Carson v. State

FRIEDLANDER, Judge,

dissenting.

I agree with the majority that the instruction in question was defective because it did not include the statutory language, “or the commission of a forcible felony”, when setting out the justifications for the use of deadly force. However, I respectfully dissent from the conclusion that Carson’s cbnviction must be reversed because of the defective instruction.

Citing Williford, 571 N.E.2d 310, the majority correctly notes an erroneous jury instruction does not result in a per se mandate of reversal. Rather, reversal is warranted only if the defendant establishes that he was prejudiced by the error. Lockhart v. State, 609 N.E.2d 1093 (Ind.1993). In assessing prejudice resulting from an erroneous instruction, we look to the entire charge of which the instruction is a part to determine whether the jury was misled as to the law of the case. Hill v. State, 615 N.E.2d 97 (Ind.1993). After reviewing the record, I am satisfied that the erroneous instruction did not result in prejudice to Carson;

In addition to Instruction No. 15g, two other instructions read to the jury addressed the subject of legal justification for using force while acting in self-defense. Those instructions stated:

*868INSTRUCTION NO. 15f
A person may use reasonable force to defend himself against another’s imminent use of illegal force. He must reasonably and honestly believe that force is necessary to resist attack. He cannot use excessive force or a disproportionate amount of force under the circumstances.
The question of the existence of an apparent danger and the amount of force necessary to resist force, can only be determined from the standpoint of the defendant, at the time and under the existing circumstances. The defendant may use such force as may reasonably be necessary to resist such attack or apparent attack. He will not be accountable for an error in judgment as to the amount of force necessary, provided he acted reasonably] and honestly. One who was in no apparent danger and had no reasonable ground for apprehension of danger cannot raise this defense.

Record at 79.

INSTRUCTION NO. 15h
Reasonable belief means such belief as an ordinary reasonable person would possess under all the existing circumstances and as viewed from the perspective of such person within the total set of circumstances existing in the particular case. Reasonable belief does not require that the danger perceived have actually existed, but only that it was reasonably perceived as existing under all the circumstances, including any particular knowledge possessed by the defendant. However, the reasonableness of the belief must be tested from the standpoint of a person of reasonable sensibilities, or being unreasonably excitable, or unreasonably lacking in perceptive abilities.

Record at 81.

Carson’s defense consisted of the claim that he was justified in stabbing Cary Ransom because he was defending Tracy. I believe that, taken together, Instructions 15g, 15h, and 15f adequately informed the jury that it could acquit Carson if it found that he employed reasonable force in stabbing Ransom, based upon his reasonable belief that such was necessary to defend Tracy from an attack.

I perceive no prejudice and therefore would affirm the conviction.