Jamar Washington v. State of Indiana , 2012 Ind. App. LEXIS 412 ( 2012 )

FILED
Aug 28 2012, 8:46 am
FOR PUBLICATION
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
VICTORIA L. BAILEY GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAMAR WASHINGTON, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1202-CR-79
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable James Osborn, Judge
Cause No. 49F15-1105-FD-30605
August 28, 2012
OPINION - FOR PUBLICATION
BARNES, Judge
Case Summary
Jamar Washington appeals his convictions for Class D felony battery, Class A
misdemeanor resisting law enforcement, and Class B misdemeanor disorderly conduct.
We affirm and remand.
Issue
The sole contested issue in this appeal is whether the trial court properly instructed
the jury.
Facts
On the evening of May 1, 2011, Washington went to a club in downtown
Indianapolis while his live-in girlfriend, Dynasty Brown, stayed home with the couple’s
children, including an eight-month-old boy. Sometime during the late evening of May 1
and early morning of May 2, 2011, Brown received a Facebook message that included a
picture of Washington with another woman at the club. After trying twice to call
Washington, unsuccessfully, Brown decided to drive to the club with the eight-month-old
boy and find Washington.
At approximately 3:00 a.m., Brown arrived at the club and saw Washington
standing outside with the other woman, Deja Crayton. Brown, while carrying the eight-
month-old on her hip, approached Washington and Crayton and then first hit Washington,
then Crayton, in the face. Brown then handed the eight-month-old to someone in the
crowd after someone shouted, “Girl, give me your baby!” Tr. p. 73. Brown and Crayton
then began fighting, with Washington attempting to break them up.
2
Several Indianapolis Metropolitan Police Department officers were near the scene
on “bar detail” and saw the Brown-Crayton-Washington altercation transpire. Id. at 68.
Officer Cedric Young approached Brown from behind, picked her up, put her face down
on the hood of a car, and attempted to handcuff her while she struggled. While Officer
Young was attempting to handcuff Brown, Washington jumped on Officer Young’s back,
put his arm around Officer Young’s neck, and started yelling, “Get off my baby mama,
get off my baby mama.” Id. at 75. Officers Geoffrey Barbieri and Lisa Weilhamer
attempted to assist Officer Young with Washington as he struggled, during which
Washington caused Officer Weilhamer to fall backwards and hit her head on the
pavement, causing a mild concussion. Offier Barbieri also fell and was kicked several
times by Washington. Eventually, five officers were able to wrestle Washington to the
ground and handcuff him. When Officer Young asked Washington why Washington had
jumped on his back, Washington responded that he thought Brown was still holding his
baby when Officer Young had forced her down onto the car hood.
The State charged Washington with Class D felony strangulation, three counts of
Class D felony resisting law enforcement, three counts of Class D felony battery on a
police officer resulting in injury, and one count of Class B misdemeanor disorderly
conduct. The State later dismissed two of the battery counts. A jury trial was held on
November 30, 2011. At Washington’s request the trial court gave a jury instruction
regarding defense of a third person; it gave a pattern instruction on the topic and did not
give two instructions tendered by Washington. The jury found Washington guilty of two
3
counts of Class A misdemeanor resisting law enforcement as lesser-included offenses of
the D felony resisting charges, one count of Class D felony battery on a law enforcement
officer, and Class B misdemeanor disorderly conduct. Washington was acquitted of the
remaining counts. The trial court merged one of the resisting convictions into the battery
convictions and sentenced Washington for one count of Class D felony battery, one count
of Class A misdemeanor resisting law enforcement, and one count of Class B
misdemeanor disorderly conduct. The abstract of judgment, however, states that
Washington was convicted of Class D felony resisting law enforcement. Washington
now appeals.
Analysis
The sole disputed issue in this case is whether the trial court properly instructed
the jury regarding defense of a third person. Washington requested instructions on the
issue with respect to his claim that he thought, albeit mistakenly, that Brown was still
holding his son when Officer Young forced her onto the hood of the car and that his son
might be crushed underneath. The manner in which a trial court instructs a jury is largely
within the sound discretion of the trial court, and we review a trial court’s decision
regarding instructions only for an abuse of that discretion. Orta v. State, 940 N.E.2d 370,
376 (Ind. Ct. App. 2011), trans. denied. We must consider the following when reviewing
a trial court’s refusal to give a defendant’s tendered jury instruction: (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
4
covered by other instructions that are given. Lewis v. State, 898 N.E.2d 429, 433 (Ind.
