Pursuant to Ind. Appellate Rule 65(D), this Oct 09 2013, 6:10 am
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANTHONY C. LAWRENCE GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JEFFREY COOK, )
)
Appellant-Defendant, )
)
vs. ) No. 48A05-1211-CR-608
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Dennis D. Carroll, Judge
Cause No. 48C06-1112-MR-2403
October 9, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Unfortunately, violence often does not end when offenders are incarcerated. This
is especially true when the imprisoned offenders are gang members who have retained
their gang affiliations.
Here, after an attack between two rival gangs in one state prison, rumors of the
fight spread to associate gang members at another state prison, which lead to an attack on
a high-ranking gang member at that prison. However, this attack only escalated the
violence between the rival gangs insofar as the gang who had attacked the high-ranking
gang member believed that they needed to attack again before the rival gang could
retaliate.
Appellant-defendant Jeffrey Cook and Jerry Clemons devised a plan where they
would attack Danny Dewitt, a rival gang member, when they were released for recreation
time. Cook and Clemons waited for Dewitt and stabbed him to death.
Cook was charged with Murder,1 a felony; Prisoner in Possession of a Dangerous
Device or Material,2 a class B felony; Criminal Gang Activity,3 a class D felony; and a
Criminal Gang Sentence Enhancement.4 Cook took the stand and alleged self-defense.
He was convicted of all charges except the gang-related sentencing enhancement was not
1
Ind. Code § 35-42-1-1.
2
Ind. Code § 35-44-3-9.5 (recodified at Ind. Code § 35-44.1-3-7, effective July 1, 2012).
3
Ind. Code § 35-45-9-3.
4
Ind. Code § 35-50-2-15.
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imposed, and he was sentenced to a seventy-year term. Cook appeals arguing that the
trial court erred by not giving his proffered instruction on self-defense.
We conclude that the trial court did not err by refusing to give Cook’s proffered
jury instruction because the evidence did not support the trial court giving the instruction.
Consequently, we affirm the judgment of the trial court.
FACTS
In July 2011, Cook, Clemons, and Dewitt were inmates at the Pendleton
Correctional Facility. Cook and Clemons were members of the Maniac Latin Disciples
(MLD), a criminal gang. Dewitt was a member of the Aryan Brotherhood (AB), a rival
gang.
On July 15, 2011, MLD members fought with AB members at the Indiana State
Prison in Michigan City. Clemons received a call at Pendleton informing him of the
fight. That evening, at Pendleton, MLD members attacked “Big Mike,” a high-ranking
AB member, in his cell. Tr. p. 179. Apparently, MLD was not finished because Clemons
sent Cook a “kite” – a prison letter – to carry out an attack on Dewitt. Id. at 184.
Clemons told Cook that AB members knew that MLD members had attacked Big Mike
and that Clemons and Cook needed to “make the first move” on the AB members before
they could retaliate. Id. Clemons instructed Cook to hit or stab Dewitt in the neck and
that Clemons would use a shank to stab Dewitt in the chest. In preparation for the
confrontation with Dewitt, Cook and Clemons constructed body armor out of layered
newspaper and cloth.
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On July 16, 2011, around 6:30 a.m., prison officers released the inmates to the
gym for recreation. Cook and Clemons, who were wearing body armor, walked in the
vicinity of Dewitt towards the gym. Cook waited at the bottom of a flight of stairs as
Clemons and Dewitt descended. When Dewitt and Clemons reached the bottom of the
stairs, Cook and Clemons began stabbing Dewitt. Prison officers rushed to the scene as
Cook and Clemons fled but not before prison officers saw Cook running with a shank in
his hands that he dropped during his flight.
Prison officers apprehended Cook and Clemons and recovered their shanks. Cook
yelled, “I got you, b*tch,” when the officers apprehended him. Tr. p. 260, 265. Dewitt
eventually died as a result of his injuries. The autopsy revealed that Dewitt sustained
twenty-three stab wounds that were caused by one flat object and one oval object. The
wounds inflicted by the flat object were fatal.
Prison officers searched the cells belonging to Cook and Clemons. From Cook’s
cell, the officers recovered Clemons’s letter to Cook discussing an attack on Dewitt. The
officers also recovered a cap and a mug with gang writing and handwritten pages
describing gang-related events.
On December 28, 2011, the State charged Cook with Count I, murder, a felony;
and Count II, prisoner in possession of a dangerous device or material, a class B felony.
