Simpson v. State

• Decision Date: 27 October 2009
• Docket Number: No. 46A04-0802-CR-103.,46A04-0802-CR-103.
• Citation: 915 N.E.2d 511
• Parties: Jeremy D. SIMPSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

915 N.E.2d 511

Jeremy D. SIMPSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 46A04-0802-CR-103.

Court of Appeals of Indiana.

October 27, 2009.

Donald W. Pagos, Michigan City, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Joby Jerrells, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

Jeremy D. Simpson appeals his convictions for class A felony voluntary manslaughter and class D felony criminal recklessness. We affirm.

Issues

I. Did the State present sufficient evidence of probative value to allow the jury to negate Simpson's claim that he was legally justified in shooting the victim to defend a third person?

II. Did the trial court commit reversible error in denying Simpson's request to recall a State's witness?

III. Did the trial court abuse its discretion in refusing Simpson's jury instruction regarding the presumption of innocence and witness credibility?

Facts and Procedural History¹

The facts most favorable to the jury's verdict indicate that on August 3, 2006, a funeral was held for Carlon Bush's eleven-year-old daughter, who drowned in a swimming accident. After the funeral, Bush went to the home of his daughter's mother with his brother, Thomas Ferrell. At approximately 7:00 that evening, Bush broke up an argument between Simpson and another man. Simpson left the area.

At approximately 1:00 a.m., Bush was in front of the home with Ferrell, Jeffrey Cooper, Rodney Liggins, and several others when Simpson arrived in a car with Walter Thompson and Derrick Samuels. The three men walked up to the home. Thompson looked directly at Cooper and said, "You're on the wrong team. Don't nobody make no money unless I make some money." Tr. at 1097. Cooper responded, "You're messin' with the wrong person." Id. Cooper walked down the street, retrieved a handgun from his car, and walked back toward the house. Thompson and his cohorts returned to their car. Thompson said, "I ain't scared of that n* * * *r," and approached Cooper in the middle of the street. Id. at 181.

Liggins attempted to pacify Cooper, who struck him in the face with the handgun. Cooper then struck Thompson in the jaw with the handgun, and Thompson fell to the ground. Cooper kicked and hit Thompson and then bent over him and said, "I ought to kill you but I'm not." Id. at 184. Thompson said, "Okay, whatever, don't hit me no more, don't hit me no more." Id. at 270. Cooper replied, "I'm gonna tell you why you got what you got." Id. at 245. According to Ferrell, Cooper "pointed [the handgun] away" and talked to Thompson for "three or four minutes." Id. at 190, 193. Ferrell grabbed Cooper's shoulder and said, "If you're not gonna do nothin' to him, let him go." Id. at 194. At that point, Bush saw Simpson "come up behind [Cooper] shooting" a handgun and heard Simpson say, "Get off of him." Id. at 1112, 1113. One bullet struck Ferrell in the arm. Cooper was struck at least five times, including once in the back, and fell on top of Thompson. Bush fired shots at Thompson and Simpson, who fled. Cooper later died from his wounds.

On August 8, 2006, the State charged Simpson with murder and class D felony criminal recklessness. On December 11, 2007, after a seven-day trial, the jury found Simpson guilty of class A felony voluntary manslaughter (a lesser-included offense of murder)² and criminal recklessness. This appeal ensued.

Discussion and Decision

I. Defense of Third Person

At trial, Simpson asserted that he shot and killed Cooper to defend Thompson, who was beaten and kicked while lying in the middle of the street.³ "A valid claim of defense of oneself or another person is legal justification for an otherwise criminal act." Hobson v. State, 795 N.E.2d 1118, 1121 (Ind.Ct.App.2003), trans. denied. Indiana Code Section 35-41-3-2(a) states that "[a] person is justified in using reasonable force against another person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force." "[T]he force used must be proportionate to the requirements of the situation." McKinney v. State, 873 N.E.2d 630, 643 (Ind.Ct.App.2007), trans. denied. 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 third person or the commission of a forcible felony. Ind.Code § 35-41-3-2(a).⁴ Our supreme court has explained that "reasonably believes," as used in Indiana Code Section 35-41-3-2, "requires both subjective belief that force was necessary to prevent serious bodily injury, and that such actual belief was one that a reasonable person would have under the circumstances." Littler v. State, 871 N.E.2d 276, 279 (Ind.2007).

