, found that McQuirt's car was not there, and then drove around Clarksville until he remembered another place he had previously dropped off McQuirt which he believed was the house of another dancer. At approximately 4:00 a.m., Shewmaker found McQuirt's vehicle parked near a duplex apartment unit. total.

Wolfe and McQuirt, along with Jeremy Walker, Tesla Matthews, Anthony McGhee, McQuirt's daughter, and several other adults and children were inside Wolfe's apartment. Shewmaker was unsure which apartment unit McQuirt was in and knocked on the door of the unit immediately next door to Wolfe's unit. Walker and McGhee heard the knocking and opened the door. Shewmaker asked if McQuirt was there and stated that her car was out front. McGhee said that he did not know who McQuirt was or whose car was out front, shut the door, and went to tell Wolfe. Wolfe went to the door and opened it, and Shewmaker pointed at McQuirt's vehicle and asked if that was McQuirt's car and where McQuirt was located, and Wolfe told Shewmaker that he did not know McQuirt's car, that the vehicle had been parked there for several weeks, and closed or slammed the door on Shewmaker. Shewmaker took a knife out of his pocket and stabbed the four tires of McQuirt's vehicle to “[d]isable it so she couldn't drive it.” Id. at 673. Wolfe told McQuirt “to go outside and talk to him,” and McQuirt went outside. Id. at 112.

McQuirt approached Shewmaker, who was sitting in his truck, and Shewmaker fired four shots, one of which struck McQuirt in the chin and another struck her in the back. McQuirt was bleeding from the gunshot wounds, was able to walk or stumble inside the door of the apartment, and collapsed on the floor just inside the door. Shewmaker drove away, and Walker called the police. Police and emergency personnel arrived at the scene. McQuirt died as a result of the gunshot wounds. After leaving the location of the shooting, Shewmaker called his friend Ron House and stated “that he had made a mistake” and that “there was nothing he could do about” it, but that he was going to go home and see his mom and dad. Id. at 73–74. House was concerned Shewmaker was going to commit suicide and called the police.²

Shewmaker surrendered to Harrison County Officer Gary Gilley at his home.³ Officer Gilley permitted Shewmaker to sit down on a picnic table to smoke a cigarette before transporting him to the jail. Shewmaker asked Officer Gilley “is she dead,” and Officer Gilley answered that he did not know. Id at 268. Shewmaker was transported to the Harrison County Sheriff's Department, turned over to the detectives from Clarksville, and transported to Clark County jail. At the police station, Shewmaker was given his Miranda rights, and he immediately invoked his right to remain silent.⁴ Police recovered a bullet on the street, a bullet on the sidewalk, a bullet which had fragmented by a child's bedroom, part of which was on the sill and part of which was between the two windows in the window channel, and a bullet in front of a curve where it had impacted a vehicle.

On February 22, 2013, the State charged Shewmaker with murder. Prior to trial, Shewmaker filed a motion in limine requesting the court to issue an order instructing the prosecutor and witnesses offering testimony on behalf of the State to refrain from making any statements, comments, or questions during trial pertaining to, among other things, the advisement of Shewmaker of his Miranda rights and Shewmaker's silence or refusal to answer questions following the Miranda advisements, and the court granted the motion.

A jury trial was held on November 5 through 8, 2013, at which the evidence included the testimony, among others, of Ron House, Officer Gilley, Chief Detective Rayborn, McQuirt's daughter, Walker, Wolfe, Matthews, McGhee, and Shewmaker. McQuirt's daughter testified that she knew McQuirt was seeing Shewmaker several times a week and talking to him every day, that McQuirt was also dating Wolfe at the same time, and that McQuirt was married to and living with her husband. She testified that Shewmaker brought McQuirt money and presents for McQuirt and her children, that there were times McQuirt pretended that her husband was her brother so that Shewmaker would continue giving her presents and money, and that McQuirt said not to mention Wolfe to Shewmaker. McQuirt's daughter also testified that, one or two weeks prior to the shooting, she heard Shewmaker say “if you don't give me what I want I will hurt you and your family,” but she did not know what Shewmaker wanted. Id. at 332. She also testified that she and McQuirt would notice Shewmaker following them in his truck, drive by where they lived, or park near where they lived, and that this occurred “[m]ore at the end.” Id. at 336.

Walker, Wolfe, and McGhee testified McQuirt did not have a gun at the time of the shooting. Walker indicated that McQuirt did not have a weapon on her when she came back into the apartment after being shot, that he never knew McQuirt to have a gun, and that he never saw a gun at the apartment. Wolfe testified that McQuirt described Shewmaker as “her sugar daddy.” Id. at 169. Wolfe testified that McQuirt did not have a gun with her when she exited the apartment, that she did not have a gun when she stumbled back into the house, and that if she had a gun he would say so and “wouldn't try to get myself caught up in the midst of catching any type of disciplinary action for just trying to keep that away from anybody else in the house.” Id. at 176. On cross-examination, Shewmaker's counsel asked Wolfe if he told James Rakes, a man with whom Wolfe had served time, that after the shooting Wolfe had a Desert Eagle in his possession, to which Wolfe responded that he did not make that statement, never owned a Desert Eagle, never said he or McQuirt had a gun, and his possession of a gun would have been a violation of his probation. Shewmaker later called Rakes as a witness, who testified that Wolfe had told him that “he had a forty-four magnum Desert Eagle,” that he had never met Shewmaker, and Shewmaker never asked him to testify falsely. Id. at 724. On cross-examination, Detective Rayborn testified that he interviewed Walker two times and that the interviews were recorded on video. A copy of the video recording was admitted and played for the jury. During the interview, Walker told Detective Rayborn that he had seen McQuirt with the Desert Eagle. Detective Rayborn asked if he had “seen her there with it,” and Walker replied “[s]he had not that night.” Id. at 553. Walker further stated “I mean, I knew she messed with firearms. She was a stripper. She messed with people that wasn't good.” Id. at 554. Detective Rayborn asked Walker when and where he saw McQuirt with the Desert Eagle, and Walker answered “[t]his was a couple of weeks ago and this was at Wendy's” and that “[s]he had it in her trunk.” Id. Matthews testified that she did not see McQuirt with a gun and did not see anybody approach McQuirt, take a gun, or do anything with a gun.

The State presented evidence that McQuirt died as the result of two gunshot wounds. Dr. Jeffrey Springer, a medical examiner or forensic pathologist, testified that the first gunshot wound entered McQuirt's chin and exited on the posterior side of her neck, there was stippling around the gunshot entrance, and the gun was fired from a range of approximately one to four feet from McQuirt's face. Dr. Springer testified that the second gunshot wound entered McQuirt on the right middle aspect of her back, passed through her right lung, and exited in the upper aspect of her right thorax, that there was no stippling on McQuirt's back and he could not provide an estimate of the range from which the gun was fired with respect to that wound. He also testified that McQuirt lost about three liters of blood, more than half of her blood, as a result of that gunshot wound.

Shewmaker testified that McQuirt approached his vehicle “[w]alking very briskly” and “hollering and screaming.” Id. at 675. He testified that McQuirt “pulled out a gun and pointed it at [him].” Id. at 676. He also testified that McQuirt had the gun “tucked underneath her arm and under her jacket” and “pulled it out.” Id. Shewmaker testified that he then “reached and grabbed [his gun] and shot her,” that McQuirt “kind of stumbled and went around the back of the truck again,” and that when she came “back around to the passenger side of the...