Opinion
23A-CR-2054
06-06-2024
Kelyn Harris, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
Attorneys for Appellant Talisha R. Griffin Marion County Public Defender Agency Indianapolis, Indiana Brian A. Karle Ball Eggleston, P.C. Lafayette, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Jeffrey L. Marchal, Judge Trial Court Cause No. 49D31-2107-MR-20781
Attorneys for Appellant Talisha R. Griffin Marion County Public Defender Agency Indianapolis, Indiana
Brian A. Karle Ball Eggleston, P.C. Lafayette, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana
Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
TAVITAS, JUDGE
Case Summary
[¶1] Following a bench trial, Kelyn Harris was convicted of two counts of murder. On appeal, Harris claims that the State failed to disprove his claim of selfdefense. We disagree and, accordingly, affirm.
Issue
[¶2] Harris presents one issue: whether the State presented evidence sufficient to prove beyond a reasonable doubt that Harris did not act in self-defense.
Facts
[¶3] In November 2020, then seventeen-year-old Harris began communicating with Ezekiel Watkins on Instagram regarding Harris' interest in purchasing a firearm from Watkins. Harris never bought the weapon, and by December, Watkins' and Harris' communications became hostile. Harris later testified that Watkins sent Instagram messages threatening to kill him.
Watkins's first name is spelled as both "Ezekiel" and "Ezekial" in the transcript. See, e.g., Tr. Vol. II p. 96, 174.
[¶4] On March 4, 2021, Harris was working at a Walmart store when Watkins and his friend, Frederick Small, arrived at the store. According to the testimony of Harris and Alicia Bankhead-another Walmart employee-the following occurred at the Walmart on that day. Watkins and Small approached Bankhead and asked her if she knew where "Keno"-referring to Harris-was. Tr. Vol. III p. 2. Bankhead responded that she did not know anyone by that name. Watkins and Small then asked Bankhead who was working in the next aisle. Bankhead declined to tell them that the person working in the next aisle was Harris because Watkins and Small "looked . . . overly agitated, like [] they was [sic] up to no good." Id. Watkins and Small went to the next aisle, approached Harris, and asked, "So where's the snacks at?" Id. at 4. Watkins pointed a gun and waved it in the direction of Harris while Small laughed. Harris ran to a different area of the store and eventually left via a side door at the direction of his supervisor. No one from the store called the police, and Harris never returned to his job at the store. After this incident, Watkins used Instagram messages to taunt Harris about fleeing and to threaten Harris.
"Head busta Keno" was Harris' Instagram name at the time. Tr. Vol. III p. 130.
[¶5] Over two months after the Walmart incident, on May 21, 2021, Harris, William Glasper, and Carteia Gilbert went to a local gas station convenience store to buy food and cigars in a car driven by Glasper. Glasper, Gilbert, and Harris went inside the store, but Gilbert soon went back to the car, while Glasper and Harris waited in line for the cashier. Approximately four minutes after Harris entered the store, Gilbert called Harris and informed Harris that Watkins and Small had arrived at the store. Harris turned to look at the entrance and saw Watkins and Small approaching the store. Watkins had a mask covering the lower part of his face. Watkins had a handgun in his waistband, and Small also had a handgun on his person. Harris claims that he saw Watkins and Small "clutching guns" as they entered. Tr. Vol. III p. 135. Surveillance video of the incident, however, shows that Watkins' and Small's hands were free as they walked into the store. State's Ex. 12 at 20:15.
Other customers in the store also wore masks, likely due to concerns of Covid-19.
This time refers to the time on the video file, not the time of day reflected on the video itself.
[¶6] As Watkins and Small approached the store, Harris grabbed his right pocket and went behind a shelf containing snacks. Mere seconds after Watkins and Small entered the store, Harris stepped out from behind the shelf into the main aisle and repeatedly fired a handgun at Watkins and Small, almost hitting a bystander. Neither Watkins nor Small appear to have seen Harris before the shooting began. Small fell to the ground after being shot and soon became motionless as other customers fled the store. Watkins ran out the door as he was shot, but he too collapsed. Watkins was able to crawl only a short distance from the door before lying motionless on the sidewalk in front of the store. Harris left the store while checking the ammunition in his handgun. Harris and Glasper jumped back into Glasper's car and quickly drove away.
