MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 18 2017, 8:41 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE P. Jeffrey Schlesinger Curtis T. Hill, Jr. Appellate Division – Office of the Public Attorney General of Indiana Defender J.T. Whitehead Crown Point, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Isaiah Levert Hughes, January 18, 2017 Appellant-Defendant, Court of Appeals Case No. 45A03-1606-CR-1317 v. Appeal from the Lake Superior Court State of Indiana, The Hon. Kathleen A. Sullivan, Appellee-Plaintiff. Judge Pro Tempore Trial Court Cause No. 45G03-1308-MR-7
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1317 | January 18, 2017 Page 1 of 8 Case Summary [1] On July 12, 2013, Appellant-Defendant Isaiah Levert Hughes fired four shots at
B.J. Fullilove. Fullilove later died from his injuries. That same evening at the
police station, Hughes voluntarily confessed to firing the shots. On August 27,
2013, Appellee-Plaintiff, the State of Indiana (the “State”), charged Hughes
with one count of felony murder.
[2] A jury trial was held from February 8, 2016 through February 12, 2016. At the
conclusion of the trial, the jury found Hughes guilty of the lesser offense of
voluntary manslaughter. The trial court sentenced Hughes on April 5, 2016, to
twenty-five years, with twenty years executed and five years suspended.
Hughes filed a motion to correct error that same day. A hearing was held on
the motion on May 9, 2016. Following the hearing, the trial court denied
Hughes’s motion to correct error. On appeal, Hughes contends that the trial
court abused its discretion when it gave an instruction on voluntary
manslaughter over Hughes’s objection. Concluding that the trial court did not
abuse its discretion when it gave an instruction on voluntary manslaughter, a
lesser offense of felony murder, we affirm.
Facts and Procedural History [3] In July of 2013, Kendra Banks and her boyfriend Fullilove lived in Gary,
Indiana with their son and daughter. On July 12, 2013, Banks hosted a party, a
“girls’ night” for her friend LaQuita Glass’s birthday. Tr. 143. Glass, Desire
Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1317 | January 18, 2017 Page 2 of 8 Williams, Kenisha Williams, and Billy D. Borders were the first to arrive at the
party. Later in the evening, Hughes and his wife Konica Johnson arrived at the
party. Christine Haywood, Nathaniel McIntee, and James Dunkin arrived
sometime later. During the party, the guests were drinking, talking, and
listening to music inside and outside of Fullilove and Banks’s home.
[4] Between two and three in the morning, Fullilove returned home with food and
Banks told all of the guests it was time to leave. The guests began to argue and
fight each other outside of the home.1 Around that same time, Banks retrieved
Fullilove’s firearm from the entertainment center and took it upstairs because
she knew that Borders “like[d] to use weapons.” Tr. p. 155. Banks again told
everyone to leave and Banks then handed the gun to Fullilove before he went
upstairs. After approximately two minutes, Fullilove joined Banks in the living
room to eat their food.
[5] When the arguing and fighting continued, Fullilove decided to call the police;
his 911 call was made at 3:23 a.m. The police never arrived. Around ten
minutes later, Glass came to Banks and Fullilove’s door to announce that
Hughes was fighting someone outside. Fullilove then joined Banks outside and
Hughes and Johnson pulled up in a vehicle. When the vehicle stopped, Banks
saw that Johnson was pointing “a gun out of the window towards [Fullilove]’s
direction and said she was going to shoot.” Tr. p. 170. Banks walked over to
1 There as conflicting evidence as to who started the fighting and what prompted the initial argument.
Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1317 | January 18, 2017 Page 3 of 8 the vehicle and told Johnson that “she wasn’t going to shoot him because he
was [Banks’s] child’s father.” Tr. p. 171. Johnson subsequently swung the gun
at her and they started fighting.
[6] Hughes then exited the vehicle and started fighting Fullilove. Both Hughes and
Fullilove began to punch each other. Their fight moved around and they began
to wrestle near the edge of the street. At some point, Banks tried to break up
the fight, but they continued to wrestle around for approximately five more
minutes.
