MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 12 2019, 9:21 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ernest P. Galos Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Ellen H. Meilaender
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Antoine A. Jefferson, March 12, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1836
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Elizabeth C.
Appellee-Plaintiff. Hurley, Judge
Trial Court Cause No.
71D08-1710-MR-14
Barteau, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1836 | March 12, 2019 Page 1 of 12
Statement of the Case
1
[1] Antoine Jefferson appeals his conviction of murder, a felony. We affirm.
Issue
[2] Jefferson raises one issue, which we restate as: whether the trial court abused
its discretion in rejecting Jefferson’s proposed jury instructions regarding alleged
lesser included offenses.
Facts and Procedural History
[3] On October 21, 2017, Everett Harper, age sixty-five, was visiting his daughter,
Shakisha Martin, at the motel room she shared with her then-boyfriend in
South Bend, Indiana. All three drank alcohol. Harper drank too much and
was talking loudly. Martin’s boyfriend asked Harper to leave, but he refused.
[4] Martin’s cousins, Adrian Evans and thirty-year-old Antoine Jefferson, arrived
at the motel room in the late morning or early afternoon. Evans wanted to talk
with Martin’s boyfriend about fixing one of Evans’ vehicles. Martin gave
Jefferson some beer and a cup of liquor.
[5] Harper continued to drink alcohol and talk loudly as he sat on the air
conditioning unit. He talked about “nonsense,” such as things that occurred
when he lived in Detroit and when Martin was younger. Tr. Vol. 2, p. 58.
1
Ind. Code 35-42-1-1 (2017).
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Jefferson, Martin, and Martin’s boyfriend wanted Harper to leave the motel
room, but he refused, claiming he had helped to pay for the alcohol and wanted
to keep drinking. Harper also argued with Jefferson as Jefferson tried to listen
to a song. However, Harper did not threaten Jefferson. In addition, Martin,
Evans, and Martin’s boyfriend were not scared of Harper. He did not have a
handgun.
[6] At one point, Jefferson asked Martin to accompany him to the parking lot.
Jefferson retrieved a handgun from Evans’ vehicle and showed it to Martin.
When they returned to the motel room, Jefferson brought the handgun with
him and laid it on the bed. Martin was scared because she thought “something
[was] going to happen.” Id. at 29.
[7] Ten minutes later, as Harper kept talking, Jefferson brandished the handgun
and told him, “don’t say one more thing to me.” Id. Harper kept talking.
Jefferson shot Harper multiple times and fled from the room with Evans.
Harper fell off the air conditioner and slumped over into a corner of the room.
Evans and Jefferson left the motel in Evans’ vehicle while Martin called 911.
[8] At around 2:40 p.m., Corporal Ronald Glon of the South Bend Police
Department overheard a radio report of a shooting at a motel near his location.
He drove to the motel, where he was directed to Martin’s room. Corporal Glon
found Harper slumped over in the corner of the room. He also saw spent shell
casings on the floor. Corporal Glon checked Harper for a pulse and did not
find one. Medics entered the room and determined Harper was dead.
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[9] An autopsy later revealed that Jefferson had shot Harper at least six times.
Harper had sustained a total of eight gunshot wounds, meaning that at least one
of the bullets had exited and then reentered his body in a different location.
One of the bullets had pierced Harper’s heart, which resulted in “[i]mmediate
incapacitation and death.” Tr. Vol. 3, p. 27. A toxicology screen showed that
Harper’s blood alcohol content was three times the legal limit, at 0.264 percent.
[10] Meanwhile, Evans dropped Jefferson off at a friend’s house. Jefferson asked his
friend to give him a ride to another person’s house. Jefferson left a bundled-up
white t-shirt in the friend’s vehicle. After the friend dropped off Jefferson and
ran some additional errands, he looked in the t-shirt and found a handgun and
some ammunition. He put the shirt and the handgun in a dresser in his home.
