ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Monica Foster Jeffrey A. Modisett
Hammerle Foster Allen & Long-Sharp Attorney General of Indiana
Indianapolis, Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
ARTHUR SMITH, )
Defendant-Appellant, )
)
v. ) 49S00-9808-CR-465
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
_________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-9708-CF-121649
_________________________________________________
On Direct Appeal
June 28, 2000
DICKSON, Justice
The defendant-appellant, Arthur Smith, was convicted of the August 8,
1997, murder[1] of Karlin Winters. We affirm, concluding that the trial
court did not err in its refusal of tendered instructions regarding
citizen's arrest, its denial of a challenge for cause to a prospective
juror, and its admission of a firearm into evidence.
Jury Instruction
The defendant claims that the trial court erred in refusing to give
his tendered instructions regarding a citizen's power of arrest and use of
force. The defendant challenges the trial court's refusal of two
instructions, the defendant's tendered instructions numbers 2 and 3:
DEFENSE TENDERED INSTRUCTION 2
Any person may arrest any other person if:
(1) The other person committed a felony in his presence;
(2) A felony has been committed and he has probable cause to believe
that the other person has committed that felony; or
(3) A misdemeanor involving a breach of the peace is being committed
in his presence and the arrest is necessary to prevent the continuance
of the breach of the peace.
DEFENSE TENDERED INSTRUCTION 3
A person other than a law enforcement officer is justified in using
reasonable force against another person to effect an arrest or prevent
the other person's escape if
(1) a felony has been committed; and
(2) there is probable cause to believe the other person committed that
felony.
However, such a person is not justified in [using] deadly force unless
that force is justified under section 2 of this chapter (self-
defense).
Record at 90, 91.
The jury was instructed regarding the defenses of self-defense and
accident. The defendant argues, however, that his defense at trial was
that he shot the victim accidentally or in self-defense while attempting to
effectuate a citizen's arrest after having been robbed earlier that
evening. The State argues that the citizen's arrest instructions were
properly refused because they were not supported by the evidence and not
relevant to the issues in the case.
A trial court's decision to instruct the jury is within its sound
discretion, and we review that decision for an abuse of discretion.
Benefiel v. State, 716 N.E.2d 906, 914 (Ind. 1999); Harrison v. State, 699
N.E.2d 645, 649 (Ind. 1998). We consider: (1) whether the refused
instruction correctly stated the law; (2) whether evidence supported giving
the instruction; and (3) whether it was adequately covered by other
instructions. Amburgey v. State, 696 N.E.2d 44, 46 (Ind. 1998); Wrinkles
v. State, 690 N.E.2d 1156, 1161 (Ind. 1997); Griffin v. State, 644 N.E.2d
561, 562 (Ind. 1994).
The evidence at trial indicated that on the date of the charged
offense, the defendant, his adult son, Michael Hart, and several others
were engaged in a dice game, and the defendant won several hundred dollars.
As the game broke up, numerous young men stood around the defendant's
vehicle, and one of them displayed a gun and demanded the defendant's
money, which the defendant surrendered. The robber and several others then
told the defendant and his son to get out of the neighborhood, and the
robber fired a shot into the rear of the vehicle in which the defendant and
his son were sitting, but neither was injured. They drove away but
returned shortly afterwards, both armed with handguns. They repeatedly
drove past a residence where they had seen Ralph Fisher, age 20, who had
been present at the dice game. The defendant approached the house and
confronted Fisher's step-father, Cecil Sinkfield, and stated that Fisher
had been involved in the robbery and knew who had robbed the defendant and
that the defendant wanted his money back. When Fisher did not come out or
provide any information, the defendant and his son drove off. They had
traveled only a short distance when the defendant observed a boy on a
bicycle. The defendant testified that the boy was the one who had robbed
him and that the boy pulled out a gun when he saw the defendant. The
defendant contends that he then put his handgun out the car window, shouted
"stop," swerved his car into the bike, struck the bike, and stopped his
car. The defendant alleges that, when he applied his brakes, his gun
accidentally discharged. The boy, sixteen-year-old Karlin Winters,
attempted to run away but collapsed a short distance away and died from a
gunshot wound that entered his lower back and exited on the right side of
his chest.
Other trial evidence contradicts the claim that Winters had been
involved in the robbery of the defendant. Fisher testified that, at the
time the defendant was robbed and just before his rear window was shot out,
Fisher saw a different person, Floyd Thomas, armed with a gun, talking to
the defendant. Fisher stated that Winters was not present at the dice game
robbery incident. The defendant testified that he attempted to call 911
twice—first after he was robbed, and next after he shot Winters—but reached
a busy signal each time.
