Brown v. State

Attorney for Appellant

Catherine M. Morrison

Wolf & Morrison

Indianapolis, IN

Attorneys for Appellee

Jeffrey A. Modisett

Attorney General of Indiana

Michael McLaughlin

Deputy Attorney General

Indianapolis, IN

IN THE

INDIANA SUPREME COURT

TONEY L. BROWN,

Appellant (Defendant below),

v.

STATE OF INDIANA,

Appellee (Plaintiff below).

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) Supreme Court No.

) 49S00-9901-CR-19

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APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Tanya Walton-Pratt, Judge

Cause No. 49G01-9710-CF-160631

ON DIRECT APPEAL

November 15, 2000

SULLIVAN, Justice.

Defendant Toney L. Brown was convicted of murder, attempted murder,

and carrying a handgun without a license for shooting two men in a fight.

We find that the State had sufficient evidence to overcome his claim of

self-defense and that the trial court did not err in rejecting his proposed

jury instruction on self-defense because the court’s own instructions were

adequate.

We have jurisdiction over this direct appeal because the longest

single sentence exceeds 50 years. Ind. Const. art. VII, § 4; Ind.

Appellate Rule 4(A)(7).

Background

The facts most favorable to the verdict indicate that on October 20,

1997, a group of people gathered on a near eastside Indianapolis street.

The gathering included Defendant and the victims, Jason McEwan and Ron

Cooper. Two of the younger people in the group began arguing and spitting

at each other drawing Cooper and Defendant into the confrontation.

Defendant pulled out a revolver and shot Cooper in the chest, seriously

wounding him. Defendant then backed up as he was firing, fatally hitting

McEwan three times. At one point, as Defendant was backing up down the

street, he stopped, reloaded, and continued firing.

The State charged Defendant with Murder,[1] Attempted Murder, a class

A felony,[2] and with Carrying a Handgun Without a License, a Class A

misdemeanor.[3] A jury found Defendant guilty on all counts. The trial

court sentenced Defendant to 60 years for the murder, 30 years for the

attempted murder, and 365 days for the handgun violation. The court ran

the sentences concurrently.

Discussion

I

Defendant contends that the State’s evidence was insufficient to

disprove his self-defense claim beyond a reasonable doubt.

“Self-defense is recognized as a valid justification for an otherwise

criminal act.” Miller v. State, 720 N.E.2d 696, 699 (Ind. 1999). “A

person is justified in using reasonable force against another person to

protect himself . . . from what he reasonably believes to be the imminent

use of unlawful force.” Ind. Code § 35-41-3-2(a) (1993). Self defense is

established if a defendant (1) was in a place where the defendant had a

right to be; (2) did not provoke, instigate, or participate willingly in

the violence; and (3) had a reasonable fear of death or great bodily harm.

See Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000); Jordan v. State, 656

N.E.2d 816, 817 (Ind. 1995).

Defendant correctly points out that the State carries the burden of

disproving self-defense. See, e.g., Wooley v. State, 716 N.E.2d 919, 926

(Ind. 1999). Therefore, once a defendant claims self-defense, the State

bears the burden of disproving at least one of the elements beyond a

reasonable doubt. See Miller, 720 N.E.2d at 700. The State may meet its

burden of proof by “rebutting the defense directly, by affirmatively

showing that the defendant did not act in self defense, or by simply

relying upon the sufficiency of its evidence in chief.” Id. (finding that

the State’s evidence was sufficient to disprove the defendants self-defense

claim where the defendant claimed that he saw the victim reach for a

weapon, but the State offered evidence that the victim was unarmed); See

also Davis v. State, 456 N.E.2d 405, 408 (Ind. 1983).

“The standard of review for a challenge to the sufficiency of evidence

to rebut a claim of self-defense is the same as the standard for any

sufficiency of the evidence claim.” Wallace, 725 N.E.2d at 840; Sanders v.

State, 704 N.E.2d 119, 123 (Ind. 1999). In reviewing a sufficiency of the

evidence claim, the Court neither reweighs the evidence nor assesses the

credibility of the witnesses. See Garland v. State, 719 N.E.2d 1236, 1238

(Ind. 1999). We look to the evidence most favorable to the verdict and

reasonable inferences drawn therefrom. Sanders, 704 N.E.2d at 123. We

will affirm the conviction if there is probative evidence from which a

reasonable jury could have found the defendant guilty beyond a reasonable

doubt. See Brown v. State, 720 N.E.2d 1157, 1158 (Ind. 1999).

Defendant’s self-defense claim here is supported by his own testimony

that Cooper pulled out a gun and “fired two shots,” that McEwan pulled out

a knife, and that Defendant was “Scared for his life.” (R. at 710-14.) He

testified that he shot Cooper in self defense and began running while

shooting backwards, unintentionally hitting McEwan. The State’s evidence,

however, adequately refuted Defendant’s self-defense claim: Cooper and

Deon Perkins testified that Cooper was unarmed; there were no guns

recovered at the scene; and besides Defendant’s testimony, there was no

other evidence that Cooper was armed. Additionally, Defendant shot McEwan

three times, and “we have previously held that the firing of multiple shots

undercuts a claim of self-defense.” Miller, 720 N.E.2d at 700. See also

Hill v. State, 532 N.E.2d 1153, 1153 (Ind. 1989) (finding sufficient

evidence existed to negate the defendant’s self-defense claim where the

defendant shot the victim a second time after the victim fell to his hands

and knees).

It is not disputed that Defendant shot McEwan and Cooper, and the

evidence most favorable to the verdict suggests that Defendant did not have

a reasonable fear of death or great bodily harm. Consequently, we find

that there was sufficient probative evidence for a reasonable jury to

conclude that Defendant did not shoot in self-defense.

