Michael Shirley, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 14, 2017
• Docket: 49A04-1611-CR-2514
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Sep 14 2017, 5:39 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals collateral estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Megan Shipley Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael Shirley, Jr., September 14, 2017

Appellant-Defendant, Court of Appeals Case No. 49A04-1611-CR-2514 v. Appeal from the Marion Superior Court. The Honorable Marc T. Rothenberg, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. 49G02-1508-MR-27612

Sharpnack, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017 Page 1 of 14 Statement of the Case 1 [1] Michael Shirley, Jr. appeals his conviction of murder. We affirm.

Issues [2] Shirley presents two issues for our review, which we restate as:

I. Whether there was sufficient evidence to rebut Shirley’s claim of self-defense. II. Whether the combination of a jury instruction and the prosecutor’s statement produced fundamental error.

Facts and Procedural History [3] In August 2015, Shirley lived with his grandmother, Mildred Woodford, and

his two uncles, Derrick and Roderick Woodford. On August 1, 2015, Shirley

and Roderick were at home drinking. Bernita Woodford, Mildred’s daughter,

and her boyfriend, James Woodard, stopped by the house at approximately

3:00 p.m. When Bernita arrived, Shirley told her he was drunk.

[4] Bernita and James left to go to a reunion and returned at approximately 10:30

p.m. to Mildred’s house where they picked up Derrick and took him to a store.

When they returned from the store, two women ran from the house yelling that

people were fighting. As the front door opened, Bernita saw Shirley and

Roderick “tussling.” Tr. Vol. II, p. 55. Bernita saw no punches being thrown,

and neither James nor Bernita saw any weapons. James ran into the house and

1 Ind. Code § 35-42-1-1 (2014).

Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017 Page 2 of 14 found both men “short winded” but separated and the living room in disarray.

Id. at 27. Shirley was in the living room by the front door and Roderick was

across the small living room near his bedroom door.

[5] In the meantime, Bernita went around to the back of the house to Mildred’s

room and told her to call the police. While Bernita was in the back room with

Mildred and James was exiting the house to go back to the car, all three heard

gunshots. James ran back into the house and saw Roderick sitting on the floor

by the door to his bedroom; he did not see Shirley. When Bernita heard the

gunshots, she ran into the kitchen to call the police. As she was doing so, she

heard Shirley ask, “You motherf***ers calling the police on me?” Id. at 58.

When Shirley said this to Bernita, he was in the dining room by the closet

where he kept his belongings. A police search of the closet later that night

uncovered an athletic shoe that was buried under clothing and contained a

handgun. Testing revealed the gun was the one used to shoot Roderick.

[6] Meanwhile, James went out to the car to tell Derrick that he believed Roderick

had been shot. Upon re-entering the house, James saw that Roderick had

moved into his bedroom and was in a fetal position on the bedroom floor.

James again went to the car to tell Derrick about the situation. On his way

back into the house, he passed Shirley who got into his truck and drove off.

[7] When Roderick was picked up to be carried to the ambulance, a knife was

found underneath him. Roderick was taken to the hospital where he later died

from a gunshot wound to the abdomen.

Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017 Page 3 of 14 [8] Shirley went to a friend’s house for the night, and then he and his girlfriend

went to a motel where he was found and arrested on August 3. Based upon this

incident, Shirley was charged with murder. At trial, Shirley claimed that he

shot Roderick in self-defense. The jury returned a verdict of guilty, and the

court sentenced Shirley to fifty-four years. This appeal followed.

Discussion and Decision I. Self-Defense [9] Shirley does not dispute the fact that he shot and killed his uncle Roderick.

Rather, he challenges the sufficiency of the evidence contending the State failed

to rebut his claim of self-defense.

[10] A claim of self-defense can serve as a legal justification for an otherwise

criminal act. Burnside v. State, 858 N.E.2d 232, 239 (Ind. Ct. App. 2006).

Indiana Code section 35-41-3-2 (2013) provides that a person may use

reasonable force against another to protect himself from what he reasonably

believes to be the imminent use of unlawful force.

[11] In order to prevail on a claim of self-defense, a defendant must show: (1) he

was in a place where he 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. Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). Once self-

defense has been raised, the State must negate at least one of the necessary

elements either by rebutting the evidence directly with an affirmative showing

Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017 Page 4 of 14 the defendant did not act in self-defense, or by simply relying on the evidence in

its case-in-chief. Cole v. State, 28 N.E.3d 1126, 1137 (Ind. Ct. App. 2015).

