FILED Oct 26 2023, 8:55 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
Attorneys for Appellant ATTORNEYS FOR APPELLEE Valerie K. Boots Theodore E. Rokita Talisha Griffin Indiana Attorney General Indianapolis, Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Larry Lee Jackson, Jr., October 26, 2023 Appellant-Defendant, Court of Appeals Case No. 22A-CR-2955 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Mark D. Stoner, Appellee-Plaintiff Judge Trial Court Cause No. 49D32-2112-F1-37122
Opinion by Chief Judge Altice Judges May and Foley concur.
Altice, Chief Judge.
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 1 of 26 Case Summary [1] Larry L. Jackson, Jr. was charged with attempted murder and, following a jury
trial, was convicted of Level 3 felony aggravated battery. He appeals raising the
following three restated issues:
I. Did the trial court err when it gave, sua sponte and over Jackson’s objection, a jury instruction on aggravated battery as a lesser included offense of attempted murder?
II. Did the trial court abuse its discretion when it denied Jackson’s tendered self-defense instruction?
III. Did the trial court abuse its discretion when it admitted certain evidence over Jackson’s objection?
[2] We affirm.
Facts & Procedural History [3] In December 2021, Jackson, sixty years old, was living in apartment 501 in
Lugar Towers in Indianapolis. The Lugar Towers complex is known to be a
“high crime” area, with Indianapolis Metropolitan Police Department (IMPD)
receiving calls almost nightly. Transcript Vol. 2 at 183, 198. Jackson’s
apartment, on the fifth floor, was the first apartment to the left of the elevator.
There are fifteen stories in the towers, with cameras on every floor except floors
thirteen, fourteen, and fifteen. There are no cameras in the elevators.
[4] According to Jackson, a non-tenant named Adrian King Taylor, known to
Jackson as “King,” was often seen loitering inside the building, harassing
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 2 of 26 people for money or drugs, and sometimes robbing or beating up tenants.
Transcript Vol. 3 at 75. Jackson reported that Taylor had robbed and threatened
him on a couple of occasions in November 2021, and Jackson gave him money,
which worked to “defuse the situation.” Id.
[5] In the early morning hours of December 4, 2021, there was an encounter
between Jackson and Taylor, recorded on a surveillance camera on the fifth
floor, in which Jackson stabbed Taylor in the chest. Jackson ran down the
stairs and out of the building, discarding the knife and walking toward a nearby
gas station.
[6] Meanwhile, Taylor walked toward the stairwell but came back and got on the
elevator and made his way out of the building. He was in the backseat of a
vehicle, with its door open, when emergency responders arrived. IMPD Officer
Amanda Tatomirovich was the first to make contact with Taylor, who was
grabbing his chest and was in distress, unable to clearly speak his name. Officer
Tatomirovich performed a pat down on Taylor before he was taken away by
ambulance, and no weapons were found, only some loose change in his hands
and pockets. Forty-two-year-old Taylor received emergency surgery and
survived.
[7] IMPD Officer Jamie Hadley also responded to the dispatch about the stabbing,
and she saw Jackson, who matched the description of the suspect, on foot a
short distance from Lugar Towers. Officer Hadley stopped Jackson, whom she
described as very calm and cooperative and not startled about being stopped by
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 3 of 26 police. Jackson was transported to a police station. Officers looked for a knife
in the area where Jackson had been but did not find one.
[8] IMPD Detective Corey Shaffer conducted a recorded interview of Jackson.
Jackson told Detective Shaffer that there had been a sudden banging on his
apartment door, which came open, and Taylor entered, threatening Jackson
that he was going to shoot him if Jackson did not “give [him] something.”
Exhibit Vol. at 29 (State’s Exhibit 24, transcript of interview). Jackson described
that Taylor told him that he better “go get [him] some Katy” 1 or else Taylor
would “shoot [Jackson’s] motherf*cking ass.” Id. Jackson told Detective
Shaffer that, to get Taylor out of his apartment, he agreed, and Taylor handed
him a dollar bill and some change, totaling about five dollars. Jackson then
went “straight downstairs” to the lobby, where he went outside and had a
cigarette. Id. at 34.
[9] Jackson stated that when he came back inside to go to his apartment, Taylor
was already in the elevator and that he tried to give the money back to Taylor
but he refused it. Jackson described that Taylor had his “hands balled up,” and
was “getting ready to try to hurt” Jackson, so Jackson, while on the elevator,
pulled out the knife from his pocket and “poked” Taylor as Taylor was coming
toward him. Id. at 36, 40. Jackson reported that, when the elevator opened on
the third or fourth floor, he ran down a stairwell and out of the building, with
1 The record indicates Katy or Katie “is slang for a drug.” Transcript Vol. 3 at 39. It originally referred to commercially produced synthetic marijuana but now “could be a number of different” drugs. Id. at 40.