Glasper was also armed with a handgun, which he pulled out during the shooting. Glasper, however, appeared to be surprised by the shooting and ducked behind a shelf during the shooting. Glasper did not fire his weapon.
[¶7] First responders arrived at the scene within minutes and administered aid to Watkins and Small. Watkins and Small were rushed to the hospital. Watkins sustained three gunshot wounds to both hips and his pelvis. Small sustained six gunshot wounds to his chest, abdomen, and arms. Both men died at the hospital as a result of the gunshot wounds. At some point shortly after the shooting, Harris fled the State to Texas and cut his hair.
[¶8] On June 7, 2021, the State charged Harris with two counts of murder. Law enforcement authorities located and arrested Harris two days later in Texas. Harris waived his right to a jury trial, and a bench trial was held on July 10 and 11, 2023. Harris claimed self-defense and testified on his own behalf. Harris admitted that he started shooting at Watkins and Small as soon as they entered the store. He also agreed that the victims "never even had a chance to bring their guns level[.]" Tr. Vol. III p. 166. The trial court rejected Harris' selfdefense claim and stated:
When somebody is raising self-defense, there are several factors that come into play, and then the burden shifts to the State to try to disprove some of those factors. First of all, you have to be in a place where you had the right to be. Nobody is questioning that. You had the right to be in the [convenience store] just as everybody else did. It's the other factors that are problematic. You have to act without fault. That's what the law says. And I can be even more specific on that. You cannot provoke, instigate, or participate willingly in the violence.
The other factor is that you had to have a reasonable fear of death or serious bodily injury. I'll be more specific on the reasonableness because a lot of the discussion that we've had over the past day comes down to you and your belief, which is what the defense should be raising, but that's not completely the entire inquiry here. The law says that the phrase "reasonably believe" requires both subjective belief, that's your own personal belief that this force was necessary to prevent your death or to prevent serious bodily injury, and that such actual belief was one
a reasonable person would have acted under [] these circumstances. And that's where I have the problem.
. . . [W]hen I saw that first video as it played in real[ ]time, my thought was ambush. That's what you did. There was no imminent harm to you at that moment when they walked in. You said they were clutching. I think the evidence doesn't quite support that. They did not acknowledge your presence. I conclude they weren't even aware that you were there, and you made a move around the end cap to come up on the side and had that gun up and started blasting before they even knew you were there. I'm not even sure that Mr. Small[] knew who hit them. Mr. Watkins may have, but Mr. Small[] didn't. That in my mind is not self-defense.
You acted with fault. You provoked this. You were the instigator. And the force that you used in this case was completely unreasonable [under] the circumstances. I recognize there was some falling out between the two of you and there was the incident at the Walmart. That was two and a half months prior to this. This wasn't an instance where he threatened you an hour before this happened. There wasn't what we call a nexus. There wasn't that link between these incidents that would lead me to the conclusion that how you acted in that moment was
reasonable. You had some other options, but you decided you'd pull that pistol and start blasting.Tr. Vol. III pp. 181-83. The trial court found Harris guilty as charged. On August 10, 2023, the trial court sentenced Harris to the advisory term of fifty-five years on each conviction, to be served consecutively. Harris now appeals.
On May 21, 2024, Harris filed a Notice of Additional Authority. In this notice, Harris claims that the trial court's guilty finding was based on "application of an incorrect legal standard basing a reasonableness finding on the state-of-mind of Watkins and Small rather than the Defendant." Appellant's Notice of Additional Authority p. 2. Harris, however, did not raise this issue in his initial appellant's brief, and he may not raise issues for the first time in a notice of additional authority. See Chupp v. State, 830 N.E.2d 119, 126 (Ind.Ct.App. 2005) (holding that, by filing a notice of additional authority, a party may supplement his or her brief by providing citations to additional authority to support the argument previously raised but may not raise issues that were not presented in the party's initial brief). Waiver notwithstanding, we do not consider the trial court's statements to mean that the court applied the improper legal standard. First, we presume trial courts know and follow the applicable law. Hicks v. State, 5 N.E.3d 424, 428 (Ind.Ct.App. 2014); see also Dumas v. State, 803 N.E.2d 1113, 1121 (Ind. 2004) (noting that appellate courts presume trial courts know the law). Moreover, the trial court's statement that Small "didn't know who hit [him]," was made while explaining why the trial court did not believe that Harris was under the threat of imminent harm. The trial court also explained the proper legal standard for self-defense claims. Accordingly, we reject Harris' argument that the trial court applied the improper legal standard.
