Kawani Dukes v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 31 2018, 10:06 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
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
Peter D. Todd Curtis T. Hill, Jr.
Elkhart, Indiana Attorney General of Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kawani Dukes, July 31, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-601
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable David T. Ready,
Appellee-Plaintiff. Senior Judge
Trial Court Cause No.
20D01-1604-F3-15
Bailey, Judge.
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Case Summary
[1] Kawani Dukes (“Dukes”) appeals his conviction, following a jury trial, of
aggravated battery, as a Level 3 felony.1 He raises one issue on appeal, namely,
whether the trial court abused its discretion when it refused to instruct the jury
on self-defense.
[2] We affirm.
Facts and Procedural History
[3] The facts favorable to the judgment are as follows. On August 22, 2016, Leslie
Allen Watkins (“Watkins”) purchased half a gallon of vodka and went to
Duke’s apartment in Goshen. At approximately 3:00 p.m., Watkins and Dukes
began drinking vodka at Dukes’s apartment. At one point, Watkins passed out
for about fifteen minutes.
[4] At approximately 6:30 p.m. that same evening, Goshen Police Department
(“GPD”) officers arrived at Dukes’s apartment to serve a warrant on a female.
The officers made contact with Dukes and noticed that he was intoxicated in
that he was slurring his speech, had red glossy eyes, and smelled of alcohol.
The officers also saw Watkins in Dukes’s apartment. Watkins “was slouched in
a chair” and appeared to be passed out. Tr. Vol. III at 69. While officers were
1
Ind. Code § 35-42-2-1.5.
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present, Dukes was belligerent and yelled at the female, calling her a “bitch”
and other names. Id. at 71.
[5] After the police left and Watkins awoke, Watkins began drinking again. Then
Dukes came toward Watkins “with a blank look on his face,” pushed Watkins
to the ground, and began to choke Watkins. Tr. Vol. IV at 87. Watkins kneed
Dukes in the back, momentarily repelling his attack and allowing Watkins to
run out the apartment door. Dukes however dragged Watkins back into the
apartment.
[6] Later that day, GPD officers responded to a report of a male staggering and
falling down on a roadway. Upon arriving at the scene, officers found Watkins
sitting on the curb of a road and bleeding. Watkins was taken to the hospital,
where it was discovered that he had a limited ability to breathe, lacerations on
his scalp, two collapsed lungs, seven broken ribs, and a broken jaw. Watkins
remained hospitalized for three weeks.
[7] After Watkins was taken to the hospital, GDP officers tracked his footprints in
the snow from the curb where they had found him, back to Dukes’s apartment.
When Dukes answered the door, officers noticed he had an injury on the
knuckle of his right hand, with fresh blood on it. Officer Jeremy Welker
(“Officer Welker”) was wearing a lapel camera that recorded part of his
conversation with Dukes at the apartment. Dukes appeared to be intoxicated—
his speech was slurred and he swayed while talking to police. Dukes informed
the police that Watkins had refused to leave when Dukes asked him to do so, so
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Dukes pushed Watkins out of the apartment into the hallway. State’s Ex. 100
at 3:50. Dukes stated that Watkins hit him first and he then threw Watkins to
the ground. Id. at 3:25. Dukes admitted to the officers that he had struck
Watkins three times in the face. Tr. Vol. III at 239.
[8] On February 16, 2016, the State charged Dukes with aggravated battery.
Dukes’s jury trial took place on January 30, 2018. At trial, the recording from
Officer Welker’s lapel camera was admitted into evidence without objection,
and was published to the jury. State’s Ex. 100. After both parties rested, but
before closing arguments, Dukes requested that the court give the jury an
instruction on self-defense, which stated as follows:
A person may use reasonable force against another person to
protect himself from what the Defendant reasonably believes to
be the imminent use of unlawful force. A person is justified in
using deadly force, and does not have a duty to retreat, only if he
reasonably believes that deadly force is necessary to prevent
serious bodily injury to himself. The State has the burden of
proving beyond a reasonable doubt that the Defendant did not
act in self-defense. Indiana Pattern Jury Instruction Criminal
No. 10.0300.
