Attorney for Appellant
Catherine M. Morrison
Wolf & Morrison
Indianapolis, IN
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Michael McLaughlin
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
TONEY L. BROWN,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 49S00-9901-CR-19
)
)
)
)
)
)
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton-Pratt, Judge
Cause No. 49G01-9710-CF-160631
ON DIRECT APPEAL
November 15, 2000
SULLIVAN, Justice.
Defendant Toney L. Brown was convicted of murder, attempted murder,
and carrying a handgun without a license for shooting two men in a fight.
We find that the State had sufficient evidence to overcome his claim of
self-defense and that the trial court did not err in rejecting his proposed
jury instruction on self-defense because the court’s own instructions were
adequate.
We have jurisdiction over this direct appeal because the longest
single sentence exceeds 50 years. Ind. Const. art. VII, § 4; Ind.
Appellate Rule 4(A)(7).
Background
The facts most favorable to the verdict indicate that on October 20,
1997, a group of people gathered on a near eastside Indianapolis street.
The gathering included Defendant and the victims, Jason McEwan and Ron
Cooper. Two of the younger people in the group began arguing and spitting
at each other drawing Cooper and Defendant into the confrontation.
Defendant pulled out a revolver and shot Cooper in the chest, seriously
wounding him. Defendant then backed up as he was firing, fatally hitting
McEwan three times. At one point, as Defendant was backing up down the
street, he stopped, reloaded, and continued firing.
The State charged Defendant with Murder,[1] Attempted Murder, a class
A felony,[2] and with Carrying a Handgun Without a License, a Class A
misdemeanor.[3] A jury found Defendant guilty on all counts. The trial
court sentenced Defendant to 60 years for the murder, 30 years for the
attempted murder, and 365 days for the handgun violation. The court ran
the sentences concurrently.
Discussion
I
Defendant contends that the State’s evidence was insufficient to
disprove his self-defense claim beyond a reasonable doubt.
“Self-defense is recognized as a valid justification for an otherwise
criminal act.” Miller v. State, 720 N.E.2d 696, 699 (Ind. 1999). “A
person is justified in using reasonable force against another person to
protect himself . . . from what he reasonably believes to be the imminent
use of unlawful force.” Ind. Code § 35-41-3-2(a) (1993). Self defense is
established if a defendant (1) was in a place where the defendant had a
right to be; (2) did not provoke, instigate, or participate willingly in
the violence; and (3) had a reasonable fear of death or great bodily harm.
See Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000); Jordan v. State, 656
N.E.2d 816, 817 (Ind. 1995).
Defendant correctly points out that the State carries the burden of
disproving self-defense. See, e.g., Wooley v. State, 716 N.E.2d 919, 926
(Ind. 1999). Therefore, once a defendant claims self-defense, the State
bears the burden of disproving at least one of the elements beyond a
reasonable doubt. See Miller, 720 N.E.2d at 700. The State may meet its
burden of proof by “rebutting the defense directly, by affirmatively
showing that the defendant did not act in self defense, or by simply
relying upon the sufficiency of its evidence in chief.” Id. (finding that
the State’s evidence was sufficient to disprove the defendants self-defense
claim where the defendant claimed that he saw the victim reach for a
weapon, but the State offered evidence that the victim was unarmed); See
also Davis v. State, 456 N.E.2d 405, 408 (Ind. 1983).
“The standard of review for a challenge to the sufficiency of evidence
to rebut a claim of self-defense is the same as the standard for any
sufficiency of the evidence claim.” Wallace, 725 N.E.2d at 840; Sanders v.
State, 704 N.E.2d 119, 123 (Ind. 1999). In reviewing a sufficiency of the
evidence claim, the Court neither reweighs the evidence nor assesses the
credibility of the witnesses. See Garland v. State, 719 N.E.2d 1236, 1238
(Ind. 1999). We look to the evidence most favorable to the verdict and
reasonable inferences drawn therefrom. Sanders, 704 N.E.2d at 123. We
will affirm the conviction if there is probative evidence from which a
reasonable jury could have found the defendant guilty beyond a reasonable
doubt. See Brown v. State, 720 N.E.2d 1157, 1158 (Ind. 1999).
Defendant’s self-defense claim here is supported by his own testimony
that Cooper pulled out a gun and “fired two shots,” that McEwan pulled out
a knife, and that Defendant was “Scared for his life.” (R. at 710-14.) He
testified that he shot Cooper in self defense and began running while
shooting backwards, unintentionally hitting McEwan. The State’s evidence,
however, adequately refuted Defendant’s self-defense claim: Cooper and
Deon Perkins testified that Cooper was unarmed; there were no guns
recovered at the scene; and besides Defendant’s testimony, there was no
other evidence that Cooper was armed. Additionally, Defendant shot McEwan
three times, and “we have previously held that the firing of multiple shots
undercuts a claim of self-defense.” Miller, 720 N.E.2d at 700. See also
Hill v. State, 532 N.E.2d 1153, 1153 (Ind. 1989) (finding sufficient
evidence existed to negate the defendant’s self-defense claim where the
defendant shot the victim a second time after the victim fell to his hands
and knees).
