I filed in Marshall County Superior Court in 2013 the following Motion to Correct Error, challenging my client’s conviction by a jury of Battery Resulting in Serious Bodily Injury, a Class C Felony. Rather than waiting for the judge to rule on the Motion, the client elected to leverage the Motion into an agreement with the Prosecutor whereby the client would serve no additional time for the conviction, but would instead serve any sentence imposed for the conviction concurrently with the sentence the client was already serving for a previous, separate conviction.

MOTION TO CORRECT ERROR

On October 23, 2013, a jury returned a verdict in this case acquitting the Defendant, M_____ R_____ S_____, of Aggravated Battery, a Class B Felony, but finding him guilty of Battery Resulting in Serious Bodily Injury, a Class C Felony, and the court entered judgment accordingly. Pursuant to Indiana Trial Rule 59, the Defendant (“S_____”), by counsel, now moves for an order correcting error and granting a new trial or, in the alternative, modifying the judgment of conviction to that of the lesser included offense of Battery as an A Misdemeanor, because of the insufficiency of the evidence at trial of the element of “serious bodily injury.” (It is apparently appropriate to file a motion to correct error prior to sentencing. State v. Hollars, 887 N.E.2d 197, 200 (Ind.Ct.App. 2008) (defendant filed motion to correct error two days before sentencing hearing).) In support hereof, S_____ states:

I. The court erroneously instructed the jury that they could only find that S_____ acted in self-defense if he reasonably believed that force was necessary to protect himself from “serious bodily injury.”

“The purpose of an instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict. . . . A defendant is entitled to have the jury instructed correctly on an essential rule of law.” Cohen v. State, 714 N.E.2d 1168, 1176 (Ind.Ct.App. 1999) (citations omitted).

The court’s final jury instruction on self-defense, to which neither the State nor S_____ objected, stated, in relevant part:

            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 that deadly force is necessary to prevent serious bodily injury to himself. [Emphasis added.]

On the second and final day of trial the State proposed several final jury instructions, which S_____’s counsel had not seen until moments before they were taken up by the court. Presumably, the State had its reasons for proposing these instructions and ample time prior to proposing them to consider and draft their content. One of these proposed instructions stated:

To prevail on a claim of self-defense, the defendant must present evidence that 1) he was in a place 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.

S_____ objected to this proposed instruction, on the grounds that it would effectively nullify the paragraph of the self-defense instruction that stated a person may use “reasonable force” to protect himself from “unlawful force” (i.e., not necessarily “death,” “great bodily harm,” or “serious bodily injury”), and would erroneously focus the jury’s attention on the paragraph of the self-defense instruction that addressed when “deadly force” is justified. The court agreed with S_____’s objection, and rejected this proposed instruction on these grounds.

The court then considered the following instruction proposed by the State:

The phrase “reasonably believes” as used in the self-defense statute and the instruction I just read to you, requires both subjective belief that force was necessary to prevent serious bodily injury, and that such actual belief was one that a reasonable person would have under the circumstances. [Emphasis added.]

S_____ objected, first, because the instruction was unnecessary, since the phrase “reasonably believes” already communicates both actual belief and the objective reasonableness of that belief, and second and more critically, because the instruction contained the exact same fatal flaw as the proposed instruction the court had just rejected. The State maintained its request for the instruction in spite of S_____ pointing out this fatal flaw. Without explanation, the court ruled that it would give the instruction “over the Defendant’s objection.”

S_____ was then constrained in closing argument to try to explain away this instruction. He was constrained to urge the jury to read this instruction and the self-defense instruction very carefully. But this likely back-fired, because if the jury did read these instructions carefully, they would have concluded from its plain language that in order to find that S_____ acted in self-defense they would have to find that he reasonably believed that force was “necessary to prevent serious bodily injury,” when in fact such a belief is only required in order to justify “deadly force.” Reading these two instructions together, they would have concluded that when the self-defense instruction stated “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,” this meant that he would have to reasonably believe that the unlawful force would cause serious bodily injury. The jury likely asked themselves why the instruction didn’t simply say what S_____’s counsel argued they should take it to say, and this likely damaged his credibility with them. Why was it there? Why were the words “that force was necessary to prevent serious bodily injury” there, when, if those words were omitted, the instruction would have then meant what S_____’s counsel’s argued they should take it to mean?