Later that night, the police came to the friend’s home, and he showed them the
handgun. Subsequent ballistics testing of the handgun and the shell casings that
were found in the motel room revealed that the handgun had fired the rounds
that killed Harper. In addition, testing of the white t-shirt revealed the presence
of DNA that matched Jefferson’s DNA profile.
[11] Jefferson’s friend had taken him to the home of Jefferson’s girlfriend. When
Jefferson woke her up, he was carrying a hoodie but was not wearing a shirt.
Jefferson told his girlfriend that he had shot someone and thought that he killed
the person. She became upset and drove him to his cousin’s house. After she
returned home, she discovered that Jefferson had left a bag at her home. She
threw the bag into a dumpster. Later, the police came to her house, and she
showed them the dumpster, from which they retrieved the bag. The bag
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contained Jefferson’s sneakers, the box for the handgun, and an ammunition
clip for the handgun, among other items. Subsequent testing revealed
Jefferson’s palm print was on the ammunition clip.
[12] Later on the day of the shooting, Jefferson and his cousin called Jefferson’s
father, Anthony Evans. Jefferson told Evans that he had shot Harper because
there was an argument, and Jefferson “got irritated” because Harper “wouldn’t
stop talking.” Id. at 74. Jefferson further said that Harper “was talking s**t and
wouldn’t shut up,” even after Jefferson showed his handgun to Harper. Id. at
76. Jefferson surrendered to the police the next day.
[13] On October 23, 2017, the State charged Jefferson with murder. The State
subsequently filed a firearm sentencing enhancement. The murder charge was
tried to a jury. During a jury instructions conference, Jefferson tendered
instructions on voluntary manslaughter and reckless homicide as lesser included
offenses of murder. The trial court rejected those proposed instructions. The
jury determined Jefferson was guilty of murder. Next, Jefferson waived his
right to a jury trial on the firearm sentencing enhancement. The court
determined the elements of the enhancement were proved beyond a reasonable
doubt. The court imposed a sentence, and this appeal followed.
Discussion and Decision
[14] Jefferson argues the trial court erred in rejecting his proposed jury instructions
two, three and six on voluntary manslaughter and reckless homicide as lesser
included offenses of murder. The Indiana Supreme Court has set forth a three-
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part test for determining when a trial court should instruct the jury on a lesser
included offense:
Part one requires the trial court to determine whether the lesser
offense is ‘inherently’ included in the offense charged by
comparing the statute defining the crime charged with the statute
defining the alleged lesser included offense. If necessary, part
two of the Wright [v. State, 658 N.E.2d 563 (Ind. 1995)] test
alternatively requires the trial court to determine whether the
lesser offense is ‘factually’ included in the offense charged by
comparing the charging instrument with the statute defining the
alleged lesser included offense.
Finally, if the court concludes that the lesser offense is either
inherently or factually included in the offense charged, then part
three requires the court to determine whether a serious
evidentiary dispute exists as to which offense was committed by
the defendant, given all the evidence presented by both parties. If
a serious evidentiary dispute does exist, it is reversible error not
to give the instruction on the inherently or factually included
lesser offense.
Evans v. State, 727 N.E.2d 1072, 1080-81 (Ind. 2000) (quotations and citations
omitted).
[15] The State does not dispute Jefferson’s assertion that the offenses of voluntary
manslaughter and reckless homicide are inherently or factually included in the
offense of murder. The State instead argues there is no serious evidentiary
dispute as to whether Jefferson committed murder.
[16] The trial court rejected Jefferson’s proposed instructions based on the evidence
presented, concluding the circumstances of Harper’s shooting did not support
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instructions for either voluntary manslaughter or reckless homicide. Tr. Vol. 3,
pp. 187-38. “[I]n deference to the trial court’s proximity to the evidence, we
review a decision whether to instruct the jury on lesser included offenses for an
abuse of discretion if the court makes a finding as to the existence or lack of a
‘serious evidentiary dispute.’” Erlewein v. State, 775 N.E.2d 712, 714 (Ind. Ct.
