Antoine L. Kelley Jr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 02 2020, 9:13 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
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estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas C. Allen Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Antoine L. Kelley Jr., July 2, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2383
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D05-1904-MR-2
May, Judge.
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[1] Antoine L. Kelley Jr. appeals his conviction of murder. 1 He raises two issues
on appeal, which we revise and restate as: (1) whether the trial court abused its
discretion when it refused to instruct the jury regarding the lesser-included
offense of Level 5 felony reckless homicide, 2 and (2) whether the State
presented sufficient evidence to support Kelley’s murder conviction. We affirm.
Facts and Procedural History
[2] In late March 2019, Christopher Ellis, Alfonso Rogers, Jacob Reed, and
Darrius McMorris decided to travel from Chicago to Fort Wayne in order to
visit Kelley and “to make some money[.]” (Tr. Vol. II at 158.) The five had
grown up in the same neighborhood in Chicago and were childhood friends.
On Sunday March 24, 2019, Kelley went to Chicago and drove the four others
to Fort Wayne. Kelley was in the process of moving houses at the time, so his
four friends helped him move on Wednesday and Thursday. Starting on
Thursday, Ellis noticed “there was something wrong with [Kelley].” (Id. at
162.) Kelley acted “paranoid” and “nervous.” (Id. at 189.) Kelley paced the
floor, and he said people were out to get him and the police were watching him.
However, he did not elaborate when his friends asked him why he was anxious.
1
Ind. Code § 35-42-1-1.
2
Ind. Code § 35-42-1-5.
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[3] On Sunday evening, March 31st, Kelley left his house to socialize with some of
his friends from Fort Wayne, while his four friends from Chicago stayed at the
house. They eventually fell asleep. Reed was the first of the four to wake on
Monday, April 1, 2019. Reed was sitting in the kitchen when he noticed Kelley
pacing back and forth. Ellis, Rogers, and McMorris were asleep in the nearby
living room. Kelley stated that he needed McMorris to take him to the grocery
store. Reed offered to take Kelley to the store, but Kelley insisted that
McMorris take him. McMorris woke up and agreed to take Kelley to the store.
McMorris said he first wanted to wash his face and brush his teeth. While
McMorris was in the bathroom, Kelley walked to the bathroom door and fired
multiple shots from a gun at McMorris. Kelley and McMorris did not say
anything to each other before Kelley started shooting. One bullet struck
McMorris in the back, and three other bullets hit him in the side. Ellis and
Rogers watched as Kelley then backed out of the house with his handgun
pointed at them and ran away. Reed left the house when Kelley began firing.
[4] After Kelley left the house, Ellis, Rogers, and Reed rushed to a nearby gas
station. They called the police, and they decided to leave Fort Wayne because
they were worried Kelley might also harm them. The three took a Greyhound
bus back to Chicago. Officers obtained a search warrant to search the house
and found McMorris dead at the scene. Kelley left Fort Wayne after the
shooting and drove to Tennessee where his girlfriend resided. He disposed of
his gun somewhere along the highway.
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[5] On April 10, 2019, the State charged Kelley with murder. The State also
alleged that Kelley used a firearm in the commission of the offense, making him
eligible for an additional penalty pursuant to Indiana Code section 35-50-2-11.
Officers arrested Kelley in Tennessee and extradited him to Indiana. The court
held a jury trial from August 13 to August 15, 2019. Kelley took the stand in
his own defense at trial. He testified there were two guns inside the house at the
time, and McMorris reached into his sweatshirt for something that Kelley
believed was the second gun before Kelley shot McMorris. Kelley also testified
that he had begun to suspect his friends were plotting to rob him because they
would whisper amongst themselves and repeatedly asked him where he stored
his money. Kelley asked the trial court to instruct the jury on the lesser-
included offense of reckless homicide. However, the trial court refused the
proposed instruction on the ground that a serious evidentiary dispute did not
exist. The jury returned a guilty verdict on the charge of murder and found
beyond a reasonable doubt that Kelley used a firearm in the commission of the
offense. The trial court sentenced Kelley to a term of sixty years in the Indiana
Department of Correction with ten years added to the sentence because of the
firearm enhancement, for an aggregate term of seventy years.
Discussion and Decision
1. Reckless Homicide Instruction
[6] Kelley argues the trial court abused its discretion by not instructing the jury
regarding the lesser-included offense of reckless homicide. We review a trial
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court’s decision to give or deny a proposed jury instruction for an abuse of
discretion. Dixson v. State, 22 N.E.3d 836, 839 (Ind. Ct. App. 2014), trans.
denied. “A decision is an abuse of discretion when it is clearly against the logic
and effect of the facts and circumstances.” Garner v. State, 59 N.E.3d 355, 358
(Ind. Ct. App. 2016) (internal quotation marks omitted). When a party asks for
the court to issue an instruction regarding a lesser included offense, the court
evaluates the appropriateness of the instruction using a three-part test. Watts v.
State, 885 N.E.2d 1228, 1231 (Ind. 2008). First,
the court must compare the statute defining the crime charged
and the statute defining the alleged lesser-included offense. If the
alleged lesser-included offense may be established by proof of all
of the same or proof of less than all of the same material elements
to the crime, or if the only difference between the two statutes is
that the alleged lesser-included offense requires proof of a lesser
culpability, then the alleged lesser-included offense is inherently
included in the crime charged.