For its part, the State in its closing argument did not concur with S_____’s argument in order to attempt to mitigate this fatal error in the instruction, but apparently recognized that the instruction it had proposed was erroneous, as S_____ had argued it was, because in referring to this instruction in closing argument it simply skirted the fatally flawed language in it.

S_____’s self-defense argument was meritorious and far from frivolous. The alleged victim, James H_____, was a full foot taller than S_____. S_____ testified that when H_____ first challenged him to wrestle he also told S_____ he would “choke [him] out.” All three of the eyewitnesses to the fight and to the circumstances leading up to it who testified at trial testified that H_____ had repeatedly challenged S_____ to wrestle in a cell in the minutes leading up to the fight. These eyewitnesses were inmates at the Marshall County Jail in the same pod with S_____ and H_____ at the time of the fight, but at the time of S_____’s trial two of the three were no longer inmates. None of the three could even remember S_____’s name, and nothing at trial suggested that any of them had anything to gain by their testimony. If anything, Robert P___, who was not an inmate at the time of S_____’s trial but who has charges pending in Marshall County, could have feared that if he testified in a way that the State didn’t like the State might hold it against him in those pending charges. The jail surveillance video shown at trial showed that about a minute prior to the fight H_____ conspicuously stood in the middle of the path that S_____ had been walking around the pod. Immediately prior to the fight H_____ stood right next to the door of the cell in which the eyewitnesses said H_____ said he intended to wrestle S_____. (Elias L___ may have damaged S_____’s case in the eyes of the jury by testifying and insisting that H_____ grabbed S_____ immediately prior to the fight, which the surveillance video did not show. It is unreasonable to assume L___ was intentionally lying. Rather, it’s reasonable to assume he really believed that he remembered seeing H_____ grab S_____. L___ was well aware prior to trial that surveillance video would have captured the entire fight. He continued to confidently assert his recollection that H_____ grabbed S_____ even when confronted with the video at trial, although from his vantage point near the witness stand it may have been difficult for him to see what the video showed. The point in time at which the fight began was extremely quick. Because L___ knew that H_____ had expressed his intention to wrestle S_____ in the cell right outside of which H_____ was standing, L___ may very well have truly believed he saw what he in fact did not see. This does not necessarily impugn the credibility of L___’s observations of other points in the chain of events.)

If S_____ reasonably believed that H_____ was about to “wrestle” him against his will, S_____ was entitled to use reasonable force to protect himself from this imminent unlawful force. Particularly given H_____’s size, and H_____’s threat to “choke out” S_____, the requirement that S_____’s use of force be “reasonable” did not limit S_____ to the use of “wrestling” moves, i.e., to starting the “wrestling” match H_____ wanted. Once the fight started, it was reasonable for S_____ to continue it until it was clear that H_____ gave up and would not retaliate and continue the fight. But S_____ in fact discontinued the fight even before H_____ gave up, as shown by the fact that H_____ was still grabbing on to S_____’s leg as S_____ disengaged and tried to pull away.

The court’s erroneous jury instruction effectively nullified this meritorious defense, since because of it the State was only required to prove that S_____ did not reasonably believe that force was necessary to prevent “serious bodily injury,” when in fact the law also required the State to prove beyond a reasonable doubt that S_____ did not reasonably believe that force was necessary to protect himself from “unlawful force.” Furthermore, the erroneous instruction very likely suggested to the jury that the force used by S_____ was “deadly force,” since that is the part of the self-defense statute to which, in the absence of the erroneous instruction, the “serious bodily injury” language exclusively applies.