To prevail on a claim of self-defense or defense of a third person, "the defendant must show that he: (1) was in a place where 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." Ballard v. State, 808 N.E.2d 729, 732 (Ind. Ct.App.2004), aff'd in relevant part, 812 N.E.2d 789 (Ind.2004). When a claim of defense of a third person is raised and finds support in the evidence, the State has the burden of negating at least one of the necessary elements beyond a reasonable doubt. See id. (referring to self-defense); Moon v. State, 823 N.E.2d 710, 716 (Ind.Ct.App.2005) (stating burden of proof), trans. denied. "The State may meet its burden by either rebutting the defense directly or relying on the sufficiency of evidence in its case-in-chief." Ballard, 808 N.E.2d at 732. We review a challenge to the sufficiency of the evidence to rebut such a defense using the same standard as for any claim of insufficient evidence. Id. "Accordingly, we neither reweigh the evidence nor judge the credibility of the witnesses. If there is sufficient evidence of probative value to support the conclusion of the trier-of-fact, then the verdict will not be disturbed." Id. (citation omitted).⁵

Simpson contends that he was justified in shooting Cooper because Thompson "was receiving serious bodily injury" and was "curled up in a ball begging Cooper to stop beating him." Appellant's Br. at 5. We note, however, that at least three eyewitness testified that the fight between Cooper and Thompson was over when Simpson started shooting. See Tr. at 189, 195 (Thomas Ferrell), 746 (Demetrius Cooper), and 1112 (Carlon Bush). This evidence indicates that Simpson shot Cooper in retaliation for beating Thompson, rather than to defend Thompson from Cooper's blows. In other words, when Simpson shot Cooper, he "could not have been laboring under a reasonable fear of death or great bodily harm." Wilson v. State, 770 N.E.2d 799, 801 (Ind.2002). Also, Simpson's firing of multiple shots, one of which hit an innocent bystander, indicates that the force used was not proportionate to the requirements of the situation. Cf. Randolph v. State, 755 N.E.2d 572, 576 (Ind.2001) ("[F]iring multiple shots undercuts a claim of self-defense."). Therefore, we conclude that the State presented sufficient evidence of probative value to allow the jury to negate Simpson's defense.

II. Denial of Simpson's Request to Recall Witness

While awaiting trial, Simpson was incarcerated at the LaPorte County Jail. At trial, the State called as a witness Simpson's fellow inmate Brian Gates, who had been incarcerated for two counts of theft since February 2006. Gates testified that Simpson told him that he shot Cooper "[b]ecause he was pistol whipping his friend." Tr. at 829. According to Gates, Simpson said that he "unloaded the whole gun" on Cooper and that when he was finished, Cooper "looked like swiss cheese." Id. at 831. Simpson told Gates that he shot Cooper before Cooper "had a chance to point the gun at him" but that he was "gonna try and say that [Cooper] was going to try and shoot him" to make it look like a "justifiable homicide[.]" Id. at 832.

Gates further testified that "around November 1st" he had written a letter to the prosecutor's office regarding Simpson's statements in which he asked if he "could get out of jail or be placed in another facility for [his] safety" as a result of "threats" involving Simpson's case and "a previous case." Id. at 833-34.⁶ Gates stated that he was testifying against Simpson "because it's the right thing to do" and denied that the prosecutor had promised to "let [him] out" or "do anything in regards to [his] testimony" other than ensure that he "would be at a safe location in the jail[.]" Id. at 838-39. On cross-examination, Simpson's counsel asked if Gates was "hoping that [his] sentence is modified so [he] can get out of jail[.]" Id. at 845. Gates replied, "No, I'm just, I'm hoping that I can be protected from people I've already been threatened for testifying in this trial, sir." Id. After redirect, the trial court allowed Gates to "step down." Id. at 863.

Two days later, Simpson's counsel learned that Gates had written a letter to the trial court requesting sentence modification or early release based on concerns for his safety. In the letter, Gates stated that between August 8 and October 17, 2007, he had received one death threat, had urine thrown on him, and been assaulted three times. Defendant's Ex. J. The letter does not mention either Simpson or Simpson's case. The State requested a bench conference on the matter.⁷

The trial court stated that Gates had written the letter "about a month ago[.]" Tr. at 1353. The prosecutor stated that she had not received a copy of the letter, and the judge replied that he had sent it to the prosecutor who "does all the modifications[.]" Id.⁸ Simpson's counsel noted that while on the witness stand, Gates "tried stating that he never filed for a modification or to get out of jail, which he did." Id. at 1355. The court replied that Gates "was not a material witness" and "didn't...