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 4 of 26 Taylor chasing him. Jackson told Detective Shaffer that he did not go to the
fifth floor. Jackson said that he dropped the knife in an alley. Detective Shaffer
looked for the knife, but it was never found.
[10] On December 8, 2021, the State charged Jackson with attempted murder,
alleging that Jackson attempted to kill Taylor by “stabbing Adrian Taylor in the
chest with the specific intent to kill Adrian Taylor.” Appellant’s Appendix at 23.
[11] Prior to trial, Jackson sought to exclude the second portion of Officer
Tatomirovich’s body cam footage (Exhibit 15), which showed Taylor bloodied
in the back of the vehicle and then falling to the ground as he stood up,
requiring assistance onto the stretcher. Jackson argued that it had no
evidentiary value and was highly prejudicial. The State maintained that the
footage showing Taylor’s deteriorating condition was “very relevant” because
Taylor’s injuries initially did not appear too serious on the surveillance video.
Transcript Vol. 2 at 132. The State explained that the footage was important to
illustrate to the jury “how someone who is walking and talking on the
surveillance video after the incident, all of a sudden is minutes from death by
the time he gets to the hospital.” Id. After viewing the portion of the video at
issue, the court found that its relevancy outweighed any prejudice.
[12] Also prior to trial, Jackson argued for the admission of statements he made
about Taylor while alone in the interview room. The State intended to offer
into evidence only that portion of the video that contained the interview
(Exhibit 23) – stopping the video when the detective left the room. Jackson
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 5 of 26 wanted the full video admitted under the doctrine of completeness, noting that
Jackson was unaware he was being recorded and that the part not included in
Exhibit 23 showed Jackson’s “subjective belief [about Taylor] at the time.” Id.
at 137. The court found that Jackson’s statements were volunteered, not within
a hearsay exception, and not admissible under the rule of completeness, but
noted that the statements “do reflect [Jackson’s] state of mind” and that defense
could present them in its case-in-chief, if desired. Id. at 139.
[13] A jury trial was held on October 25, 2022. At trial, Lugar Towers surveillance
camera footage, without sound, was admitted as State’s Exhibit 19. It showed
the two men getting on and off the elevators in the lobby and on the fifth floor,
sometimes together and sometimes not, a number of times between 3:42 and
3:57 a.m. At 3:56 a.m., they both exit the elevator on the fifth floor and are
seen standing next to it. Jackson is seen picking up small, indiscernible items
off the floor, and trying to hand them to Taylor, who jerks his hand away and
appears to refuse the items. Taylor, saying something to Jackson, begins to turn
away, then turns back to Jackson, who suddenly reaches into his hoodie pocket,
pulls out a knife, stabs Taylor in the chest, and runs away. Taylor leaves the
camera view for some seconds then returns, pulls up his shirt to show dripping
blood, talks and shows the injury to someone else, and then gets on the
elevator. Taylor is seen getting off the lobby elevator and walking out of the
building at 3:59 a.m.
[14] Detective Shafer testified that, contrary to Jackson’s statement that the incident
occurred in the elevator, the stabbing occurred on the fifth floor in the hallway
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 6 of 26 near the elevator. Further, Taylor did not chase Jackson out of the building as
Jackson had reported. The recorded interview with Detective Shaffer, which
video ended when the detective left the room, was offered and admitted into
evidence as Exhibit 23, over Jackson’s objection. 2
[15] During Officer Tatomirovich’s testimony, the State sought to admit her
bodycam footage as Exhibit 15. Jackson objected to the admission of the
second portion that showed Taylor’s deteriorating condition before emergency
personnel arrived. The court admitted the first portion of Exhibit 15 without
objection and the second portion over Jackson’s objection.
[16] Bryan Carr, M.D., the trauma surgeon who treated Taylor, testified that Taylor
was minutes from dying when he arrived at the hospital. Surgery revealed that
Taylor had a hole, about half an inch in size, in the left side of his heart and “a
massive amount of hemorrhage” in a tissue sack surrounding the heart.
Transcript Vol. 2 at 205. Taylor was on a ventilator for a period and required a
second surgery. He was in the hospital for approximately fourteen days.
[17] Jackson testified about the series of events, describing that he was chopping
onions in his kitchen when Taylor banged on his apartment door and entered,
despite Jackson trying to brace the door shut. He explained that he feared
Taylor because he had witnessed Taylor beat up other people in the building at
least twice and that Taylor had robbed Jackson on a couple of prior occasions.
