Harris v. State
| Decision Date | 25 August 2014 |
| Docket Number | No. 49A04–1401–CR–45.,49A04–1401–CR–45. |
| Citation | 20 N.E.3d 221 (Table) |
| Parties | Tiandre HARRIS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Hilary Bowe Ricks, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Tiandre Harris (“Harris”) was convicted of Murder, a Felony.1 He appeals the conviction. We affirm.
Harris raises two issues for our review:
Sometime in August 2012, Harris, together with Daryl Gilbert (“Gilbert”) and a third individual, purchased drugs from Darrell Newbern (“Newbern”) and Aaron Adams (“Adams”). Newbern and Adams lived in separate residences at the corner of Michigan Street and Sherman Avenue in Indianapolis.
About one week later, on August 26, 2012, individuals later identified as Harris and Gilbert hired a bootleg taxi that took them to a Valero gas station across the street from Newbern's and Adams's residences. Newbern had moved from the home two days before, and his housemates, Jonathan Weathers (“Weathers”) and Shanna Pigg (“Pigg”) were in the process of moving their own belongings from the home when Harris and Gilbert arrived. A number of other individuals were gathered on the porch of the home, including several children. Adams was also seated on the porch.
Gilbert, standing on the side of the street adjacent to the gas station with a pistol in his right hand, started yelling at the group, demanding to see Newbern and insisting that Newbern had sold him some “bullsh-t dope.” (Tr. at 144.) Weathers told Gilbert that Newbern had moved away and no longer lived at the residence. He also told Gilbert not to shoot at the porch of the home because there were children present.
Adams, still sitting on the porch, told one of the women to take the children inside. He then got up and began to walk toward the street with a cell phone in his left hand and his right hand in his pocket. Gilbert recognized Adams as having been involved in the drug transaction, saying “you look like the n–––a that sold me that bad dope,” raised his pistol, and began to fire at Adams. (Tr. at 191–92.) At that time, Harris, who was also present, began to fire his own gun at Adams. Adams ran to evade Harris and Gilbert, but was eventually shot twice: once in the head, and once in the buttocks. Adams, who was known to carry a small pistol in his front right pocket, was found with a pistol near his right hand and a cell phone near his left hand. Adams died as a result of the gunshot wound to his head.
Immediately after this, Harris and Gilbert fled on foot, then called for a ride. Police investigating the shooting interviewed several witnesses and, as a result of identifications from photographic arrays, arrested Harris and Gilbert.
On September 10, 2012 Harris and Gilbert were each charged with Murder.
A jury trial was conducted from August 19 to 21, 2013, at the conclusion of which the jury was deadlocked.
A retrial, again in front of a jury, began on December 9, 2013 and continued through December 11, 2013. Harris and Gilbert each pursued a theory of self-defense at trial. At the close of the State's evidence, Harris filed a motion for separate trials as a result of testimony Harris expected Gilbert to offer. The trial court denied this motion. During its rebuttal argument at the close of the trial, the State argued that for Harris and Gilbert to have acted in self-defense, “ ‘you have to believe that they saw the weapon’ “ that Adams was carrying at the time of the shooting. (Tr. at 379.) Harris objected to this statement, but the trial court overruled the objection.
At the trial's conclusion, the jury found Harris and Gilbert each guilty of Murder. On January 3, 2014, the trial court entered a judgment of conviction against Harris and sentenced him to fifty-eight years imprisonment.
This appeal ensued.
Harris argued during closing arguments that, whether it was he or Gilbert that shot and killed Adams, that individual had done so in self-defense. On appeal, Harris does not contend that the State failed in its burden to prove that Harris did not act in self-defense; rather, Harris contends that during closing arguments the State misstated the law on self-defense in order “to intentionally mislead the jury,” the trial court did not properly admonish the jury upon Harris's objection and, as a result, we must reverse his conviction. (Appellant's Br. at 9.)
The gravamen of Harris's complaint—though he does not say so in as many words—is a contention that he was prejudiced by prosecutorial misconduct. In reviewing a properly preserved claim of misconduct, we determine first whether the prosecutor engaged in misconduct. Cooper v. State, 854 N.E.2d 831, 835 (Ind.2006). If there has been misconduct, we must determine whether, “under all of the circumstances,” the misconduct “placed the defendant in a position of grave peril to which he or she would not have been subjected.” Id. Whether a prosecutor's argument constitutes misconduct is determined with reference to case law and the Rules of Professional Conduct. Id. The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury's decision, not the degree of the impropriety of the conduct itself. Id.
It is proper for a prosecutor to argue both law and fact during closing arguments and to offer conclusions based upon analysis of the evidence presented at trial. Poling v. State, 938 N.E.2d 1212, 1217 (Ind.Ct.App.2010). “A prosecutor is entitled to respond to allegations and inferences raised by the defense even if the prosecutor's response would otherwise be objectionable.” Hand v. State, 863 N.E.2d 386, 394 (Ind.Ct.App.2007).
To properly preserve for appellate review a claim of prosecutorial misconduct, the defendant must request the trial court to admonish the jury. Id. If the defendant is not satisfied with the admonishment, he must then move for a mistrial; failure to seek an admonishment or to move for a mistrial waives appellate review. Id.
Harris pursued a theory of self-defense at trial. Our statutes define this affirmative defense:
Self-defense is a legal justification for what otherwise would be a criminal act. Tharpe v. State, 955 N.E.2d 836, 844 (Ind.Ct.App.2011), trans. denied. To prevail on a claim of self-defense, the defendant must present evidence that he: (1) was in a place he 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. Id. When a defendant asserts self-defense at trial, the State must disprove or rebut at least one element of self-defense beyond a reasonable doubt. Id. The State may do so either by presenting additional evidence or by relying upon the evidence presented in its case-in-chief. Id.
At Harris's trial, during its closing rebuttal, the State argued:
Now, one thing I want you to ask yourself when you go back there to deliberate, in order to believe that they acted in self-defense, reasonably believe they acted in self-defense, you have to believe that they saw the weapon.
(Tr. at 379.) Harris contends this statement amounted to prosecutorial misconduct.
The full statement by the prosecutor, in context, was:
In context, the statement that Harris contends was made to improperly instruct the jury as to the law does not serve Harris's claimed purpose. Rather, the prosecutor's statement comes within the context of argument concerning the implications of the evidence before the jury concerning Gilbert's account of the events on August 26, 2012 that led to Adams's death.
Moreover, even if the State's argument was...
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