ATTORNEY FOR APPELLANT
Katherine A. Cornelius
Marion County Public Defenders Office
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Steve Carter
Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
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IN THE
SUPREME COURT OF INDIANA
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DAMON FORTE, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S00-0012-CR-784
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
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APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark F. Renner, Judge
Cause No. 49G04-9812-CF-91461
__________________________________________________________________
ON DIRECT APPEAL
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December 11, 2001
BOEHM, Justice.
Damon Forte was convicted of felony murder and sentenced to sixty
years imprisonment. In this direct appeal, Forte contends he was denied a
fair trial because (1) he was improperly restrained with leg shackles
during the trial, and (2) the trial court erred in denying one of Forte’s
tendered jury instructions. We affirm the judgment of the trial court.
Factual and Procedural Background
In the wee hours of December 4, 1998, Damon Forte and his cousin,
Alfred Stewart, were “shooting cans” with Forte’s .22 caliber rifle in an
alley behind the Bigfoot parking lot at 2901 East 38th Street in
Indianapolis. According to Forte, Johnnie Smith approached him and asked
about the possibility of buying some drugs. When Forte told Smith that he
had no drugs to sell, Smith allegedly pulled a wad of money out of his
pocket to show that he could afford the transaction. Forte again rejected
the proposal, and Smith began to walk away, but returned after Stewart
announced that he had drugs to sell. At that point, Smith observed Forte’s
rifle in Stewart’s hands and tried to back away from the men. Stewart
attacked him and a struggle ensued. What happened next is not clear, but
eventually either Stewart or Forte fired the rifle several times at Smith.
Smith died from a gunshot wound to the chest.
Forte and Stewart collected Smith’s money from the ground and ran
from the scene. Forte, now holding the rifle, threw it behind the garage
of his uncle’s house at 2949 East 38th Street. Forte then called his
girlfriend, Ashley Rice, who met Forte and Stewart down the street. Rice
testified that the two men looked “shocked,” and that Forte gave her $200
and told her “I think we just killed somebody.” Forensic tests confirmed
that the bullet recovered from Smith’s body and a spent shell casing found
near his body were both fired from Forte’s .22 caliber rifle. Forte was
charged with felony murder and Class A robbery. The jury convicted him of
both counts and the trial court sentenced him to sixty years on the felony
murder conviction.
I. Shackles
Subsequent to his arrest, but prior to trial, Forte twice attempted
to escape from the Marion County jail. The second attempt culminated in a
violent attack on a correctional officer. As a result of these incidents,
Forte was charged with attempted escape, attempted murder, criminal
confinement, conspiracy to escape, and prisoner in possession of a
dangerous device. These charges were pending at the time of Forte’s murder
trial. Concerned that Forte might again attempt to escape, the trial court
ordered him to wear leg shackles during the trial.
As a general rule, a criminal defendant has the right to appear
before the jury without bonds or shackles. Bivins v. State, 642 N.E.2d
928, 936 (Ind. 1994). In its discretion, however, the trial court may
order a defendant to wear restraints when it is necessary to prevent the
defendant’s escape, to protect those present in the courtroom, and to
maintain order during the trial. Id. An order to restrain a defendant is
reviewed for an abuse of discretion. Id.
Forte argues that in determining whether to order restraints, the
trial court may consider only the in-court behavior of the defendant.
Behavior that occurs outside of the courtroom, Forte contends, is
irrelevant. We do not agree. Forte has cited no cases that support this
position, and precedent is clearly to the contrary. See, e.g., id. at 935-
36 (upholding shackling decision based on defendant’s attempts to escape
from custody even though defendant had not attempted to escape from court
proceedings); Lucas v. State, 499 N.E.2d 1090, 1095 (Ind. 1986) (upholding
shackling decision based on defendant’s two escape attempts during pre-
trial incarceration, even though defendant had not been formally charged
with those crimes); Smith v. State, 475 N.E.2d 27, 30 (Ind. 1985)
(upholding shackling decision based on defendant’s frequent outbursts of
violence in jail, including holding his public defender hostage there).
Nor does Forte’s contention seem sensible. The need for courtroom security
is to be evaluated on the basis of all relevant information, and we see no
reason to require the trial court to put on blinders as to extra-courtroom
activity.
In this case, the trial court considered Forte a genuine escape risk,
based on his two previous attempts. The court determined that leg shackles
would be the least intrusive and most effective escape deterrent, and took
the affirmative measure of placing white poster board in front of the
defense table to prevent the jury from seeing the shackles. Forte has not
alleged that any juror knew of the shackles or was otherwise prejudiced by
their presence. He has not shown an abuse of the trial court’s discretion.
II. Jury Instructions
Forte next alleges that he was denied a fair trial because the court
failed to give one of his proposed jury instructions. The State tendered
and received an accomplice liability instruction which read as follows:
A person is responsible for the actions of another person, when,
either before or during the commission of a crime, he knowingly aids,
induces, or causes the other person to commit a crime. To aid is to
knowingly support, help, or assist in the commission of a crime.
Proof of the defendant’s failure to oppose the commission of a
crime, companionship with the person committing the offense, and
conduct before and after the offense may be considered in determining
whether aiding may be inferred.
Forte tendered three accomplice liability instructions, one of which he
subsequently withdrew. Of the remaining two, the court issued the one that
read, “Mere presence at the scene of the crime is insufficient to establish
guilt.” The court rejected the final instruction, which read, “The trier
of fact must look for affirmative conduct, either by act or word, from
which to draw reasonable inferences that the accused was part of a common
plan to commit a crime,” because the court believed the substance of that
instruction was covered by the State’s accomplice liability instruction.
This Court reviews a trial court’s refusal to give a tendered
instruction for an abuse of discretion. Cline v. State, 726 N.E.2d 1249,
1256 (Ind. 2000). We consider (1) whether the instruction correctly states
the law; (2) whether there is evidence in the record to support the giving
of the instruction; and (3) whether the substance of the tendered
instruction is covered by other instructions that are given. Chambers v.
State, 734 N.E.2d 578, 580 (Ind. 2000), reh’g denied. The trial court does
not abuse its discretion when it rejects an instruction that is already
covered by others given at trial. Warren v. State, 725 N.E.2d 828, 834
(Ind. 2000).
In this case, Forte does not contend the instructions were incorrect
statements of the law. Rather, he claims the omitted instruction was
necessary for a complete understanding of the law of accomplice liability.
We do not agree. The State’s jury instruction used active verbs such as
aid, induce, support, help, and assist to inform the jury that some
affirmative conduct or action on Forte’s part was required. It also listed
factors the jury could use to infer participation, including the
defendant’s conduct before and after the offense. Finally, the instruction
tendered by Forte informed the jury that mere presence at the scene of the
crime was not sufficient to establish guilt. Accordingly, the jury was
already informed that it must find some affirmative conduct, either by act
or word, from which to infer Forte’s participation before it could find him
guilty under a theory of accomplice liability. A trial court must exercise
judgment in determining the length, detail, and complexity of jury
instructions. Chambers, 734 N.E.2d at 581. Here, the instructions given
adequately covered the requirements for accomplice liability. The trial
court did not abuse its discretion by refusing to give additional,
repetitive instructions on the topic.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.