Brand v. State

Decision Date29 April 2002
Docket NumberNo. 49A02-0104-CR-242.,49A02-0104-CR-242.
Citation766 N.E.2d 772
PartiesAdrian BRAND, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

J. Richard Kiefer, Kiefer & McGoff, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Adrian Brand was convicted, following a jury trial, of voluntary manslaughter, a Class A felony. The trial court sentenced Brand to the Indiana Department of Correction for fifty years. Brand now appeals his conviction and resulting sentence. We reverse.

Issue1

Brand raises two issues for our review, one of which we find dispositive: Whether the trial court properly excluded testimony offered by Brand to prove his state of mind when he fatally shot Lickliter.

Facts and Procedural History

The facts reveal that on February 8, 1999, Brand, age sixteen, was riding in an automobile with several friends when they encountered Michael Lickliter riding a bike. Lickliter, who was a friend of some of the youths in the car, stopped his bike alongside the automobile. After conversing with the front seat passenger, Lickliter went around to the back of the car and told Brand, who was sitting in the backseat, to roll down his window. After Brand complied, Lickliter slapped Brand twice in the face and warned him not to touch a female friend again. Lickliter was referring to a friend whom Brand had slapped several days earlier. Brand took no immediate action to Lickliter's slap and verbal warning. However, Brand felt that he had been "punked"2 in front of his friends by Lickliter.

Thereafter, Brand contacted his girlfriend and asked her to call Lickliter and inquire "what his problem was." R. 462. Brand then went over to his girlfriend's house as he typically did on Monday nights because her parents were out bowling. Because his girlfriend was unable to contact Lickliter by phone, Brand requested that she page him. After being paged a second time, Lickliter showed up at the girlfriend's residence.

Soon afterward, Brand and Lickliter become involved in a verbal altercation whereupon Lickliter told Brand "bring your ass down there and you'll get your ass kicked—see if you don't get your ass kicked." R. 174. Lickliter further told Brand "I'm gonna f* * * you up." R. 472. Brand responded by saying "well, we will f* * *ing see." R. 175. The verbal altercation culminated with the two youths agreeing to engage in a fistfight in a nearby alley. Brand immediately left his girlfriend's house and proceeded to the alley where the fight was to commence. En route, Brand changed his mind about fighting and ran toward his residence. However, Lickliter, who was riding his bike, caught up to Brand in an alley. Lickliter then got off his bike, put the kickstand down, took off his coat, and placed the article of clothing on the bike. After a brief scuffle between the two youths,3 Brand pulled his semi-automatic handgun from his pants pocket and shot Lickliter four times.4

As Brand fled from the scene, he encountered a woman and told her "you didn't see nothing, bitch." R. 156. Thereafter, Brand hastily disposed of his handgun and the shirt he was wearing. Returning home, Brand told his father a lie. Brand stated that Lickliter had pulled a handgun on him and that he had taken the firearm from the youth and shot toward Lickliter's legs and feet. Brand's father immediately notified the police. While awaiting the police, Brand called his girlfriend and asked her to tell the lie that Lickliter had pulled a handgun on him and that after a brief struggle, he shot Lickliter with Lickliter's own gun. In addition, Brand instructed his girlfriend to dispose of the bullets that were located in his jacket at her house.

Lickliter ultimately died from his injuries. Donald Brake, a friend of Lickliter's, arrived at the scene of the crime shortly after Lickliter was shot. No weapons were recovered from Lickliter's person. Consequently, on February 19, 1999, the State charged Brand with murder, a felony, and carrying a handgun without a license, a Class A misdemeanor. Brand later pled guilty to the handgun charge. On January 8, 2001, Brand's trial on the murder charged commenced. Brand's theory at trial was that he shot Lickliter in self-defense. Three days later, the jury found Brand guilty of voluntary manslaughter, a Class A felony. The trial court sentenced Brand to the Indiana Department of Correction for fifty years. This appeal ensued. Additional facts will be provided when necessary.

Discussion and Decision
I. Self-Defense

At trial, Brand argued that he shot Lickliter in self-defense. "Self-defense is recognized as a valid justification for an otherwise criminal act." Miller v. State, 720 N.E.2d 696, 699 (Ind.1999). The elements of self-defense are defined by statute:

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....

