ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PAUL T. FULKERSON KAREN M. FREEMAN-WILSON
Skiles & Cook Attorney General of Indiana
GRANT H. CARLTON
Deputy Attorney General
KENNETH MAYES, ) ) Appellant-Defendant, ) ) Supreme Court Cause Number v. ) 49S00-0002-CR-92 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
ON DIRECT APPEAL
March 13, 2001
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 or the commission
of a forcible felony. No person in this State shall be placed
in legal jeopardy of any kind whatsoever for protecting himself or his family
by reasonable means necessary.
A person is not justified in using force if:
He is committing, or is escaping after the commission of[,] a crime;
He has entered into combat with another person or is the initial aggressor,
unless he withdraws from the encounter and communicates to the other person his
intent to do
so and the other person nevertheless continues or threatens to
continue unlawful action.
The State has the burden of disproving this defense beyond a reasonable doubt.
R. at 81. Mayes acknowledges that the instruction tracks the language of the self-defense statute nearly verbatim. See I.C. § 35-41-3-2. His complaint however is with the declaration [a] person is not justified in using force if . . . he is committing . . . a crime. Mayes concedes that he possessed an unlicensed handgun when he shot his girlfriend and tacitly admits that doing so was a crime. He contends however that this is not the type of offense that should negate a claim of self-defense. We agree that in some instances a contemporaneous crime may not negate a claim of self-defense. In this case however Mayes argument fails.
A valid claim of self-defense is legal justification for an otherwise criminal act. Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). This is a long-standing tenet of the law in this jurisdiction that predates statutory codification. See, e.g., Bryant v. State, 106 Ind. 549, 7 N.E. 217, 219-20 (1886) (noting that principle of justifiable and excusable homicide on the ground of self-defense has been fully endorsed, approved, and acted upon in many recent decisions of this Court, well before the defense was codified in 1905). Indeed, the self-defense statute itself endorses the proposition that one is entitled to defend oneself under circumstances where it reasonably appears that a person is in danger of bodily harm: [n]o person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting himself or his family by reasonable means necessary. I.C. § 35-41-3-2(a). The goal of statutory construction is to determine, give effect to, and implement the intent of the legislature. Sales v. State, 723 N.E.2d 416, 420 (Ind. 2000). The legislature is presumed to have intended the language used in the statute to be applied logically and not to bring about an unjust or absurd result. Id. Although penal statutes are not to be read so narrowly that they exclude cases they fairly cover, nonetheless, we conventionally construe penal statutes strictly against the State. Id.
A literal application of the contemporaneous crime exception would nullify claims for self-defense in a variety of circumstances and produce absurd results in the process. A similar view was expressed by our Court of Appeals in a case very similar to the one before us. In Harvey v. State, 652 N.E.2d 876 (Ind. Ct. App. 1995), the defendant shot the victim with an unlicensed firearm and claimed self-defense in the fatal shooting. The trial court instructed the jury, A person who is not in his home or fixed place of business and is carrying a handgun without a license cannot by law claim the protection of the law of self defense. Id. at 876. The Court of Appeals found the jury instruction was erroneous because it ignored any nexus between the crime and the shooting. Id. at 877. Writing for the court, Judge Garrard observed:
If subsection (d)(1) [of Indiana Code § 35-41-3-2] is to be taken literally, then no person may claim self defense if that person at the time he acts is coincidentally committing some criminal offense. For example, possession of a marijuana cigarette or the failure to have filed ones income tax returns could deny one the defense no matter how egregious, or unrelated, the circumstances that prompted the action. Read as a whole, the statute refutes such a construction.
Id. at 877. We agree and note this view has been shared by other jurisdictions that have considered the matter. See, e.g., Oregon v. Doris, 94 P. 44, 53 (Or. 1908) ([T]o hold that the mere fact that a person accused of a homicide was armed at the time, and that because of the misdemeanor resulting therefrom [possession of a concealed weapon] he shall be deprived of any right of self-defense, would lead to the absurd and unjust consequence in practically all cases of depriving the accused of any defense . . . .); South Carolina v. Leaks, 103 S.E. 549, 551 (S.C. 1920) (In a prosecution for homicide [t]he causal connection between the unlawful act of gambling and the encounter arising during the progress of the game between the participants is too remote to destroy the right of self-defense.); West Virginia v. Foley, 35 S.E.2d 854, 861 (W.Va. 1945) (Whether [defendant] had a license to carry a pistol on the occasion he was armed is not relevant in the least to the common law right to arm for self-defense.).
We also observe that as applied to the facts of this case, if Mayes had previously obtained a valid license but it had expired one minute before he shot his girlfriend, then, if the statute is to be read literally, a self-defense claim would be unavailable. The legislature could not have intended that a defense so engrained in the jurisprudence of this State be dependent upon the happenstance of such timing.
