Geralds v. State

• Decision Date: 02 March 1995
• Docket Number: No. 49A02-9311-CR-618,49A02-9311-CR-618
• Citation: 647 N.E.2d 369
• Parties: Delton C. GERALDS, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 369

647 N.E.2d 369

Delton C. GERALDS, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 49A02-9311-CR-618.

Court of Appeals of Indiana,

Second District.

March 2, 1995.

Transfer Denied May 25, 1995.

Bruce G. Jones, Austin, Jones & Morken, Indianapolis, for appellant.

Pamela Carter, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee.

OPINION

SULLIVAN, Judge.

Delton C. Geralds (Geralds) was convicted of Involuntary Manslaughter, ¹ a Class C felony, after trial by jury. He was sentenced to a presumptive four year term of imprisonment, with four years added for aggravating factors. Four years of the eight were suspended. We rephrase the issues Geralds presents upon appeal as follows:

(1) Did the trial court err in its decision that evidence of Geralds' aid to Federal agents, including his recent testimony against several Los Angeles gang members, was irrelevant to support his claim of self-defense?

(2) Did the trial court improperly fail to consider evidence which would have constituted clearly mitigating circumstances for purposes of assessing Geralds' sentence?

We affirm the conviction and the sentence.

In October of 1991, Geralds was the owner of Del's Guns, a store located in a small strip shopping center located at the corner of 38th Street and Shadeland Avenue in Indianapolis. A bookstore occupied the suite at the southern end of the shopping center; Del's Guns was located next door, on the north side of the bookstore. Geralds leased the suite beside the gun store as his residence, because he feared for the security of his business, while the suite at the northern end of the shopping center remained unoccupied.

In the early morning hours of October 20, 1991, Geralds was awakened by a dull thudding upon the ceiling of his bedroom. Unbeknown to Geralds, Damien Williams (Williams) had entered through a door in the unoccupied suite of the strip center's northernmost end, and had begun to make his way above the suspended ceiling toward Del's Guns. He carried a backpack, a flashlight, and a knife. Once Geralds heard Williams he armed himself with a high-powered, nine millimeter machine gun and exited his residence to look around. Upon finding nothing outside, Geralds reentered his suite.

About ten minutes later, Williams partially fell through the suspended ceiling, exposing his left hand, which held a flashlight. Geralds fired twenty to twenty-five shots at Williams, who escaped above the ceiling unharmed. Geralds then left his suite, running outside to the northern end of the building. While he stood six feet from the door leading to the unoccupied suite, Williams burst through, running away from Geralds. Again, Geralds fired; this time, Williams was felled by one of Geralds' ten to fifteen rounds. He died of a single gunshot, which entered just above his left ear, and exited on the lower right side of his skull. When police arrived, Geralds told officers that he had never seen Williams hold a weapon, although he indicated that he believed Williams had stumbled, or attempted to turn around, prior to being shot. Geralds was charged with Involuntary Manslaughter.

The trial court excluded evidence which was proffered to show that Geralds had reason to fear, and did fear for his life, as a result of assisting law enforcement officials to convict Los Angeles gang members involved in drug activity and acquisition of firearms. The trial court's ruling was that the evidence was irrelevant as a matter of law because Geralds' fear of gang retaliation was in no way connected to Williams or to any actions taken by Williams. This ruling has a degree of case law support in Johnson v. State, (1994) 2d Dist.Ind.App., 645 N.E.2d 643, and cases there cited.

Through an offer to prove, Geralds submitted testimony that for the preceding three years, he had been working to provide information of gang activity to the Bureau of Alcohol, Tobacco and Firearms (BATF). Indeed, Geralds had initiated a BATF investigation when he noticed unusual gun-buying activity in his store. The BATF, working from Geralds' store, and with a substantial amount of cooperation from him, exposed a scheme in which members of a Los Angeles gang, the Crips, used laundered drug money to buy guns in Indianapolis and to ship them back to Los Angeles. The investigation led to six arrests. Four members of the Crips plead guilty to federal charges; two others, Jerome Marshall and Mondo Elliot, were tried in Federal District Court for the Southern District of Indiana. On September 30, 1991, both men were convicted. ²

Geralds had testified against both defendants. Agents of the BATF warned him that the gangs were violent and that he should expect retaliation by gang members who were angered because Geralds had been instrumental in jailing their associates. Geralds several times expressed fear to agents that his life was in danger.