It is not disputed that Defendant shot McEwan and Cooper, and the
evidence most favorable to the verdict suggests that Defendant did not have
a reasonable fear of death or great bodily harm. Consequently, we find
that there was sufficient probative evidence for a reasonable jury to
conclude that Defendant did not shoot in self-defense.
II
Defendant also contends that the trial court committed reversible
error by refusing his tendered self-defense instruction.
The defense tendered the following instruction:
Whoever, being himself without fault and in a place where he has
a right to be, so far as his assailant is concerned, is assaulted, he
may, without retreating, repel by force; and he need not believe that
his safety requires him to kill his adversary in order to give him a
right to make use of force for that purpose. When from the act of his
assailant, he believes, and has reasonable ground to believe, that he
is in danger of losing his life or receiving great bodily harm from
his adversary, the right to defend himself from such danger or
apprehended danger may be exercised by him; and he may use it to any
extent which is reasonably necessary, and if his assailant is killed
as a result of the reasonable defense of himself, he is excusable in
the eyes of the law. The question of the existence of such danger,
the necessity or apparent necessity, as well as the amount of force
necessary to employ to resist the attack can only be determined from
the standpoint of the defendant at the time and under all the then
existing circumstances. Ordinarily one exercising the right to self-
defense is required to act upon the instant and without time to
deliberate and investigate and under such circumstances a danger which
exists only in appearance, is as real and imminent to him as if it
were actual.
A person in the exercise of the right of self defense must act
honestly and conscientiously.
When all danger and all apparent danger of the loss of life, or
of receiving great bodily harm, from the assault of his assailant is
at an end and passed, then the right to use force is at an end and
should cease. The person exercising the right of self-defense must
honestly believe, and have reasonable ground to believe, when he makes
use of force to protect himself from an assailant, that at the time he
uses the force it is then necessary to do so to protect his life, or
to protect his person from great bodily harm.
One who is in no apparent danger, and who apprehends no danger
and who has no reasonable ground for such apprehension cannot kill
another and successfully interpose the defense of self-defense.
(R. at 78-79.) The court refused the instruction, stating that it was “too
complicated and confusing.” (R. at 751.)
When evaluating whether a trial court abused its discretion by
refusing a tendered instruction, we consider whether: (1) the tendered
instruction correctly stated the law; (2) there was evidence in the record
to support the giving of the instruction; and (3) the substance of the
instruction is covered by other instructions given by the court. See Cline
v. State, 726 N.E.2d 1249, 1256 (Ind. 2000); Stahl v. State, 616 N.E.2d 9,
11 (Ind. 1993).
Here, we find that Defendant’s tendered instruction fails the third
prong of the test – its substance was covered by other instructions given
by the court. The trial court gave the jury a self-defense instruction as
well as two additional instructions to clarify certain concepts of self-
defense. The trial court’s preliminary and final instruction to the jury
included the following self-defense instruction No. 33(A):
The defense of self defense is defined by law as follows:
A person is justified in using reasonable force against another
person to protect himself or a third person from what he reasonably
believes to be the imminent use of unlawful force. However, a person
is justified in using deadly force only if he reasonably believes that
the force is necessary to prevent serious bodily injury to himself or
a third person or to prevent the commission of a forcible felony. No
person in this state shall be placed in legal jeopardy of any kind
whatsoever for protecting himself or his family by reasonable means
necessary.
To prevail on a claim of self defense, the defendant must show
that he was in a place where he had a right to be, that he acted
without fault, and that he had a reasonable fear or belief of imminent
death or great bodily harm.
The State has the burden of disproving the defense of self
defense beyond a reasonable doubt.
(R. at 97, 128.)
The trial court also included instruction No. 33(B), which stated in
part that “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…”
(R. at 129.) Additionally, the trial court gave instruction No. 33(D),
which included the following statement:
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 then
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.
(R. at 131.)
Defendant specifically complains that the trial court’s instructions
did not incorporate “the importance of [his] state of mind.” Appellant’s
Br. at 8. We disagree. The instruction tendered by Defendant merely
repeated the elements in the trial court’s instruction and did not shed
light on any other aspects of self-defense. The trial court’s instructions
specifically stated that the existence of 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 then existing circumstances.” (R.
at 131.)
We find the language in the trial court’s instructions pertaining to
Defendant’s state of mind nearly identical to the language in Defendant’s
tendered instruction. The trial court’s instructions also echo the
instructions that this Court suggested in French v. State 403 N.E.2d 821
(Ind. 1980), including the passage regarding the defendant’s state of mind.
Id. at 823-824 (“The question of the existence of such danger, the
necessity or apparent necessity, as well as the amount of force necessary
to employ to resist the attack can only be determined from the standpoint
of the defendant at the time and under all the then existing
circumstances.”).
The trial court’s instructions adequately instructed the jury on self-
defense and were especially fair in emphasizing the aspects of self-defense
concerning Defendant’s state of mind. Defendant’s tendered instruction
would have been repetitive and was therefore unnecessary. Accordingly, we
find that the trial court did not abuse its discretion by refusing
Defendant’s tendered instruction.
Conclusion
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
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[1] Ind. Code § 35-42-1-1 (1993).
[2] Id. §§ 35-41-5-1 and 35-42-1-1.
[3] Id. § 35-47-2-1.