S. Sargent Visher
Jeffrey A. Modisett
Attorneys for Appellant
Attorneys for Appellee
Attorney General of Indiana
Deputy Attorney General
S. Sargent Visher
Jeffrey A. Modisett
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
November 18, 1999
Defendant John Miller was convicted of murder for shooting another man to death.
He claims he shot the victim in self-defense, but we find that there was sufficient evidence
to support the jury's verdict to the contrary. We also affirm the trial court with respect to
Defendant's claims as to improper instructions, erroneously excluded evidence, and
We have jurisdiction over this direct appeal because the sentence exceeds 50 years. Ind. Const. art. VII, § 4; Ind. Appellate Rule 4(A)(7).
Additional facts will be provided as needed.
favorable to the judgment with all reasonable inferences to be drawn therefrom. Id.; Ellis
v. State, 707 N.E.2d 797, 800 (Ind. 1999); White v. State, 706 N.E.2d 1078, 1079 (Ind.
1999); Hurst v. State, 699 N.E.2d 651, 654 (Ind. 1998); Jones v. State, 689 N.E.2d 722, 724
Holder v. State, 571 N.E.2d 1250, 1253 (Ind. 1991).
We will affirm a
conviction where such evidence and reasonable inferences constitute substantial evidence
of probative value sufficient to support the judgment. Ellis, 707 N.E.2d at 800; Blanche v.
State, 690 N.E.2d 709, 712 (Ind. 1998);
Holder, 571 N.E.2d at 1253
Self-defense is recognized as a valid justification for an otherwise criminal act. Ind. Code § 35-41-3-2 (Ind. 1993). When raised, a defendant must establish that he or she was in a place where he or she had the right to be, acted without fault, and was in reasonable fear or apprehension of death or great bodily harm. See Brooks v. State, 683 N.E.2d 574, 577 (Ind. 1997); Lilly v. State, 506 N.E.2d 23, 24 (Ind. 1987). Once a defendant claims self- defense, the State bears the burden of disproving at least one of these elements beyond a reasonable doubt for the defendant's claim to fail. Sanders, 704 N.E.2d at 123; Birdsong v. State, 685 N.E.2d 42, 45 (Ind. 1997). The State may meet this burden by rebutting the defense directly, by affirmatively showing appellant did not act in self-defense, or by simply relying upon the sufficiency of its evidence in chief. Lilly, 506 N.E.2d at 24; Davis v. State, 456 N.E.2d 405, 408 (Ind. 1983). Whether the State has met its burden is a question of fact for the jury. Birdsong, 685 N.E.2d at 45; Brooks, 683 N.E.2d at 577.
From this evidence, a jury could have reasonably rejected Defendant's self-defense
claim because Defendant aggressively approached Frierson, who was unarmed and
presented no immediate danger to Defendant, and purposefully fired at Frierson multiple
times. Additionally, we have previously held that the firing of multiple shots undercuts a
claim of self-defense. Birdsong, 685 N.E.2d at 46 (viewing the fact that a defendant shot his
victims several times supported the defendant's murder conviction and extinguished his self-
defense claim); 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); Schlegel v. State, 150 N.E.2d 563,
567, 238 Ind. 374, 383 (1958) (explaining that where the first shot is fired in self-defense,
a second shot is not if it is unnecessary for the defendant to defend himself where the victim
fell to the ground after the first shot). Considering Defendant's aggressive behavior and that
he fired multiple shots at his victim, we find that there was sufficient evidence to disprove
Defendant's self-defense claim.
Although Defendant contends that he had a right to inform the jury that he was
asserting a theory of self-defense, he cites no authority demonstrating that he is entitled to
such an instruction. In fact, appropriate pleas in criminal proceedings only include pleas of:
not guilty, guilty, and guilty but mentally ill at the time of the crime. Ind. Code § 35-35-2-
1(a)(3) (1993). Accordingly, a defendant asserting self-defense is not entitled to a plea of
not guilty by reason of self-defense. Further, considering the extensive self-defense
instructions given by the trial court, the jury was amply informed of and instructed on
Defendant's claim of self-defense. The trial court properly refused Defendant's tendered
Our standard of review is abuse of discretion when the trial court has made a finding on the existence or lack of a serious evidentiary dispute. Brown v. State, 703 N.E.2d 1010, 1019 (Ind. 1998); Charlton v. State, 702 N.E.2d 1045, 1048 (Ind. 1998); Champlain v. State, 681 N.E.2d 696, 700 (Ind. 1997). Where there is no such finding, the reviewing court makes the required determination de novo based on its own review of the evidence. Id; see also Charlton, 702 N.E.2d at 1048. Here, however, neither the trial court nor Defendant addressed the existence or lack of a serious evidentiary dispute. See footnote 6 See Brown, 703 N.E.2d at
1019. We have held that when the court rejects tendered instructions on lesser-included
offenses on their merits, but the record provides neither a finding that there is no serious
evidentiary dispute nor a specific claim from the Defendant as to the nature of that dispute,
the standard of review is an abuse of discretion. Id. at 1020.