I.

Geralds' sole defense rested upon the theory of self-defense. ³ At the moment he fired upon Williams, Geralds claimed, his actions were based upon his subjective belief that Williams was a Crips member who was in the process of perpetrating the expected retaliation. ⁴ He contends that his participation in the BATF investigation was a part of the "surrounding circumstances" which the jury should have been permitted to take into account in assessing his defense.

Here, we find it unnecessary to address whether Geralds' proffered evidence of the "surrounding circumstances" was relevant to show that he acted in fear or apprehension of death or great bodily harm. ⁵ Because the force he employed was unreasonable and excessive, Geralds has indisputably destroyed any claim to self-defense that he may have possessed. Self-defense requires a showing that "the defendant was in real danger of death or great bodily harm, or in such apparent danger as caused him, in good faith, to fear death or great bodily harm." Franklin v. State (1977) 266 Ind. 540, 364 N.E.2d 1019, 1021. That degree of force termed "deadly force" is justified only when a person believes that degree of force is necessary to prevent such injury. I.C. 35-42-3-2(b) (Burns Code Ed.Repl.1994); Spinks v. State (1982) Ind., 437 N.E.2d 963, 965. Not only must the belief be in good faith, but the defendant's reaction to that belief must be reasonable based upon the surrounding circumstances under which the events have occurred. Franklin, supra 364 N.E.2d at 1021, quoting Heglin v. State (1957) 236 Ind. 350, 140 N.E.2d 98.

Although the evidence, had it been presented, might have shown that Geralds' fear was reasonable, his actions were most decidedly not. The amount of force which is reasonably necessary to defend oneself is determined from the standpoint of the accused in light of the surrounding circumstances. Gunn v. State (1977) 1st Dist., 174 Ind.App. 26, 365 N.E.2d 1234, 1240. However, the force used must be proportionate to the requirements of the situation. Carbo, Inc. v. Lowe (1988) 3d Dist.Ind.App., 521 N.E.2d 977, 979, trans. denied. Where a person has used more force than is reasonably necessary to repel an attack, the right of self-defense is extinguished, and the ultimate result is that the intended victim then becomes the perpetrator. Degenias v. State (1979) 3d Dist., 179 Ind.App. 684, 386 N.E.2d 1230, 1231. Deadly force is not justifiable when used against a person trespassing upon property, in the absence of an imminent threat against the accused. Bullard v. State (1964) 245 Ind. 190, 195 N.E.2d 856. Here, the force Geralds used was deadly; it was excessive in the face of Williams' obvious retreat and lack of aggression towards him.

The evidence is undisputed that, when Williams, a would-be burglar, fell through his ceiling, Geralds fired his automatic machine gun twenty to twenty-five times. The trial court in making its evidentiary ruling was entitled to conclude, as a matter of law, that such reaction was excessive. His own testimony of the incident also reveals that Geralds did not call the police, though he had ample opportunity; instead, he ran outside to attempt to pursue and confront the perpetrator. ⁶

More importantly, however, and determinative, is the fact that Williams was running away from Geralds, and that Geralds fired ten to fifteen additional rounds from a high-powered machine gun. ⁷ Even were we to believe Geralds when he testified at trial that Williams was in the process of turning to face him, that does not change the fact that he was, as yet, thirty to forty feet away, that he was in the process of fleeing, that he made no threatening gesture, and that Geralds never saw a weapon.

We are cognizant that the question of the proper amount of force is normally a question left for the jury's determination. Degenias, supra, 386 N.E.2d at 1232. However, in a situation such as this, a jury could only find that Geralds overreacted in the extreme. Thus, there is no question but that the exclusion of Geralds' proffered evidence of surrounding circumstances, if error at all, was harmless and had no prejudicial impact upon the outcome of his trial.

II.

Geralds claims that the trial court committed error in sentencing him when it neglected to find clearly supported mitigating factors. The trial court did find that several mitigating factors existed. ⁸ However, Geralds claims that he presented clear evidence of several statutory mitigating factors, as per I.C. 35-38-1-7.1(c) (Burns Code Ed.Supp.1994), which the trial court ignored, to wit: that Williams induced or facilitated the offense,...