Miller v. State

Decision Date18 November 1999
Docket NumberNo. 49S00-9705-CR-0294.,49S00-9705-CR-0294.
Citation720 N.E.2d 696
PartiesJohn MILLER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

S. Sargent Visher, Indianapolis, IN, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Katherine Modesitt, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. SULLIVAN, Justice.

Defendant John Miller was convicted of murder for shooting another man to death. He claims he shot the victim in self-defense, but we find that there was sufficient evidence to support the jury's verdict to the contrary. We also affirm the trial court with respect to Defendant's claims as to improper instructions, erroneously excluded evidence, and sentence.

We have jurisdiction over this direct appeal because the sentence exceeds 50 years. Ind. Const. art. VII, § 4; Ind. Appellate Rule 4(A)(7).


The facts most favorable to the verdict indicate that on September 16, 1995, Defendant and some acquaintances were gathered at a local gas station. After Defendant entered the gas station building, Adeba Frierson and Curtis McElwain pulled into the gas station and parked in front of Defendant's car. As Defendant exited the gas station building, Frierson spotted Defendant and said, "You act like you want to do something." Defendant responded, "What?" Defendant then pulled out a handgun and began shooting at Frierson. Defendant continued shooting as he walked toward Frierson's car, ultimately firing ten shots. One of the shots injured Frierson's right upper arm and chest while another fatal shot struck Frierson in the head. During the shooting, Frierson's car moved forward crashing into a guardrail. Defendant and his acquaintances left the scene with Defendant eventually fleeing to Owensboro, Kentucky.

On September 19, 1995, the State charged Defendant with Murder.1 A jury found Defendant guilty of murder in June 1996. As a result, the trial court sentenced Defendant to 65 years in prison. Defendant appeals his conviction and sentence.

Additional facts will be provided as needed.



Defendant contends that the State failed to disprove his self-defense claim beyond a reasonable doubt, and as such, that there was insufficient evidence to support his murder conviction.

When a defendant challenges the State's sufficiency of the evidence to rebut a claim of self-defense, the standard of review remains the same as for any sufficiency of the evidence claim. Sanders v. State, 704 N.E.2d 119, 123 (Ind.1999). We neither reweigh the evidence nor assess the credibility of witnesses but look solely to the evidence most favorable to the judgment with all reasonable inferences to be drawn therefrom. Id.; Ellis v. State, 707 N.E.2d 797, 800 (Ind.1999); White v. State, 706 N.E.2d 1078, 1079 (Ind.1999); Hurst v. State, 699 N.E.2d 651, 654 (Ind.1998); Jones v. State, 689 N.E.2d 722, 724 (Ind. 1997); Holder v. State, 571 N.E.2d 1250, 1253 (Ind.1991). We will affirm a conviction where such evidence and reasonable inferences constitute substantial evidence of probative value sufficient to support the judgment. Ellis, 707 N.E.2d at 800; Blanche v. State, 690 N.E.2d 709, 712 (Ind. 1998); Holder, 571 N.E.2d at 1253.

Self-defense is recognized as a valid justification for an otherwise criminal act. Ind.Code § 35-41-3-2 (1993). When raised, a defendant must establish that he or she was in a place where he or she had the right to be, acted without fault, and was in reasonable fear or apprehension of death or great bodily harm. See Brooks v. State, 683 N.E.2d 574, 577 (Ind.1997); Lilly v. State, 506 N.E.2d 23, 24 (Ind.1987). Once a defendant claims self-defense, the State bears the burden of disproving at least one of these elements beyond a reasonable doubt for the defendant's claim to fail. Sanders, 704 N.E.2d at 123; Birdsong v. State, 685 N.E.2d 42, 45 (Ind.1997). The State may meet this burden by rebutting the defense directly, by affirmatively showing the defendant did not act in self-defense, or by simply relying upon the sufficiency of its evidence in chief. Lilly, 506 N.E.2d at 24; Davis v. State, 456 N.E.2d 405, 408 (Ind.1983). Whether the State has met its burden is a question of fact for the jury. Birdsong, 685 N.E.2d at 45; Brooks, 683 N.E.2d at 577.

