Edward Blackburn v. State of Indiana

FILED

Aug 19 2019, 8:48 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Adam C. Squiller Curtis T. Hill, Jr.

John M. Haecker Attorney General of Indiana

Auburn, Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Edward Blackburn, August 19, 2019

Appellant-Defendant, Court of Appeals Case No.

18A-CR-2915

v. Appeal from the Starke Circuit

Court

State of Indiana, The Honorable Kim Hall, Judge

Appellee-Plaintiff Trial Court Cause No.

75C01-1703-MR-2

Altice, Judge.

Case Summary

[1] Edward Blackburn appeals his murder conviction. He raises two issues on

appeal:

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I. Whether the trial court erred in denying his motion to continue the

jury trial based on the absence of a witness; and

II. Whether the trial court abused its discretion in refusing to instruct

the jury on the alleged lesser included offense of involuntary

manslaughter.

[2] We affirm.

Facts and Procedural History

[3] On March 3, 2017, Blackburn was driving his girlfriend of around two months,

Augusta Hadden, home. Raymond Higdon and his fiancée Terri Fields were

driving in the opposite direction to drop off their friend Cord Colgrove after

spending the entire day together. Higdon was driving, with Colgrove in the

passenger seat and Fields between them. As the vehicles passed each other,

Colgrove spotted Hadden in the red truck Blackburn was driving. He told

Higdon, “Hey, there’s Gus. Turn around.” Transcript Vol. 3 at 147. “Gus”

referred to Hadden, Colgrove’s ex-girlfriend.

[4] Hadden and Colgrove had dated on and off for five years, but Hadden had

recently broken up with him. Since then, Colgrove had called and texted

Hadden numerous times, threatening her new boyfriend and begging her to take

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him back. 1 Hadden responded infrequently, only to tell Colgrove to leave her

alone. She tried unsuccessfully to block Colgrove’s number, and around

February 9, she got a new phone instead.

[5] Neither Higdon nor Fields recognized the red truck. Nor could they identify its

occupants at the time. Nevertheless, Higdon stopped in the middle of the road,

turned his truck around, and followed Blackburn’s truck, speeding up to keep

up with it. Both cars went through a stop sign. A few minutes later, the red

truck turned down a residential lane before stopping in a grassy area. Higdon

pulled up on the red truck’s driver’s side.

[6] In the passenger’s seat, Colgrove handed his cell phone and wallet to Higdon

saying, “Just in case anything happens.” Transcript Vol. 4 at 10. Higdon said,

“Man, don’t be a retard.” Id. Colgrove assured him that he was “just going to

put this bitch on front street.” Id.

[7] Fields and Higdon noted that the driver’s window of the red truck was partially

rolled down. They could see two individuals, later identified as Blackburn and

Hadden, inside. Colgrove opened his door and stepped outside the truck. He

took a step or two forward, raised his hands, and said, without yelling, “What

the fuck, Gus?” Transcript Vol. 3 at 162. In that amount of time, Blackburn,

who was in the driver’s seat, rolled his window down the rest of the way and

1

On February 8, phone records indicate that Colgrove texted Hadden twenty-six times, telling her he loved

and needed her more than anything and offering her hundreds of dollars to spend at the Casino if she would

talk to him.

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fired his gun. The bullet hit Colgrove in the mouth, fracturing several teeth and

his second cervical vertebra and perforating his carotid artery. He died at the

scene.

[8] Colgrove and Blackburn had never met face to face. However, Blackburn

believed Colgrove had vandalized his car one night while he was with Hadden.

Blackburn also told one of Hadden’s friends, sometime in February, that

Colgrove had snitched on him to the police and that when he saw Colgrove, he

“had something for his ass.” Transcript Vol. 4 at 52. Blackburn simultaneously

leaned back in his chair, pulled up his shirt to reveal the butt of a pistol, and

smacked it.

[9] Fields and Higdon called the police and an ambulance for Colgrove while

Blackburn and Hadden backed away, hit some trees, and fled. They met up

with some of Blackburn’s friends who helped him burn his truck. Blackburn

and Hadden hid out in a hotel until police found them the next day.

[10] Blackburn was charged with murder on March 6, 2017. In October 2017,

Blackburn filed a motion to compel grant of immunity and/or for alternative

relief citing the need to have Hadden testify without fear of being charged as an

accomplice. 2 The trial court denied the motion, citing lack of authority to

compel the State to give Hadden immunity. In March 2018, Blackburn filed a

2

Hadden was initially charged as an after-the-fact accomplice under the theory that she was the one to throw

her phone out the window in an attempt to avoid being tracked by the police. This charge was later

dismissed without prejudice due to a lack of evidence.