II

Defendant also contends that the trial court committed reversible

error by refusing his tendered self-defense instruction.

The defense tendered the following instruction:

Whoever, being himself without fault and in a place where he has

a right to be, so far as his assailant is concerned, is assaulted, he

may, without retreating, repel by force; and he need not believe that

his safety requires him to kill his adversary in order to give him a

right to make use of force for that purpose. When from the act of his

assailant, he believes, and has reasonable ground to believe, that he

is in danger of losing his life or receiving great bodily harm from

his adversary, the right to defend himself from such danger or

apprehended danger may be exercised by him; and he may use it to any

extent which is reasonably necessary, and if his assailant is killed

as a result of the reasonable defense of himself, he is excusable in

the eyes of the law. The question of the existence of such danger,

the necessity or apparent necessity, as well as the amount of force

necessary to employ to resist the attack can only be determined from

the standpoint of the defendant at the time and under all the then

existing circumstances. Ordinarily one exercising the right to self-

defense is required to act upon the instant and without time to

deliberate and investigate and under such circumstances a danger which

exists only in appearance, is as real and imminent to him as if it

were actual.

A person in the exercise of the right of self defense must act

honestly and conscientiously.

When all danger and all apparent danger of the loss of life, or

of receiving great bodily harm, from the assault of his assailant is

at an end and passed, then the right to use force is at an end and

should cease. The person exercising the right of self-defense must

honestly believe, and have reasonable ground to believe, when he makes

use of force to protect himself from an assailant, that at the time he

uses the force it is then necessary to do so to protect his life, or

to protect his person from great bodily harm.

One who is in no apparent danger, and who apprehends no danger

and who has no reasonable ground for such apprehension cannot kill

another and successfully interpose the defense of self-defense.

(R. at 78-79.) The court refused the instruction, stating that it was “too

complicated and confusing.” (R. at 751.)

When evaluating whether a trial court abused its discretion by

refusing a tendered instruction, we consider whether: (1) the tendered

instruction correctly stated the law; (2) there was evidence in the record

to support the giving of the instruction; and (3) the substance of the

instruction is covered by other instructions given by the court. See Cline

v. State, 726 N.E.2d 1249, 1256 (Ind. 2000); Stahl v. State, 616 N.E.2d 9,

11 (Ind. 1993).

Here, we find that Defendant’s tendered instruction fails the third

prong of the test – its substance was covered by other instructions given

by the court. The trial court gave the jury a self-defense instruction as

well as two additional instructions to clarify certain concepts of self-

defense. The trial court’s preliminary and final instruction to the jury

included the following self-defense instruction No. 33(A):

The defense of self defense is defined by law as follows:

A person is justified in using reasonable force against another

person to protect himself or a third person from what he reasonably

believes to be the imminent use of unlawful force. However, a person

is justified in using deadly force only if he reasonably believes that

the force is necessary to prevent serious bodily injury to himself or

a third person or to prevent the commission of a forcible felony. No

person in this state shall be placed in legal jeopardy of any kind

whatsoever for protecting himself or his family by reasonable means

necessary.

To prevail on a claim of self defense, the defendant must show

that he was in a place where he had a right to be, that he acted

without fault, and that he had a reasonable fear or belief of imminent

death or great bodily harm.

The State has the burden of disproving the defense of self

defense beyond a reasonable doubt.

(R. at 97, 128.)

The trial court also included instruction No. 33(B), which stated in

part that “Reasonable belief means such belief as an ordinary reasonable

person would possess under all the existing circumstances and as viewed

from the perspective of such person within the total set of circumstances…”

(R. at 129.) Additionally, the trial court gave instruction No. 33(D),

which included the following statement:

The question of the existence of an apparent danger and the

amount of force necessary to resist force, can only be determined from

the standpoint of the defendant, at the time and under the then

existing circumstances. The defendant may use such force as may

reasonably be necessary to resist such attack or apparent attack. He

will not be accountable for an error in judgment as to the amount of

force necessary, provided he acted reasonably and honestly. One who

was in no apparent danger and had no reasonable ground for

apprehension of danger cannot raise this defense.

(R. at 131.)

Defendant specifically complains that the trial court’s instructions

did not incorporate “the importance of [his] state of mind.” Appellant’s

Br. at 8. We disagree. The instruction tendered by Defendant merely

repeated the elements in the trial court’s instruction and did not shed

light on any other aspects of self-defense. The trial court’s instructions

specifically stated that the existence of danger and the amount of force

necessary to resist force “can only be determined from the standpoint of

the defendant, at the time and under the then existing circumstances.” (R.

at 131.)

We find the language in the trial court’s instructions pertaining to

Defendant’s state of mind nearly identical to the language in Defendant’s

tendered instruction. The trial court’s instructions also echo the

instructions that this Court suggested in French v. State 403 N.E.2d 821

(Ind. 1980), including the passage regarding the defendant’s state of mind.

Id. at 823-824 (“The question of the existence of such danger, the

necessity or apparent necessity, as well as the amount of force necessary

to employ to resist the attack can only be determined from the standpoint

of the defendant at the time and under all the then existing

circumstances.”).

The trial court’s instructions adequately instructed the jury on self-

defense and were especially fair in emphasizing the aspects of self-defense

concerning Defendant’s state of mind. Defendant’s tendered instruction

would have been repetitive and was therefore unnecessary. Accordingly, we

find that the trial court did not abuse its discretion by refusing

Defendant’s tendered instruction.

Conclusion

We affirm the judgment of the trial court.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.

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[1] Ind. Code § 35-42-1-1 (1993).

[2] Id. §§ 35-41-5-1 and 35-42-1-1.

[3] Id. § 35-47-2-1.