II. The State improperly presented to the jury statements made by S_____ during a jail disciplinary hearing for which he had been promised immunity.

The State called as a witness Michael Mattern, who is the Chief Jailer at the Marshall County Jail. The State did not apprise S_____’s counsel prior to trial of the substance of Mattern’s expected testimony. At trial, Mattern testified to statements made by S_____ during a jail disciplinary hearing on disciplinary charges based upon the same incident that the charges in this criminal case are based upon. Mattern testified that during this disciplinary hearing S_____, when asked why he kept hitting H_____ after he was on the ground, testified that he “wanted to get his point across.”

S_____’s counsel was not aware prior to Mattern’s testimony that among the rights S_____ was informed of in the “Disciplinary Hearing Notice” given to him prior to the disciplinary hearing to which Mattern testified was the right to “Have immunity if your testimony or any evidence derived from your testimony is used in any criminal proceedings.” See attached Affidavit of John A. Kindley.

The State’s use of S_____’s immunized testimony was reversible error, notwithstanding S_____’s counsel’s failure to object. See, e.g., People v. Nunez-Ramos, 160 A.D.2d 1029 (NY: App.Div., 2nd Dept. 1990); State v. Gertz, 918 P.2d 1056 (Ariz: Ct.App., 1st Div., Dept. A 1995). “The burden is upon the government to respect immunity, not upon the witness to enforce it.” Id. (The undersigned counsel has found no Indiana cases that hold to the contrary.)

III. Based on the probative and credible evidence, a reasonable juror could not find beyond a reasonable doubt that the injury which resulted from the battery caused “unconsciousness” or “extreme pain.”

The applicable standard is set forth at Tancil v. State, 956 N.E.2d 1204, 1207 (Ind.Ct.App. 2011) (citations omitted):

At oral argument, the State asserted that a trial court must employ a sufficiency-of-the-evidence standard when ruling on a motion for a new trial. We disagree with this assertion, chiefly because that standard is geared for appellate review of jury verdicts and specifically prohibits weighing evidence and judging witness credibility. . . . Based on our reading of the relevant cases, we believe that when ruling on a motion for a new trial pursuant to Trial Rule 59(J)(7) in a criminal case, a trial court must evaluate the evidence and witnesses subjectively, in keeping with its role as the so-called thirteenth juror, and then make an objective determination whether, based on the probative and credible evidence, a reasonable juror could find the defendant guilty beyond a reasonable doubt.

Furthermore, the Indiana Supreme Court in State v. Kleman, 503 N.E.2d 895, 896-97 (Ind. 1987) held:

The “thirteenth juror” approach and the review or prima facie evidence approach [“appropriate when acting upon a motion for judgment on the evidence under TR 50”] are both found in TR 59(J)(7). The former in the language that “. . the court shall grant a new trial if it determines that the verdict … is against the weight of the evidence . .”, and the latter in the language that the court “. . shall enter judgement . . if it determines that the verdict . . is clearly erroneous as contrary to or not supported by the evidence, . .”.

. . .

If we, on appeal, may order a modification of the judgment of conviction to that of a lesser included offense because of an insufficiency of evidence on a particular element of crime then certainly a trial court may do so upon a motion for a new trial, where the grounds exist therefor, in order to correct the error and avoid a useless appeal.

“[A]s a thirteenth juror, the trial judge: 1) hears the case along with the jury; 2) observes witnesses for their credibility, intelligence and wisdom; and 3) determines whether the verdict is against the weight of the evidence. When the verdict is against the weight of the evidence, it is the trial court’s duty to grant a new trial.” Precision Screen Machines, Inc. v. Hixson, 711 N.E.2d 68, 70 (Ind.Ct.App. 1999) (citations omitted).

