Deandre L. Barnes v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Nov 14 2016, 8:45 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kristin A. Mulholland Gregory F. Zoeller
Crown Point, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Deandre L. Barnes, November 14, 2016
Appellant-Defendant, Court of Appeals Case No.
45A03-1601-CR-1
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Plaintiff. Judge
The Honorable Natalie Bokota,
Magistrate
Trial Court Cause No.
45G01-1412-F3-19
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-1 | November 14, 2016] Page 1 of 9
Statement of the Case
[1] Deandre Barnes (“Barnes”) appeals the trial court’s refusal to give his proposed
jury instruction during his trial for Level 3 felony robbery.1 He argues that the
trial court’s final jury instruction did not cover the same substance as his
proposed jury instruction and improperly referred to him as a “defendant”
rather than an “accused.” Because we conclude that the trial court’s jury
instruction covered the substance of Barnes’ proposed instruction and was
proper, we affirm.
[2] We affirm.
Issue
Whether the trial court abused its discretion when it refused to
give Barnes’ proposed jury instruction.
Facts
[3] Around 5:30 p.m. on December 8, 2014, Thomas O’Neill (“O’Neill”) was
walking on the streets near his house in Hammond, Indiana. As he was
walking, he observed a gray SUV with three men around it. The three men
then approached him and started to circle him. One man told him not to move,
and another man pulled a gun out and pointed it at O’Neill’s midsection.
O’Neill raised his hands, and one of the men—later identified as Barnes—and
another man—later identified as Maurice McCoy (“McCoy”)—went through
1
IND. CODE § 35-42-5-1(1).
Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-1 | November 14, 2016] Page 2 of 9
his pockets. Barnes took sixty dollars out of one of the pockets and then said “I
got it” and walked away. (Tr. 89). One of the men followed him, and the other
got into the SUV and drove away. O’Neill went to a shop on the street and
asked a man there to call 9-1-1.
[4] When police officers arrived at the scene, O’Neill described the SUV and the
three men who had stopped him. The police searched the area, and Officer
Brett Schloer (“Officer Schloer”) came across a gray or silver SUV. The driver,
McCoy, exited the vehicle and “seemed lost.” (Tr. 204). Instead of walking
into the house in front of which he had parked, he walked a couple of houses
north, started to walk to the house there, then continued northwards again.
Officer Schloer found this behavior suspicious and, since McCoy matched the
description he had been given of the robbery suspects, began driving toward
McCoy. At that point, McCoy began to run, and Officer Schloer parked and
started to pursue him on foot. Eventually, another officer found McCoy hiding
underneath a vehicle a half a block away from Officer Schloer. Officer Schloer
then went back to the silver SUV and found a man named Dominique
Randolph (“Randolph”) “trying to hide” in the vehicle. (Tr. 211).
[5] Meanwhile, Officer Chris Berdine (“Officer Berdine”) was also searching the
area. He had heard that one of the suspects was a black male with “dreadlock
style hair wearing . . . a dark colored stocking cap.” (Tr. 232). As he was
driving around the area, he saw someone who matched that description—
Barnes—walking along the street. Officer Berdine detained Barnes, and then
another officer took Barnes, McCoy, and Randolph to meet up with another
Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-1 | November 14, 2016] Page 3 of 9
officer, who had O’Neill in his car. The officers conducted a “show-up”
identification where they showed the three individuals to O’Neill, and O’Neill
identified them as the men who had stopped him and taken his money. (Tr.
180).
[6] Subsequently, on December 10, 2014, the State charged Barnes, McCoy, and
Randolph with Level 3 felony armed robbery. On July 6, 2015, Barnes filed a
motion to sever his trial from that of his co-defendants, but the trial court
denied the motion. The trial court then held a joint jury trial for the three co-
defendants on October 26-28, 2015.
[7] At the conclusion of the trial, Barnes submitted a proposed final jury instruction
stating:
The indictment/information names multiple persons who are on
trial together. In reaching a verdict, however, you must bear in
mind that guilt is individual. Your verdict as to each Accused
must be determined separately with respect to him/her, solely on
the evidence, or lack of evidence, presented against him/her
without regard to the guilt or innocence of anyone else. In
addition, some of the evidence in this case was limited to one
Accused. Let me emphasize that any evidence admitted solely
against one Accused may be considered only as against that
person and may not in any respect enter into your deliberations
on any other accused.
(App. 111). The trial court had a jury instruction that addressed the issue of a
joint trial, but Barnes argued that his proposed instruction “more clearly set[]
out about as far as the evidence against anyone accused, versus another.” (Tr.
351). He also stated that he “like[d] the language [in his proposed instruction]
of the ‘accused’ as opposed to the ‘defendant’” in the trial court’s instruction.
Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-1 | November 14, 2016] Page 4 of 9
(Tr. 351). The trial court refused to give Barnes’ proposed instruction,
concluding that:
Well, the fact of the matter is that whenever we’re dealing with a
jury, of course we’re dealing with lay people; these are not
attorneys. And the fact of the matter is, I think it’s clearer to
them, and we continue to call the defendants the defendants,
because that is how they know them as, although we’ve
explained to them that an accused is presumed innocent. The
Court will use this instruction because I think it is the most
consistent with the way the trial has proceeded. So[,] we will not
be giving the proposed, but rather the standard [instruction], as to
the joint trial.
(Tr. 352). Instead, the trial court instructed the jury as follows:
Although the defendants are being tried jointly, you must give
separate consideration to each defendant. In doing so, you must
analyze what the evidence in the case shows with respect to each
defendant. Each defendant is entitled to have his case decided on
the evidence and the law applicable to him.
