MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 29 2018, 9:29 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Vincent M. Campiti Curtis T. Hill, Jr.
Nemeth Feeney Masters & Campiti, Attorney General of Indiana
P.C.
South Bend, Indiana Angela N. Sanchez
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Young, May 29, 2018
Appellant-Defendant, Court of Appeals Case No.
71A04-1708-CR-1867
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Elizabeth C.
Appellee-Plaintiff. Hurley, Judge
Trial Court Cause No.
71D08-1606-MR-5
Barnes, Judge.
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Case Summary
[1] Michael Young appeals his conviction for murder. We affirm.
Issues
[2] The issues before us are:
I. whether the trial court properly admitted evidence that the
victim had Bibles in his possession and citations to Bible
verses on his shoes when he was killed; and
II. whether the prosecutor committed misconduct during
opening and closing argument.
Facts
[3] On May 31, 2016, Young and Karla Beachy-Wedge were together at a bar in
South Bend. At one point, Beachy-Wedge went outside alone to smoke a
cigarette in her car. As she was getting ready to exit her car, a black man
wearing a red shirt or sweater forced her door open and demanded money.
Although Beachy-Wedge initially told the man she had no money, there was a
$50 bill in her car that he saw and that she gave to him. The man then walked
away, and Beachy-Wedge stayed in her car and smoked another cigarette to
calm down.
[4] After the incident, Beachy-Wedge exchanged texts with Young, who then came
out to her car. Beachy-Wedge told Young what had happened, and Young
became upset. Beachy-Wedge told Young that they should call the police, but
Young instead elected to look for the robber himself. Beachy-Wedge described
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the robber as a black man wearing a red shirt of some kind and with a
backpack, but she did not get a good look at his face. Although Young, who is
white, already had a firearm on him, he went to his vehicle to retrieve a 9mm
Glock that he was more comfortable with and then went looking for the robber.
[5] After walking down several streets and alleys and not seeing anyone matching
Beachy-Wedge’s description of the robber, Young saw a black man in a red t-
shirt with a backpack walking towards him. This man was Markest Flowers.
Young confronted Flowers and asked him if he was involved in a robbery that
just happened. According to Young, Flowers did not say yes or no to Young’s
question but instead threatened to “f*** me up.” Tr. Vol. III p. 109. Flowers
attempted to walk away from Young, but Young followed him and kept
questioning him; Flowers kept refusing to respond and instead threatened to
hurt Young if Young did not leave him alone.
[6] Several witnesses saw Young following Flowers while crossing a street, and it
appeared to them that Young was talking and Flowers was silent. Beachy-
Wedge also briefly saw Flowers appearing to jog backwards away from Young
and making hand gestures. Upon reaching the curb, witnesses saw Young
appear to grab Flowers’s backpack, causing Flowers to turn around, at which
point Young shot Flowers in the face. One witness overheard Young say,
“you’re not going anywhere” before shooting Flowers. Tr. Vol. II p. 130.
Young’s version of events was that he stumbled on the curb and merely touched
Flowers’s backpack, at which point Flowers turned and came toward Young,
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frightening Young and causing him to shoot for fear of his safety. Flowers died
from the gunshot.
[7] When searching Flowers’s backpack and clothing thereafter, police did not find
a $50 bill. They did find, among other items, several Bibles. During Young’s
interview with police, there was a reference to Flowers being a “thug,” though
an officer prompted that reference. Ex. 37. Young also discussed his service in
Vietnam and said, “I learned to shoot those mother***ers that didn’t look like
me.” Id.
[8] The State charged Young with murder. Prior to trial, Young filed a motion in
limine to prohibit the State from introducing evidence that when he was killed,
Flowers had Bibles in his possession and introducing pictures of his shoes,
which had citations to Bible verses written on them. The trial court denied the
motion and allowed the State to introduce this evidence at trial over objection.
