Lacey v. State

Citation670 N.E.2d 1299
Decision Date21 August 1996
Docket NumberNo. 45A03-9512-CR-434,45A03-9512-CR-434
PartiesJulian Maurice LACEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtCourt of Appeals of Indiana
OPINION

GARRARD, Judge.

A jury found Julian M. Lacey ("Lacey") guilty of Voluntary Manslaughter, a class A felony. The trial court sentenced Lacey to the Indiana Department of Corrections for a period of twenty-five (25) years. Lacey now appeals.

FACTS

On January 11, 1995, Michael McWhorter ("McWhorter") was preparing to move into an apartment with his cousin, David Mackey ("Mackey"). While waiting for McWhorter outside of McWhorter's girlfriend's house, Mackey took McWhorter's car to find some cocaine. Mackey drove to a location where he believed drugs were sold and there he met Lacey. Mackey then allowed Lacey to use McWhorter's car in exchange for either cocaine or money. Mackey testified that he observed that Lacey had a gun on his person at that time. On January 12, 1995, McWhorter and Billy Reynolds ("Reynolds"), his friend and business partner, went to look for McWhorter's car. McWhorter and Reynolds observed McWhorter's car being driven down the street, and they pulled up beside it at a traffic light. McWhorter, driving Reynolds' car, pulled in front of his own vehicle which resulted in an accident. Lacey was driving McWhorter's vehicle at the time with two female passengers. Lacey backed McWhorter's car a short distance from the accident. McWhorter got out of Reynold's vehicle, retrieved a wooden baseball bat from the back seat, approached the driver's side of his car with the bat, and demanded that the occupants leave his vehicle. There was conflicting testimony as to whether Lacey exited McWhorter's vehicle with a gun or one of the female passengers handed him a gun after he exited McWhorter's car. Lacey shot McWhorter in the side of the chest. Lacey testified at trial that the gun did not belong to him and that he had previously found the gun in McWhorter's car. He also testified that he did not have a permit to carry a weapon. McWhorter died as a result of the gunshot wound. Lacey drove away in McWhorter's car. Lacey hid at a friend's house for 13 days and then turned himself into police.

ISSUES

I. Whether the trial court committed fundamental error by instructing the jury that the possession of an unregistered handgun negated the possibility of self-defense.

II. Whether failure to object to the instruction that possession of an unregistered handgun negated the possibility of self-defense constituted ineffective assistance of counsel.

III. Whether the trial court erred in its denial of Lacey's motion for a directed verdict on the charge of murder.

IV. Whether the court erred in its admission of a picture of the victim because the picture lacked probative value on the issue of Lacey's guilt.

DISCUSSION AND DECISION
I.

Lacey failed to object to final jury instruction no. 16 which stated:

A person who is not in his home or fixed placed of business and is carrying a handgun without a license therefor cannot by law claim the protection of the law of self-defense.

(R. 52). The trial court specifically asked Lacey if he wanted to object to the instructions and Lacey's counsel replied "[n]o objections." (R. 404).

When a defendant fails to object to a jury instruction, our review is limited to ascertaining whether fundamental error was committed. Sevits v. State, 651 N.E.2d 278, 282 (Ind.Ct.App.1995) (citing Coleman v. State, 630 N.E.2d 1376, 1378 (Ind.Ct.App.1994), trans. denied ). " 'Only when the record reveals clearly blatant violations of basic and elementary principles, and the harm or potential for harm could not be denied, will this Court review an issue not properly raised and preserved.' " Burkes v. State, 445 N.E.2d 983, 985 (Ind.1983) (quoting Warriner v. State, 435 N.E.2d 562, 563 (Ind.1982)).

Lacey points out that in Harvey v. State, 652 N.E.2d 876 (Ind.Ct.App.1995), trans. denied, we held that a jury instruction with the same language 1 was reversible error because it denied the defendant his claim of self-defense. Id. at 877. In holding the instruction to be reversible error in Harvey, we noted that "[a] defendant is also entitled to an instruction on any defense which has some foundation in the evidence, even when that evidence is weak or inconsistent." (citing Strong v. State, 591 N.E.2d 1048, 1050 (Ind.Ct.App.1992), trans. denied ). 2

The self defense statute provides, in relevant part:

(d) Notwithstanding subsections (a), (b), and (c) of this section, a person is not justified in using force if:

(1) he is committing, or is escaping after the commission of, a crime;

IND.CODE § 35-41-3-2(d). We held in Harvey that the literal application of the self defense statute did not authorize or require the instruction and that the statute's intent was "to preclude the defense where it is sought by one who was actively engaged in the perpetration of a crime, and that criminal activity produced the confrontation wherein the force was employed." Harvey, 652 N.E.2d at 877.