2 Exhibit 24 was a transcription of Exhibit 23 and was admitted for demonstrative purposes.
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 7 of 26 Jackson stated that he and Taylor sat at his table, and Taylor gave him some
dollars and change, instructing Jackson to go find him some “Katie or some
crack or something.” Transcript Vol. 3 at 68.
[18] Jackson stated that he left his apartment, with a knife in his pocket, and first
took the elevator up to the thirteenth floor, looking for someone he believed
might have drugs that he could buy for Taylor, and, unsuccessful with that, he
took the elevator down to the first floor and exited the building briefly. He said
that, having no success finding drugs, he got back on the elevator to return to
his apartment and encountered Taylor. They exited together on the fifth floor,
and Jackson testified that he tried to hand Taylor his money back, but Taylor
refused it.
[19] Jackson testified, “[Taylor] balled his fist up” and “hit my arm” and said “give
me some motherf*cking money, or I’m going to shoot your motherf*cking ass.”
Id. at 72, 76. Jackson testified that he “just panicked,” as he was afraid of
Taylor, and “poked” him with the knife. Id. at 76, 93. Jackson acknowledged
that did not see a weapon on Taylor but “truly believed he had a weapon,”
adding that Taylor “has threatened me so many times.” Id. at 73. Jackson
testified that he did not intend to kill Taylor. Id. at 76.
[20] After the parties rested, the jury was excused and final jury instructions were
discussed. The trial court asked if anyone objected “to the Court’s proposed
finals.” Id. at 126. Jackson objected to Instructions 8 and 9, which defined the
charged offense of attempted murder and stated that aggravated battery, also
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 8 of 26 defined in the instructions, was a lesser included offense of which the jury could
find Jackson guilty if the necessary elements were proven. Jackson’s counsel
stated repeatedly that the defense did not want “any mention of aggravated
battery” as Jackson did not want “any lesser” offenses mentioned at all. Id. at
127. The exchange with defense counsel continued, with the court asking for
the reason that Jackson’s counsel did not believe a lesser included instruction
should be given:
Defense Counsel: Yes. I believe that even though a lesser Ag Bat can be -- I think there is a little bit of mixed caselaw on whether it is inherently included or not, but that aside, the elements of aggravated battery are almost identical to the attempt murder that we’re dealing with. By giving that instruction, I feel that this is going to reduce the burden of the State. They have a high burden, which is, to me, the specific intent for attempt murder, and since there are not really that much difference, if any, between the two, between the Ag Bat and the attempted murder, then I think, by offering an aggravated battery, that will be like a compromise, offering the jury a compromise verdict, which is -- makes it easier for the State.
Court: Okay. And do you believe as a matter of strategy, that you wish not -- the aggravated battery not be given?
Defense Counsel: Correct.
Id. at 128. The trial court asked for the State’s position, with the State
responding:
I think it’s appropriate given the facts, Judge. I think this is a factually inherent -- or factually included lesser. As [defense
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 9 of 26 counsel] said, the elements are very similar. The facts are all the same. And if the Court finds that there’s been a serious evidentiary dispute about an element, which in this case, our understanding is it’s going to be the mens rea, the specific intent to kill, then the lesser included would be -- would be appropriate as a factually included lesser. So we do think it’s appropriate to give.
Id. The court stated that the evidence reflected an evidentiary dispute as to
Jackson’s intent, which supported giving the lesser included aggravated battery
instruction.
[21] The court asked Jackson’s counsel if he had discussed with Jackson “the risk he
takes by an all-or-nothing strategy,” and counsel stated he had, but would do so
again. Id. Following a recess, counsel for Jackson stated that he and Jackson
had discussed the two charges and the penalties for each and that “[Jackson]
told me that he wants to go all or nothing.” Id. at 131. The court, speaking
directly to Jackson, asked if that is how he wished to proceed, and he responded
in the affirmative.
[22] After reviewing caselaw off the record, the court determined that “there is not
an absolute right to refuse a valid lesser included offense instruction” where, as
here, “there is a serious evidentiary dispute” on the element distinguishing the
two offenses, in this case, the mens rea. Id. at 135.
The aggravated battery, as the caselaw’s indicated, is an inherently included offense because the elements are virtually identical with the exception of the specific intent to kill. Court notes that aggravated battery doesn’t require a touching [and] . . .
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 10 of 26 simply requires an inflicting of injury. And the language of the statute -- or charging information in this particular case is that the Defendant intentionally -- attempted to intentionally kill another human being by the stabbing.
So the Court does believe, one, it’s inherently included; secondly, that it is factually included; third, that based on the evidence the Court’s previously cited, that there is a serious evidentiary dispute.