On January 26, 2012, the State amended the information and added Count III, criminal
gang activity, a class D felony. On February 28 and March 2, 2012, the State again
amended the information to add a criminal gang sentence enhancement.
4
At trial, Clemons testified and confessed to murdering Dewitt. Clemons also
admitted that he sent the letter discussing the attack on Dewitt found in Cook’s prison
cell, which the State introduced into evidence. The State also introduced photographs of
Cook, Clemons, and Dewitt, all of whom had numerous gang-related tattoos.
Camees Barnett, an inmate at Pendleton, testified that he saw Cook waiting for
Clemons and Dewitt to come down the stairs before the attack. Officer Lucas Hamm,
who witnessed the attack, testified that Dewitt was unarmed when Cook and Clemons
attacked him.
Officer Walt Peterson testified about MLD and AB, the gang-related tattoos
displayed by Cook, Clemons, and Dewitt, and the gang-related fights that had occurred in
Michigan City and Pendleton on July 15 and 16, 2011. Officer Peterson testified that an
inmate who feared for his or her life may ask to be put into protective custody.
Cook took the stand in his own defense, offering an alternate version of events.
Cook admitted that he was a member of MLD and that he knew Dewitt was an AB
member. Cook testified that he did not know Dewitt personally and claimed that
Dewitt’s gang superiors sent a kite to Dewitt asking him to attack Cook and Clemons
during recreation. Cook stated that Clemons intercepted the kite. Cook also claimed that
Dewitt was armed, while he was unarmed, and that Dewitt threw hot coffee on him.
Cook alleged that he managed to take Dewitt’s shank from him during the altercation.
Cook admitted that Clemons had instructed him to kill Dewitt but claimed that it was “his
thought not mine.” Tr. p. 434.
5
During the State’s rebuttal, Officer Tom Francum, testified that prison officers did
not recover any kites during the search of Clemons’s prison cell. Officer Francum also
testified that he did not see any spilled coffee at the scene of the attack.
During the final instructions conference, Cook proffered the following instruction,
which is referred to as Part III of the self-defense instruction:
The Indiana Statute on self-defense provides that “a person is not justified
in using force if: he is committing . . . a crime.” In some instances; a
contemporaneous crime may not automatically negate a claim of self-
defense. Stated differently, “because a defendant is committing a crime at
the time he is allegedly defending himself is not sufficient, standing alone,
to deprive the defendant of the defense of self-defense. Rather, there must
be an immediate causal connection between the crime and the confrontation
. . . the evidence must show that but for the defendant committing a crime,
the confrontation resulting in (injury) to the victim would not have
occurred.”
Appellant’s App. p. 226.
After the parties discussed the proffered instruction, the trial court concluded that
it would probably confuse the jury more than it would help it because it was not
applicable under these facts. Accordingly, the trial court instructed the jury on self-
defense as follows:
SELF DEFENSE – PART I
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
the commission of a forcible felony. No person in this state shall be placed
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in legal jeopardy of any kind whatsoever for protecting himself or his
family by reasonable means necessary.
A person is not justified in using force if:
1. He is committing or escaping after the commission of a crime.
2. He provokes unlawful action by another person with intent to cause
bodily injury to the other person; or
3. He has entered into combat with another person or is the initial
aggressor, unless he withdraws from the encounter and communicates to
the other person his intent to do so, and the other person nevertheless
continues or threatens to continue unlawful action.
The State has the burden of disproving this defense beyond a reasonable
doubt.
SELF DEFENSE – PART II
A defendant may use deadly force to repeal an attack only if such
force is reasonable and believed to be necessary. Indeed, the trier of fact is
not precluded from finding that a defendant used unreasonable force, even
though the victim may have been the initial aggressor.
When a defendant asserts self-defense, the burden shifts to the State
to disprove one of the elements of self-defense beyond a reasonable doubt.
The State may carry its burden by rebutting the defense directly, by
affirmatively showing the defendant did not act in self-defense, or by
simply relying upon the sufficiency of its evidence in chief.
SELF-DEFENSE: REASONABLENESS
When a defendant asserts that he was acting in self-defense, the jury must
assess the reasonableness of the Defendant’s actions in defending himself
in light of the circumstances as they appeared from the subjective
standpoint of the defendant at the time.
Appellant’s App. p. 169, 171-72.