Self-defense, however, is unavailable to a defendant who is the initial aggressor except in circumstances not present here.2 Freeze v. State, 491 N.E.2d 202, 204 (Ind.1986); Butler v. State, 547 N.E.2d 270, 272 (Ind.1989); see also Davis, 456 N.E.2d at 408 (finding that the jury could have reasonably inferred that the defendant was the initial aggressor where after the victim approached defendant, defendant quickly turned toward victim, assailed him verbally, shoved him to the floor and shot him as he fell); Brumfield v. State, 442 N.E.2d 973, 976 (Ind.1982) (holding that the defendant did not act in self-defense when he shot an unarmed victim, who did not appear to be threatening the defendant in any manner that would justify deadly force). The evidence most favorable to the verdict shows that it was Defendant who brandished a handgun and fired multiple shots at Frierson as he approached his vehicle. One witness testified that Defendant was smiling as he took aim at Frierson and his vehicle. Although Defendant claims he saw Frierson reach for a weapon, the State established that Frierson was unarmed at the time of the shooting.3

From this evidence, a jury could have reasonably rejected Defendant's self-defense claim because Defendant aggressively approached Frierson, who was unarmed and presented no immediate danger to Defendant, and purposefully fired at Frierson multiple times. Additionally, we have previously held that the firing of multiple shots undercuts a claim of self-defense. See Birdsong, 685 N.E.2d at 46 (viewing the fact that a defendant shot his victims several times supported the defendant's murder conviction and extinguished his self-defense claim); Hill v. State, 532 N.E.2d 1153, 1153 (Ind.1989) (finding sufficient evidence existed to negate the defendant's self-defense claim where the defendant shot the victim a second time after the victim fell to his hands and knees); Schlegel v. State, 150 N.E.2d 563, 567, 238 Ind. 374, 383 (1958) (explaining that where the first shot is fired in self-defense, a second shot is not if it is unnecessary for the defendant to defend himself where the victim fell to the ground after the first shot). Considering Defendant's aggressive behavior and that he fired multiple shots at his victim, we find that there was sufficient evidence to disprove Defendant's self-defense claim.


Defendant next contends that the trial court erred in refusing his tendered self-defense instructions as well as his tendered instructions on reckless homicide and criminal recklessness as lesser-included offenses of murder.


We first address Defendant's claim that the trial court erred when it failed to include his tendered self-defense instructions. In evaluating whether a trial court erred in its refusal of a tendered instruction, we determine (1) whether the tendered instruction correctly states the law; (2) whether the record presents evidence that supports the tendered instruction; and, (3) whether another instruction covered the substance of the tendered instruction. Ellis v. State, 707 N.E.2d 797, 803 (Ind.1999); Griffin v. State, 644 N.E.2d 561, 562 (Ind.1994); Jackson v. State, 490 N.E.2d 1115, 1118 (Ind.1986). Defendant contends the trial court erroneously refused two of his tendered self-defense instructions; we address each separately.


The trial court issued three self-defense instructions.4 One of these instructions read as follows:

One of the factors necessary to justify killing in self-defense is the bona fide fear of death or serious bodily injury. But whether or not there was such a state of mind must be found objectively in light of the surrounding circumstances, and the standard for determining that issue is the reasonableness of such belief under the circumstances.

(R. at 107.) Defendant specifically contends that this instruction placed an undue emphasis on the factor of fear disregarding other factors upon which a jury may rely to find a defendant acted in self-defense.5 Instead, Defendant tendered the following instruction which the trial court rejected: "The danger need not be actual to support a claim of self-defense, but the belief must be in good faith and the reaction must be reasonable." (R. at 90.)

Considering all of the self-defense instructions issued by the trial court, we cannot conclude that the trial court's instruction placed an undue emphasis on the factor of fear. Collectively, the instructions adequately informed the jury that it was required to determine whether Defendant's fear or perception of danger was reasonable under the circumstances he faced. These instructions adequately covered the substance of Defendant's tendered instruction. We also find that the instruction given by the trial court correctly and more aptly covered the substance of the law. The trial court did not err in refusing Defendant's tendered instruction.


Defendant additionally contends that the trial court erred in failing to instruct the jury that he entered a plea of "Not Guilty by Reason of Self-Defense." In support of his argument that the jury should be informed formally of his self-defense plea, Defendant tendered the following instruction: "To the Information charged against the defendant, the defendant has entered pleas of Not Guilty and Not Guilty by Reason of Self-Defense." (R. at 82.) Although Defendant contends that he had a right to inform the jury that he was asserting a theory of self-defense, he cites no authority demonstrating that he is entitled to such an instruction. In fact, appropriate pleas in criminal proceedings only include pleas of: not guilty, guilty, and guilty but mentally...

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