Littler v. State, 71S03-0704-CR-151.

• Decision Date: 08 August 2007
• Docket Number: No. 71S03-0704-CR-151.,71S03-0704-CR-151.
• Citation: 871 N.E.2d 276
• Parties: Philip LITTLER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

871 N.E.2d 276

Philip LITTLER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 71S03-0704-CR-151.

Supreme Court of Indiana.

August 8, 2007.

Charles W. Lahey, South Bend, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 71A03-0510-CR-509

DICKSON, Justice.

Eighteen-year-old Neal Littler died from a gunshot injury suffered in a fight with his twin brother, defendant Philip Littler. Convicted of Neal's murder, Philip's direct appeal challenges the trial court's exclusion of their mother's testimony regarding Neal's prior conduct.¹ The Court of Appeals affirmed in a memorandum opinion. We granted transfer and now reverse.

Defending against the murder charge at trial, Philip asserted self-defense and claimed that Neal was threatening and attacking Philip with a knife. Philip sought to present evidence of certain events and specific acts committed by Neal in the past upon which Philip claimed he reasonably relied for his belief that Neal posed a threat of serious bodily injury or death. Among his proposed witnesses, Philip listed the mother of Philip and Neal. The State filed a motion in limine seeking to preclude Philip from presenting any evidence of Neal's prior conduct other than through Philip's own testimony. Philip responded that, following his own testimony about these matters, he intended to provide corroboration by presenting the mother's testimony. The trial court granted the State's motion and refused to permit Philip to call the twins' mother to corroborate his testimony.²

In this appeal, Philip seeks reversal on grounds that the trial court erroneously prevented him from presenting his mother's testimony. The State's response does not dispute that the exclusion was erroneous but argues only that any error did not affect Philip's substantial rights, appealing to what is often referred to as the "harmless error" doctrine. Harmless error is an error that does not "`affect the substantial rights of a party.'" Thomas v. State, 774 N.E.2d 33, 36 (Ind.2002) (quoting Fleener v. State, 656 N.E.2d 1140, 1141 (Ind.1995)). "Harmlessness is ultimately a question of the likely impact of the evidence on the jury." Witte v. Mundy, 820 N.E.2d 128, 135 (Ind.2005).

Neal's death occurred when Philip and Neal got into an argument that escalated into a physical altercation. At one point, Neal brandished a knife and Philip pulled out a handgun. In his trial testimony, Philip stated that Neal then threatened to kill him and that Neal, armed with the knife, made an abrupt movement toward Philip, prompting him to fire the handgun at Neal from about three feet away, because he thought that Neal was going to stab him. Philip explained that this belief was fueled by his awareness of previous incidents in which Neal had stabbed Philip and other people, including their stepfather, and by Philip's knowledge that Neal had been hospitalized on several occasions associated with his diagnosis of bi-polar disorder and that Neal had quit taking his medicine, had stopped going for mental health treatment, and was in a manic state during the argument. The incident was observed by Neal and Philip's fourteen-year-old cousin, who testified that Neal had pulled a knife, threatened to use it against Philip, and was moving as if to stab Philip when Philip fired the handgun at Neal.

Following Philip's testimony, the defense attempted to call their mother "for the purpose of testifying to the fact that the various instances of bad acts by Neal that Philip has testified to did in fact happen and his testimony in that regard is true." Tr. of Proceedings for Aug. 18 at 94. On appeal, the State acknowledges Brand v. State, 766 N.E.2d 772, 782 (Ind. Ct.App.2002), trans. denied, and its holding that witnesses other than the defendant should be allowed to provide testimony to corroborate the specific prior acts by the victim that a defendant uses to support a claim of self-defense on the grounds of reasonable fear.

The State argues, however, that "[w]here the wrongfully excluded testimony is merely cumulative of other evidence presented, its exclusion is harmless error," citing Sylvester v. State, 698 N.E.2d 1126, 1130 (Ind.1998). Appellee's Br. at 8-9. But Sylvester addressed the exclusion of hearsay statements made by a homicide victim allegedly killed in sudden heat and noted that extensive other testimony had already been admitted to separately establish the defendant's contentions regarding the excluded cumulative evidence. In the present case, Philip sought not to present hearsay evidence but to enable the jury to hear first-hand confirmation of facts that Philip alleges were foundational to his fear that Neal intended to stab him. The exclusion of such evidence is not harmless under Sylvester.

Additionally, the State urges that any error in excluding the mother's testimony is harmless because the physical evidence demonstrated that Philip savagely attacked Neal, that Neal did not hurt Philip "with any knife, and Neal's brass knuckles remained in his pocket," and that "[t]he evidence of the twins' mother . . . would not have changed the outcome of the case." Appellee's Br. at 9.

The applicable version of the self-defense statute states: "[A] person is justified in using deadly force only if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony." Ind. Code 35-41-3-2(a) (2004) (emphasis added). Several other jurisdictions have recognized that self-defense includes both subjective and objective components. As stated by the Alaska Supreme Court:

[T]o employ self-defense a defendant must satisfy both an objective and subjective standard; he must have actually believed deadly force was necessary to protect himself, and his belief must be one that a reasonable person would have held under the circumstances.

Weston v. State, 682 P.2d 1119, 1121 (Alaska 1984). This approach is also reflected in State v. Lewis, 245 Conn. 779, 811, 717 A.2d 1140, 1157-58 (1998); State v. Augustin, 101 Hawai`i 127, 132, 63 P.3d 1097, 1102 (...