On October 5, 2012, following a three-day trial, the jury found Cook guilty on all
counts except it declined to impose the criminal gang sentence enhancement. On
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November 13, 2012, the trial court held a sentencing hearing during which it sentenced
Cook to sixty years on Count I to be served consecutively to the ten-year sentence
imposed on Count II, but concurrently to the three-year sentence imposed on Count III,
for an aggregate sentence of seventy years. Cook now appeals.
DISCUSSION AND DECISION
Cook argues that the trial court erred by not giving his proffered instruction. More
particularly, Cook maintains that by failing to give the jury his proffered instruction, he
was deprived of the ability to have the jury decide whether there was a causal connection
between the crime he committed and his need to utilize self-defense.5
The trial court has broad discretion in instructing the jury, and we will reverse
only for an abuse of that discretion. Mayes v State, 744 N.E.2d 390, 394 (Ind. 2001).
When determining whether the trial court erred in refusing the defendant’s tendered
instruction, this Court will look to whether: (1) the tendered instruction correctly states
the law; (2) there is evidence in the record to support the giving of the instruction; (3) the
substance of the tendered instruction is not covered by other instructions; and (4) the
substantial rights of the tendering party would be prejudiced by failing to give it. Fuentes
v. State, 952 N.E.2d 275, 278 (Ind. Ct. App. 2011), trans. denied.
5
We observe that Cook’s use of approximately five pages of quoted colloquy between the trial court and
the attorneys in the argument section of the brief, is not particularly helpful, and we discourage it in the
future. See Ind. Appellate Rule 46(A)(8)(stating that “the argument must include a brief statement of the
procedural and substantive facts necessary for consideration of the issues presented on appeal”) (emphasis
added).
8
Here, it is undisputed that Cook was a member of MLD because he admitted to
being a member of the gang at trial and had the name of the gang and its symbols tattooed
on his face and forehead. Tr. p. 430; Ex. 26. Cook also admitted that he did not know
Dewitt personally, but knew that he was an AB member. Tr. p. 408. Thus, there was an
immediate causal connection between the crime and the confrontation or, in other words,
between Cook’s MLD membership and the fight with Dewitt. Although whether an
immediate causal connection existed is generally a question of fact, in this case, it is
undisputed that the confrontation resulting in Dewitt’s death stemmed from Cook’s
criminal act of being in a gang.
Furthermore, as the trial court explained, the tendered jury instruction was likely
to confuse the jury because although there are situations where the charged crime has no
causal connection to the confrontation necessitating the use of self-defense, those were
not the circumstances in the instant case. By either side’s version of the events, Cook’s
confrontation with Dewitt would not have occurred had it not been for Cook’s gang
membership. Therefore, the evidence in the record does not support giving the
instruction.
Even assuming solely for argument’s sake that the trial court erred by not giving
Cook’s tendered instruction, the error is harmless, inasmuch as the State presented
sufficient evidence that would allow a reasonable jury to reject Cook’s claim of self-
defense. See Dill v. State, 741 N.E.2d 1230, 1233 (Ind. 2001) (stating that “[e]rrors in
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the giving or refusing of instructions are harmless where a conviction is clearly sustained
by the evidence and the jury could not properly have found otherwise”).
More particularly, the evidence established that Cook and his co-conspirator
planned an attack on Dewitt. Cook waited on Dewitt and then stabbed him twenty-three
times. Tr. p. 193-94, 236-37, 245. The victim was unarmed and defenseless. Even
accepting Cook’s version of events, he was a willing participant in the fight, did not seek
protective custody, and wore body armor to a gang fight. Id. at 395-96, 436. Cook’s
status as a willing participant negates his claim of self-defense. Wilson v. State, 770
N.E.2d 799, 800-01 (Ind. 2002).
Further, there is no prejudice because the trial court’s instructions did not
foreclose the jury from considering the merits of Cook’s self-defense claim. See
Henderson v. State, 795 N.E.2d 479, 482 (Ind. Ct. App. 2004) (finding no prejudice
where the jury considered the merits of defendant’s self-defense claim notwithstanding
incomplete jury instructions on self-defense). In this case, the jury specifically found that
Cook was a member of MLD but did not kill Dewitt at the direction of MLD.
Appellant’s App. p. 193, 201, 207. Put another way, the jury rejected Cook’s self-
defense claim because his actions were unreasonable, rather than because he was a
member of a gang. Consequently, even assuming that the trial court erred by failing to
give Cook’s proffered instruction, Cook has failed to show prejudice, and this argument
fails.
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The judgment of the trial court is affirmed.
FRIEDLANDER, J., and VAIDIK, J., concur.
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