Recklessness occurs when a person recklessly, knowingly, or intentionally inflicts serious
bodily injury on another person. Id. § 35-42-2-2(c)(1). Serious bodily injury is defined
as a bodily injury that creates a substantial risk of death. Id. § 35-41-1-25. In effect,
criminal recklessness occurs when there is a (1) reckless, knowing, or intentional (2)
infliction (3) of a serious bodily injury _ including death (4) on another person. Accord
Comer v. State, 428 N.E.2d 48, 54 (Ind. Ct. App. 1981). Murder occurs when a person (1)
knowingly or intentionally (2) kills (3) another human being. Ind. Code § 35-42-1-1 (1993).
Culpability remains the sole distinguishing element, and as such, makes Criminal
Recklessness an inherently lesser-included offense of Murder. Accord Taylor v. State, 587
N.E.2d 1293, 1303-04 (Ind. 1992) (Where defendant was charged with murder, the trial
court properly refused to instruct the jury regarding the lesser-included offense of . . .
After determining that
a tendered instruction covers an inherently lesser-included
offense, a court must then determine whether a serious evidentiary dispute existed whereby
a jury could conclude that a defendant committed the lesser but not the greater offense.See footnote
We conclude that the trial court did not abuse its discretion when it rejected both of
Defendant's tendered instructions.
Defendant fired a total of ten shots at Frierson, one of
which struck Frierson in the head. The trial court could have reasonably concluded that
there was no serious evidentiary dispute as to whether Defendant knowingly killed Frierson
_ that is, that firing a gun repeatedly while advancing toward the victim sitting in his car
would result in a high probability of death. See Sanders, 704 N.E.2d at 122-23 (No serious
evidentiary dispute existed where Defendant killed the victim by firing a handgun directly
at the victim at close range.); Olive v. State; 696 N.E.2d 381, 382 (Ind. 1998) (Defendant
knowingly killed his victim when he fired a handgun through the window of a moving car.);
Champlain, 681 N.E.2d at 703 (Defendant knowingly killed victim when he fired weapon
into a trailer home at close range and was aware that the victim was inside.); Owens v. State,
544 N.E.2d 1375, 1377 (Ind. 1989) (Firing a gun in the direction of an individual [seated
in a vehicle] is substantial evidence from which a jury may infer intent to kill.).
Defendant asserts that on two occasions the trial court erroneously excluded
statements on the basis of hearsay. On one occasion, Jamall Jackson attempted to testify
regarding his conversations with Defendant concerning Frierson's propensity for violence.
Defense witness Jackson testified as follows:
Q: Did you have any conversations with John Miller, there at your home,
about the circumstances that you knew him to be in?
Q: Okay. And what, if anything, did you say to him, uh, about that?
A: I just . . .
[State]: Judge, I'm going to object to that, too. That's hearsay, as to what he said.
The Court: Sustained.
(R. at 572.)
It appears that defense counsel was attempting to have Jackson testify as to a
statement Jackson made other than while testifying at trial. In the absence of any showing
that the statement was being offered for a reason other than to prove the truth of the matter
asserted (or that it was not hearsay under Evid. R. 801(d) or an exception to the hearsay rule
under Evid. R. 803), the trial court properly sustained the objection.
The other occasion is more problematic. In it, Defendant attempted to testify that some of his friends had made him aware of Frierson's threatening remarks against Defendant in the days leading up to the instant offense. The trial court, however, prevented Defendant from testifying as to what he had learned finding any such remarks inadmissible hearsay.See footnote 9
the victim and therefore did not constitute inadmissible hearsay.). As such, it was error to
exclude such testimony as violative of the hearsay rule.
Although we find the trial court erroneously excluded Defendant's testimony, we find
the error harmless. Defendant established that Frierson had a reputation for violence in the
community. He also introduced evidence regarding his perceived fear of Frierson: he
described Frierson's violent robbery of him including being struck with the butt of
Frierson's assault rifle and the threats made on his life during the encounter; he expressed
his general fear of being shot by Frierson; he was under the impression that Frierson was
armed with a weapon that day; and, he testified that he was frightened when he saw Frierson
at the gas station. Accordingly, in light of all the evidence, the exclusion had a sufficiently
minor impact on the jury so as not to affect the substantial rights of Defendant.