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motion to continue the trial to August due to the recent acquisition of an expert

witness that needed time to prepare. The court granted this motion. Then, one

week before trial was to begin, Blackburn filed a motion to continue based on

the absence of a witness, Hadden. Blackburn supplemented this motion twice

and renewed it on the morning of the first day of his trial. The trial court

denied the motion to continue. The case was tried by jury from August 13,

2018 to August 21, 2018. After the close of evidence, Blackburn submitted

proposed final jury instructions, including instructions on reckless homicide,

involuntary manslaughter, and pointing a firearm at another person. The latter

two instructions were denied.

[11] The jury found Blackburn guilty of murder. Thereafter, in November 2018, the

trial court sentenced him to sixty-five years in prison. Blackburn now appeals.

Additional facts will be provided as necessary.

Discussion and Decision

I. Motion to Continue

[12] Blackburn argues that the trial court improperly denied his motion to continue

based on the absence of witness Hadden. Upon motion, a trial may be

continued at the court’s discretion and shall be continued upon a showing of

good cause established by affidavit. Ind. Trial Rule 53.5. When a defendant

requests a continuance due to the absence of a material witness and the

statutory criteria are met, the defendant is entitled to a continuance as a matter

of right. Elmore v. State, 657 N.E.2d 1216, 1218 (Ind. 1995). Although absence

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of a material witness is a statutory ground for a continuance, if the motion for

continuance does not meet the statutory criteria, then the trial court may use its

discretion to grant or deny the motion. Id. Decisions on motions made at the

court’s discretion are given substantial deference. Id. There is always a strong

presumption that the trial court properly exercised its discretion. Id. We will

not disturb the trial court’s decision absent a clear demonstration of abuse of

discretion resulting in prejudice. Vaughn v. State, 590 N.E.2d 134, 135-36 (Ind.

1992).

[13] Blackburn argues that he fulfilled the requirements outlined in Ind. Code § 35-

36-7-1 governing motions to continue due to the absence of a material witness

and thus was entitled a continuance as a matter of right. Like the trial court, we

are not convinced. I.C. § 35-36-7-1(b)(2) requires the affiant indicate the

probability of procuring the witness’s testimony within a reasonable time,

which Blackburn failed to do. As the trial court noted, Blackburn admits in his

affidavit, “I do not have any other resources for locating Ms. Hadden at this

time.” Appellant’s Confidential Appendix Vol. 2 of 3 at 109. He can only guess that

she may be in Mobile, Alabama, a general location he initially proposed during

a pretrial hearing to discuss the defendant’s motion to compel immunity for

Hadden from the State on October 19, 2017. This hearing took place nearly ten

months before the trial, and Blackburn was unable to make any progress in

finding Hadden in the intervening months, and admitted in his affidavit to not

having any prospects to change this situation. As such, he failed to argue that

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Hadden would ever be located, let alone that her testimony would be procured

within a reasonable time.

[14] Because Blackburn’s motion to continue did not satisfy the statutory

requirements, we will review the court’s decision only for an abuse of

discretion. “Whether the trial court properly exercised its authority includes a

review of whether the competing interests of the parties were properly evaluated

and compared, and if not, whether prejudice to the movant from maintaining

the schedule of events occurred.” Vaughn, 590 N.E.2d at 136.

[15] Blackburn was not prejudiced by the denial of the motion to continue. While

Hadden did not testify, cell phone records of texts exchanged between her and

Blackburn and between her and Colgrove were admitted to support Blackburn’s

claim that Colgrove was harassing Hadden and threatening him. Blackburn

also took the stand to testify as to his side of events including the assertion that

he was acting in self-defense when he shot Colgrove. While Blackburn claims

Hadden’s testimony would have supported his, there’s no real way to know that

it would have. In any event, since Blackburn testified, the jury was presented

with his version of events in considering whether to convict him. Between

Blackburn’s testimony and the admission of the phone records, the claimed

substance of Hadden’s testimony reached the jury. See Walker v. State, 471

N.E.2d 1089, 1092 (Ind. 1984) (finding no abuse of discretion when the trial

court denied defendant’s motion to continue due to the absence of an alibi

witness that had not been located in six months of searching where the only

leads would take days to resolve and the defendant testified as to his

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whereabouts on the day in question so that the jury was not denied the

opportunity to consider defendant’s explanation of the events); Laster v. State,

956 N.E.2d 187, 193 (Ind. Ct. App. 2011) (finding that the trial court did not

abuse its discretion in denying defendant’s motion to continue when weighing

the unlikelihood of finding a witness whose location was unknown against the

inconvenience and expense of rescheduling a trial).

[16] We affirm the trial court’s denial of Blackburn’s motion to continue.

II. Jury Instruction

[17] Blackburn argues that the trial court abused its discretion in refusing to instruct

the jury on Level 5 felony involuntary manslaughter. When determining

whether to instruct a jury on a lesser included offense of the crime charged, the

trial court must perform a three step analysis. First, the trial court must

compare the statute defining the crime charged with the statute defining the

alleged lesser included offense to determine if the latter is inherently included in

the former. Wright v. State, 658 N.E.2d 563, 566 (Ind. 1995). Second, if the

offense is not inherently included, the trial court must then determine if the

alleged lesser included offense is factually included in the crime charged by

comparing the statute defining the alleged lesser included offense to the

charging instrument in the case. Id. at 567. An alleged lesser included offense

is factually included if the means used to commit the crime charged include all

of the elements of the alleged lesser included offense. Id.