Lacey argues that since the Harvey decision predated his trial, the trial court's instruction constitutes fundamental error. However, in Harvey there was a proper and timely objection to the instruction. No such objection was made by Lacey. Lacey is attempting to avoid waiver of the issue by characterizing the giving of the instruction as fundamental error.

Fundamental error has been an evolving doctrine with a consistent descriptive theme involving the denial of fundamental due process.

Alleged errors in the giving of instructions are not available on appeal unless proper specific objections are made at trial. Ind.Crim.Rule 8(B). However, a trial error may be deemed "fundamental" so as to avoid procedural default if it is a "substantial blatant violation of basic principles" that renders a trial unfair to defendant.

Winegeart v. State, 665 N.E.2d 893, 896 (Ind.1996) (quoting Townsend v. State, 632 N.E.2d 727, 730 (Ind.1994)). "[F]or a mistake to constitute fundamental error, 'it must be so prejudicial to the rights of a defendant as to make a fair trial impossible.' " Id. (quoting Barany v. State, 658 N.E.2d 60, 64 (Ind.1995)). "[I]n order to constitute fundamental error, an error must be blatant and the potential harm must be so substantial and apparent that to ignore it would clearly constitute a denial of due process." Hinkle v. State, 569 N.E.2d 349, 350 (Ind.Ct.App.1990), trans. denied (citing Burkes v. State, 445 N.E.2d 983, 985 (Ind.1983)).

A more specific definition of fundamental error for purposes of appellate review has proven elusive. This is due, in part, to differing perspectives as to whether the circumstances of a case contribute to the determination that the error is indeed fundamental, or whether certain errors are initially determined to be of the fundamental class, i.e. reviewable in the absence of a contemporaneous objection, but then the circumstances of the case are examined and a determination is made that in the context of the case before the court the error may nevertheless be harmless. In the latter approach, the definition of "fundamental" is less critical, and ofttimes the reviewing court will simply refer to a "denial of fundamental due process."

In reviewing the various definitions, we have expressed concern that the fundamental fairness doctrine should not become a safe harbor for defendants who fail to raise proper and timely objections at trial. "One of the cornerstones of our litigation process has been the contemporaneous objection rule." Stewart v. State, 567 N.E.2d 171, 174 (Ind.Ct.App.1991), trans. denied. With this guidepost in mind, we held that:

[T]he doctrine of fundamental error exists as the exception to that rule since it permits consideration on appeal of errors to which no objection was made at trial.... The mere fact that error occurred and that it was prejudicial will not suffice. That, after all, is the ordinary rule for reversal on appeal when the contemporaneous objection has been made. Rather the error must be one such that the defendant could not possibly have had a fair trial or such that this court is left with the conviction that the verdict or sentence is clearly wrong or of such dubious validity that justice cannot permit it to stand.

Id. (emphasis added).

An error is deemed to be fundamental error if it was "so prejudicial to the defendant that he 'could not have had a fair trial', [citation omitted], [and] suggests to us an error that pervades the climate of the proceedings below, viewed as a whole, depriving the defendant of any realistic opportunity for a fair hearing." Winston v. State (1975), 165 Ind.App. 369, 332 N.E.2d 229, 232 [emphasis in original]. In order to invoke this doctrine, it is not enough that a constitutional right is implicated. Warriner, supra. Rather, in determining whether fundamental error has occurred, we consider the character of the error and its effect upon the trial as a whole. Kremer v. State (1987), Ind., 514 N.E.2d 1068.

Stowers v. State, 657 N.E.2d 194, 197-198 (Ind.Ct.App.1995), trans. denied.

An additional point seems clear. At whatever point the reviewing court engages in its harm analysis vis-a-vis fundamental error, the review concerns the record in its entirety. Collins v. State, 567 N.E.2d 798 (Ind.1991). We do so remaining cognizant of the province of the jury in determining the facts. As Justice Powell explained, writing for the majority, in Rose v. Clark, 478 U.S. 570, 582 n. 11, 106 S.Ct. 3101, 3108 n. 11, 92 L.Ed.2d 460 (1986):

We agree that the determination of guilt or innocence, according to the standard of proof required by Winship and its progeny, is for the jury rather than the court...

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