In the State’s Amended Information, the basis of its Aggravated Battery charge was that S_____ “did knowingly inflict injury on James P______ H_____ that created a substantial risk of death,” while the basis of its Battery Resulting in Serious Bodily Injury charge was that S_____ “did knowingly touch James P______ H_____ in a rude, insolent, or angry manner, to wit: struck James P______ H_____ in the back of the head several times with his fist resulting in serious bodily injury, to wit: loss of consciousness and/or extreme pain and requiring staples to close the wound.”

At no time did the State move to amend the Information to charge “substantial risk of death” as an additional alternative element of “serious bodily injury.” Cf. Miller v. State, 616 N.E.2d 750, 754-56 (Ind.Ct.App. 1993) (noting the record was devoid of any attempt to amend the charges against the defendant by expanding the charge against him to a broader charge, and finding the evidence insufficient to prove him “guilty as charged”). Therefore, the jury could only properly have found S_____ guilty of Battery Resulting in Serious Bodily Injury if they found that the battery resulted in “unconsciousness” or “extreme pain.” See, e.g., Keller v. State, (Ind.Ct.App. April 4, 2013) (No. 59A01-1206-CR-271), trans. denied 09/05/2013. Furthermore, a reasonable juror who did find that the battery resulted in a “substantial risk of death” presumably would have found S_____ guilty of Aggravated Battery. Cf. Whaley v. State, 843 N.E.2d 1, 11 (Ind.Ct.App. 2006) (“inflicts” means “causes”). But in any event, based on the probative and credible evidence, no reasonable juror could have found beyond a reasonable doubt that the injury which resulted from the battery caused a “substantial risk of death.” In addition, such a finding would have been clearly erroneous as contrary to or not supported by the evidence. Jailer James Budd, who is trained as an EMT and who made the decision to have H_____ transported to the hospital, testified that H_____ was not transported to the hospital until at least a half hour after the injury occurred, even though the police officer who ultimately transported him to the hospital in his police vehicle was already on station at the jail. Budd also testified that the jail sometimes transports injured inmates to the hospital by ambulance, and that the decision whether to transport an inmate to the hospital by ambulance or by police vehicle depends upon the seriousness of the injury. The Physician’s Assistant who treated H_____ at the hospital, Gregory Mellinger, testified that he would not have released H_____ from the hospital only a couple hours after his arrival if he believed his injury created a “substantial risk of death.” Cf. Tingle v. State, 632 N.E.2d 345, 354 (Ind. 1994) (holding evidence insufficient to support finding that injury created “substantial risk of death” in view of physician’s testimony that injury might have caused a possibility but not a substantial risk of death, that the observable facts and the treatment provided did not indicate the victim was at a substantial risk of death, and that his earlier statement opining a substantial risk of death was, at most, mere speculation on his part).   The State implied over and over again in closing argument that the mere circumstance that S_____ swung at H_____, by its count, twenty-two times, created a “substantial risk of death.” (However, eyewitnesses at trial testified that many of these swings missed or were blocked by H_____.) But this is not what either the law or the jury’s instructions required. A person who shoots at another person and misses might have thereby created a substantial risk of death, but he has not caused an actual injury that creates a substantial risk of death. There was no evidence that H_____’s actual physical injury created a substantial risk of death.

A. Unconsciousness

The State proposed the following final jury instruction, to which S_____ did not object, and which the court gave to the jury:

A medical dictionary defines unconsciousness as a state of impaired consciousness in which the individual shows a total lack of responsiveness to environmental stimuli. However, such an individual may respond to deep pain with involuntary movements.

Impairment of consciousness may be of any degree of severity. Terms commonly used to describe levels of consciousness are imprecisely defined.