Id. at 136. The court gave the lesser included aggravated battery instruction
over Jackson’s objection.
[23] Jackson also took issue with the court’s decision regarding what self-defense
instruction would be given. Specifically, the court determined that it would
give the court’s self-defense instruction, Final Instruction 3, which was
consistent with pattern jury instruction 10.03. The court declined to give
Jackson’s tendered instructions 1 and 6, finding that instruction 1 was already
covered by the court’s Final Instruction 3 and that instruction 6 (Defense
Instruction 6) contained language that the Indiana Supreme Court had
determined was unnecessary and misleading.
[24] The jury found Jackson guilty of Level 3 felony aggravated battery. The court
sentenced him to eight years with six executed and two suspended with no
probation. Jackson now appeals. Additional facts will be supplied as needed.
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 11 of 26 Discussion & Decision
I. Aggravated Battery Instruction [25] It is well settled that when a party asks a trial court to instruct the jury on an
alleged lesser included offense of the crime charged, the court must conduct a
three-part analysis to determine whether the instruction is appropriate. Watts v.
State, 885 N.E.2d 1228, 1231 (Ind. 2008).
First, the trial court must compare the statute defining the crime charged with the statute defining the alleged lesser included offense to determine if the alleged lesser included offense is inherently included in the crime charged. Second, if a trial court determines that an alleged lesser included offense is not inherently included in the crime charged under step one, then it must determine if the alleged lesser included offense is factually included in the crime charged. If the alleged lesser included offense is neither inherently nor factually included in the crime charged, the trial court should not give an instruction on the alleged lesser included offense. Third, if a trial court has determined that an alleged lesser included offense is either inherently or factually included in the crime charged, “it must look at the evidence presented in the case by both parties” to determine if there is a serious evidentiary dispute about the element or elements distinguishing the greater from the lesser offense and if, in view of this dispute, a jury could conclude that the lesser offense was committed but not the greater. “[I]t is reversible error for a trial court not to give an instruction, when requested, on the inherently or factually included lesser offense” if there is such an evidentiary dispute.
Webb v. State, 963 N.E.2d 1103, 1106 (Ind. 2012) (quoting Wright v. State, 658
N.E.2d 563, 566-67 (Ind. 1995)).
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 12 of 26 [26] Here, Jackson does not dispute that aggravated battery was a lesser included
offense of attempted murder or that a serious evidentiary dispute existed as to
the mens rea element, that is, whether Jackson possessed specific intent or
whether he acted knowingly and intentionally. Rather, Jackson’s argument is
that the Wright three-part analysis applies only when a party has requested an
instruction – and not when, as here, a trial court gives a jury instruction sua
sponte.
[27] This court faced a similar instructional challenge in Washington v. State, 685
N.E.2d 724 (Ind. Ct. App. 1997), where the defendant was charged with
murder and, over the defendant’s objection, the trial court sua sponte instructed
the jury on voluntary manslaughter, of which he was convicted. In addressing
whether it was proper to give the sua sponte instruction, this court applied the
Wright test, first finding that, under step one of the test, voluntary manslaughter
is an inherently included offense of murder 3 and, under the third step, there was
“sufficient evidence of sudden heat” to warrant the giving of the instruction. 4
3 The Washington court cited Griffin v. State, 644 N.E.2d 561, 562 (Ind. 1994), for the proposition that “voluntary manslaughter is simply murder mitigated by sudden heat.” Our Supreme Court later clarified in Watts v. State that, “even though under Indiana law voluntary manslaughter is a lesser-included offense of murder, a conviction for murder does not mean that a defendant could also have been convicted of voluntary manslaughter” and “[s]udden heat must be separately proved.” 885 N.E.2d 1228, 1233 (Ind. 2008). “Therefore, if there is no serious evidentiary dispute over sudden heat, it is error for a trial court to instruct a jury on voluntary manslaughter in addition to murder,” and to the extent that Griffin and a number of other cases were inconsistent with that, they were overruled. Id. The Watts Court’s overruling of Griffin does not affect the validity of Washington’s relevancy to our case. 4 Judge Staton dissented. He found that, contrary to the majority’s conclusion, there was “an absolute absence” of a serious evidentiary dispute regarding Washington’s sudden heat and that the instruction on voluntary manslaughter over the defendant’s timely objection was reversible error. 685 N.E.2d at 729.
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 13 of 26 Id. at 728. The Washington court thus applied the Wright analysis even though
no party had requested the instruction. 5 Jackson urges that Washington was
“wrongly decided” and asks us not to repeat that court’s mistake. Reply Brief at
5.