Discussion and Decision
I. The Law of Self-Defense
[¶9] "Self-defense is a legal justification for an otherwise criminal act." Stewart v. State, 167 N.E.3d 367, 376 (Ind.Ct.App. 2021) (citing Gammons v. State, 148 N.E.3d 301 (Ind. 2020)). "The self-defense statute provides that an individual has the right to use "reasonable force against any other person to protect the person . . . from what the person reasonably believes to be the imminent use of unlawful force." Id. (quoting Ind. Code § 35-41-3-2(c)). A person is justified in using deadly force, and does not have a duty to retreat, if the person reasonably believes such force is necessary to prevent serious bodily injury to himself, or to prevent the commission of a forcible felony. Id. (citing I.C. §§ 35-41-3-2(c)(1), -(2)). However, "a person is not justified in using force if: . . . the person has entered into combat with another person or is the initial aggressor, unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action." I.C. § 35-41-3-2(g)(3).
[¶10] "[T]he phrase 'reasonably believes' in the Indiana self-defense statute requires both a subjective belief that force was necessary to prevent serious bodily injury and that a reasonable person under the circumstances would have such an actual belief." Washington v. State, 997 N.E.2d 342, 349 (Ind. 2013). Put differently, "[t]he [fact-finder] looks from a defendant's viewpoint when considering facts relevant to self-defense. However, the defendant's belief must be reasonable." Zachary v. State, 888 N.E.2d 343, 347 (Ind.Ct.App. 2008), trans. denied; see also Brantley v. State, 91 N.E.3d 566, 573 (Ind. 2018) (holding that, for a self-defense claim to be successful, the danger need not be actual, but the defendant's belief must be in good faith and the reaction must be reasonable). "When a person uses more force than is reasonably necessary under the circumstances, the right of self-defense is extinguished." Turner v. State, 183 N.E.3d 346, 358 (Ind.Ct.App. 2022) (quoting Hall v. State, 166 N.E.3d 406, 414 (Ind.Ct.App. 2021)), trans. denied.
[¶11] To prevail on a claim of self-defense involving the use of deadly force, the defendant must show that: (1) he was in a place where she had a right to be; (2) he did not provoke, instigate, or participate willingly in the violence; and (3) he had a reasonable fear of death or great bodily harm. Stewart, 167 N.E.3d at 376 (citing Wilson v. State, 770 N.E.2d 799 (Ind. 2002)). When the defendant raises a self-defense claim which finds support in the evidence, the State bears the burden of negating at least one of the necessary elements. Id. "The State may meet its burden by rebutting the defense directly-by affirmatively showing the defendant did not act in self-defense-or by simply relying on the sufficiency of its evidence in chief." Id. (citing Miller v. State, 720 N.E.2d 696 (Ind. 1999)).
[¶12] Whether the State has met its burden of disproving a defendant's claim of selfdefense is a question of fact for the fact-finder. Id. at 376. Our review of the fact-finder's conclusion is entitled to considerable deference. Taylor v. State, 710 N.E.2d 921, 924 (Ind. 1999). This is because the standard of review for a challenge to the sufficiency of the evidence to rebut a claim of self-defense is the same as the standard for any sufficiency of the evidence claim. Stewart, 167 N.E.3d at 376. When analyzing a claim of insufficient evidence to rebut a claim of self-defense, we may consider only the probative evidence and reasonable inferences supporting the judgment. Id. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Id.
II. The State Presented Sufficient Evidence to Disprove Self-Defense
[¶13] Harris claims that he presented evidence that supported every element of selfdefense. Specifically, he refers to the evidence that Watkins had threatened to kill him and had pointed a firearm at him at his place of work; Watkins taunted Harris about Harris having run away and again threatened to kill Harris. He also claims that there was no evidence that he sought to confront Watkins or Small or had any plan to shoot them on the day of the shooting. Harris contends, therefore, that he met all of the elements of self-defense: (1) he was in a public place (the convenience store) where he had a right to be; (2) he had a reasonable fear of death or great bodily harm given the threats Watkins had directed at him; and (3) he did not provoke, instigate, or willingly participate in the violence.
