Brown v. State

BUCHANAN, Chief Judge,

dissenting.

I must respectfully dissent.

It is my conclusion that the trial court's refusal to give the requested instruction as to the Defendant Brown's failure to take the stand was harmless error in view of the overwhelming evidence of Brown's guilt.1

The error is harmless if "it is clear beyond a reasonable doubt that the jury did not convict the defendant because of a misunderstanding of the law due to the absence of this instruction. Likewise, [we will not reverse if] we do not believe their judgment would have been different had this instruction been given." Lyda v. State, (1979) Ind., 395 N.E.2d 776, 781. See also Parker v. State, (1981) Ind., 425 N.E.2d 628; Lucas v. State, (1981) Ind., 413 N.E.2d 578.

The record reveals that the two eyewitnesses-Betty Wallace and Steve Brown-gave essentially the same testimony as to what transpired on the day in question. Both eyewitnesses testified that the confrontation began with a verbal assault by the defendant, Yesse Brown (Brown), which was followed by one open-handed blow from the decedent, George Brown (George). The remainder of their testimony varied only slightly. Betty claimed that she immediately placed herself between the two brothers in order to stop the confrontation; however, the fatal stab wound had already been delivered. Record at 261. Steve claimed that there was a short scuffle between the two men before Betty interceded *359and the fatal stab wound was delivered. Record at 889. Neither of these scenarios would provide evidence from which the trier of fact could reasonably have concluded that Brown was justified in using deadly force because he reasonably believed that force was necessary to prevent serious bodily injury to himself. IC 85-41-3-2 (1978). See Sanders v. State, (1981) Ind., 428 N.E.2d 23; Loyd v. State, (1980) Ind., 398 N.E.2d 1260, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

As a part of his self-defense argument, Brown contended that the victim was a much larger man and that Brown had recently suffered a work-related accident which caused permanent damage to his left arm. The physical evidence presented in the record conflicts with the testimony given as to the height and weight of the victim and the defendant. The police report, record at 485, shows that the victim was five foot six and weighed 140 pounds at the time of death while Brown's mugshot, record at 497, establishes that he was five foot eight and weighed 134 pounds on the day in question. It cannot be said, on the basis of this evidence, that the victim was a substantially larger man than Brown. Furthermore, although Brown suffered severe damage to his left arm, this would not justify the use of deadly force to counter one open-handed blow.

So, I do not find even a whit of evidence in the record which would support the defendant's self-defense argument. Failure to give the requested instruction was harmless error because it is clear beyond a reasonable doubt that the result in this case would have been the same even if the instruction had been given.2

I would affirm the decision of the trial court.

. I agree with the majority that Carter v. Kentucky, (1981) 450 U.S. 288, 101 S.Ct. 1112, 67 LEd.2d 241, does not alter existing Indiana law, which holds that refusal to give a requested "no adverse inference" jury instruction can be harmless error. A careful analysis of the concurring and dissenting opinions in the Carter case reveals that a majority of the Court would probably find that failure to give the requested instruction is not fundamental error.

. Because I would affirm, I must also address the other arguments raised by the appellant. First, appeliant assails the absence of an instruction detailing the essential elements of involuntary manslaughter. This argument has been waived because no allegation of error appeared in the motion to correct error. Ind. Rules of Procedure, Trial Rule 59(G); Morris v. State, (1979) Ind., 384 N.E.2d 1022. Appellant's second argument is that there was insufficient evidence to sustain his conviction. Keeping in mind that when reviewing for sufficient evidence we will neither reweigh the evidence nor judge the credibility of witnesses and consider only the evidence most favorable to the State along with all reasonable and logical inferences to be drawn therefrom, the testimony of two eyewitnesses who viewed the fatal confrontation was clearly sufficient to uphold the verdict in this case. See Oatts v. State, (1982) Ind., 437 N.E.2d 463.