[28] However, Washington was not alone in applying the Wright analysis when a trial
court sua sponte gave a lesser included instruction. In Ross v. State, 877 N.E.2d
829 (Ind. Ct. App. 2008), trans. denied, this court, while addressing the denial of
petition for post-conviction relief, evaluated whether the defendant received
ineffective assistance of trial counsel for counsel’s failure to object to the trial
court’s sua sponte instruction on Class A felony voluntary manslaughter as a
lesser included offense of murder. In Ross, the defendant’s argument was that
the only proper voluntary manslaughter instruction that could have been given
was for Class B felony manslaughter (because the offense is a Class A felony if
it is committed by means of a deadly weapon and the charging information
against Ross did not specify that he committed murder by means of a deadly
weapon).
[29] Although the instruction was given sua sponte, the Ross court stated that, per
Wright, “[f]or jury instruction purposes, if one offense is inherently included
within another, it is proper for a trial court to give an instruction on the lesser
5 This includes the dissent. That is, although Judge Staton disagreed with the majority about the existence of a serious evidentiary dispute as to sudden heat and opined that “[t]he court-induced voluntary manslaughter instruction undermined the defendant’s defense of self-defense,” he explained that “the reversible error here was created by the trial court failing to follow the third prong of the analysis set forth in Wright.” Id.
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 14 of 26 included offense if there is a serious evidentiary dispute regarding the element
that distinguishes the greater offense from the lesser offense.” Id. at 835. Thus,
as in Washington, the Ross court applied Wright in evaluating the
appropriateness of the court’s sua sponte instruction. The crux of the
discussion – about the appropriateness of the sua sponte lesser included
instruction – concerned the existence, or not, of any serious evidentiary dispute
as to sudden heat. Ultimately, the Ross court determined that, based on the
ineffective assistance of counsel standard of review, the defendant failed to
establish that his counsel was ineffective for failing to lodge an objection to the
Class A felony instruction. 6 Washington and Ross lead us to the conclusion that,
regardless of whether a party requested the lesser included instruction or it was
given sua sponte, the relevant inquiry is whether the instruction was properly
given pursuant to the Wright analysis. 7
6 In Ross, the trial court proposed giving a voluntary manslaughter instruction. The State did not object, but Ross’s counsel did, asserting there was no evidence of sudden heat. The trial court overruled this objection and gave a pattern jury instruction for both Class A felony and Class B felony voluntary manslaughter. Trial counsel did not lodge a separate objection to the inclusion of Class A felony voluntary manslaughter in the instruction. 7 In Young v. State, 30 N.E.3d 719, 728 (Ind. 2015), the Court addressed the principle that defendants must have “fair notice” of the charges of which they may be convicted, including inherently or factually included lesser offenses. There, two defendants were charged with murder by a shooting, and at the conclusion of the evidence at the bench trial, the trial court found that the evidence showed that defendants had planned a group beating of the victim but that there was insufficient evidence that defendants knew any member of the group would shoot the victim. The court dismissed the murder charges but left “all the possible batteries on the table” as lesser included offenses -- although neither party had requested consideration of such. Id. at 721. Following argument, the court found the defendants guilty of Class B felony attempted aggravated battery for planning the beating. On transfer, our Supreme Court observed that the inherent and factual inclusion tests established in Wright “are a necessary piece of the larger fair-notice puzzle” but are not always dispositive, concluding that “fair notice” was lacking in that case because, although the elements of attempted aggravated battery were inherently included in murder, the convictions were based on a
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 15 of 26 [30] In further support of his position, Jackson makes the broader policy argument
that if a trial court sua sponte instructs a jury on a lesser included offense, over a
defendant’s objection, the court fails to act in an impartial manner because the
court is interfering with a party’s strategic maneuvering. His argument in that
regard is not lost on us. Clearly, giving a lesser included instruction can affect a
defendant’s desire to pursue an all-or-nothing trial strategy.
[31] Our Supreme Court recognized this consequence in Watts. There, the Court
determined that defense counsel’s objection to a voluntary manslaughter
instruction should have been sustained because there was no serious evidentiary
dispute over sudden heat. In its decision, the Court expressly acknowledged
that lesser included instructions may detrimentally affect a defendant’s trial
strategy:
One legitimate trial strategy for the defendant in a murder trial is an “all-or-nothing” one in which the defendant seeks acquittal while realizing that the jury might instead convict of murder. In a situation where a jury must choose between a murder conviction and an acquittal, the defendant might well be acquitted. But if the jury has voluntary manslaughter as an intermediate option, the defendant might be convicted of voluntary manslaughter as a “compromise.” Such a verdict is not appropriate if unsupported by any evidence of sudden heat; moreover, an unsupported voluntary manslaughter instruction
completely different “means used” (beating) than was alleged in the charging informations (shooting). Id. at 728. While Jackson does not raise a fair notice argument, we find that Young’s discussion of Wright nevertheless informs our decision today, as it reflects that the Wright test is applicable in situations where the trial court acts sua sponte to propose consideration of lesser-included offenses.
