MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 16 2015, 8:54 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Paul J. Podlejski Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
De’Auntaye White, December 16, 2015
Appellant-Defendant, Court of Appeals Case No.
48A04-1501-CR-24
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Thomas Newman,
Appellee-Plaintiff Jr., Judge
Trial Court Cause No.
48C03-1312-MR-2377
Baker, Judge.
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[1] De’Auntaye White appeals his conviction of Murder,1 a felony. He argues that
the trial court issued misleading jury instructions and that his sentence is
inappropriate in light of the nature of the offense and his character. Finding
that the jury instructions were not erroneous and that his sentence is not
inappropriate, we affirm.
Facts
[2] On December 15, 2013, Terrence Cotton and Quayshawn Jordan were playing
video games at Cotton’s house in Anderson. They wanted to smoke marijuana
but did not have any. Cotton called White, who was eighteen years old at the
time, to obtain some marijuana, and told him that he wanted around seven
grams. When White asked Cotton who else was present, Cotton responded
that he “was with Bruh.” Tr. 476. White agreed to supply the weed.
[3] White, however, did not have seven grams, and so he called his friend, Steve
Smith. Smith had the seven grams but did not have a car, so White called
Ronnie Frye to ask for a ride. Frye had his Green Blazer. Frye picked up
White and Smith, and the trio headed over to the Greater Community Center
to complete the transaction. Smith would later testify that he asked White who
they were selling to and White responded: “T.C. and that was it.” Tr. 877.
Then Smith asked who was with Cotton and White responded: Jordan.
1
Ind. Code § 35-42-1-1.
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[4] White and Jordan had a strained relationship. Although they were cousins and
interacted civilly—White once bailed Jordan out of jail—they had had a falling
out roughly a week before the December 15 incident. Although the details are
murky, White would later testify that Jordan gave him a gun to hide but then
became angry when White did not give it back. According to White, in the
days leading up to December 15, Jordan phoned him: “[Jordan] told me he was
going to shoot me because of the situation that we were arguing over . . . .” Tr.
1087. The night before the incident, White texted Jordan an expletive-laced
message, saying “stop talkin bout me,” “im a hitter,” “u on[?],” and “letS get it
poppin.” State’s Ex. 81. At trial, White maintained that he had no idea that
Jordan would be at the transaction.
[5] Cotton and Jordan arrived at the Community Center first. As they waited in
the car, Jordan was on the passenger side with the seat reclined all the way
back. Neither Cotton nor Jordan had a gun.
[6] The trio of Frye, White, and Smith arrived shortly after. They remained in
their car for a few minutes while Smith prepared a baggie of marijuana. White
exited the Blazer with the baggie in one hand and a handgun in his hoodie
pocket.
[7] Jordan exited his car at roughly the same time, and the two began approaching
each other. White would later testify that when he saw who it was, he felt
afraid—he thought he observed a gun. Cotton saw White pull out his gun.
Jordan put his hands up and took a step backward, but White fired. Those at
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the scene—Cotton, Smith, and Frye—reported hearing between three and four
shots; two shots hit Jordan, including one in the abdomen. Jordan did not die
immediately: he lingered in pain, and Cotton found him on the ground telling
himself, “Don’t die.” Tr. 495. Cotton rushed him to the hospital, but Jordan
did not survive his injuries.
[8] On December 17, 2013, the State charged White with murder. After a jury trial
held from November 18, 2014, through November 25, 2014, the jury found
White guilty as charged.
[9] The trial court held a sentencing hearing on December 15, 2014. In asking for
the maximum sixty-five years, the State presented White’s juvenile record. In
2006, an allegation of battery led to an informal adjustment and probation. In
2008, he was alleged to have committed what would be intimidation if
committed by an adult. In that same year, he was placed on probation for what
would have been conversion if committed by an adult. In 2009, he was alleged
in January to have committed what would be receiving stolen property; in
March to have committed false information and criminal mischief; and in
September to have committed disorderly conduct and to have possessed
marijuana. In 2010, he was alleged to have possessed a firearm, but the
allegation was dismissed.
[10] Between 2010 and 2013, White was involved in six more juvenile causes,
including criminal recklessness, pointing a firearm, carrying a handgun without
a license, battery resulting in bodily injury, intimidation, theft (twice), and
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possession of marijuana. Although the instant case is his first adult conviction,
White has been arrested fourteen times.
[11] The State stressed two incidents in particular. In the first, White was alleged to
have had a gun and was found with bullets in his pockets. The second occurred
a few months later, when White was alleged to have shot a gun at his brother.
Tr. 1326.
[12] The trial court found White’s age to be a slight mitigator because of this prior
juvenile history. “Aggravating circumstances are that the defendant’s prior
criminal history and the fact that this incident was a drug related incident and []
also the victim in this case was a family member which doesn’t seem to bother
the defendant. . . .” Tr. 1333. The trial court sentenced White to sixty-five
years. White now appeals.
Discussion and Decision
[13] White raises two arguments on appeal: (1) that the trial court’s instructions
regarding White’s claim of self-defense were misleading; and (2) that the length
of White’s sentence is inappropriate. We will address each in turn.
I. The Jury Instructions
[14] Jury instruction is a matter within the trial court’s sound discretion, and we
review such decisions for an abuse of that discretion, granting “great deference”
to the trial court. Cline v. State, 726 N.E.2d 1249, 1256 (Ind. 2000). In
reviewing a trial court’s decision to give or refuse tendered instructions, we
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consider: (1) whether the instruction correctly states the law; (2) whether there
was 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).