[7] Once Hughes and Fullilove stopped fighting, Hughes ran around to his vehicle
and began shooting at Fullilove. Hughes fired his weapon at Fullilove four
times. Banks never saw Fullilove with a firearm outside nor did she see him
point a gun at Hughes. After shooting, Hughes returned to his vehicle as
another vehicle, with McIntee and Duncan inside, pulled in behind him. Once
both vehicles left the neighborhood, Banks found Fullilove on the ground
bleeding. Fullilove told Banks that “he got shot, and he told [her] to call the
ambulance.” Tr. p. 185. Banks’s 911 call occurred at 3:32 a.m.
[8] Williams returned to the scene and applied pressure to Fullilove’s wounds
while they waited for the ambulance to arrive. Shortly thereafter, Haywood
also returned to the scene. Despite the women’s efforts, Fullilove died several
days later from injuries.
[9] The State charged Hughes on August 27, 2013, with one count of felony
murder. After Hughes learned of the criminal charges, he returned to Indiana
Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1317 | January 18, 2017 Page 4 of 8 and turned himself in. A jury trial was held on February 8, 2016, and
concluded on February 12, 2016. During the trial, the State requested a jury
instruction for voluntary manslaughter, which request the trial court granted
over Hughes’s objection. Hughes renewed his objection and the trial court,
again, over-ruled the objection to the voluntary manslaughter instruction. After
deliberations, the jury found Hughes guilty of the lesser offense of voluntary
manslaughter.
Discussion and Decision [10] Hughes argues that the trial court improperly instructed the jury on voluntary
manslaughter, at the State’s request, during his trial for felony murder.
The manner of instructing a jury is left to the sound discretion of the trial court. Its ruling will not be reversed unless the instructional error is such that the charge to the jury misstates the law or otherwise misleads the jury. Jury instructions must be considered as a whole and in reference to each other.
Patton v. State, 837 N.E.2d 576, 579 (Ind. Ct. App. 2005) (internal citations
omitted).
[11] In the present case, the trial court gave an instruction for voluntary
manslaughter, a lesser offense of murder. To determine whether an instruction
for a lesser offense should be given, the trial court must consider the following
in a three-step analysis:
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 18 2017, 8:41 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE P. Jeffrey Schlesinger Curtis T. Hill, Jr. Appellate Division – Office of the Public Attorney General of Indiana Defender J.T. Whitehead Crown Point, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Isaiah Levert Hughes, January 18, 2017 Appellant-Defendant, Court of Appeals Case No. 45A03-1606-CR-1317 v. Appeal from the Lake Superior Court State of Indiana, The Hon. Kathleen A. Sullivan, Appellee-Plaintiff. Judge Pro Tempore Trial Court Cause No. 45G03-1308-MR-7
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1317 | January 18, 2017 Page 1 of 8 Case Summary [1] On July 12, 2013, Appellant-Defendant Isaiah Levert Hughes fired four shots at
B.J. Fullilove. Fullilove later died from his injuries. That same evening at the
police station, Hughes voluntarily confessed to firing the shots. On August 27,
2013, Appellee-Plaintiff, the State of Indiana (the “State”), charged Hughes
with one count of felony murder.
[2] A jury trial was held from February 8, 2016 through February 12, 2016. At the
conclusion of the trial, the jury found Hughes guilty of the lesser offense of
voluntary manslaughter. The trial court sentenced Hughes on April 5, 2016, to
twenty-five years, with twenty years executed and five years suspended.
Hughes filed a motion to correct error that same day. A hearing was held on
the motion on May 9, 2016. Following the hearing, the trial court denied
Hughes’s motion to correct error. On appeal, Hughes contends that the trial
court abused its discretion when it gave an instruction on voluntary
manslaughter over Hughes’s objection. Concluding that the trial court did not
abuse its discretion when it gave an instruction on voluntary manslaughter, a
lesser offense of felony murder, we affirm.
