ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PAUL T. FULKERSON KAREN M. FREEMAN-WILSON
Skiles & Cook Attorney General of Indiana
Indianapolis, Indiana
GRANT H. CARLTON
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
KENNETH MAYES, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 49S00-0002-CR-92
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable William T. Robinette, Judge
Cause No. 49G03-9903-CF-035571
ON DIRECT APPEAL
March 13, 2001
RUCKER, Justice
Indiana’s self-defense statute essentially provides that the defense
is not available to a person who is committing a crime. We interpret the
statute to mean there must be an immediate causal connection between the
crime and the confrontation. In this case, there was sufficient evidence
before the jury to conclude that the crime of unlawful possession of a
handgun was causally connected to the murder. Therefore, the judgment of
the trial court is affirmed.
Facts
Kenneth Mayes, his girlfriend Mary Dew (“Mary”), and her sister Joyce
Dew (“Joyce”) were spending time at Mayes’ home in Indianapolis. According
to Mayes, he discovered money missing from the pockets of his clothing that
he had left in a bedroom while taking a shower. Mayes accused Mary of
taking the money, and they began to argue heatedly. Mary and Joyce left
the house, and Mayes followed them to the driveway where the couple
continued arguing loudly. After awhile, Mary and Joyce began to walk away.
Mayes returned to the house and grabbed his jacket which contained a
handgun in one of the pockets. He then pursued Mary and Joyce, confronting
them on the street. The couple stood approximately five feet from each
other and resumed their heated verbal exchange. Mayes testified that Mary
reached for her purse – a fact that Joyce disputed. In any event, Mayes
contended he feared Mary was reaching for a handgun and thus he drew his
own weapon and fired. Mary died as a result of five gunshot wounds to her
chest, shoulder, arm, and back.
The State charged Mayes with murder and carrying a handgun without a
license as a Class A misdemeanor. The State also sought enhancement to a
Class C felony because he had been convicted of a felony within fifteen
years of the present offense.[1] Mayes’ sole defense at trial was that he
shot Mary in self-defense. After the jury returned a verdict of guilty as
charged, Mayes pleaded guilty to the enhanced gun charge. Thereafter, the
trial court sentenced him to concurrent terms of sixty years for murder and
eight years for carrying a handgun without a license. This appeal
followed. Additional facts are set forth below where relevant.
Discussion
I.
Mayes sought a self-defense instruction at trial, but over his
objection the trial court instructed the jury as follows:
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
that 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 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 is escaping after the commission[] of[,]
a crime;
2. 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.
R. at 81. Mayes acknowledges that the instruction tracks the language of
the self-defense statute nearly verbatim. See I.C. § 35-41-3-2. His
complaint however is with the declaration “[a] person is not justified in
using force if . . . he is committing . . . a crime.” Mayes concedes that
he possessed an unlicensed handgun when he shot his girlfriend and tacitly
admits that doing so was a crime. He contends however that this is not the
type of offense that should negate a claim of self-defense. We agree that
in some instances a contemporaneous crime may not negate a claim of self-
defense. In this case however Mayes’ argument fails.
A valid claim of self-defense is legal justification for an otherwise
criminal act. Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). This is a
long-standing tenet of the law in this jurisdiction that predates statutory
codification. See, e.g., Bryant v. State, 106 Ind. 549, 7 N.E. 217, 219-20
(1886) (noting that principle of justifiable and excusable homicide on the
ground of self-defense has been fully endorsed, approved, and acted upon in
many recent decisions of this Court, well before the defense was codified
in 1905). Indeed, the self-defense statute itself endorses the proposition
that one is entitled to defend oneself under circumstances where it
reasonably appears that a person is in danger of bodily harm: “[n]o person
in this state shall be placed in legal jeopardy of any kind whatsoever for
protecting himself or his family by reasonable means necessary.” I.C. § 35-
41-3-2(a). The goal of statutory construction is to determine, give effect
to, and implement the intent of the legislature. Sales v. State, 723
N.E.2d 416, 420 (Ind. 2000). The legislature is presumed to have intended
the language used in the statute to be applied logically and not to bring
about an unjust or absurd result. Id. Although penal statutes are not to
be read so narrowly that they exclude cases they fairly cover, nonetheless,
we conventionally construe penal statutes strictly against the State. Id.
A literal application of the contemporaneous crime exception would
nullify claims for self-defense in a variety of circumstances and produce
absurd results in the process. A similar view was expressed by our Court
of Appeals in a case very similar to the one before us. In Harvey v.