[12] In reviewing a challenge to the sufficiency of the evidence to rebut a claim of

self-defense, we use the same standard as for any claim of insufficient evidence.

Id. at 1136-37. We neither reweigh the evidence nor judge the credibility of the

witnesses; rather, we look solely to the evidence most favorable to the judgment

with all reasonable inferences to be drawn therefrom. Miller v. State, 720 N.E.2d

696, 699 (Ind. 1999). If there is sufficient evidence of probative value to support

the conclusion of the trier of fact, the verdict will not be disturbed. Cole, 28

N.E.3d at 1137. A conviction in spite of a claim of self-defense will be reversed

only if no reasonable person could say that self-defense was negated by the

State beyond a reasonable doubt. Wilson, 770 N.E.2d at 800-01.

[13] Here, the State produced sufficient evidence to rebut Shirley’s claim of self-

defense. The evidence showed that Shirley was a willing participant in the

altercation when he was seen by witnesses fighting with Roderick. That initial

altercation had ended when James ran into the house and found Shirley and

Roderick separated. Shirley was in the living room by the front door of the

house, and Roderick was in the living room across the room just outside his

bedroom door. James then stepped out of the house and heard the gunshots.

When he re-entered the house, he found Roderick still in the spot by his

bedroom door but now sitting on the floor, with no sign of Shirley.

Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017 Page 5 of 14 [14] Although there is no dispute that Shirley had a right to be in Mildred’s house,

the only evidence that he acted without fault or that he had a reasonable fear of

great harm was from his own self-serving testimony. Shirley testified at trial

that he and Roderick got into an argument and that Roderick punched him in

the mouth, forehead and eye and choked him. He further testified that

Roderick tried to stab him with a knife, at which point he pulled out his gun

and fired until Roderick stopped trying to stab him.

[15] A jury could have reasonably rejected Shirley’s self-defense claim. At the time

James and Bernita heard the gunshots, the altercation appeared to have ended.

Shirley and Roderick were separated and across the room from each other

where Roderick presented no immediate danger to Shirley, yet Shirley fired five

shots. The firing of multiple shots undercuts a claim of self-defense. Randolph

v. State, 755 N.E.2d 572, 576 (Ind. 2001). Immediately after the shots were

fired, Roderick was located in the same spot by his bedroom door. The jury

was free to disbelieve Shirley’s self-serving evidence, which it apparently did.

See McCullough v. State, 985 N.E.2d 1135, 1139 (Ind. Ct. App. 2013) (stating

jury is under no obligation to credit defendant’s evidence), trans. denied.

Additionally, the jury was free to consider Shirley’s act of fleeing the house and

staying at a friend’s and then a motel as indications of his guilty conscience. See

Myers v. State, 27 N.E.3d 1069, 1077 (Ind. 2015) (evidence of flight and attempt

to avoid arrest may be considered as circumstantial evidence of consciousness

of guilt). Furthermore, concealment of the handgun in a shoe under a pile of

clothing in his closet added to the reasonable inference of guilt.

Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017 Page 6 of 14 [16] There is sufficient probative evidence from which the jury could conclude that

Shirley did not act in self-defense and that the State rebutted Shirley’s claim of 2 self-defense beyond a reasonable doubt.

II. Fundamental Error A. Jury Instruction

[17] For his second claim of error, Shirley asserts that an allegedly erroneous jury

instruction and comments by the prosecuting attorney combined to produce

fundamental error. We first note, and Shirley concedes, that he did not object

to the instruction or the comments. Failure to object to an instruction at trial

results in waiver of the issue on appeal. Clay v. State, 766 N.E.2d 33, 36 (Ind.

Ct. App. 2002). Likewise, failure to make a contemporaneous objection at trial

to prosecutorial statements waives the issue for appeal. Bald v. State, 766

N.E.2d 1170, 1172-73 (Ind. 2002).

[18] Thus, in order to avoid waiver, Shirley claims the resulting error was

fundamental. The fundamental error doctrine is extremely narrow and applies

only when the error amounts to a blatant violation of basic principles, the harm

or potential for harm is substantial, and the resulting error denies the defendant

fundamental due process. Lehman v. State, 926 N.E.2d 35, 38 (Ind. Ct. App.

2 In its brief and citing federal cases for support, the State argues the jury was free to consider Shirley’s testimony as affirmative evidence of his guilt once it determined that he was not a credible witness and that his testimony was not truthful. However, we need not consider the merits of this argument because the State otherwise presented sufficient evidence to rebut Shirley’s claim of self-defense.

Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017 Page 7 of 14 2010), trans. denied. This doctrine is available only in egregious circumstances.

Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).

[19] With regard to the jury instruction, Shirley argues the trial court erred in giving

the instruction because it was neither supported by the evidence nor complete in

its explanation of the law. We review the trial court’s decisions on instruction

of the jury for an abuse of discretion. Treadway v. State, 924 N.E.2d 621, 636

(Ind. 2010). When determining whether a trial court erroneously instructed the

jury, we consider the following: (1) whether there was evidence presented at

trial to support the giving of the instruction; (2) whether the tendered

instruction correctly states the law; and (3) whether the substance of the

tendered instruction was covered by other instructions that were given. Mayes v.

State, 744 N.E.2d 390, 394 (Ind. 2001). In this case, Shirley is concerned with

the first two factors.

[20] At Shirley’s trial, the court gave the following instruction on self-defense:

It is an issue whether the Defendant acted in self-defense. A person is justified in using reasonable force against another person to protect himself or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person is justified in using deadly force and does not have a duty to retreat, if he reasonably believes that deadly force is necessary to prevent serious bodily injury to himself or a third person or to prevent the commission of a felony. A person may not use force if: • He is committing a crime that is directly and immediately related to the confrontation;

Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017 Page 8 of 14 • He is escaping after the commission of a crime that is directly and immediately connected to the confrontation; • He provokes unlawful action by another person, with intent to cause bodily injury to the other person; or • He enters into combat 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 unlawful action. The State has the burden of proving beyond a reasonable doubt that the Defendant did not act in self-defense. Appellant’s App. Vol. II, p. 119.

[21] Shirley claims that the last bullet point of the instruction was improper because

there was no evidence that he instigated or participated willingly in the fight

that preceded his shooting of Roderick. Bernita and James both testified that

they saw Shirley and Roderick fighting and wrestling prior to the shooting

when they returned from taking Derrick to the store. When the men were

separated and across the living room from one another and James was satisfied

the fight was over, he left the house and then heard the gunshots. Shirley, on

the other hand, gave self-serving testimony that Roderick was the initial

aggressor and that the fight and shooting were one continuous event concluding

with him shooting Roderick because Roderick attempted to stab him. Thus,

Shirley’s testimony, along with the testimony of Bernita and James, supported

the giving of this portion of the self-defense instruction.

Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017 Page 9 of 14 [22] Shirley also asserts that the trial court’s instruction incorrectly states the law.

Particularly, he maintains that the instruction is incomplete because it does not

give the legal definition of the phrase “enters into combat.”

[23] We first observe that the trial court’s instruction tracks the language of the self-

defense statute which provides, in pertinent part:

(g) Notwithstanding [certain circumstances not applicable here], a person is not justified in using force if: (1) . . . (2) . . .; or (3) 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. Ind. Code § 35-41-3-2.

[24] Generally, it is not error to instruct the jury consistent with applicable statutes.

Wooley v. State, 716 N.E.2d 919, 926 (Ind. 1999). However, relying on Wooley,

Shirley alleges that the phrase “enters into combat” has a “special legal

definition” that the trial court was required to use to properly instruct the jury.

Appellant’s Br. pp. 33-34. In support of his argument, Shirley points to the

Court’s explanation that “The legislature has chosen to require both an ‘initial

aggressor’ and those who ‘enter into combat’ (i.e., mutually willing combatants)

to declare an armistice before they may claim self-defense.” Wooley, 716

N.E.2d at 926.

Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017 Page 10 of 14 [25] The parenthetical used in Wooley is not a special legal definition. The term

“i.e.,” is an abbreviation for a Latin expression meaning “that is” – it

introduces a rewording or clarification of a word. MERRIAM-WEBSTER

DICTIONARY, https://www.merriam-webster.com/dictionary/i.e. (last visited

September 7, 2017). While these explanatory phrases/parentheticals are

helpful, the mere insertion into its opinion of a clarifying term or phrase does

not indicate that our Supreme Court has decreed that phrase to be a special

legal definition or that trial courts commit error if they fail to include the term

or phrase when instructing a jury.

[26] Thus, there being evidence to support the giving of the instruction which

correctly states the law, we conclude there was no error.

