ATTORNEY FOR APPELLANT
Katherine A. Cornelius
Marion County Public Defenders Office
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
SUPREME COURT OF INDIANA
DAMON FORTE, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-0012-CR-784
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark F. Renner, Judge
Cause No. 49G04-9812-CF-91461
ON DIRECT APPEAL
December 11, 2001
Damon Forte was convicted of felony murder and sentenced to sixty years imprisonment.
In this direct appeal, Forte contends he was denied a fair trial
because (1) he was improperly restrained with leg shackles during the trial, and
(2) the trial court erred in denying one of Fortes tendered jury instructions.
We affirm the judgment of the trial court.
Factual and Procedural Background
In the wee hours of December 4, 1998, Damon Forte and his cousin,
Alfred Stewart, were shooting cans with Fortes .22 caliber rifle in an alley
behind the Bigfoot parking lot at 2901 East 38th Street in Indianapolis.
According to Forte, Johnnie Smith approached him and asked about the possibility of
buying some drugs. When Forte told Smith that he had no drugs
to sell, Smith allegedly pulled a wad of money out of his pocket
to show that he could afford the transaction. Forte again rejected the
proposal, and Smith began to walk away, but
returned after Stewart announced that
he had drugs to sell. At that point, Smith observed Fortes rifle
in Stewarts hands and tried to back away from the men. Stewart
attacked him and a struggle ensued. What happened next is not clear,
but eventually either Stewart or Forte fired the rifle several times at Smith.
Smith died from a gunshot wound to the chest.
Forte and Stewart collected Smiths money from the ground and ran from the
scene. Forte, now holding the rifle, threw it behind the garage of
his uncles house at 2949 East 38th Street. Forte then called his
girlfriend, Ashley Rice, who met Forte and Stewart down the street. Rice
testified that the two men looked shocked, and that Forte gave her $200
and told her I think we just killed somebody. Forensic tests confirmed
that the bullet recovered from Smiths body and a spent shell casing found
near his body were both fired from Fortes .22 caliber rifle. Forte
was charged with felony murder and Class A robbery. The jury convicted
him of both counts and the trial court sentenced him to sixty years
on the felony murder conviction.
Subsequent to his arrest, but prior to trial, Forte twice attempted to escape
from the Marion County jail. The second attempt culminated in a violent
attack on a correctional officer. As a result of these incidents, Forte
was charged with attempted escape, attempted murder, criminal confinement, conspiracy to escape, and
prisoner in possession of a dangerous device. These charges were pending at
the time of Fortes murder trial. Concerned that Forte might again attempt
to escape, the trial court ordered him to wear leg shackles during the
As a general rule, a criminal defendant has the right to appear before
the jury without bonds or shackles.
Bivins v. State, 642 N.E.2d 928,
936 (Ind. 1994). In its discretion, however, the trial court may order
a defendant to wear restraints when it is necessary to prevent the defendants
escape, to protect those present in the courtroom, and to maintain order during
the trial. Id. An order to restrain a defendant is reviewed
for an abuse of discretion. Id.
Forte argues that in determining whether to order restraints, the trial court may
consider only the in-court behavior of the defendant. Behavior that occurs outside
of the courtroom, Forte contends, is irrelevant. We do not agree.
Forte has cited no cases that support this position, and precedent is clearly
to the contrary. See, e.g., id. at 935-36 (upholding shackling decision based
on defendants attempts to escape from custody even though defendant had not attempted
to escape from court proceedings); Lucas v. State, 499 N.E.2d 1090, 1095 (Ind.
1986) (upholding shackling decision based on defendants two escape attempts during pre-trial incarceration,
even though defendant had not been formally charged with those crimes); Smith v.
State, 475 N.E.2d 27, 30 (Ind. 1985) (upholding shackling decision based on defendants
frequent outbursts of violence in jail, including holding his public defender hostage there).
Nor does Fortes contention seem sensible. The need for courtroom security
is to be evaluated on the basis of all relevant information, and we
see no reason to require the trial court to put on blinders as
to extra-courtroom activity.
In this case, the trial court considered Forte a genuine escape risk, based
on his two previous attempts. The court determined that leg shackles would
be the least intrusive and most effective escape deterrent, and took the affirmative
measure of placing white poster board in front of the defense table to
prevent the jury from seeing the shackles. Forte has not alleged that
any juror knew of the shackles or was otherwise prejudiced by their presence.
He has not shown an abuse of the trial courts discretion.
II. Jury Instructions
Forte next alleges that he was denied a fair trial because the court
failed to give one of his proposed jury instructions. The State tendered
and received an accomplice liability instruction which read as follows:
A person is responsible for the actions of another person, when, either before
or during the commission of a crime, he knowingly aids, induces, or causes
the other person to commit a crime. To aid is to knowingly
support, help, or assist in the commission of a crime.
Proof of the defendants failure to oppose the commission of a crime, companionship
with the person committing the offense, and conduct before and after the offense
may be considered in determining whether aiding may be inferred.
Forte tendered three accomplice liability instructions, one of which he subsequently withdrew.
Of the remaining two, the court issued the one that read, Mere presence
at the scene of the crime is insufficient to establish guilt. The
court rejected the final instruction, which read, The trier of fact must look
for affirmative conduct, either by act or word, from which to draw reasonable
inferences that the accused was part of a common plan to commit a
crime, because the court believed the substance of that instruction was covered by
the States accomplice liability instruction.
This Court reviews a trial courts refusal to give a tendered instruction for
an abuse of discretion. Cline v. State, 726 N.E.2d 1249, 1256 (Ind.
2000). We consider (1) whether the instruction correctly states the law; (2)
whether there is evidence in the record to support the giving of the
instruction; and (3) whether the substance of the tendered instruction is covered by
other instructions that are given. Chambers v. State, 734 N.E.2d 578, 580
(Ind. 2000), rehg denied. The trial court does not abuse its discretion
when it rejects an instruction that is already covered by others given at
trial. Warren v. State, 725 N.E.2d 828, 834 (Ind. 2000).
In this case, Forte does not contend the instructions were incorrect statements of
the law. Rather, he claims the omitted instruction was necessary for a
complete understanding of the law of accomplice liability. We do not agree.
The States jury instruction used active verbs such as aid, induce, support,
help, and assist to inform the jury that some affirmative conduct or action
on Fortes part was required. It also listed factors the jury could
use to infer participation, including the defendants conduct before and after the offense.
Finally, the instruction tendered by Forte informed the jury that mere presence
at the scene of the crime was not sufficient to establish guilt.
Accordingly, the jury was already informed that it must find some affirmative conduct,
either by act or word, from which to infer Fortes participation before it
could find him guilty under a theory of accomplice liability. A trial
court must exercise judgment in determining the length, detail, and complexity of jury
instructions. Chambers, 734 N.E.2d at 581. Here, the instructions given adequately
covered the requirements for accomplice liability. The trial court did not abuse
its discretion by refusing to give additional, repetitive instructions on the topic.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.