The defendant urges that the evidence permits an inference that he was
looking for the principal in the robbery in order to arrest him and that
this inference is particularly supported by his testimony that he told
Winters to "stop" when he saw him. To the contrary, we find no substantial
evidence that the defendant was actually attempting to arrest Winters or
prevent his escape pursuant to our citizen's arrest statute. Ind. Code §
35-41-3-3. At most, the evidence reflects that the defendant was engaged
only in self-help to recover his property, not in assisting law
enforcement. This does not support the giving of the requested
instructions. See Thrash v. State, 690 N.E.2d 355, 357 (Ind. Ct. App.
1998). The trial court did not err in refusing the tendered instructions.
Jury Selection
The defendant also claims that the trial court erroneously denied one
of his challenges for cause to a prospective juror, thus requiring him to
use one of his peremptory challenges to excuse the juror. Defense counsel
made five challenges for cause. The court granted two and denied three.
In addition to the challenges for cause, the defendant used ten peremptory
challenges. The defendant claims that the trial court's denial of his
motion to excuse for cause forced him to use all of his peremptory
challenges and thus arbitrarily reduced the number of challenges available
to him.
The jury selection statute provides in pertinent part:
The following are good causes for challenges to any person called as a
juror in any criminal trial: . . .
(13) That, from defective sight or hearing, ignorance of the English
language, or other cause, the person is unable to comprehend the
evidence and the instructions of the court.
Ind. Code § 35-37-1-5(a)(13). The decision to grant a challenge for cause
is within the trial court's discretion because it can best assess the
demeanor of prospective jurors as they answer the questions posed by
counsel. Walker v. State, 607 N.E.2d 391, 395 (Ind. 1993); Daniel v.
State, 582 N.E.2d 364, 371 (Ind. 1991). We will disturb the trial court's
decision only if we find that its authority was used illogically or
arbitrarily. Walker, 607 N.E.2d at 395.
The defendant challenges the trial court's denial of his challenge
for cause to one particular prospective juror, asserting that it fell
within the "other cause" portion of this statute because the juror claimed
he would probably be distracted. The State acknowledges that this juror
testified during voir dire that people were traveling in from overseas to
meet with him concerning business matters and that he would be distracted
such that he could not listen and give full attention to the evidence. The
State argues, however, that, even if the "other cause" exception applies,
this prospective juror was not "unable to comprehend the evidence and the
instruction of the court," as specified in the statute. The juror was also
asked questions about his personal beliefs with regard to the use of
weapons and self-defense. In each case, he expressed strong opinions but
stated that he could set aside his beliefs to evaluate the evidence without
bias. The State urges that this provided the trial court with a basis for
finding the juror to be careful and intelligent enough to overcome his
distractions.
We find that the trial court's decision that this prospective juror
was capable of fulfilling the requirements of a juror in an impartial
manner was not illogical or arbitrary. We find no error on this issue.
Firearm Evidence
The defendant next claims that the trial court erred in admitting
into evidence over his objection State's Exhibit 21, a Taurus .357 revolver
that was found in the defendant's home but was not shown to be the murder
weapon.
The trial court is accorded wide discretion in ruling on the
admissibility and relevance of evidence. Timberlake v. State, 690 N.E.2d
243, 256 (Ind. 1997); Hobbs v. State, 548 N.E.2d 164, 166 (Ind. 1990). We
review a trial court's evidentiary decision for abuse of discretion and
will reverse when the decision is clearly against the logic and effect of
the facts and circumstances. Timberlake, 690 N.E.2d at 256; Joyner v.
State, 678 N.E.2d 386, 390 (Ind. 1997). Even if proffered evidence or
testimony is only marginally relevant, it is within the sound discretion of
the trial court to admit it. Thompson v. State, 671 N.E.2d 1165, 1171
(Ind. 1996); Bieghler v. State, 481 N.E.2d 78, 88-89 (Ind. 1985).
The defendant testified that on the night he shot Winters, he was
carrying a 9mm TEK firearm. Other witnesses testified that the gun he
carried at the time of the shooting was not a revolver but rather looked
like a 9mm firearm. Sinkfield testified that the defendant and his son,
each wielding weapons, came looking for Fisher and the person who had
robbed them. Sinkfield testified that the defendant carried a revolver,
that Hart carried a semi-automatic weapon, and that Exhibit 21 was similar
to the revolver that the defendant had pointed at him. Although the
revolver was not identified as the murder weapon, there was evidence that
this revolver or one similar to it was in the possession of the two
defendants near the time when they pursued Winters.
The resulting relevance, although arguably marginal, is sufficient to
support the trial court's decision to admit the evidence. Furthermore,
because the evidence indicated that the defendant had a valid license to
carry a firearm, the likelihood of prejudice is diminished. We decline to
find that the trial court abused its discretion in admitting the evidence.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code § 35-42-1-1.