Jury instructions are not to be considered in isolation, but as a whole, and with
reference to each other. Maslin v. State, 718 N.E.2d 1230, 1233 (Ind. Ct. App.
1999). Therefore, the trial court’s ruling will not be reversed unless the
instructional error is such that the charge to the jury misstates the law or
otherwise misleads the jury. Lewis v. State, 759 N.E.2d 1077, 1080 (Ind. Ct.
App. 2001).
[15] Among the instructions the trial court provided for self-defense is the following
language: “Notwithstanding [a person’s right to self-defense], a person is not
justified in using force if [] he is committing, or is escaping after the commission
of a crime.” Tr. 1268. The section ends: “There must be an immediate causal
connection between the crime and the confrontation.” Id. at 1269.
[16] White argues that this instruction is incomplete according to our decision in
Smith v. State, 777 N.E.2d 32 (Ind. Ct. App. 2002). There, a divided panel held
that “a defendant who is committing a crime at the time may not be precluded
from asserting the defense of self-defense if there is no immediate causal
connection between his or her crime and the confrontation which occasioned
the use of force.” Id. at 36. The court found reversible error where the jury
instructions failed to explain this nuance. Id. at 37. White claims the trial
court’s instructions in his case were misleading because, while the instructions
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do instruct the jury regarding the causal connection, it is only “one sentence
that immediately follows a very lengthy instruction on self-defense. . . .”
Appellant’s Br. 10.
[17] White’s argument fails. The Smith court specifically limited its decision to the
situation where the defendant “tendered such an instruction,” and excluded the
situations in which “there is no indication that the defendant tendered an
instruction explaining this point of law.” Smith, 777 N.E.2d at 36. Although
the record contains a suggestion that White tendered different instructions to
the trial court, tr. 1188-94, he admits, “Both the State’s and Defense’s Proposed
Final Instructions that were tendered to the trial court are not contained
anywhere in the record provided to appellate counsel.” Appellant’s Br. 10, n. 8.
[18] Even if we were to assume that a single sentence is insufficient to explain the
causal connection requirement, since we do not have White’s proposed final
instructions, we cannot know whether his proposed instructions better
explained this point of law than the trial court’s instructions. Therefore, we
cannot say the trial court abused its discretion to instruct the jury as it did.
II. Appropriate Sentence
[19] Indiana Appellate Rule 7(B) provides the following: “The Court may revise a
sentence authorized by statute if, after due consideration of the trial court’s
decision, the Court finds that the sentence is inappropriate in light of the nature
of the offense and the character of the offender.” The principal role of such
review is to attempt to leaven the outliers, but not to achieve a perceived
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“correct” sentence. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).
Sentencing is principally a discretionary function in which the trial court’s
judgment should receive considerable deference. Id. at 1222. “Such deference
should prevail unless overcome by compelling evidence portraying in a positive
light the nature of the offense (such as accompanied by restraint, regard, and
lack of brutality) and the defendant’s character (such as substantial virtuous
traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d
111, 122 (Ind. 2015).
[20] Turning to the instant case, we find no such compelling evidence. As for the
nature of White’s crime, it was a relatively cold-blooded murder. Witness
accounts suggest that Jordan took a step back and had his hands raised when
White fired multiple gun shots. Jordan did not have a gun. His death was not
instantaneous; he was conscious after the shooting and died at the hospital.
The jury accepted the State’s theory of the case, that this was not a family
quarrel but rather a brutal murder over “drugs and money.” Tr. 1213. The
texts sent by White the night before the murder—“im a hitter,” “u on[?],” and
“letS get it poppin,” State’s Ex. 81—hardly display restraint or regard for his
victim. His lack of regard for the victim before the crime parallels his lack of
regard for the victim after the crime; when interviewed for the preparation of
the pre-sentencing investigation report, White said, of the man he had
murdered, “I regret falling prey to him.” App. 53. We find no compelling
evidence portraying White’s crime in a positive light.
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[21] Turning to White’s character, we find a troubled young man with a lengthy
juvenile history. He has been arrested fourteen times and adjudged delinquent
on multiple occasions. His history is certainly made worse by his previous
involvement with drugs and guns, both of which played a role in this crime. In
spite of these repeated encounters with the law, White continued to sell drugs
and carry a gun. We cannot characterize this history as consisting of persistent
examples of good character.
[22] We remain mindful that, as our Supreme Court has explained, “[s]entencing
considerations for youthful offenders—particularly for juveniles—are not
coextensive with those for adults.” Brown v. State, 10 N.E.3d 1, 6 (Ind. 2014).
In the context of that case, the Court found an aggregate sentence of 150 years
for a sixteen-year-old to be a “denial of hope; it means that good behavior and
character improvement are immaterial; it means that whatever the future might
hold in store for the mind and spirit of the [juvenile] convict, he will remain in
prison for the rest of his days.” Id. at 8 (citing Graham v. Florida, 560 U.S. 48,
70 (2010)).
[23] A sixty-five-year sentence does not mean such a denial of hope—White will, in
all likelihood, outlive his sentence, meaning any self-improvement he
accomplishes in prison will not be immaterial. Indeed, in Brown itself, our
Supreme Court preserved hope for that defendant by reducing his sentence only
to eighty years. Id.
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[24] In sum, neither the nature of White’s offense nor his character provide a
compelling reason to deem his sentence inappropriate.
[25] The judgment of the trial court is affirmed.
Bailey, J., and Mathias, J., concur.
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