App. 2002) (quoting McEwen v. State, 695 N.E.2d 79, 84 (Ind. 1998)), trans.
denied. An abuse of discretion occurs if a trial court’s decision is clearly against
the logic and effect of the facts and circumstances before the court. Johnson v.
State, 959 N.E.2d 334, 340 (Ind. Ct. App. 2011), trans. denied.
I. Voluntary Manslaughter
[17] Voluntary manslaughter is a lesser included offense of murder, differing only in
the presence of sudden heat, which is “a mitigating factor.” Watts v. State, 885
N.E.2d 1228, 1231 (Ind. 2008). Sudden heat is characterized as anger, rage,
resentment, or terror sufficient to obscure the reason of an ordinary person,
preventing deliberation and premeditation, excluding malice, and rendering a
person incapable of cool reflection. Dearman v. State, 743 N.E.2d 757, 760 (Ind.
2001). The crime of voluntary manslaughter thus “involves an ‘impetus to kill’
which arises ‘suddenly.’” Suprenant v. State, 925 N.E.2d 1280, 1283 (Ind. Ct.
App. 2010) (quoting Stevens v. State, 691 N.E.2d 412, 427 (Ind. 1997)), trans.
denied.
[18] It is well established that insulting or taunting words alone are not sufficient
provocation to reduce murder to manslaughter. Jackson v. State, 709 N.E.2d
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326, 329 (Ind. 1999). In addition, evidence of mere anger does not support a
jury instruction on voluntary manslaughter. Champlain v. State, 681 N.E.2d
696, 702 (Ind. 1997). It is reversible error to give an instruction on voluntary
manslaughter in the absence of evidence of a serious evidentiary dispute on
sudden heat. Watts, 885 N.E.2d at 1232.
[19] In the Watts case, Watts and two companions were approached by the victim,
Atkins, who argued with them and appeared to be trying to provoke them.
Atkins also quarreled with another nearby person. Watts shot Atkins in the
back as Atkins walked away. The trial court instructed the jury on voluntary
manslaughter over Watts’ objection, and the jury convicted him of that offense.
On appeal, the Indiana Supreme Court reversed, determining there was “no
possible evidence” of sudden heat. Id. at 1233. The Court deemed Atkins’
insults and taunts to be insufficiently provocative.
[20] In Jefferson’s case, there is no dispute that Harper was drunk, loud, and
argumentative. He refused numerous requests by Jefferson and others to leave
the motel room or to be quiet. Harper also argued with Jefferson when
Jefferson attempted to listen to a song. Even so, the record fails to show that
Harper threatened anyone or attempted to provoke a physical altercation. As
was the case in Watts, Harper’s insults and argumentative statements were not
sufficient provocation to establish evidence of sudden heat.
[21] Further, the record reflects that Jefferson acted rationally instead of under the
influence of sudden heat, and his impetus to kill did not arise suddenly. After
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Harper continued to talk loudly and argumentatively despite Jefferson’s and
others’ repeated requests to leave or be quiet, Jefferson brought the handgun
into the motel room and placed it on the bed ten minutes before the shooting.
Jefferson later told his father that Harper had “irritated” him by continuing to
talk, even after Jefferson displayed the handgun. Tr. Vol. 3, p. 74. After the
shooting, Jefferson took steps to hide the murder weapon, the ammunition, and
the clothes he had been wearing. See Suprenant, 925 N.E.2d at 1284 (no error in
refusing to instruct jury on voluntary manslaughter; Suprenant and victim had
argued for hours prior to fatal stabbing, indicating absence of a “sudden”
impetus to kill).