Q: Did you ever tell [Defendant] that he should, uh, watch himself around [Frierson]?
years. Ind. Code § 35-50-2-3 (Supp. 1995). Due to aggravating circumstances, the trial
court imposed the maximum sentence available by applying a ten-year enhancement to the
presumptive sentence. Defendant contends that his 65 year sentence was manifestly
In general, the legislature has prescribed standard sentences for each crime, allowing the sentencing court limited discretion to either enhance each sentence to reflect aggravating circumstances or reduce the sentence to reflect mitigating circumstances. When the trial court imposes a sentence other than the presumptive sentence, this Court will examine the record to insure that the trial court explained its reasons for selecting the sentence it imposed. Archer v. State, 689 N.E.2d 678, 683 (Ind. 1997) (citing Hammons v. State, 493 N.E.2d 1250, 1254 (Ind. 1986), reh'g denied). The trial court's statement of reasons must include the following components: (1) identification of all significant aggravating and mitigating circumstances; (2) the specific facts and reasons that lead the court to find the existence of each such circumstance; and, (3) an articulation demonstrating that the mitigating and aggravating circumstances have been evaluated and balanced in determining the sentence. Mitchem v. State, 685 N.E.2d 671, 678 (Ind. 1997) (citing Jones v. State, 675 N.E.2d 1084, 1086 (Ind. 1996)).
Defendant contends that his sentence is manifestly unreasonable because the trial court improperly applied aggravating circumstances and failed to consider mitigating
circumstances.See footnote 10 The trial court explicitly identified three aggravating circumstances upon which it relied to enhance Defendant's sentence: (1) Defendant's criminal history, (2) the victim's representative's recommendation, and (3) that the imposition of a reduced sentence would depreciate the seriousness of the crime.See footnote 11 Although not distinctly outlined in the sentencing statement, the court also emphasized particularly disturbing facts about the case during the sentencing hearing: (1) Defendant walked toward victim as he shot his handgun, (2) the victim was shot ten times, (3) the victim was shot in the head, and (4) the victim was shot while sitting in his car. This leads us to conclude that the trial court also relied on the
nature and circumstances of the crime as an aggravating circumstance to justify an enhanced
sentence. Mitchem, 685 N.E.2d at 680 (determining that the nature and circumstances of a
crime may be considered an aggravating factor); see also Scheckel v. State, 620 N.E.2d 681,
684 (Ind. 1993); Concepcion v. State, 567 N.E.2d 784, 791 (Ind. 1991); Brown v. State, 698
N.E.2d 779, 781 (Ind. 1998) (Although the trial court failed to neatly package aggravating
circumstances in the sentencing order, the record demonstrated that the trial court
considered the circumstances of the crime in enhancing the sentence.). While we do find
the application of some of the trial court's aggravating circumstances problematic,See footnote
not find that these deficiencies warrant a finding that the sentence was manifestly
Defendant also contends that the trial court failed to consider his identified mitigating circumstances when imposing the sentence.See footnote 13 The record, however, reveals that the trial
court did consider Defendant's mitigating circumstances but found that the aggravating
circumstances outweighed the mitigating circumstances. A trial court need not credit
mitigating factors in the same manner as would the [defendant], nor explain why it found a
particular circumstance insufficiently mitigating. Coleman v. State, 694 N.E.2d 269, 279
(Ind. 1998); Brown, 698 N.E.2d at 782-83; Widener v. State, 659 N.E.2d 529, 533-34 (Ind.
Considering Defendant's criminal history coupled with the trial court's emphasis on
the nature and circumstance of the crime as aggravating circumstances, we find the sentence
imposed by the trial court was reasonable in light of the nature of the offense and the
character of the offender.
argument that a serious evidentiary dispute existed. Defense counsel made an attempt at the end of the trial court's hearing to record his objections; however, such objections must be made at the time the trial court rules on the tendered instruction. Brown, 703 N.E.2d at 1019. Accordingly, we review the rejected tendered instructions for an abuse of discretion.
Q: Had [Frierson] ever threatened you from the time of the robbery forward,
until September 16 of '95?
A. They said he did. He was . . .
Q: What do you mean, they said he did . . . who said that?
A: He was telling like Jonal, Jonal Reed.
[State]: Object to hearsay, Judge.
The Court: Sustained.
The Court also recalls the pictures of Mr. Frierson, which were pictures of a young
man, shot in the head, still sitting in his car. I feel sorry for Mr. Miller's family, also,
but you are asking me to give Mr. Miller some kind of break . . . that's what it
sounds like . . . Nobody gave Mr. Frierson a break. There may have been words
exchanged . . . I don't know . . . but then he was . . . he was shot, and now his family
is without him. The Court considers the defendant's criminal history, even though it
is not substantial, it is somewhat of an aggravating factor. The Court also considers,
uh, what the victim's representatives recommend, and the Court also considers that
imposition of a reduced sentence would depreciate the seriousness of the offense.
The Court understands the argument that defense counsel has made regarding the
mitigating factors, but finds that the aggravating factors outweigh any mitigating
factors, and sentences the defendant to sixty-five (65) years in the Department of
Corrections [ ].
(R. at 781-83.)
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