Ct. App. 2008), trans. denied.
The trial court gave the following pattern jury instruction regarding defense of
another person:
It is an issue whether the Defendant acted in defense of
another person.
A person may use reasonable force against another person to
protect someone else from what the Defendant reasonably
believes to be the imminent use of unlawful force.
No person in this State shall be placed in legal jeopardy of
any kind whatsoever for protecting a third person by
reasonable means necessary.
The State has the burden of proving beyond a reasonable
doubt that the Defendant did not act in defense of another
person.
App. p. 131. This pattern instruction tracks the language of the self-defense and defense
of another person statute, Indiana Code Section 35-41-3-2(a).
The trial court refused to give the following two instructions tendered by
Washington, which were tendered defense instructions 3 and 4:
A man has a right to act upon appearances of actual
and immediate danger if he sincerely believes such apparent
danger exists. The danger need not be actual. It need be only
apparent to a reasonable person under the circumstances. He
will not be accountable for an error in judgment as to the need
to use force or the amount of force necessary, provided he
acted honestly. The law protects persons who feel compelled
to act at such times even though in retrospect it is proved they
have erred. The danger need not be actual but the belief must
be in good faith and the reaction must be reasonable.
5
App. p. 102.
With regard to the defense of another, the existence of
the danger, the necessity or apparent necessity of using force,
as well as the amount of force required to resist the attack can
only be determined from the standpoint of the Accused at the
time and under the then existing circumstances.
Ordinarily, one exercising the right to defense of
another 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 defender will not be accountable for an error in
judgment as to the need to use force or amount of force
necessary.
Id. at 103. Washington asserts that these additional instructions were necessary to
adequately inform the jury that he could successfully claim defense of another, even if he
was mistaken about Brown not holding his son when Officer Young attempted to restrain
her.
On appeal, the State concedes that there was sufficient evidence that could have
supported the giving of Washington’s tendered instructions. It also concedes that
instruction 3 is a correct statement of the law, as its language comes from Franklin v.
State, 266 Ind. 540, 544, 364 N.E.2d 1019, 1021 (1977). Franklin, however, concerned a
review of the sufficiency of the evidence regarding a conviction, not the proper manner
of instructing a jury. Our supreme court has said that simply because language appears in
6
an appellate opinion does not mean it is appropriate for a jury instruction. Ludy v. State,
784 N.E.2d 459, 462 (Ind. 2003).
The State does not concede that tendered instruction 4 is a correct statement of the
law, arguing that it focuses exclusively upon a defendant’s subjective state of mind when
evaluating a claim of defense of another person. It points out that in Littler v. State, 871
N.E.2d 276, 279, (Ind. 2007), our supreme court held “that the phrase ‘reasonably
believes,’ as used in the Indiana self-defense statute, requires both subjective belief that
force was necessary to prevent . . . injury, and that such actual belief was one that a
reasonable person would have under the circumstances.” Arguably, this holding conflicts
with tendered instructions 4’s language that a self-defense claim “can only be determined
from the standpoint of the Accused . . . .” App. p. 103.
Even if instructions 3 and 4 both correctly stated the law and were supported by
the evidence, the closer question in this case is whether their substance was adequately
covered by the trial court’s giving of the pattern instruction regarding defense of another
person. Initially, “we must note that the preferred practice is to use the pattern jury
instructions.” Gravens v. State, 836 N.E.2d 490, 493 (Ind. Ct. App. 2005), trans. denied.
We must, however, carefully consider our supreme court’s holding in French v. State,
273 Ind. 251, 403 N.E.2d 821 (Ind. 1980).
In French, a defendant claimed self-defense in a murder prosecution. The trial
court gave the following instruction regarding the use of deadly force in self-defense:
7
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 in the
commission of a forcible felony.
French, 273 Ind. at 255, 403 N.E.2d at 824. Our supreme court held this instruction to be
inadequate and its inadequacy to be reversible error, stating:
At no point in the instructions given was the jury informed
that in the exercise of the right, a defender may repel force by
force reasonably necessary and that he will not be
accountable for an error in judgment as to the amount of force
necessary, provided he acted honestly. Neither did the court’s
instructions apprize the jury that the existence of the danger,
the necessity or apparent necessity, as well as the amount of
force required to resist the attack can only be determined
from the standpoint of the defendant, at the time and under
the then existing circumstances.