[9] During opening argument, the prosecutor stated in part:
Karla told him that it had been a black man, a black man wearing
a red shirt, very few details. She said if you’re so fired up about
this, let’s call the police. The defendant said, no, let me find him
first. So then he began the hunt. . . . Markest Flowers just
happened to be the first black man he saw that day and so he
approached him.
Tr. Vol. II p. 18.
[10] During closing argument, while a picture of Flowers was projected, the
prosecutor stated:
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Ladies and gentleman, that is Markest Flowers. That’s where he
stood. Murder. In the State of Indiana you cannot knowingly
kill someone. It’s against the law. It’s called murder. And it’s a
crime. This is what it looks like in real life. It’s hard to watch,
hard to see. That’s the thug right there. That is the thug that was
gunned down by this man in cold blood. This is what it sounds
like. This is what it looks like.
Tr. Vol. III p. 161.
[11] On rebuttal argument, the prosecutor stated:
What does he tell Mr. Young (sic) when he was in the service
that [defense counsel] made such a big deal about. He said I
learned to shoot those mother f***ers that didn’t look like me.
Gosh, I hate these new rules of engagement where you have to
see the weapon. That’s what he said. He thinks this is the old
west where you can just shoot anyone just based on if you think
they are dirty. That’s what he said Markest was or not. You can
determine if they look thuggish or not. That’s not how self-
defense works.
Id. at 205.
[12] The jury rejected Young’s claim of self-defense and found him guilty as
charged. The trial court entered judgment of conviction and sentenced him
accordingly. Young now appeals.
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Analysis
I. Introduction of Evidence
[13] Young first challenges the trial court’s admission of evidence that Flowers had
several Bibles in his possession and citations to Bible verses written on his shoes
when he was killed. We will reverse a conviction based on an evidentiary
ruling only if the ruling was an abuse of discretion and the resulting error was
prejudicial to the defendant. Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015).
“A trial court abuses its discretion when its ruling is either clearly against the
logic and effect of the facts and circumstances before the court, or when the
court misinterprets the law.” Id. In determining the prejudicial effect of an
alleged evidentiary ruling, “‘we assess the probable impact the evidence had
upon the jury in light of all of the other evidence that was properly presented.’”
Id. (quoting Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014)). “If the conviction
is properly supported by other independent evidence of guilt, the error is
harmless.” Id.
[14] Young does not cite which evidentiary rule the introduction of this evidence
supposedly violated. He refers to Indiana Evidence Rule 402(a)(2)(B), which
provides: “subject to the limitations in Rule 412, a defendant may offer
evidence of an alleged victim’s pertinent trait, and if the evidence is admitted,
the prosecutor may offer evidence to rebut it . . . .” However, introduction into
evidence of a victim’s reputation for violence and prior violent acts and threats,
in relation to a self-defense claim, requires some proof that the defendant knew
of that reputation. Brand v. State, 766 N.E.2d 772, 780 (Ind. Ct. App. 2002),
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trans. denied. There is no evidence Young knew Flowers at all prior to the fatal
confrontation. Regardless, Young claims Flowers had a criminal history that
he was not allowed to refer to during trial but that the State was able to suggest
Flowers was a peaceable person because he was religious.
[15] The pertinent evidence rule here appears to be Rule 403, which provides: “The
court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence.” “Evidence is relevant if: (a) it has any tendency to make
a fact more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” Ind. Evidence Rule 401.
Because all relevant evidence is necessarily prejudicial in a criminal
prosecution, “unfair” prejudice refers to the potential for a jury to substantially
overestimate the value of the evidence, or its potential to arouse or inflame the
passions or sympathies of the jury. Bowman v. State, 73 N.E.3d 731, 734-35
(Ind. Ct. App. 2017), trans. denied. “Evaluation of whether the probative value
of an evidentiary matter is substantially outweighed by the danger of unfair
prejudice is a discretionary task best performed by the trial court.” Bryant v.