B. Prosecutorial Comments

[27] Shirley contends that a statement of the prosecuting attorney combined with the

court’s alleged instructional error, discussed supra, amounts to fundamental

error. If a defendant properly raises and preserves the issue of prosecutorial

misconduct, the reviewing court must determine: (1) whether the prosecutor

engaged in misconduct, and if so, (2) whether the misconduct, under all of the

circumstances, placed the defendant in a position of grave peril to which he or

she would not have been subjected. Isom v. State, 31 N.E.3d 469, 490 (Ind.

2015), cert. denied, 136 S. Ct. 1161, 194 L. Ed. 2d 175 (2016). However, our

standard of review is different where a claim of prosecutorial misconduct has

not been properly preserved. In that instance, the defendant must establish not

only the grounds for the misconduct but also the additional grounds for Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017 Page 11 of 14 fundamental error. Id. To be deemed fundamental, the error claimed must

either make a fair trial impossible or constitute clearly blatant violations of basic

and elementary principles of due process. Id.

[28] During the rebuttal phase of closing arguments, the prosecutor stated:

This wasn’t self defense [sic]. He wants you to believe that he sat there and passively just did this (Demonstrating). That’s what he did. He passively held his hands up while he was punched in the mouth, while he was punched in the head, while he was choked out, and while a knife came out to come after him. But I would like for you to — his uncle was able to punch him — according to him, punch him two times and choke him out. He couldn’t stop that, but he was able to stop that knife from even nicking him anywhere during this fight. We know there was a fight. No one is denying there was a fight. The girls run out of the house and say, They’re fighting [sic]. Bernita sees tussling. There was a fight. There was — right when James got in there because they had been fighting. But do you know why he has to be so passive when he talks to you about what happened during that fight? It’s because of the same self defense [sic] instruction that [defense counsel] just talked about. A person may not use force if he enters into combat with another person or is the initial aggressor unless he withdraws from the encounter and communicates his intent to do so. If you believe this was mutual combat, the Defendant cannot claim self defense [sic]. [Defense counsel] read part of that instruction to you. You’re going to get the entire instruction from the Court. And I ask you to think about that when you go back there because the Defendant had to have been passively just being like, Oh. Oh, he hit me again. Oh my god. I’m being choked out, in order for him to be able to claim self defense [sic].

Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017 Page 12 of 14 Tr. Vol. III, pp. 56-58. Based upon these comments, Shirley claims the State

incorrectly informed the jury that Shirley had to remain passive to claim self-

defense.

[29] “Prosecutors are entitled to respond to allegations and inferences raised by the

defense even if the prosecutor’s response would otherwise be objectionable.”

Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006). In his own closing remarks,

defense counsel focused on two points: (1) the portion of the self-defense

instruction that states a person is justified in using deadly force, and does not

have a duty to retreat, if he reasonably believes that deadly force is necessary to

prevent serious injury and (2) the State has the burden of proving beyond a

reasonable doubt that Shirley did not act in self-defense. Defense counsel

summarized the evidence he believed showed that the State had not disproved

that Shirley acted in self-defense and emphasized that there were no witnesses

to the incident except Shirley and that a knife containing Roderick’s DNA was

found under his body. Accordingly, on rebuttal the prosecutor countered with

a different characterization of the evidence than set forth by the defense and

questioned Shirley’s testimony that Roderick was the initial aggressor, was the

only willing participant in the ensuing fight, and tried to stab Shirley with a

knife. Thus, the portion of the State’s rebuttal closing argument at issue here

was a permissible response to defense counsel’s characterization of the evidence

during closing argument.

[30] Further, we note that the court preliminarily instructed the jury that the

attorneys’ final arguments are not evidence, that in their final arguments the

Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017 Page 13 of 14 attorneys are permitted to characterize the evidence, discuss the law, and

attempt to persuade the jury to a particular verdict, and that the jury may accept

or reject these arguments. Appellant’s App. p. 106. Additionally, the jury

received a final instruction informing them that statements by the attorneys are

not evidence. Id. at 114. Jurors are presumed to follow the court’s instructions.

Carpenter v. State, 15 N.E.3d 1075, 1078 (Ind. Ct. App. 2014), trans. denied.

[31] Therefore, having found neither instructional error nor prosecutorial

misconduct, we find nothing about the combination of the two to be so

egregious as to rise to fundamental error.

Conclusion [32] For the reasons stated, we conclude that the State presented sufficient evidence

to rebut Shirley’s claim of self-defense and that no fundamental error resulted

from the trial court’s instruction to the jury or the prosecutor’s comments.

[33] Affirmed.

Robb, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017 Page 14 of 14