This instruction quite sensibly states that there are degrees of impairment of consciousness, the highest of which is “unconsciousness,” wherein the individual shows a total lack of responsiveness to environmental stimuli. Both the statute and the jury instruction defining “serious bodily injury” define it to encompass an injury that causes, not merely an “impairment of consciousness,” but “unconsciousness.” The instruction therefore accurately reflected “the sort of serious infliction of damage suggested by the statutory definition of ‘serious bodily injury.’” Davis v. State, 813 1176, 1178 (Ind. 2004). In closing argument, S_____’s counsel accurately quoted the above definition of “unconsciousness” from the State’s proposed and accepted instruction. In its rebuttal, however, the State implied that S_____’s counsel purposely misled the jury by failing to quote the second paragraph of the instruction, and then himself went on to mislead the jury by falsely asserting that mere “impairment of consciousness,” of any degree, rather than “unconsciousness,” was enough to convict S_____ of Battery Resulting in Serious Bodily Injury. If the jury believed the State, this very likely explains the jury’s guilty verdict. Based on the probative and credible evidence, no reasonable juror could have found beyond a reasonable doubt that H_____ suffered “unconsciousness.” In addition, such a finding would have been clearly erroneous as contrary to or not supported by the evidence. All three eyewitnesses to the fight testified H_____ did not suffer unconsciousness. The jail surveillance video shown at trial showed he did not. The photo of H_____’s face admitted as an exhibit, which showed no bruising and no bloody nose, and therefore strongly supports the witness testimony that he was able to block S_____’s swings, showed he did not.

B. Extreme Pain

 In Davis, supra, the Indiana Supreme Court stated:

Our commitment to the role of fact-finders tends to produce considerable deference on a matter as judgmental as whether a bodily injury was “serious.” The appellate courts have sometimes been willing to sanction convictions resting on rather slim levels of injury.

Still, most of the cases cited by the present parties rightly focus on injuries that plainly reflect the sort of serious infliction of damage suggested by the statutory definition of “serious bodily injury.”

. . .

The prosecutor contended in final argument at trial that the fractured finger was itself enough. On appeal, the State has argued that the impact on K.R.’s knee when she was pushed down and the blow that lacerated her lip and broke her finger were events from which “extreme pain” can be inferred. It appears that the victim said little at trial by way of describing her level of pain. We do know that the hospital did not write her up for any prescription pain medication, and we know that the officer on the scene said she was walking normally when he first saw her.

As with all matters of degree, it is difficult to describe in words a bright line between what is “bodily injury” and what is “serious bodily injury.” We conclude that even taken altogether, a lacerated lip, abrasion to the knee, and a broken pinky fall below the line.

Id. at 1178 (citations omitted).

It should be noted that in Davis the Indiana Supreme Court was applying the “sufficiency-of-the-evidence” standard appropriate for appellate review of jury verdicts, while in ruling on this Motion to Correct Error part of the trial court’s role is also that of the so-called “thirteenth juror.” As such, the court must subjectively weigh the evidence and judge witness credibility, and then make an objective determination whether, based on the probative and credible evidence, a reasonable juror could find beyond a reasonable doubt that H_____ suffered “extreme pain.”

As in Davis, in this case the hospital prescribed H_____ nothing stronger than ibuprofen, even though, as Mellinger testified, the hospital certainly had stronger pain medication available to them. As in Davis, in this case H_____, when actually under oath at trial, as opposed to making an out of court statement to an ER nurse, testified that he could not remember what degree of pain he experienced from the injury. Especially in light of this testimony at trial, no reasonable juror could find beyond a reasonable doubt that H_____ suffered “extreme pain” based simply on his incredible and obviously exaggerated report to an ER nurse of a 10 out of 10 “pain score.” In addition, such a finding would have been clearly erroneous as contrary to or not supported by the evidence. The context, purpose, and ramifications of this statement to the nurse were entirely different than those surrounding a criminal proceeding, where a defendant’s freedom is at stake and the witness is placed under oath and confronted by the defendant.  Gregory Mellinger, the Physician’s Assistant who treated H_____ at the ER and stapled his wound, testified that he recorded in his notes, which were admitted as an exhibit at trial, that “The degree of pain is minimal.” He explained that he did so despite knowing that H_____ had reported a 10 pain score because such pain scores are based merely on self-reports, while Mellinger’s evaluation was based on his own observations while treating H_____ and on objective measurements of H_____’s vital signs.