State, 984 N.E.2d 240, 249 (Ind. Ct. App. 2013), trans. denied.
[16] The State posited that the Bibles had relevance because they were part of what
was recovered from Flowers’s clothing and backpack after the shooting, and
which did not include the $50 bill stolen from Beachy-Wedge. Indeed, the State
displayed all the items recovered from Flowers, not just the Bibles. The shoes
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themselves also were claimed to be relevant because they could have been
another location where a $50 bill could have been hidden, but it was not found
in them. The State also wanted to introduce the shoes as evidence of Flowers’s
appearance when he was shot; it also introduced his pants into evidence for that
reason.
[17] Thus, the Bibles and shoes had some relevance to the question of whether
Flowers’s actually had stolen $50 from Beachy-Wedge and was indeed the
robber Young had been searching for. The shoes might have had some
additional relevance, although marginal in our view, regarding Flowers’s
appearance—i.e., did he match Beachy-Wedge’s description of the robber and
did he appear threatening to Young or would he so appear to a reasonable
person?
[18] As for any unfair prejudice associated with the Bibles and shoes, the State did
not make any attempt to argue to the jury that they indicated good or peaceable
character on Flowers’s part. Instead, the State in its arguments focused on the
multiple eyewitness accounts of the shooting and how they were inconsistent
with the requirements of a self-defense claim, and noted that Young’s own
testimony that he was fearful when he shot Flowers did not mean that a
reasonable person would have felt so and that his use of force was not
proportionate to the situation. In sum, we conclude the trial court was well
within its discretion in balancing the probative value and potential for unfair
prejudice of this evidence and concluding that it was admissible.
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[19] In any event, it appears to us that even if erroneously admitted, this evidence
was harmless. “A claim of self-defense requires a defendant to have acted
without fault, been in a place where he or she had a right to be, and been in
reasonable fear or apprehension of bodily harm.” Weedman v. State, 21 N.E.3d
873, 891-92 (Ind. Ct. App. 2014), trans. denied. However, when a party uses
deadly force, he or she must reasonably believe such force was necessary to
prevent the infliction of serious bodily injury. Ind. Code § 35-41-3-2(c). “[T]he
Indiana self-defense statute requires both a subjective belief that force was
necessary to prevent serious bodily injury and that a reasonable person under
the circumstances would have such an actual belief.” Washington v. State, 997
N.E.2d 342, 349 (Ind. 2013). Even if the use of force is justified, it must be
proportionate to the situation and cannot be more than is reasonably necessary
under the circumstances. Weedman, 21 N.E.3d at 892.
[20] By Young’s own account, he approached Flowers and accused him of
committing a crime, then continued following Flowers and questioning him
when Flowers did not admit to the robbery and attempted to walk away from
the situation. Although Young claimed Flowers was threatening him, Flowers
never displayed a weapon of any kind, and none was found on him. Young
then shot Flowers at close range in the face when Flowers turned to Young and
allegedly began to approach him. Several eyewitnesses—who did not know of
Flowers’s possession of Bibles or Bible verses on his shoes—testified that Young
clearly was the aggressor in the situation and that Flowers only turned to face
Young after Young pulled on Flowers’s backpack. One of the witnesses heard
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Young say, “you’re not going anywhere” before shooting Flowers. Tr. Vol. II
p. 130. Even ignoring the witnesses’ testimony, however, there is substantial
evidence that Young used force that was grossly disproportionate to the
situation and objectively unreasonable and that Young was the instigator of the
incident and continued it after Flowers attempted to disengage from it. In light
of all the evidence in this case, the introduction of the Bibles and Flowers’s
shoes with Bible verses on them likely had very little impact on the jury and was
at most harmless error, if error at all.