Id. at 256, 403 N.E.2d at 825. Our supreme court has never expressly overruled French.
Taken at face value, French might have required more expansive jury instructions than
the pattern instruction the trial court here gave, including at least some of the language in
the instructions Washington tendered.
In Shaw v. State, 534 N.E.2d 745 (Ind. 1989), our supreme court addressed a case
in which the jury was given the following self-defense instructions:
A person is justified in using reasonable force against another
person to protect herself from what she reasonably believes to
be the imminent use of unlawful force. However, a person is
justified in using deadly force only if she reasonably believes
that the force is necessary to prevent serious bodily injury to
herself or the commission of a forcible felony. No person in
8
this state shall be placed in legal jeopardy of any kind
whatsoever for protecting herself by reasonable means
necessary.
There are three (3) requirements for self defense when deadly
force is used:
(1) The defendant must have acted without fault;
(2) The defendant must have had a right to be where she
was; and,
(3) The defendant must have reasonably believed that she
was in immediate danger of death or serious bodily harm.
Once a claim of self defense is raised, the State bears the
burden of disproving the existence of one of these elements
beyond a reasonable doubt. . . .
Although threats alone are not sufficient to justify an assault,
a threat at a time when there is the present ability to assault,
and under circumstances which lead a person in good faith
reasonably to believe that he is about to be seriously injured
or killed is sufficient on the theory of self defense.
In Shaw, the defendant argued that these instructions were insufficient under French
because they did not explicitly advise the jury that they had to evaluate the self-defense
claim based on how the situation appeared to be to the defendant, rather than what the
actual facts were. Indeed, these jury instructions do not include the language that the
French opinion seemed to hold was required. Regardless, the Shaw opinion held that the
jury instructions there went beyond those disapproved of in French and were sufficient.
Shaw, 534 N.E.2d at 747. The court stated:
[T]he jury was repeatedly told that the standard to be
considered by the jury was the reasonable belief of the
9
defendant. . . . We cannot see how such language could be
interpreted by a jury in any manner other than that the
standard to be used was the state of mind of the defendant at
the time of the infliction of the injury.
Id.
Relying upon Shaw’s “clarification” of French, this court subsequently approved
the giving of a pattern jury instruction on self-defense that was in all relevant respects
identical to the instruction given here. See Davis v. State, 691 N.E.2d 1285, 1289-90
(Ind. Ct. App. 1998).1 Indeed, it is difficult to read Shaw as anything other than an
implicit disapproval of French, at least to the extent French holds that a jury must be
instructed that a defendant claiming self-defense or defense of another “will not be
accountable for an error in judgment as to the amount of force necessary, provided he
acted honestly,” and that the reasonableness of a defendant’s actions “can only be
determined from the standpoint of the defendant, at the time and under the then existing
circumstances.” French, 273 Ind. at 256, 403 N.E.2d at 825. Rather, we believe Shaw
held that it is sufficient to clearly instruct a jury that a defendant claiming self-defense or
defense of another must have acted “reasonably.” The pattern instruction given to the
jury here did so. As such, we conclude that the substance of the instructions tendered by
Washington was adequately covered by the instruction given by the trial court, meaning
the trial court did not abuse its discretion in refusing to give those instructions.
1
The instruction in Davis included language regarding the use of deadly force and defense of one’s
dwelling or curtilage, neither of which were at issue in this case.
10
Although we affirm Washington’s convictions, the State concedes that the trial
court made a clerical error on the abstract of judgment. It states that Washington was
convicted of Class D felony resisting law enforcement. The actual judgment of
conviction, however, states that Washington was convicted of Class A misdemeanor
resisting law enforcement. We therefore remand for the trial court to enter a corrected
abstract of judgment accurately reflecting that Washington was convicted of Class A
misdemeanor resisting law enforcement.
Conclusion
The trial court did not abuse its discretion in instructing the jury, and we affirm
Washington’s convictions. However, we remand for correction of the abstract of
judgment.
Affirmed and remanded.
VAIDIK, J., and MATHIAS, J., concur.
11