State, 652 N.E.2d 876 (Ind. Ct. App. 1995), the defendant shot the victim
with an unlicensed firearm and claimed self-defense in the fatal shooting.
The trial court instructed the jury, “A person who is not in his home or
fixed place of business and is carrying a handgun without a license cannot
by law claim the protection of the law of self defense.” Id. at 876. The
Court of Appeals found the jury instruction was erroneous because it
ignored any nexus between the crime and the shooting. Id. at 877. Writing
for the court, Judge Garrard observed:
If subsection (d)(1) [of Indiana Code § 35-41-3-2] is to be taken
literally, then no person may claim self defense if that person at the
time he acts is coincidentally committing some criminal offense. For
example, possession of a marijuana cigarette or the failure to have
filed one’s income tax returns could deny one the defense no matter
how egregious, or unrelated, the circumstances that prompted the
action. Read as a whole, the statute refutes such a construction.
Id. at 877. We agree and note this view has been shared by other
jurisdictions that have considered the matter. See, e.g., Oregon v. Doris,
94 P. 44, 53 (Or. 1908) (“[T]o hold that the mere fact that a person
accused of a homicide was armed at the time, and that because of the
misdemeanor resulting therefrom [possession of a concealed weapon] he shall
be deprived of any right of self-defense, would lead to the absurd and
unjust consequence in practically all cases of depriving the accused of any
defense . . . .”); South Carolina v. Leaks, 103 S.E. 549, 551 (S.C. 1920)
(In a prosecution for homicide “[t]he causal connection between the
unlawful act of gambling and the encounter arising during the progress of
the game between the participants is too remote to destroy the right of
self-defense.”); West Virginia v. Foley, 35 S.E.2d 854, 861 (W.Va. 1945)
(“Whether [defendant] had a license to carry a pistol on the occasion he
was armed is not relevant in the least to the common law right to arm for
self-defense.”).
We also observe that as applied to the facts of this case, if Mayes
had previously obtained a valid license but it had expired one minute
before he shot his girlfriend, then, if the statute is to be read
literally, a self-defense claim would be unavailable. The legislature
could not have intended that a defense so engrained in the jurisprudence of
this State be dependent upon the happenstance of such timing.
We conclude that 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.
Stated differently, the evidence must show that but for the defendant
committing a crime, the confrontation resulting in injury to the victim
would not have occurred. Cf. Roche v. State, 690 N.E.2d 1115, 1124 (Ind.
1997) (“A person who kills while committing or attempting to commit a
robbery is a person who kills while committing a crime and so the defense
of self-defense is not available.”). Having reached this conclusion
however does not mean we agree that Mayes is entitled to reversal and a new
trial.
The manner of instructing a jury lies largely within the discretion
of the trial court, and we will reverse only for abuse of discretion.
Benefiel v. State, 716 N.E.2d 906, 914 (Ind. 1999), cert.denied, 121 S. Ct.
83 (2000). To constitute an abuse of discretion, the instruction given
must be erroneous, and the instruction taken as a whole must misstate the
law or otherwise mislead the jury. Id. When determining whether a trial
court erroneously gave or refused to give a tendered instruction, we
consider the following: (1) whether the tendered instruction correctly
states the law; (2) whether there was evidence presented at trial to
support giving the instruction; and, (3) whether the substance of the
instruction was covered by other instructions that were given. Fields v.
State, 679 N.E.2d 1315, 1322 (Ind. 1997).
There is no question in this case that the instruction correctly
states the law – it is a near verbatim recitation of the self-defense
statute. Nor does the record show that the instruction was covered by
other instructions. The question here is whether there was evidence
presented to support giving the instruction. More specifically, was there
evidence demonstrating that but for Mayes’ possession of an unlicensed
handgun, the confrontation resulting in Mary’s shooting death would not
have occurred?
The record shows that after Mary and her sister left Mayes’ home and
walked away, Mayes went back into the house and grabbed his jacket which
contained a handgun. On the one hand, the fact that Mayes did not have a
license to possess the weapon would seem to have no bearing on its use in
Mary’s death. On the other hand, the jury could have concluded that but
for Mayes’ possession of the unlicensed handgun, Mary would still be alive
because Mayes’ unlicensed handgun was required, by law, to be kept at his
dwelling, on his property, or at his fixed place of business. See I.C. §
35-47-2-1. Ultimately it is left to the jury, the fact-finder in this
case, to determine whether there is an immediate causal connection between
Mayes’ possession of an unlicensed firearm and Mary’s death. This is not
an issue that can be resolved by this Court as a matter of law. Cf.