Id. Second, if the court determines the proposed lesser-included offense is not
inherently included in the charged crime, the court looks to the charging
information to see if all the statutory elements of the proposed lesser-included
offense are alleged in the charging information. Id. If either the first or second
parts of the test are satisfied, then
the trial court must examine the evidence presented by each party
and determine whether there is a serious evidentiary dispute over
the element or elements that distinguish the crime charged and
the lesser-included offense. If it would be possible for a jury to
find that the lesser, but not the greater, offense had been
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committed, then the trial court must instruct the jury on both
offenses.
Id. at 1232 (emphasis in original).
[7] Indiana Code section 35-42-1-1 defines murder as “knowingly or intentionally
[killing] another human being[.]” Indiana Code section 35-42-1-5 provides, “A
person who recklessly kills another human being commits reckless homicide, a
Level 5 felony.” The only difference between murder and reckless homicide is
the level of culpability. Murder requires the perpetrator to act knowingly or
intentionally, whereas reckless homicide requires only that the perpetrator act
recklessly. Consequently, reckless homicide is an inherently lesser-included
offense of murder. McDowell v. State, 102 N.E.3d 924, 931 (Ind. Ct. App. 2018),
trans. denied.
[8] It is reversible error for a trial court to not give an instruction on an inherently
lesser-included offense if there is a serious evidentiary dispute regarding the
perpetrator’s culpability. Higgins v. State, 783 N.E.2d 1180, 1187 (Ind. Ct. App.
2003), trans. denied. However, a trial court should not give such an instruction if
there is no serious evidentiary dispute. Id. Kelley argues some evidence
supported the theory that he acted recklessly rather than knowingly or
intentionally because Kelley should have verified McMorris had a gun before
Kelley shot McMorris. Kelley also contends McMorris’ large physical size,
combined with Kelley’s fear that his friends were plotting to rob him, made him
“suspicious and hypervigilant.” (Appellant’s Br. at 18.)
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[9] A defendant who fires a gun at another person at close range cannot do so
without knowing his action is “highly probable to result in death.” Sanders v.
State, 704 N.E.2d 119, 122-23 (Ind. 1999). It is not disputed that Kelley shot
McMorris four times, at close range, and in an enclosed space. The question
presented to the jury was not whether Kelley intentionally fired his gun at
McMorris, but whether Kelley did so in self-defense. Therefore, the trial court
did not abuse its discretion in refusing Kelley’s proposed jury instruction. See
Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013) (holding trial court
did not abuse discretion in refusing proposed jury instruction on a lesser
included offense of reckless homicide because there was not a serious
evidentiary dispute about mens rea).
2. Sufficiency of the Evidence
[10] Kelley also asserts the State did not present sufficient evidence to rebut his self-
defense claim. As our Indiana Supreme Court has explained:
The standard of review for a challenge to the sufficiency of
evidence to rebut a claim of self-defense is the same as the
standard for any sufficiency of the evidence claim. We neither
reweigh the evidence nor judge the credibility of witnesses. If
there is sufficient evidence of probative value to support the
conclusion of the trier of fact, then the verdict will not be
disturbed.
Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2002).
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[11] A valid claim of self-defense is a legal justification for an otherwise criminal act.
Id. at 800. Indiana Code section 35-41-3-2 (2013) 3 states that “a person: (1) is
justified in using deadly force; and (2) does not have a duty to retreat; if the
person reasonably believes that that force is necessary to prevent serious bodily
injury to the person or a third person or the commission of a forcible felony.”
“To prevail on a claim of self-defense, the defendant must show that he: (1) was
in a place where he had a right to be; (2) did not provoke, instigate, or
participate willingly in the violence; and (3) had a reasonable fear of death or
great bodily harm.” Quinn v. State, 126 N.E.3d 924, 927 (Ind. Ct. App. 2019).
If a defendant asserts a claim of self-defense, then the State bears the burden of
negating at least one of the necessary elements. Id. The jury is tasked with
deciding whether the State met its burden. Id.[12] The State presented evidence that Kelley instigated the violence and did not
reasonably fear for his life. Ellis, Rogers, and Reed testified that they did not
observe any argument or altercation between Kelley and McMorris before
Kelley started firing. Kelley fired his weapon multiple times and shot
McMorris in the back. See Hood v. State, 877 N.E.2d 492, 497 (Ind. Ct. App.
2007) (“Firing multiple shots undercuts a claim of self-defense.”), trans. denied.
[13] Further, it stands to reason that if Kelley truly believed his friends were trying
to rob him, he would have reported the shooting to the police. However, he did
3
This statute was amended effective April 26, 2019. However, the amended language is immaterial to the
case at bar.
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not do so. He left Indiana and disposed of his gun. See Wilcoxson v. State, 132
N.E.3d 27, 31 (Ind. Ct. App. 2019) (noting “an attempt to avoid arrest is
evidence of a guilty conscience”), trans. denied. Therefore, the State presented
sufficient evidence for a reasonable juror to conclude Kelley did not act in self-
defense. See Quinn, 126 N.E.3d at 927 (holding State presented sufficient
evidence to negate self-defense claim).
Conclusion
[14] The trial court did not abuse its discretion in refusing to instruct the jury
regarding the lesser included offense of reckless homicide because there was no
serious evidentiary dispute regarding Kelley’s level of culpability. Further, the
State presented sufficient evidence to negate Kelley’s self-defense claim.
Therefore, we affirm Kelley’s conviction of murder.
[15] Affirmed.
Robb, J., and Vaidik, J., concur.
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