Facts and Procedural History [3] In July of 2013, Kendra Banks and her boyfriend Fullilove lived in Gary,
Indiana with their son and daughter. On July 12, 2013, Banks hosted a party, a
“girls’ night” for her friend LaQuita Glass’s birthday. Tr. 143. Glass, Desire
Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1317 | January 18, 2017 Page 2 of 8 Williams, Kenisha Williams, and Billy D. Borders were the first to arrive at the
party. Later in the evening, Hughes and his wife Konica Johnson arrived at the
party. Christine Haywood, Nathaniel McIntee, and James Dunkin arrived
sometime later. During the party, the guests were drinking, talking, and
listening to music inside and outside of Fullilove and Banks’s home.
[4] Between two and three in the morning, Fullilove returned home with food and
Banks told all of the guests it was time to leave. The guests began to argue and
fight each other outside of the home.1 Around that same time, Banks retrieved
Fullilove’s firearm from the entertainment center and took it upstairs because
she knew that Borders “like[d] to use weapons.” Tr. p. 155. Banks again told
everyone to leave and Banks then handed the gun to Fullilove before he went
upstairs. After approximately two minutes, Fullilove joined Banks in the living
room to eat their food.
[5] When the arguing and fighting continued, Fullilove decided to call the police;
his 911 call was made at 3:23 a.m. The police never arrived. Around ten
minutes later, Glass came to Banks and Fullilove’s door to announce that
Hughes was fighting someone outside. Fullilove then joined Banks outside and
Hughes and Johnson pulled up in a vehicle. When the vehicle stopped, Banks
saw that Johnson was pointing “a gun out of the window towards [Fullilove]’s
direction and said she was going to shoot.” Tr. p. 170. Banks walked over to
1 There as conflicting evidence as to who started the fighting and what prompted the initial argument.
Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1317 | January 18, 2017 Page 3 of 8 the vehicle and told Johnson that “she wasn’t going to shoot him because he
was [Banks’s] child’s father.” Tr. p. 171. Johnson subsequently swung the gun
at her and they started fighting.
[6] Hughes then exited the vehicle and started fighting Fullilove. Both Hughes and
Fullilove began to punch each other. Their fight moved around and they began
to wrestle near the edge of the street. At some point, Banks tried to break up
the fight, but they continued to wrestle around for approximately five more
minutes.
[7] Once Hughes and Fullilove stopped fighting, Hughes ran around to his vehicle
and began shooting at Fullilove. Hughes fired his weapon at Fullilove four
times. Banks never saw Fullilove with a firearm outside nor did she see him
point a gun at Hughes. After shooting, Hughes returned to his vehicle as
another vehicle, with McIntee and Duncan inside, pulled in behind him. Once
both vehicles left the neighborhood, Banks found Fullilove on the ground
bleeding. Fullilove told Banks that “he got shot, and he told [her] to call the
ambulance.” Tr. p. 185. Banks’s 911 call occurred at 3:32 a.m.
[8] Williams returned to the scene and applied pressure to Fullilove’s wounds
while they waited for the ambulance to arrive. Shortly thereafter, Haywood
also returned to the scene. Despite the women’s efforts, Fullilove died several
days later from injuries.
[9] The State charged Hughes on August 27, 2013, with one count of felony
murder. After Hughes learned of the criminal charges, he returned to Indiana
Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1317 | January 18, 2017 Page 4 of 8 and turned himself in. A jury trial was held on February 8, 2016, and
concluded on February 12, 2016. During the trial, the State requested a jury
instruction for voluntary manslaughter, which request the trial court granted
over Hughes’s objection. Hughes renewed his objection and the trial court,
again, over-ruled the objection to the voluntary manslaughter instruction. After
deliberations, the jury found Hughes guilty of the lesser offense of voluntary
manslaughter.
Discussion and Decision [10] Hughes argues that the trial court improperly instructed the jury on voluntary
manslaughter, at the State’s request, during his trial for felony murder.
The manner of instructing a jury is left to the sound discretion of the trial court. Its ruling will not be reversed unless the instructional error is such that the charge to the jury misstates the law or otherwise misleads the jury. Jury instructions must be considered as a whole and in reference to each other.