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 16 of 26 deprives the defendant of the opportunity to pursue a legitimate trial strategy.
885 N.E.2d at 1233 (emphases added).
[32] A few years later, this court, in True v. State, 954 N.E.2d 1105 (Ind. Ct. App.
2011), addressed the propriety of an instruction for Class A misdemeanor
battery as a lesser included of Class D felony domestic battery, being given at
the State’s request and over the defendant’s objection. The True court echoed
the Watts Court’s observations regarding the potential impact of a lesser
included instruction on a defendant’s “all or nothing” strategy, stating that
“such a defense can be improperly undermined by the State obtaining a lesser
included offense instruction where the evidence does not warrant such an
instruction[.]” Id. at 1110 (emphasis added). The True court continued that,
under Watts, “neither the State nor a defendant may seek to have a jury enter a
‘compromise’ verdict, based on the giving of a lesser included offense
instruction that is not supported by the evidence.” Id. (emphasis added). Because
there was no serious evidentiary dispute as to whether the battery was
committed in the presence of children (required by the Class D felony), the True
court found that the instruction “improperly invited the jury to reach a
‘compromise’ verdict.” Id. at 1111. Watts and True suggest to us that it is when
a lesser included instruction is not supported by the evidence that a defendant is
improperly deprived of his choice to pursue an all-or-nothing strategy.
[33] Granted, in Watts and True, the State had made the request that the court give a
lesser included instruction, making it distinguishable from here, where the Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 17 of 26 instruction was given sua sponte. However, the common thread woven
throughout the cases, including when a lesser included instruction was given
sua sponte, is whether – pursuant to the Wright analysis – a serious evidentiary
dispute existed on the element distinguishing the lesser and greater offenses.
[34] In sum, we agree with the State that, while trial courts are not required to give
an instruction on a lesser included offense sua sponte, they are not precluded
from doing so given the proper circumstances. Here, the trial court found, and
it is undisputed, that a serious evidentiary dispute existed as to Jackson’s mens
rea, that is, the distinguishing element between the charged attempted murder
and the lesser aggravated battery. For the reasons discussed above, we find the
trial court did not err in instructing the jury on aggravated battery.
II. Self Defense Instruction [35] Jackson next claims that the trial court erred when it refused one of his tendered
self-defense instructions. This Court reviews a trial court’s manner of
instructing the jury for an abuse of discretion. Treadway v. State, 924 N.E.2d
621, 636 (Ind. 2010). When reviewing a trial court’s refusal to give an
instruction, the reviewing court looks to whether the tendered instruction
correctly states the law, whether there is evidence in the record to support
giving the instruction, and whether the substance of the proffered instruction is
covered by other instructions. Id.
[36] “To employ self-defense, ‘a defendant must satisfy both an objective and
subjective standard: he must have actually believed deadly force was necessary
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 18 of 26 to protect himself, and his belief must be one that a reasonable person would
have held under the circumstances.’” Passarelli v. State, 201 N.E.3d 271, 276
(Ind. Ct. App. 2023) (quoting Littler v. State, 871 N.E.2d 276, 279 (Ind. 2007)),
trans. denied. Here, the trial court gave Final Instruction 3 8 concerning self-
defense, which was based on pattern jury instruction 10.03. 9 No party objected
to Final Instruction 3. However, as is relevant to this appeal, Jackson asked the
court to also give his Defense Instruction 6, which the court refused. It stated:
With regard to the defense of self-defense, the existence of the danger, the necessity or apparent necessity of using force, as well as the amount of force required to resist the attack or criminal
8 Final Instruction 3 read:
It is an issue in this case as to whether the defendant acted in self-defense. A person may use reasonable force against another person to protect himself from what he reasonably believes to be the imminent use of unlawful force. A person is justified in using deadly force, and does not have a duty to retreat, only if he reasonably believes the deadly force is necessary to prevent serious bodily injury to himself or the commission of a forcible felony. [H]owever, a person may not use force if: (1) he is committing a crime that is directly and immediately connected to the confrontation between the defendant and Adrian Taylor; (2) he is escaping after the commission of a crime that is directly and immediately connected to interaction between the defendant and Adrian Taylor; (3) he provokes a fight with another person with intent to cause bodily injury to that person or; (4) he has willingly entered into a fight with another person or is the initial aggressor, unless he 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 the fight. The burden is upon the state to disprove this defense beyond a reasonable doubt. Appendix at 122-23.