(App. 56). Thereafter, the jury found Barnes and his co-defendants guilty as
charged, and the trial court sentenced Barnes to twelve (12) years in the Indiana
Department of Correction. Barnes now appeals.
Decision
[8] On appeal, Barnes argues that the trial court abused its discretion when it
refused his proposed jury instruction. He contends that the trial court’s
instruction did not fully cover the substance of his proposed instruction.
Specifically, he asserts that the trial court’s instruction did not instruct the jury
that evidence offered against one accused could not be used in deliberations
regarding another accused. He also argues that the trial court’s instruction
Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-1 | November 14, 2016] Page 5 of 9
improperly referred to the defendants as “defendants” rather than “the
accused.” (Barnes’ Br. 10).
[9] Instructing a jury is left to the sound discretion of the trial court and is reviewed
only for an abuse of discretion. Patterson v. State, 11 N.E.3d 1036, 1040 (Ind.
Ct. App. 2014). On review, we evaluate a trial court’s refusal of a proposed
jury instruction in three steps: (1) we determine whether the proposed
instruction correctly states the law; (2) we determine whether the evidence
supports giving the instruction; and (3) we determine whether the substance of
the instruction was covered by other instructions. Id. “‘We consider jury
instructions as a whole and in reference to each other and do not reverse the
trial court . . . unless the instructions as a whole mislead the jury as to the law in
the case.’” Id. (quoting Lyles v. State, 834 N.E.2d 1035, 1048 (Ind. Ct. App.
2005) (internal quotes and citations omitted), trans. denied).
[10] The State does not dispute that Barnes’ proposed jury instruction correctly
states the law and was supported by the evidence. Accordingly, we need
determine only whether the substance of Barnes’ proposed instruction was
covered by other instructions. Barnes argues that the trial court’s instruction
did not cover the substance of his proposed instruction because it did not
instruct the jury that evidence offered against one accused could not be used in
deliberations against another accused. Notably, he has not identified any
evidence that was offered against only one accused. Regardless, the trial court’s
jury instruction stated that “[e]ach defendant is entitled to have his case decided
on the evidence and the law applicable to him” and that the jury “must give
Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-1 | November 14, 2016] Page 6 of 9
separate considerations to each defendant.” (App. 56). This instruction is
equivalent to instructing the jury that evidence offered against one accused
cannot be offered against another. It appropriately instructed the jury that
evidence “applicable” to each defendant—in other words, “offered against each
separate defendant”—should be considered only with respect to that defendant.
(App. 56). Thus, the substance of Barnes’ proposed instruction was covered by
the trial court’s instruction.
[11] Next, Barnes argues that the final jury instruction improperly referred to the
defendants as “defendants” rather than “the accused.” He contends that the
term “defendant” was prejudicial because it implied that Barnes had to
“actively defend against or attempt to disprove the charges asserted” and was
not presumed innocent. (Barnes’ Br. 10). He also notes that the United States
Constitution grants rights to an “accused” in a criminal proceeding but does not
mention the term “defendant.”
[12] As stated above, the trial court refused Barnes’ proposed instruction with the
term “accused” because the term “defendant” had been used throughout the
rest of the trial, and that was how the jury knew the defendants. We do not find
this decision to be an abuse of discretion because, as the trial court stated, the
jury knew the defendants as “defendants.” Further, the difference between the
two terms is merely a matter of semantics, and the State of Indiana has a long
history of referring to defendants as “defendants” in jury instructions. See, e.g.,
Wilson v. State, 525 N.E.2d 619, 624 (Ind. Ct. App. 1988) (affirming the trial
court’s jury instruction using the term “defendant”), reh’g denied. The Indiana
Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-1 | November 14, 2016] Page 7 of 9
pattern jury instructions are given “preferential treatment during litigation,”
meaning that “the preferred practice is to use the pattern instructions,” and
many pattern instructions also include the term “defendant.” Harrison v. State,
32 N.E.3d 240, 252 n.5 (Ind. Ct. App. 2015) (affirming the trial court’s use of a
jury instruction based on an Indiana pattern jury instruction utilizing the term
“defendant”), trans. denied. See also Indiana Pattern Jury Instructions—Criminal
(2d ed. 1991), No. 2.11 at 43 (Stating that “[t]o convict the defendant, the State
must have proved each of the following elements . . .”) (emphasis added).
[13] Barnes challenges the use of the term “defendant” based on his interpretation
that it could imply that he is not presumed innocent. However, we note that
the trial court also instructed the jury that:
. . . [T]he burden rests upon the State of Indiana to prove to each
of you beyond a reasonable doubt every essential element of the
crime charged. The charge which has been filed is the formal
method of bringing the defendants to trial. The fact that a charge
has been filed, the defendants arrested and brought to trial is not
to be considered by you as any evidence of guilt.
(App. 63). Also, the trial court instructed the jury that “[i]t is a fundamental
concept in our law that the defendant comes into court presumed to be innocent
of the charges, and this presumption remains throughout the trial of the case,
until and unless it is overcome by competent proof of guilt beyond a reasonable
doubt.” (App. 64). In light of these jury instructions, we conclude that the jury
was properly instructed that Barnes was presumed innocent and that the trial
court did not abuse its discretion by giving a jury instruction referring to Barnes
Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-1 | November 14, 2016] Page 8 of 9
as a “defendant.” Accordingly, we conclude that the trial court did not abuse
its discretion in instructing the jury.
[14] Affirmed.
Bradford, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-1 | November 14, 2016] Page 9 of 9