[22] Jefferson cites Brantley v. State, 91 N.E.3d 566 (Ind. 2018), cert. denied, 2019 WL
113423 (2019), in support of his claim, but that case is distinguishable for two
reasons. First, the Brantley case presented “the unusual and rare circumstance
where a defendant is charged with voluntary manslaughter without also being
charged with murder.” Id. at 568. As a result, the question of instructing the
jury on a lesser included offense was not at issue. Second, the Indiana Supreme
Court determined there was sufficient, “although scant,” evidence of sudden
heat in Brantley’s case because he lived in a house where domestic violence was
common and the victim angrily arose from his chair with a shiny object in his
hand, possibly a knife, just before Brantley shot him. Id. at 572. By contrast, in
Jefferson’s case there is no evidence that Harper threatened anyone with
violence at any time in the motel room, and he made no moves, violent or
otherwise, prior to Jefferson shooting him. The trial court did not abuse its
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discretion by refusing to give Jefferson’s proposed jury instructions on voluntary
manslaughter.
II. Reckless Homicide
[23] When the State seeks to prove the crime of murder, it must demonstrate beyond
a reasonable doubt that a defendant “knowingly or intentionally” killed another
human being. Ind. Code § 35-42-1-1. By contrast, the crime of reckless
homicide is defined as “recklessly” killing another human being. Ind. Code §
35-42-1-5 (2014). As a result, the only distinguishing characteristic between
murder and reckless homicide is the level of mental culpability required for each
offense. Evans, 727 N.E.2d at 1082.
[24] “A person engages in conduct ‘knowingly’ if, when he engages in the conduct,
he is aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b).
(1977). On the other hand, a “person engages in conduct ‘recklessly’ if he
engages in the conduct in plain, conscious, and unjustifiable disregard of harm
that might result and the disregard involves a substantial deviation from
acceptable standards of conduct.” Ind. Code § 35-41-2-2(c).
[25] In this case, Jefferson shot Harper six times as Harper sat on an air conditioner.
Shooting a victim multiple times is evidence of an awareness of a high
probability that the victim will be killed. See Johnson v. State, 986 N.E.2d 852,
856 (Ind. Ct. App. 2013) (no evidentiary dispute to support reckless homicide
instruction as lesser included offense of murder; Johnson shot the victim
multiple times at close range, resulting in eleven gunshot wounds). There is no
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evidence that Jefferson demonstrated mere disregard for potential harm to
Harper. For example, he did not brandish the firearm only to have it discharge
accidentally, nor did he fire at random without specifically aiming at anyone.
[26] Jefferson cites Webb v. State, 963 N.E.2d 1103 (Ind. 2012), in which the Indiana
Supreme Court reversed Webb’s murder conviction, determining that the trial
court erroneously rejected Webb’s proposed jury instruction on reckless
homicide as a lesser included offense. In that case, it was unclear whether
Webb knew the gun had a round in it when he shot his girlfriend. In addition,
after the shooting Webb told a witness that the shooting was accidental. Based
on that evidence, the Indiana Supreme Court determined there was a serious
evidentiary dispute as to whether Webb acted knowingly or recklessly.
[27] By contrast, Jefferson’s gun was under his control the whole time, and there
was no dispute as to whether he knew it was loaded. Furthermore, Jefferson
never claimed the shooting was an accident. Instead, he told his father he shot
Harper because Harper irritated him. The Webb case is factually distinguishable
from Jefferson’s case, and the trial court did not abuse its discretion by refusing
to give Jefferson’s proposed jury instruction on reckless homicide. See Miller v.
State, 720 N.E.2d 696, 703 (Ind. 1999) (no error in rejecting proposed jury
instruction on reckless homicide as lesser included offense of murder; Miller
shot at the victim, who was seated in a car, multiple times, demonstrating
evidence of a knowing killing rather than a reckless killing).
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Conclusion
[28] For the reasons stated above, we affirm the judgment of the trial court.
[29] Affirmed.
Najam, J., and Brown, J., concur.
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