9 Our Supreme Court has stated, “Although we have not formally approved [Indiana Pattern Jury Instructions] for use, we have recognized their existence and given them some preferential status.” Clay City Consol. Sch.. Corp. v. Timberman, 918 N.E.2d 292, 295 (Ind 2009).
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 19 of 26 interference with property can only be determined from the standpoint of the defendant at the time and under the then existing circumstances.
Ordinarily, one exercising the right to self-defense is required to act upon the instant and without time to deliberate and investigate, and under such circumstances a danger which exists only in appearance, is as real and imminent to him as if it were actual. A person has a right to act upon appearances of actual and immediate danger if they sincerely believe such apparent danger exists. A person’s belief of apparent danger does not require the danger be actual, but only that the belief be in good faith. It need be only apparent to a reasonable person under the then existing circumstances of the defendant.
A defender will not be accountable for an error in judgment as to the amount of force necessary, provided they acted honestly. The law protects persons who feel compelled to act at such times even though in retrospect may prove they have erred.
The defendant’s perception and belief must be subjectively [made] in good faith and objectively one that a reasonable person would have under the same circumstances of the defendant, at the time.
Authority: French v. State, 403 N.E.2d 821 (Ind. 1980).
Appendix at 117 (emphases added). The trial court refused this tendered
instruction on the basis that our Supreme Court had found certain language in
it to be “not necessary” and “misleading.” Transcript Vol. 3 at 143-44.
[37] Jackson claims that the court’s Final Instruction 3 “did not address
consideration of danger from the defendant’s standpoint or that the defendant is
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 20 of 26 entitled to a mistake in judgment if he acted honestly.” Appellant’s Brief at 35.
In Washington v. State, 997 N.E.2d 342 (Ind. 2013), a defendant similarly
claimed that the trial court erred in failing to give his proposed instruction that
focused on the standpoint of the person experiencing the danger and stated that
the person would not be accountable for an error in judgment, provided he
acted honestly. In reviewing whether the trial court was required to use the
defendant’s proposed final instruction, the Washington Court held that it was
not, as the additional language in the instruction was “superfluous.” Id. at 350.
[38] Furthermore, our court, in Passarelli, recently confirmed that the objective
component of self-defense, as adopted by our courts, is analyzed from the
standpoint of an ordinary “reasonable person.” 201 N.E.3d at 279. There, we
explained,
the question being presented to the jury is whether an ordinary reasonable person would have responded with deadly force if confronted with the same circumstances that [the defendant] confronted. The issue is not whether a person just like Passarelli—who also suffers from PTSD caused by military combat—would have responded as Passarelli did. In short, the standard of what constitutes an “ordinary man” does not change on a case-by-case basis.
Id. at 278-79. To the extent that Jackson’s Defense Instruction 6 asked the jury
to consider otherwise, it was not a correct statement of the law.
[39] Jackson also complains that the trial court’s Final Instruction 3 “does not
explain that ‘reasonably believes’ encompasses a subjective and objective
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 21 of 26 standard like Jackson’s tendered instruction.” Appellant’s Brief at 35. However,
in Schermerhorn v. State, this court addressed the propriety of a pattern self-
defense jury instruction, largely the same as that before us, and found that it
“sufficiently instructed the jury on both components.” 61 N.E.3d 375, 383
(Ind. Ct. App. 2016) (stating that our Supreme Court, in Washington,
determined that the jury instruction on self defense in that case, which tracked
the court’s jury instruction in Schermerhorn’s case with respect to a defendant’s
reasonable belief in the use of imminent unlawful force, sufficiently instructed
the jury on both the subjective and objective components), trans. denied.
[40] Jackson has failed to establish that the trial court abused its discretion in
instructing the jury on self-defense.
III. Admission of Evidence [41] Jackson asserts that the trial court erred when it admitted, over his objections,
(1) the second portion of Exhibit 15, Officer Tatomirovich’s body cam footage
showing Taylor in the backseat of the car until medical personnel arrived, and
(2) Exhibit 23, the recorded interrogation up through the point when the
detective completed his questioning and left the room but not including
statements Jackson made while left alone in the room.
[42] The admission and exclusion of evidence is within the discretion of the trial
court. Jackson v. State, 973 N.E.2d 1123, 1127 (Ind. Ct. App. 2012), trans.
denied. An abuse of discretion occurs when the trial court's decision is clearly
against the logic and effects of the facts and circumstances before it. Id.
