ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian J. May Steve Carter
South Bend, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
INDIANA SUPREME COURT
KARL P. DRIVER, )
v. ) 71S00-0102-CR-140
STATE OF INDIANA, )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable John Marnocha, Judge
Cause No. 71D03-0003-CF-132
On Direct Appeal
January 15, 2002
The defendant, Karl Driver, was convicted of murder
See footnote for the March 2000 killing
of Landrea Hurt in South Bend. On appeal, the defendant argues that
the trial court erred in failing to instruct the jury on self-defense and
in instructing the jury on transferred intent. We affirm.
The defendant contends the trial court should have given his tendered instructions on
self-defense. To determine whether the trial court erred in refusing to give
an instruction, we consider: (1) whether the tendered instruction correctly states the
law; (2) whether the evidence supports giving the instruction; and (3) whether
other instructions already given cover the substance of the tendered instruction.
v. State, 700 N.E.2d 784, 787-88 (Ind. 1998); Griffin v. State, 644 N.E.2d
561, 562 (Ind. 1994). When evaluating these considerations, we bear in mind
that instructing the jury generally lies within the sole discretion of the trial
court. Edgecomb v. State, 673 N.E.2d 1185, 1196 (Ind. 1996). Appellate
reversal is appropriate only for abuse of discretion. Id. The State
does not argue that the tendered instructions misstate the law or that the
substance of the tendered instructions was covered by other instructions, but rather that
the evidence in this case does not support giving an instruction on self-defense.
A valid claim of self-defense provides a legal justification for a person to
use force against another to protect himself from what he reasonably believes to
be the imminent use of unlawful force. Ind.Code § 35-41-3-2(a). He
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." Id. A claim of self-defense in a homicide prosecution requires
that the defendant acted without fault, was in a place where he had
a right to be, and was in reasonable fear of death or great
bodily harm. Milam v. State, 719 N.E.2d 1208, 1210 (Ind. 1999).
Thus, among other things, the defendant's claim requires that he did not provoke,
instigate or participate willingly in the violence. Brooks v. State, 683 N.E.2d
574, 577 (Ind. 1997).
Shortly before the defendant fatally fired his handgun, he arrived at the victim's
home with three women who intended to physically fight the victim. The
women were armed with a baseball bat and a bottle. The defendant
armed with a handgun went with the women to prevent others from interfering
with the anticipated fight. As the women started toward the house, Keisha
Williams, the victim's roommate, came out onto the porch holding a shotgun.
Upon seeing this, the women accompanying the defendant retreated to their cars.
The defendant, who had remained across the street from the houseapproximately thirty or
forty yards away, began firing his handgun at Williams as she stood in
front of the house. The victim was standing at the front door.
One of the bullets struck the victim in the head killing her.
The defendant contends that he was responding in self-defense after hearing Williams announcing
that she was "going to kill me a [mf]," and after seeing Williams
point her gun in his direction. Record at 475-7. The evidence
is undisputed, however, that the defendant was part of the group that went
to the victim's house intending to cause the victim bodily harm, that his
actions were not without fault, and that he was there to willingly participate
in violence. For these reasons, the trial court did not err in
refusing his tendered instructions on self-defense.
The defendant also contends that the trial court erred in instructing the jury
that "the State is not required to prove that the defendant intended to
kill the actual victim" and that the "element of intent is satisfied if
the State proves beyond a reasonable doubt that the defendant knowingly intended to
kill someone." Record at 74. The defendant argues that the evidence
does not support this instruction because he came to the victim's home without
any plan to hurt her or anyone else.
The intent to kill may be inferred from the deliberate use of a
deadly weapon in a manner likely to cause death or serious injury.
Bethel v. State, 730 N.E.2d 1242, 1245 (Ind. 2000); Wilson v. State, 697
N.E.2d 466, 476 (Ind. 1998); McEwen v. State, 695 N.E.2d 79, 90 (Ind.
1998). Because the defendant fired his handgun at Keisha Williams, the trial
court did not err in giving the instruction.
We affirm the defendant's conviction for murder.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
Ind.Code § 35-42-1-1.