Patton v. State, 837 N.E.2d 576, 579 (Ind. Ct. App. 2005) (internal citations
omitted).
[11] In the present case, the trial court gave an instruction for voluntary
manslaughter, a lesser offense of murder. To determine whether an instruction
for a lesser offense should be given, the trial court must consider the following
in a three-step analysis:
Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1317 | January 18, 2017 Page 5 of 8 1) a determination of whether the lesser included offense is inherently included in the crime charged; if not, (2) a determination of whether the lesser included offense is factually included in the crime charged; and, if either, (3) a determination of whether a serious evidentiary dispute existed whereby the jury could conclude the lesser offense was committed but not the greater.
Clark v. State, 834 N.E.2d 153, 157 (Ind. Ct. App. 2005) (citing Wright v. State,
658 N.E.2d 563, 566-67 (Ind. 1995)). If there is evidence of a substantial
evidentiary dispute about an element distinguishing the offenses, and a jury
could conclude that the lesser offense, but not the greater offense was
committed, a court cannot reject the tendered instruction for the lesser offense if
requested to do so; failure to give such instruction would be reversible error.
Wright, 658 N.E.2d at 567.
[12] Although voluntary manslaughter is a lesser included offense of murder, it is not a ‘typical’ lesser included offense, because instead of requiring the State to prove less than all the elements of murder, it requires the State to prove all of the elements of murder and disprove the existence of sudden heat when there is any appreciable evidence of such in the record. Additionally, a conviction for voluntary manslaughter constitutes an acquittal of murder. The absence of sudden heat is not an element of murder, and a jury ordinarily does not have to be instructed that the State has the burden of disproving the existence of sudden heat in order to gain a murder conviction. If there is no evidence in the record of sudden heat, the jury need not be instructed that the State bears the burden of disproving the existence of sudden heat. If, however, the record contains any appreciable evidence of sudden heat, an instruction on voluntary manslaughter is justified. Additionally, such evidence may arise from either the
Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1317 | January 18, 2017 Page 6 of 8 State’s or the defendant’s evidence; the defendant does not bear the burden of placing the issue of sudden heat into question.
Roberson v. State, 982 N.E.2d 452, 457 (Ind. Ct. App. 2013) (internal citations
[13] “Sudden heat” has been defined as “anger, rage, resentment, or terror sufficient
to obscure the reason of an ordinary person, preventing deliberation and
premeditation, excluding malice, and rendering a person incapable of cool
reflection.” Id. Additionally, “any alleged provocation must be such that it
would obscure the reason of an ‘ordinary man,’ which is an objective as
opposed to subjective standard.” Id. at 457. However, “[u]nlike the right to
self-defense, which ceases to exist once a danger has passed, sudden heat can
survive for a while beyond the act of provocation.” Id. at 457 (internal citation
and quotations omitted). Therefore, “[a]ny appreciable evidence of sudden heat
justifies an instruction on voluntary manslaughter.” Washington v. State, 808
N.E.2d 617, 626 (Ind. 2004).
[14] After a review of the evidence and record, we conclude that there was ample
evidence of possible sudden heat. Throughout the early morning of July 13,
2013, there was evidence that Fullilove and Hughes were fighting and that
Fullilove threw the first punch. There was also evidence in the record that
Hughes, not Fullilove, was the initial aggressor. Hughes himself testified that
he was upset the night of the party because he saw women, including
Fullilove’s girlfriend, attacking his wife. There was also evidence that Hughes’s
wife aimed a gun at Fullilove and swung her gun at Fullilove’s girlfriend. Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1317 | January 18, 2017 Page 7 of 8 Fullilove’s girlfriend also testified that the fighting between Fullilove and
Hughes lasted three to five minutes before the shooting occurred.
Consequently, based upon the above-mentioned evidence, there was sufficient
evidence of rage, anger, and resentment to warrant an instruction on the lesser-
included offense of voluntary manslaughter.
[15] We affirm.
Vaidik, C.J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1317 | January 18, 2017 Page 8 of 8