We conclude that because a defendant is committing a crime at the time he is allegedly defending himself is not sufficient standing alone to deprive the defendant of the defense of self-defense. Rather, there must be an immediate causal connection between the crime and the confrontation. Stated differently, the evidence must show that but for the defendant committing a crime, the confrontation resulting in injury to the victim would not have occurred. Cf. Roche v. State, 690 N.E.2d 1115, 1124 (Ind. 1997) (A person who kills while committing or attempting to commit a robbery is a person who kills while committing a crime and so the defense of self-defense is not available.). Having reached this conclusion however does not mean we agree that Mayes is entitled to reversal and a new trial.
The manner of instructing a jury lies largely within the discretion of the trial court, and we will reverse only for abuse of discretion. Benefiel v. State, 716 N.E.2d 906, 914 (Ind. 1999), cert.denied, 121 S. Ct. 83 (2000). To constitute an abuse of discretion, the instruction given must be erroneous, and the instruction taken as a whole must misstate the law or otherwise mislead the jury. Id. When determining whether a trial court erroneously gave or refused 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. Fields v. State, 679 N.E.2d 1315, 1322 (Ind. 1997).
There is no question in this case that the instruction correctly states the law it is a near verbatim recitation of the self-defense statute. Nor does the record show that the instruction was covered by other instructions. The question here is whether there was evidence presented to support giving the instruction. More specifically, was there evidence demonstrating that but for Mayes possession of an unlicensed handgun, the confrontation resulting in Marys shooting death would not have occurred?
The record shows that after Mary and her sister left Mayes home and walked away, Mayes went back into the house and grabbed his jacket which contained a handgun. On the one hand, the fact that Mayes did not have a license to possess the weapon would seem to have no bearing on its use in Marys death. On the other hand, the jury could have concluded that but for Mayes possession of the unlicensed handgun, Mary would still be alive because Mayes unlicensed handgun was required, by law, to be kept at his dwelling, on his property, or at his fixed place of business. See I.C. § 35-47-2-1. Ultimately it is left to the jury, the fact-finder in this case, to determine whether there is an immediate causal connection between Mayes possession of an unlicensed firearm and Marys death. This is not an issue that can be resolved by this Court as a matter of law. Cf. Harvey, 652 N.E.2d at 877 (finding that the trial court properly instructed the jury on the definition of self-defense, including the committing a crime provision, but erred by further instructing the jury that a person who possessed an unlicensed handgun could not claim self-defense). We conclude the trial courts jury instruction on self-defense was not erroneous. See footnote
Paul T. Fulkerson Karen M. Freeman-Wilson
Indianapolis, Indiana Attorney General of Indiana
Grant H. Carlton
Deputy Attorney General
I agree that the conviction should be affirmed for the reasons given by the majority in footnote two of its opinion. However, I do not agree that the instruction was a correct statement of the law. The challenged instruction tracked the statute verbatim, and told the jury that: A person is not justified in using force if . . . [h]e is committing . . . a crime. But as the majority points out, the statute does not mean what it appears to say because its judicial patina makes clear that not everyone engaged in a crime is deprived of the defense of self-defense. Accordingly, the recitation of the naked statutory language was not a proper statement of the law.
I also believe that it is not proper to affirm the conviction here on the ground that the jury could have determined that there was a causal connection between Mayes illegal possession of a weapon and his confrontation with the victim. If the jury had been properly instructed that there must be such a connection to negate self-defense, then I would affirm. But there was no instruction that a finding of a causal connection between the illegal activity and the confrontation was required. Accordingly, we have no basis to conclude that the jury made that finding.
More importantly, the majority would preclude a claim of self-defense wherever but for the defendants commission of a crime, the confrontation with the victim would not have occurred. I am concerned that this but for test is too broad. There are many situations where but for the defendant committing a crime, the confrontation resulting in injury to the victim would not have occurred, but where the defense of self-defense should be available. For example, take a situation similar to the one referred to in the majority opinion in South Carolina v. Leaks, 103 S.E. 549, 551 (S.C. 1920). The defendant is illegally gambling and a fight erupts because the victim believes the defendant is cheating. This leads to the victims death. Under these circumstances, the defendant should be free to claim self-defense. Similarly, if the victim attempts to take marijuana from the defendant and it leads to an altercation and the victims death, self-defense should be available. In either case, the majoritys but for test may be thought to be satisfied, and, if so, the defendant would be precluded from raising self-defense. In general, commission of a non-violent crime with no inherently predictable violent outcome should not negate the defense of self-defense.
Because the courts have already taken considerable liberty with the language of this section to avoid draconian and obviously inappropriate results, I believe it is appropriate to fine-tune this tinkering. I suggest it would be preferable to phrase the issue as whether there is an immediate causal connection between the aspect of the defendants activity that renders it criminal and the confrontation. See footnote In the gambling incident, presumably a fight could also break out in a game with no illegal stakes and, in the marijuana hypothetical, an attempt to steal a lawfully possessed substance could as easily erupt into violence. In sum, I believe that the majoritys conclusion is correct based on the reasoning of footnote two, but believe the test established is too broad and eliminates the defense in situations where it should rightly be available.
DICKSON, J., concurs.