Harvey, 652 N.E.2d at 877 (finding that the trial court properly instructed
the jury on the definition of self-defense, including the “committing a
crime” provision, but erred by further instructing the jury that a person
who possessed an unlicensed handgun could not claim self-defense). We
conclude the trial court’s jury instruction on self-defense was not
erroneous.[2]
II.
The trial court sentenced Mayes to enhanced sentences of sixty years
for murder and eight years for carrying a handgun without a license. Mayes
challenges these sentences contending the trial court failed to identify
any mitigating factors and did not state facts and circumstances underlying
the aggravating factors. If a trial court uses aggravating or mitigating
circumstances to enhance or reduce the presumptive sentence, it must: (1)
identify all of the significant aggravating and mitigating circumstances;
(2) state the specific reason why each circumstance is determined to be
aggravating or mitigating; and, (3)
articulate the court’s evaluation and balancing of the circumstances.
Thacker v. State, 709 N.E.2d 3, 9 (Ind. 1999), reh’g denied.
Mayes argues that the trial court failed to identify any mitigating
circumstances. The trial court must include a description of significant
mitigating circumstances within the record if it reduces the presumptive
sentence or uses mitigating circumstances to offset aggravating
circumstances that serve to enhance the sentence. Cooper v. State, 687
N.E.2d 350, 354 (Ind. 1997). However, an appellate court will affirm a
sentence enhancement in spite of the trial court’s failure to specifically
articulate its reasons for enhancement if the record indicates that the
court engaged in the evaluative processes and the sentence imposed was not
manifestly unreasonable. Wright v. State, 665 N.E.2d 2, 6 (Ind. Ct. App.
1996). See also Mitchem v. State, 685 N.E.2d 671, 679 (Ind. 1997) (using
same rationale to find that the trial court’s error of only providing a
generalized statutory recitation for two aggravating factors does not
demand remand).
Here, the trial court did not specifically outline the mitigating
factors applied but recognized their existence and alluded to factors
Mayes’ counsel offered as considerations: Mayes acted in sudden heat, he
turned himself in and confessed the day after the murder, his honorable and
reliable character, and his remorsefulness. Additionally, the trial court
stated there were mitigating factors but the “aggravators outweigh the
mitigators.” R. at 419. Although the trial court’s sentencing statement
is not a model of clarity, it is clear the trial court engaged in an
evaluative process and properly considered significant mitigators.
The trial court identified two aggravating factors: the nature and
circumstances of the crime and Mayes’ prior criminal history. Both are
statutory aggravators. See I.C. § 35-38-1-7.1(a)(2), -(b)(3). Regarding
the first aggravating factor, the trial court specifically noted the
violence of the act; Mayes shot Mary five times, including “in the back as
she was . . . either falling down or on the ground[. . . .] ” R. at 419.
The “nature and circumstances” of a crime is a proper aggravating
circumstance. Thacker, 709 N.E.2d at 10. In this case, the nature of the
crime – the number and type of shots – was proper to consider. See
Mitchem, 685 N.E.2d at 680 (finding that the number of times a victim was
shot is a proper consideration under the “nature and circumstances” of the
crime aggravator).
As to the second aggravator, the trial court did not specifically
detail Mayes’ criminal history. When a defendant’s criminal history is
used as an aggravating factor to support an enhanced sentence, the trial
court must recite the incidents comprising the criminal history. Battles
v. State, 688 N.E.2d 1230, 1235 (Ind. 1997). Stating that the defendant
has a criminal history is merely conclusory and must be substantiated by
specific facts. Hammons v. State, 493 N.E.2d 1250, 1254 (Ind. 1986).
Here, the statement of reasons for enhancing Mayes’ sentences is deficient
because the reference to his prior criminal history is not sufficiently
individualized. However, this deficiency does not necessitate remand to
articulate the specific facts. It is readily apparent, based on the
presentence report and the prosecutor’s comments in the record, that Mayes
had a prior felony conviction for an offense in which he inflicted bodily
injury on a victim. See Adkins v. State, 532 N.E.2d 6, 9 (Ind. 1989)
(observing that remand to articulate the aggravating circumstance of a
history of criminal activity would be pointless and unnecessary because the
specific facts underlying the aggravating factor were readily discernible
from the record). We are satisfied that the
trial judge engaged in the evaluative process and that the sentence was not
manifestly unreasonable.
Conclusion
We affirm the judgment of the trial court.
SHEPARD, C.J., and SULLIVAN, J., concur.
DICKSON, J., concurs in result.