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 22 of 26 Exhibit 15
[43] Jackson asserts that the second portion of Exhibit 15, which included images of
Taylor in the vehicle and then struggling to stand, should not have been
admitted because it was “overly prejudicial and cumulative of other evidence”
and “likely [] inflamed the jury’s sympathy for Taylor[.]” Appellant’s Brief at 36,
39. Relevant evidence can be excluded “if its probative value is substantially
outweighed by the danger of unfair prejudice.” Ind. Evidence Rule 403. As
our courts have observed, “[A]ll relevant evidence is ‘inherently prejudicial’ in a
criminal prosecution, so the inquiry boils down to a balance of probative value
against the likely unfair prejudicial impact the evidence may have on the jury.”
Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002). When determining the likely
unfair prejudicial impact, courts will look for the dangers that the jury will
substantially overestimate the value of the evidence or the evidence will arouse
or inflame the passions or sympathies of the jury. Id. “‘Unfair prejudice . . .
looks to the capacity of the evidence to persuade by illegitimate means, or the
tendency of the evidence to suggest decision on an improper basis.’” Hall v.
State, 177 N.E.3d 1183, 1193 (Ind. 2021) (quoting Camm v. State, 908 N.E.2d
215, 224 (Ind. 2009)).
[44] Jackson argues that Officer Tatomirovich’s testimony of her observations of
Taylor when she arrived on scene in conjunction with the surgeon’s testimony
of Taylor’s condition at the hospital would have been sufficient to show the
deterioration of Taylor’s condition. We have recognized, however, that
“[g]enerally, photographs that depict a victim’s injuries or demonstrate the
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 23 of 26 testimony of a witness are admissible.’” Jackson, 973 N.E.2d at 1127 (quoting
Ward v. State, 903 N.E.2d 946, 958 (Ind. 2009)). “Even gory and revolting
photographs may be admissible as long as they are relevant to some material
issue or show scenes that a witness could describe orally.” Id. (quoting
Amburgey v. State, 696 N.E.2d 44, 45 (Ind. 1998)).
[45] Furthermore, as the State argued at trial, the portion of the bodycam that
Jackson sought to exclude served to connect the dots, so to speak, between the
surveillance video, where Taylor was seen after the stabbing talking and
walking out of the building – such that his injuries did not appear severe – and
the surgeon’s testimony that Jackson was near death by the time he arrived at
the hospital. The challenged portion of Exhibit 15 thus had probative value,
and while it showed his deteriorating condition – clearly in physical distress and
needing considerable assistance to get out of the car and on the stretcher – the
footage was not particularly graphic or gruesome. Jackson has not persuaded
us that the trial court abused its discretion by admitting Exhibit 15.
Exhibit 23
[46] Jackson asserts that Exhibit 23 improperly “cut out the portion of the interview
when Detective Shaffer left Jackson alone in the room and Jackson began
talking to himself about the incident” and that the excluded portion of the
recording should have been admitted under the doctrine of completeness,
embodied in Ind. Evid. Rule 106. Appellant’s Brief at 39. Evid. R. 106 provides:
If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 24 of 26 time, of any other part--or any other writing or recorded statement--that in fairness ought to be considered at the same time.
The purpose of the doctrine of completeness “is to provide context for
otherwise isolated comments when fairness requires it.” Sanders v. State, 840
N.E.2d 319, 323 (Ind. 2006). It is “designed to avoid misleading impressions
caused by taking a statement out of its proper context or otherwise conveying a
distorted picture by the introduction of only selective parts of a statement.”
Barnett v. State, 916 N.E.2d 280, 286 (Ind. Ct. App. 2009), trans. denied. He
argues that “[i]t was necessary for the jury to see the entire interview to insure a
fair and impartial understanding of the admitted portion[.]” Appellant’s Brief at
40.
[47] Here, we find no error for a couple of reasons. First, to the extent that Jackson
argues that what was excluded was a portion of the interview and “an extension
of [his] confession,” Appellant’s Brief at 39, we disagree. Detective Shaffer did
not leave and return. Rather, he completed his questioning and left. The
interview had concluded. On these facts, the trial court did not abuse its
discretion in concluding that Evid. R. 106 did not require admission of the
recorded segment at issue.
[48] Second, although the trial court declined to admit the recording of Jackson
talking to himself under the doctrine of completeness, the court stated that
Jackson’s “volunteered statements” after the detective left the room “do reflect
[Jackson’s] state of mind,” and if Jackson wished to present that portion of the
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 25 of 26 recording in his case-in-chief, he could do so. Transcript Vol. 3 at 139. He did
not, and therefore he has no cause to complain.
[49] Accordingly, Jackson has not established that the trial court abused its
discretion in admitting Exhibit 23, which did not include Jackson’s statements
made after the detective concluded his questioning and left the room.
[50] Judgment affirmed.
May, J. and Foley, J., concur.
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 26 of 26