[¶14] Harris' argument, however, is based on evidence that does not favor the trial court's judgment. Even if the trial court believed that Watkins threatened Harris at Walmart, as it apparently did, it noted that this incident occurred months before the shooting. Nor was the trial court required to believe Harris' testimony that Watkins and Small were "clutching" their weapons as they walked into the store. Tr. Vol. III p. 135. Although the two victims were armed, the surveillance video does not corroborate Harris' claim that the victims were "clutching" their weapons as they entered the store.
[¶15] Moreover, the evidence shows that Harris acted as the initial aggressor in the shooting. The video from the store shows that the shooting took place only seconds after Watkins and Small entered the store, and neither man appeared to have even seen Harris before Harris shot them. Thus, the trial court reasonably concluded that Harris was the initial aggressor and did not withdraw from the encounter as required by the self-defense statute. I.C. § 35-41-3-2(g)(3); see also Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999) (holding that evidence did not support defendant's claim of self-defense where defendant aggressively approached victim, who posed no immediate danger to defendant, and fired multiple shots at victim and, thus, was the initial aggressor, even though defendant testified he believed he saw victim reach for a firearm).
[¶16] And because Harris shot Watkins and Small before they even saw Harris, the trial court also reasonably concluded that it was objectively unreasonable for Harris, at the time he fired his weapon, to believe he was protecting himself from the "imminent use of unlawful force." Ind. Code § 35-41-3-2(c); see also Shoultz v. State, 995 N.E.2d 647, 661 (Ind.Ct.App. 2013) (holding that evidence rebutted defendant's claim of self-defense where defendant abused his mother's new puppy, thereby angering defendant's father, and, knowing that his father would confront him about the mistreatment of the puppy, defendant armed himself and lay in wait, and shot his father as the father opened the door to defendant's room).
[¶17] Lastly, the trial court reasonably concluded that, by repeatedly shooting the victims seconds after they walked into the store and before they even saw Harris, Harris used more force than was reasonably necessary under the circumstances. See Hood v. State, 877 N.E.2d 492, 497 (Ind.Ct.App. 2007) ("Firing multiple shots undercuts a claim of self-defense.") (citing Randolph v. State, 755 N.E.2d 572, 576 (Ind. 2001)).
In his Notice of Additional Authority, Harris claims that his firing of multiple shots does not nullify his claim of self-defense. Although firing multiple shots may not, by itself, negate a claim of self-defense, it certainly "undercuts" the claim. Hood, 877 N.E.2d at 497; Randolph, 755 N.E.2d at 576. In Hood, the victim "duck[ed] and dodg[ed]" in an attempt to flee from the defendant. 877 N.E.2d at 497. In Randolph, the victim raised his hands, but the defendant still fired multiple shots at him. 755 N.E.2d at 576. Here, Harris' action of firing multiple shots at his oblivious victims undercuts his claim of self-defense.
[¶18] We further observe that Harris displayed consciousness of guilt by immediately fleeing the store and the State of Indiana. Harris' flight suggests that Harris was aware that his actions were criminal and was attempting to avoid arrest. See Myers v. State, 27 N.E.3d 1069, 1070 (Ind. 2015) (holding that evidence of flight may be considered as evidence of consciousness of guilt). This behavior does not support Harris' claim that he was legally justified in shooting Watkins and Small. See Orozco v. State, 146 N.E.3d 1038, 1041-42 (Ind.Ct.App. 2020) (holding that evidence of defendant's flight from the state and disposal of the murder weapon was evidence from which the fact-finder could reasonably conclude that the murder was not committed in self-defense."), trans. denied.
Conclusion
[¶19] Based on the evidence presented by the State, the trial court reasonably concluded that Harris was the initial aggressor and that his act of shooting the victims as they walked into the store was objectively unreasonable and disproportionate to the threat that the victims posed at the time Harris shot them. Thus, the State presented evidence sufficient to disprove Harris' claim of self-defense, and we, accordingly, affirm the judgment of the trial court.
[¶20] Affirmed.
Foley, J., and Felix, J., concur.