II. Prosecutorial Misconduct
[21] Next, Young claims the prosecutor committed misconduct when he repeatedly
referred to Flowers as a black man and when he said Young intended to “hunt”
for a black man, implied that Young thought Flowers was a “thug,” and
suggested that Young was inclined to shoot Flowers because Flowers did not
look like him. In reviewing a claim of prosecutorial misconduct that has been
properly preserved, we determine (1) whether misconduct occurred, and if so,
(2) “‘whether the misconduct, under all of the circumstances, placed the
defendant in a position of grave peril to which he or she would not have been
subjected’” otherwise. Castillo v. State, 974 N.E.2d 458, 468 (Ind. 2012)
(quoting Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)). A prosecutor has the
duty to present persuasive argument to the jury and thus placing a defendant in
grave peril, by itself, is not misconduct. Ryan v. State, 9 N.E.3d 663, 667 (Ind.
2014). “‘Whether a prosecutor’s argument constitutes misconduct is measured
by reference to case law and the Rules of Professional Conduct. The gravity of
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peril is measured by the probable persuasive effect of the misconduct on the
jury’s decision rather than the degree of impropriety of the conduct.’” Id.
(quoting Cooper, 854 N.E.2d at 835). To preserve a prosecutorial misconduct
claim, the defendant must—at the time the alleged misconduct occurs—request
an admonishment to the jury, and if further relief is desired, move for a mistrial.
Id.
[22] Here, Young did not object to any part of the prosecutor’s opening or closing
arguments. His claim of prosecutorial misconduct is waived. See id. As such,
Young must establish the existence of not only the elements of prosecutorial
misconduct but also that such misconduct constituted fundamental error. See
id. at 668. To establish fundamental error, a defendant must show that the trial
court erred in not sua sponte raising the issue because the alleged error or errors
“‘constitute clearly blatant violations of basic and elementary principles of due
process’” and “‘present an undeniable and substantial potential for harm.’” Id.
(quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)). In evaluating
whether fundamental error occurred, we must consider the alleged misconduct
in the context of all that happened and all relevant information given to the
jury—including evidence admitted at trial, closing argument, and jury
instructions—to determine whether the misconduct had such an undeniable and
substantial effect on the jury’s decision that a fair trial was impossible. Id.
“Fundamental error is meant to permit appellate courts a means to correct the
most egregious and blatant trial errors that otherwise would have been
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procedurally barred, not to provide a second bite at the apple for defense
counsel who ignorantly, carelessly, or strategically fail to preserve an error.” Id.
[23] Young contends the prosecutor improperly interjected the issue of race into the
trial by referring to Young—a white man—“hunting” a black man whom he
considered a “thug” and different from him. We see nothing in the prosecutor’s
opening and closing arguments that approaches the level of fundamental error.
The prosecutor was correctly summarizing and describing the evidence to the
jury—the fact that Young took it upon himself to act as a vigilante and seek his
friend’s robber based on her vague description of a black man in a red shirt, and
Young’s confrontation with the first black man he saw who met that
description. The prosecutor may have taken some slight liberties with respect to
implying that Young thought Flowers looked like a “thug” and that he shot
Flowers because Flowers looked different from him. However, the prosecutor
was extrapolating from what Young discussed with police officers during his
interview, which had been introduced into evidence. All in all, it appears the
prosecutor’s challenged statements were merely permissible comments upon the
evidence. See Ramsey v. State, 853 N.E.2d 491, 501 (Ind. Ct. App. 2006), trans.
denied. Certainly, we see nothing so egregious in these comments that would
have fundamentally and negatively impacted Young’s right to a fair trial.
Conclusion
[24] The trial court did not abuse its discretion in allowing the State to present
evidence that Flowers had Bibles in his possession and citations to Bible verses
written on his shoes when he was killed; even if it did err, any such error would
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have been harmless. Also, the prosecutor did not commit fundamentally
erroneous misconduct in his arguments to the jury. We affirm Young’s
conviction.
[25] Affirmed.
Vaidik, C.J., and Pyle, J. concur.
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