Ind.Code § 35-41-3-2(a). Force is not justified if the defendant enters into combat with another person or is the initial aggressor, unless the defendant communicates an intent to withdraw and the other person nevertheless continues or threatens to continue unlawful action. Ind.Code § 35-41-3-2(d)(3).

Essentially, self-defense is established if a defendant: (1) was in a place where the defendant 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. See Wallace v. State, 725 N.E.2d 837, 840 (Ind.2000)

; Jordan v. State, 656 N.E.2d 816, 817 (Ind.1995). The State carries the burden of disproving self-defense. Brown v. State, 738 N.E.2d 271, 273 (Ind.2000). Thus, once a defendant claims self-defense, the State bears the burden of disproving at least one of the elements beyond a reasonable doubt. Id. The State may meet its burden of proof by rebutting the defense directly, by affirmatively showing that the defendant did not act in self-defense, or by simply relying upon the sufficiency of its evidence in chief. Id. "The amount of force used to protect oneself must be proportionate to the urgency of the situation. `Where a person has used more force than necessary to repel an attack the right to self-defense is extinguished, and the ultimate result is that the victim then becomes the perpetrator.' " Hollowell v. State, 707 N.E.2d 1014, 1021 (Ind.Ct.App.1999) (citations omitted).

At trial, Brand argued that he had a reasonable belief that deadly force was necessary to protect himself when he shot Lickliter. Brand testified that during the altercation in the alley, Lickliter reached behind his back and said "I've got something for you." R. 472. Brand further testified that he grabbed his handgun and shot Lickliter because he believed that Lickliter was immediately reaching for a gun. Although the trial court permitted Brand to testify as to the events and his general fear and apprehension on February 8, 1999, the trial court refused to admit evidence of certain prior events and facts that formed the basis for the reasonableness of Brand's fear of Lickliter. Brand argues that the trial court erred in barring him from presenting evidence at trial that Lickliter sold drugs, was a member of a gang, and had offered to sell him a firearm prior to the deadly shooting. The claim is that this evidence was admissible under the Indiana Rules of Evidence and highly probative to self-defense because it illustrated the reasonableness of Brand's fear of attack by Lickliter and the need to defend himself.5

II. Admission of Evidence

Brand first contends that the trial court committed reversible error in excluding testimony he offered at trial in order to show the reasonableness of his fear of deadly attack by Lickliter and the need to defend himself. We agree.

A. Standard of Review

Our standard of review in this area is well settled. The admission of evidence is within the sound discretion of the trial court, and the decision whether to admit evidence will not be reversed absent a showing of manifest abuse of the trial court's discretion resulting in the denial of a fair trial. Spires v. State, 670 N.E.2d 1313, 1315 (Ind.Ct.App.1996). In determining the admissibility of evidence, the reviewing court will only consider the evidence in favor of the trial court's ruling and unrefuted evidence in the defendant's favor. Reaves v. State, 586 N.E.2d 847, 857 (Ind.1992).

B. Brand's Evidence

On January 5, 2001, the State filed a motion in limine with the trial court to prohibit Brand from introducing evidence that Lickliter sold drugs and was a member of a gang. See R. 19, Appellant's Appendix at 133. At the final pretrial conference, the court took the State's verbal and written motion under advisement. Subsequently, the trial court granted the State's motion in limine; however, the trial court offered to revisit the issue at the presentation of the defendant's case-in-chief.

At trial, defense counsel made an offer of proof that Brand would testify that Lickliter had previously sold him drugs, was a member of a gang, and had offered to sell him a firearm. To corroborate Brand's testimony, defense counsel further made an offer of proof that Detective Marcus Kennedy would testify that Lickliter and his friend Brake were both members of the "Gangster Disciples." In addition, defense counsel offered that Brake would testify that he and Lickliter were members of a gang.6 Moreover, defense counsel made an offer of proof that Rocky Zermeno would testify that Lickliter was affiliated with a gang.7

The trial court affirmed its original ruling on the State's motion in limine and...

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