BOEHM, J., concurs in result with separate opinion in which DICKSON, J.,
concurs.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Paul T. Fulkerson Karen M. Freeman-Wilson
Indianapolis, Indiana Attorney General of Indiana
Grant H. Carlton
Deputy Attorney General
Indianapolis, Indiana
___________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
KENNETH MAYES, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S00-0002-CR-92
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable William T. Robinette, Judge
Cause No. 49G03-9903-CF-035571
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
March 13, 2001
BOEHM, Justice, concurring in result.
I agree that the conviction should be affirmed for the reasons given
by the majority in footnote two of its opinion. However, I do not agree
that the instruction was a correct statement of the law. The challenged
instruction tracked the statute verbatim, and told the jury that: “A
person is not justified in using force if . . . [h]e is committing . . . a
crime.” But as the majority points out, the statute does not mean what it
appears to say because its judicial patina makes clear that not everyone
engaged in “a crime” is deprived of the defense of self-defense.
Accordingly, the recitation of the naked statutory language was not a
proper statement of “the law.”
I also believe that it is not proper to affirm the conviction here on
the ground that the jury could have determined that there was a causal
connection between Mayes’ illegal possession of a weapon and his
confrontation with the victim. If the jury had been properly instructed
that there must be such a connection to negate self-defense, then I would
affirm. But there was no instruction that a finding of a causal connection
between the illegal activity and the confrontation was required.
Accordingly, we have no basis to conclude that the jury made that finding.
More importantly, the majority would preclude a claim of self-defense
wherever “but for” the defendant’s commission of a crime, the confrontation
with the victim would not have occurred. I am concerned that this “but
for” test is too broad. There are many situations where “but for the
defendant committing a crime, the confrontation resulting in injury to the
victim would not have occurred,” but where the defense of self-defense
should be available. For example, take a situation similar to the one
referred to in the majority opinion in South Carolina v. Leaks, 103 S.E.
549, 551 (S.C. 1920). The defendant is illegally gambling and a fight
erupts because the victim believes the defendant is cheating. This leads
to the victim’s death. Under these circumstances, the defendant should be
free to claim self-defense. Similarly, if the victim attempts to take
marijuana from the defendant and it leads to an altercation and the
victim’s death, self-defense should be available. In either case, the
majority’s “but for” test may be thought to be satisfied, and, if so, the
defendant would be precluded from raising self-defense. In general,
commission of a non-violent crime with no inherently predictable violent
outcome should not negate the defense of self-defense.
Because the courts have already taken considerable liberty with the
language of this section to avoid draconian and obviously inappropriate
results, I believe it is appropriate to fine-tune this tinkering. I
suggest it would be preferable to phrase the issue as whether there is “an
immediate causal connection” between the aspect of the defendant’s activity
that renders it criminal and the confrontation.[3] In the gambling
incident, presumably a fight could also break out in a game with no illegal
stakes and, in the marijuana hypothetical, an attempt to steal a lawfully
possessed substance could as easily erupt into violence. In sum, I believe
that the majority’s conclusion is correct based on the reasoning of
footnote two, but believe the test established is too broad and eliminates
the defense in situations where it should rightly be available.
DICKSON, J., concurs.
-----------------------
[1] Ind.Code § 35-47-2-1, -23(c)(2)(B).
[2] Mayes also is entitled to no relief on this claim for an
additional reason. The record shows Mayes fired five shots at Mary, and at
least one bullet struck her in the back as Mary was either falling down or
already on the ground. Firing multiple shots undercuts a claim of self-
defense. Miller v. State 720 N.E.2d 696, 700 (Ind. 1999) (finding
sufficient evidence to disprove the defendant’s self-defense claim
considering the defendant’s aggressive behavior and that he fired multiple
shots at the victim). See also Birdsong v. State, 685 N.E.2d 42, 46 (Ind.
1997) (noting that deadly force was unreasonable because victims were shot
several times after being incapacitated); Schlegel v. State, 238 Ind. 374,
150 N.E.2d 563, 567 (Ind. 1958) (holding that although the first shot might
have been justified in self-defense, a second shot to the victim’s body
cannot be so justified when danger of death or great bodily harm ceases).
Thus, there was sufficient evidence before the jury to reject Mayes’ claim
of self-defense notwithstanding the contemporaneous crime language
contained in the instruction.
[3] Indiana appears to be unusual in purporting to deny self-defense to
anyone committing a crime as opposed to those committing “forcible
felonies.” See Ill. Comp. Stat. 38/7-4 (2000); Kan. Stat. Ann. § 21-3214
(2000). The Model Penal Code does not contain a comparable provision.