Conclusion

Indiana Trial Rule 59(J) provides:

In its order correcting error the court shall direct final judgment to be entered or shall correct the error without a new trial unless such relief is shown to be impracticable or unfair to any of the parties or is otherwise improper; and if a new trial is required it shall be limited only to those parties and issues affected by the error unless such relief is shown to be impracticable or unfair. If corrective relief is granted, the court shall specify the general reasons therefor. When a new trial is granted because the verdict, findings or judgment do not accord with the evidence, the court shall make special findings of fact upon each material issue or element of the claim or defense upon which a new trial is granted. Such finding shall indicate whether the decision is against the weight of the evidence or whether it is clearly erroneous as contrary to or not supported by the evidence; if the decision is found to be against the weight of the evidence, the findings shall relate the supporting and opposing evidence to each issue upon which a new trial is granted; if the decision is found to be clearly erroneous as contrary to or not supported by the evidence, the findings shall show why judgment was not entered upon the evidence.

The requirement of “findings … show[ing] why judgment was not entered upon the evidence” would appear to apply only if a new trial is granted, and not if the court orders a modification of the judgment of conviction to that of the lesser included offense of Battery as an A Misdemeanor. Borowski v. Rupert, 281 N.E.2d 502, 509 (Ind.Ct.App. 1972). “When … a court has concluded that a jury verdict is clearly erroneous, … findings setting forth opposing and supporting evidence are not required.” Karl v. Stein, 749 N.E.2d 71, 78 (Ind.Ct.App. 2001) (emphasis added). On the other hand, “if the court, sitting in its role as a ‘thirteenth juror’ in reviewing the evidence, orders a new trial because the verdict is against the weight of the evidence,” the required findings “may summarize the evidence provided that the summary is complete enough to facilitate appellate review.” Leroy v. Kucharski, 878 N.E.2d 247, 251 (Ind.Ct.App. 2007) (emphasis added).

It is likely the jury was misled by the State’s above-outlined misrepresentations of the law to find that the injury suffered by H_____ was “serious” simply because it resulted in bleeding and required a trip to the emergency room and staples to close the wound. But just as there are gradations in culpability, based in part on whether and what kind of injury resulted, between Aggravated Battery (B felony), Battery Resulting in Serious Bodily Injury (C felony), Battery Resulting in Bodily Injury (A misdemeanor), and simple Battery (B misdemeanor), there are gradations in culpability (again, based in part on what kind of injury resulted) within each offense that the sentencing judge may take into account. If S_____’s use of force was not justified by self-defense, then more than likely a maximum sentence on A misdemeanor Battery would have been appropriate based on the “seriousness” of the injury. But, because no reasonable juror could find beyond a reasonable doubt that the injury to H_____ caused “unconsciousness” or “extreme pain,” it appears that in this case the jury, encouraged by the State’s misrepresentations of the law, disregarded the actual legal definition of “serious bodily injury” they were given and simply concluded that the injury was “serious,” thereby essentially confusing their role as fact-finder with that of the sentencing judge. In a colloquial sense it could be said that any injury that requires a trip to the emergency room is “serious,” but the law requires more, and for very good reason.

WHEREFORE, S_____ requests an order correcting error and granting a new trial or, in the alternative, modifying the judgment of conviction to that of the lesser included offense of Battery as an A Misdemeanor, because of the insufficiency of the evidence at trial of the element of “serious bodily injury.”

 

Respectfully submitted,

 

______________________________

John A. Kindley (23839-71)

123 S. Michigan St., P.O. Box 199

Lakeville, IN 46536

(574) 968-8602

Attorney for Defendant