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[18] If the alleged lesser included offense is neither inherently nor factually included

in the crime charged, the trial court should not give an instruction on the

alleged lesser included offense. Id. If, however, the trial court has determined

that an alleged lesser included offense is either inherently or factually included

in the crime charged, it must look at the evidence presented in the case by both

parties to determine if there is a serious evidentiary dispute about the element or

elements distinguishing the greater from the lesser offense and if, in view of this

dispute, a jury could conclude that the lesser offense was committed but not the

greater. Id. If a jury could so conclude, then the trial court will be found to

have committed reversible error by not giving an instruction, when requested,

on the lesser offense. Id.

[19] It is well established, as Blackburn concedes, that involuntary manslaughter is

not an inherently lesser included offense of murder. Id. at 569; compare Ind.

Code § 35-42-1-1 with I.C. § 35-42-1-4. He therefore argues that involuntary

manslaughter is a factually included offense. Generally, cases involving

involuntary manslaughter as factually included lesser offenses find their basis in

battery, which we do not have here. E.g. Lynch v. State, 571 N.E.2d 537, 539

(Ind. 1991) (holding that involuntary manslaughter was a factually lesser

included offense of murder where the killing was obviously accomplished with

a touching, i.e., defendant “battered” victim with a shooting). Blackburn,

however, makes novel use of another part of the involuntary manslaughter

statute, namely that “A person who kills another human being while

committing or attempting to commit: (1) a Level 5 or Level 6 felony that

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inherently poses a risk of serious bodily injury… commits involuntary

manslaughter.” I.C. § 35-42-1-4(b). Blackburn directs us to Ind. Code § 35-46-

4-3(b), which provides that knowingly or intentionally pointing a firearm at

another person is a Level 6 felony. We will assume without deciding that

pointing a firearm at another person inherently poses a risk of serious bodily

injury. With this assumption in mind, involuntary manslaughter is a factually

included lesser offense because the means used to commit the murder as

charged clearly included pointing a firearm at Colgrove prior to shooting him. 3

Thus, we must turn to whether there is a serious evidentiary dispute such that

the jury could conclude that the lesser offense was committed but not the

greater.

[20] Involuntary manslaughter contemplates an incidental killing of another. See

Lynch, 571 N.E.2d at 538 (noting “Involuntary manslaughter … contemplates

an incidental killing that occurs during a battery”). Thus, for an involuntary

manslaughter instruction to be warranted here, the pointing of a firearm would

be knowing or intentional, but the pulling of the trigger would be incidental.

Here we have the opposite. By claiming he shot in warning, Blackburn denied

knowingly or intentionally pointing a firearm at Colgrove but admitted to

intentionally pulling the trigger. In other words, Blackburn claims he

intentionally fired a gun and incidentally the firearm was aimed at Colgrove’s

3

Blackburn’s charging information reads “Blackburn did knowingly or intentionally kill another human

being, to-wit: Cord Colgrove, by shooting him in the head,” Appellant’s Confidential Appendix Vol. 2 at 3.

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head. If Blackburn’s testimony is taken as true, it would warrant a reckless

homicide instruction, which was given, but still would not warrant an

instruction of involuntary manslaughter.

[21] There is no serious evidentiary dispute that Blackburn, by shooting Colgrove in

the head at close range, only intended to point his firearm at him. There is no

evidence to corroborate Blackburn’s testimony that he intended the shot as a

warning—he did not verbally warn Colgrove to stay away or even give

Colgrove time to register that Blackburn had a gun before pulling the trigger.

By most accounts, Colgrove stepped out of the car, raised his hands, said

“What the fuck, Gus?” and was shot in the head. Transcript Vol. 3 at 162. The

instruction of involuntary manslaughter was not warranted.

[22] Further, Blackburn’s statement to Hadden’s friend that he “had something for

[Colgrove’s] ass” while patting his gun indicates a murderous intent. Transcript

Vol. 4 at 52. Blackburn’s lack of verbal warning at the time of the incident for

Colgrove to back off before Blackburn fired his gun belies Blackburn’s

testimony that the shot was only meant to warn Colgrove off, not kill him. The

jury had the opportunity to convict Blackburn for reckless homicide or acquit

him on the basis of self-defense but still chose to convict him of murder, a

knowing or intentional killing.

[23] There being no evidentiary dispute, the trial court acted properly by refusing to

instruct the jury on the offenses of involuntary manslaughter.

[24] Judgment affirmed.

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Kirsch, J. and Vaidik, C.J., concur.

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