Kurt A. Young
Jeffrey A. Modisett
Randi F. Elfenbaum
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
Kurt A. Young
Jeffrey A. Modisett
Randi F. Elfenbaum
direct appeal, he raises two issue for our review: (1) whether the trial court erred by
permitting the State to ask a defense witness about an incident in which she attempted to give
Jackson marijuana while visiting him in jail and (2) whether the trial court's self-defense
instruction constitutes fundamental error. We affirm the trial court.
which was recorded, was that he went to Lawrence's apartment on the evening of the fire and
she began kissing him. When he refused her advances, she swung a bat at him and struck
him on the knee and the neck. She then went into the kitchen where she got a knife that she
began swinging at him. According to Jackson, I took the knife, the hand the knife was in
and I presumed to put it down, but it went into her. Scared by these events, Jackson
dropped his cigarette and left the apartment. He took a key from a keychain lying on a table
and locked Lawrence's door after his exit. He later called 911 from a payphone to report a
fire, because he wanted somebody to go there to see if she's still alive.
Jackson was charged with murder and arson. At trial he asserted that the killing was in self-defense and offered essentially the same account of events already described. The jury was instructed on self-defense but found Jackson guilty of murder as well as arson.
objections were made part of the trial record, we consider the admissibility of this testimony
under only Evidence Rules 401 and 403. Cf. Willsey, 698 N.E.2d at 793 (defendant who
raised only a relevancy objection at trial could not assert a 404(b) issue on appeal).
[T]he standard for relevant evidence is a liberal one under Rule 401 and we review a trial court's ruling as to relevance for an abuse of discretion. Id. 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ind. Evidence Rule 401. However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Evid. R. 403.
The State asserts that Lindquist's testimony about the marijuana incident is relevant because it demonstrates that she would break the law and perform illegal acts for Defendant and that he exerted substantial influence over her. . . . If Lindquist would break the law for Defendant, she would certainly lie for him on the stand. This is at best a tenuous showing of relevance. Lindquist's long-standing romantic relationship with and marriage to Jackson is a more significant reason to find bias than the fact that she took marijuana to him while he was incarcerated. Rule 403 requires that the probative value of Lindquist's marginally relevant testimony be weighed against, among other things, the danger of unfair prejudice [or] confusion of issues[.] Jackson contends that he was severely prejudiced by the State's attack on Lindquist's character with a prior specific act of misconduct having nothing to do
with either the offense or her veracity, portraying her as a drug trafficker. Jackson further
argues that Lindquist's credibility was critical to his case because only he and Lindquist
were aware of the threats made by Lawrence. We agree that the slight probative value of this
evidence was substantially outweighed by the danger of unfair prejudice and confusion of
The State contends that the erroneous admission of this testimony was nevertheless harmless. Jackson told the police in his taped statement that was played for the jury that the knife went into [Lawrence] after he took it from her and presumed to put it down, but the pathologist testified that Lawrence had been stabbed ten times in two separate episodes. Although Jackson testified at trial that during the struggle he merely held Lawrence from behind while trying to get the knife out of her hand, the pathologist testified that her neck injuries were severe: There was a tearing away of some of the bones and muscles indicating great force or great pressure which is applied in the neck. . . . for at least 2 to 3 minutes. Jackson also claimed that his only action leading to the fire was that he dropped his cigarette in Lawrence's apartment. But the pathologist testified that the burn patterns suggested some sort of accelerant was placed on the body to locally burn the body in those areas and the fire investigator similarly testified that the fire was intentionally set and originated around Lawrence's body. Moreover, the jury heard the tape recording of Jackson's 911 call in which he reported a fire but said nothing about the need for an ambulance or injuries to a person. In light of the overwhelming evidence that negated Jackson's self-defense claim, we conclude that Lindquist's testimony regarding the marijuana incident did not contribute
to the jury's verdict and its erroneous admission is therefore harmless.
The trial court deleted the final sentence, reasoning that it already appeared in instruction 17.
Defense counsel did not object.
Jackson's argument on appeal is that the jury should have been informed that the State was required to disprove beyond a reasonable doubt at least one of the elements of self- defense set forth in instruction 18 or that the elements of self-defense contained in instruction 18 should have been included in instruction 17. Jackson acknowledges that the failure to object to an instruction at trial ordinarily results in waiver of the issue on appeal. See Hirsch v. State, 697 N.E.2d 37, 43 (Ind. 1998); Ind. Crim. Rule 8(B); Ind. Trial Rule 51(C). However, he contends that giving this instruction constituted fundamental error because it had the effect of shifting the burden of proof to Mr. Jackson on the issue of self-defense.
Instruction 17 clearly stated that the State had the burden of disproving self-defense beyond a reasonable doubt. Moreover, other instructions informed the jury that the State has the burden of proving the defendant guilty beyond a reasonable doubt and that the defendant is not required to present any evidence or prove his innocence. Ideally the trial court would not have struck the last sentence from tendered instruction 18, but its absence, in light of the other instructions, cannot reasonably be believed to have led the jury to conclude that Jackson bore the burden of proving self-defense. The instruction was not fundamentally erroneous. Cf. Harlan v. State, 479 N.E.2d 569, 571 (Ind. 1985) (the jury was instructed on the State's burden to prove all of the elements of the crime charged beyond a reasonable doubt and on the elements of self-defense. No separate instruction regarding the burden of proof upon the issue of self-defense was necessary).
SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.
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