App. Vol. II at 33. The State objected to this instruction on the basis of Howard
v. State, 755 N.E.2d 242 (Ind. Ct. App. 2001), arguing that “there’s been no
testimony or evidence elicited from the Defendant that he was in any fear,
much less … fear of death or great bodily harm.” Tr. Vol. IV at 145-46. The
trial court denied Defendant’s request to include a self-defense instruction,
holding:
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[T]he Court agrees with the State’s position and their analysis of
the thing. The court would also point out that while the only
evidence to support a self-defense is Defendant’s apparent
statement to a police officer that he was struck by the victim, by
Leslie Watkins. However, they also—we would note here that
Mr. Watkins testified and is not negated in any way that once
this fracas started, that he was able to get out of the apartment,
either on the landing or the steps, I don’t recall, but out of the
apartment itself and that the Defendant, Kawani Dukes, drug
him back into the apartment. That—Court feels that that
evidence is sufficient to certainly negate any suggestion of self-
defense, yet alone be substantial evidence. Therefore, the Court
does not find there is sufficient evidence to submit the self-
defense instruction and declines to do so.
(Tr. Vol. IV 147-48). Dukes now appeals.
Discussion and Decision
[9] Dukes challenges the trial court’s refusal to give his proposed instruction on
self-defense. The manner of instructing the jury is within the discretion of the
trial court, and we will reverse only for abuse of that discretion. E.g., Henson v.
State, 786 N.E.2d 274, 277 (Ind. 2003).
In determining whether a trial court abused its discretion by
declining 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.
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Lampkins v. State, 778 N.E.2d 1248, 1253 (Ind. 2002) (citation omitted). Here,
there is no contention that the proposed self-defense instruction incorrectly
stated the law, nor is there a contention that the instruction was covered by
other instructions that were given. Rather, the only issue in this case is whether
the trial court erred in holding that there was insufficient evidence presented at
trial to support giving the self-defense instruction.
[10] A valid claim of self-defense is a legal justification for an act that is otherwise
defined as “criminal.” I.C. § 35-41-3-2;2 see also, Henson, 786 N.E.2d at 277.
Initially, the burden is on the defendant to provide evidence that: (1) he was in
a place where he had a right to be; (2) he acted without fault; and (3) he had a
reasonable fear of “the imminent use of unlawful force.” Dixson v. State, 22
N.E.3d 836, 839 (Ind. Ct. App. 2014) (noting that, in cases that do not involve
deadly force, the defendant does not have to provide evidence of fear of “death
or serious bodily harm,” but merely reasonable fear of the “imminent use of
unlawful force”), trans. denied.
[11] After the defendant has provided evidence of those three factors, the burden
switches to the State to negate one of those factors. E.g., Wilson v. State, 770
N.E.2d 799, 800 (Ind. 2002). If the defendant presents even a “scintilla of
evidence” of probative value—and even if that evidence is “weak and
2
“A person is justified in using reasonable force against any other person to protect the person or a third
person from what the person reasonably believes to be the imminent use of unlawful force.” I.C. § 35-41-3-
2(c).
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inconsistent” and is based solely on the defendant’s own testimony—the trial
court should give the instruction unless the State has disproved one of the three
factors. Howard v. State, 755 N.E.2d 242, 247-48 (Ind. Ct. App. 2001), trans.
denied. However, “[t]he amount of force that a person may use to protect
himself or herself depends on the urgency of the situation.” Mateo v. State, 981
N.E.2d 59, 72 (Ind. Ct. App. 2012) (citation omitted), trans. denied. If an
individual uses more force than is reasonably necessary under the
circumstances, his self-defense claim will fail. Id. In addition, a “mutual
combatant, whether or not the initial aggressor, must communicate the desire to
stop fighting, and the other individual must continue fighting before self-defense
can be successfully claimed.” Id. (citing I.C. § 35-41-3-2(e)(3)).
[12] Here, as in Howard v. State, the defendant has failed to carry his burden because
he provided no evidence at all that he was ever in fear of the use of unlawful
force. 755 N.E.2d at 248. Moreover, even assuming that Watkins hit Dukes
first, the evidence indicates that Dukes used much greater force than was
reasonably necessary; that is, in response to being “hit,” Dukes broke seven of
Watkins’s ribs, broke Watkins’s jaw, and used force strong enough to collapse
Watkins’s lungs and require his hospitalization for three weeks. State’s Ex. 100
at 3:25. Furthermore, there is no evidence that Dukes ever communicated a
desire to stop fighting with Watkins but Watkins nevertheless continued to
fight. Therefore, the trial court did not abuse its discretion when it refused to
give the jury an instruction on self-defense. Howard, 755 N.E.2d at 248; Mateo,
981 N.E.2d at 72.
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[13] Affirmed.
Mathias, J., and Bradford, J., concur.
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