ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian J. May Steve Carter
South Bend, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
)
KARL P. DRIVER, )
Defendant-Appellant, )
)
v. ) 71S00-0102-CR-140
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
)
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APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable John Marnocha, Judge
Cause No. 71D03-0003-CF-132
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On Direct Appeal
January 15, 2002
DICKSON, Justice
The defendant, Karl Driver, was convicted of murder[1] for the March
2000 killing of Landrea Hurt in South Bend. On appeal, the defendant
argues that the trial court erred in failing to instruct the jury on self-
defense and in instructing the jury on transferred intent. We affirm.
The defendant contends the trial court should have given his tendered
instructions on self-defense. To determine whether the trial court erred
in refusing to give an instruction, we consider: (1) whether the tendered
instruction correctly states the law; (2) whether the evidence supports
giving the instruction; and (3) whether other instructions already given
cover the substance of the tendered instruction. Williams v. State, 700
N.E.2d 784, 787-88 (Ind. 1998); Griffin v. State, 644 N.E.2d 561, 562 (Ind.
1994). When evaluating these considerations, we bear in mind that
instructing the jury generally lies within the sole discretion of the trial
court. Edgecomb v. State, 673 N.E.2d 1185, 1196 (Ind. 1996). Appellate
reversal is appropriate only for abuse of discretion. Id. The State does
not argue that the tendered instructions misstate the law or that the
substance of the tendered instructions was covered by other instructions,
but rather that the evidence in this case does not support giving an
instruction on self-defense.
A valid claim of self-defense provides a legal justification for a
person to use force against another to protect himself from what he
reasonably believes to be the imminent use of unlawful force. Ind.Code §
35-41-3-2(a). He is justified in using deadly force only if he "reasonably
believes that that force is necessary to prevent serious bodily injury to
himself or a third person." Id. A claim of self-defense in a homicide
prosecution requires that the defendant acted without fault, was in a place
where he had a right to be, and was in reasonable fear of death or great
bodily harm. Milam v. State, 719 N.E.2d 1208, 1210 (Ind. 1999). Thus,
among other things, the defendant's claim requires that he did not provoke,
instigate or participate willingly in the violence. Brooks v. State, 683
N.E.2d 574, 577 (Ind. 1997).
Shortly before the defendant fatally fired his handgun, he arrived at
the victim's home with three women who intended to physically fight the
victim. The women were armed with a baseball bat and a bottle. The
defendant armed with a handgun went with the women to prevent others from
interfering with the anticipated fight. As the women started toward the
house, Keisha Williams, the victim's roommate, came out onto the porch
holding a shotgun. Upon seeing this, the women accompanying the defendant
retreated to their cars. The defendant, who had remained across the street
from the house—approximately thirty or forty yards away, began firing his
handgun at Williams as she stood in front of the house. The victim was
standing at the front door. One of the bullets struck the victim in the
head killing her.
The defendant contends that he was responding in self-defense after
hearing Williams announcing that she was "going to kill me a [m—f—]," and
after seeing Williams point her gun in his direction. Record at 475-7.
The evidence is undisputed, however, that the defendant was part of the
group that went to the victim's house intending to cause the victim bodily
harm, that his actions were not without fault, and that he was there to
willingly participate in violence. For these reasons, the trial court did
not err in refusing his tendered instructions on self-defense.
The defendant also contends that the trial court erred in instructing
the jury that "the State is not required to prove that the defendant
intended to kill the actual victim" and that the "element of intent is
satisfied if the State proves beyond a reasonable doubt that the defendant
knowingly intended to kill someone." Record at 74. The defendant argues
that the evidence does not support this instruction because he came to the
victim's home without any plan to hurt her or anyone else.
The intent to kill may be inferred from the deliberate use of a
deadly weapon in a manner likely to cause death or serious injury. Bethel
v. State, 730 N.E.2d 1242, 1245 (Ind. 2000); Wilson v. State, 697 N.E.2d
466, 476 (Ind. 1998); McEwen v. State, 695 N.E.2d 79, 90 (Ind. 1998).
Because the defendant fired his handgun at Keisha Williams, the trial court
did not err in giving the instruction.
We affirm the defendant's conviction for murder.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
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[1] Ind.Code § 35-42-1-1.