Brown v. State

175 N.E.3d 364 (Table)

Marr Peter BROWN, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 21A-CR-272

Court of Appeals of Indiana.

FILED September 28, 2021

Attorney for Appellant: Donald C. Swanson, Jr., Haller & Colvin, P.C., Fort Wayne, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ian McLean, Supervising Deputy Attorney General, Indianapolis, Indiana

MEMORANDUM DECISION

Brown, Judge.

[1] Marr Peter Brown appeals his conviction and sentence for attempted murder. Brown raises three issues which we restate as:

I. Whether the trial court erred in refusing his proposed jury instructions regarding self-defense;

II. Whether the evidence is sufficient to disprove his claim of self-defense; and

III. Whether his sentence is inappropriate in light of the nature of the offense and his character.

On cross-appeal, the State argues that we should remand for entry of conviction on the jury's verdict of guilty of criminal recklessness and the imposition of an amended sentence. We affirm in part, reverse in part, and remand.

Facts and Procedural History

[2] In September 2017, James Walker met Brown and developed a business relationship with him in which Walker would sell marijuana for Brown. At some point, Brown believed Walker owed him $100,000. In 2018, they had a disagreement over their relationship and money.

[3] In the summer of 2018, Walker encountered Brown and Brown's "baby mama" at the Burlington Coat Factory store in Fort Wayne. Walker confronted Brown and asked: "How you gonna try to put a hit on me when we was having business relationship?" Transcript Volume 2 at 215. Brown did not say anything, and Walker said, "The dude you tried to pay to kill me came to me and told me you tried to pay him to kill me." Id. at 216. Walker did not take a fighting stance, threaten Brown, or physically contact Brown. Walker "just was verbally cussing him out." Id.

[4] On December 19, 2018, Walker, who was unarmed, went to Kroger with his niece, Chaquasha Smith, and her three-month-old baby. Walker began shopping and, while he was holding the baby, encountered Brown at the end of an aisle. Walker laughed and said, "Yeah, I talked to your people. You're trying to kill me. I talked to your people." Id. at 220. Brown looked at Walker and smiled, and Walker went his way and continued to shop. Walker encountered Brown again and said:

Bro, how you gonna try to get somebody to try to kill me when we was doing business together? You didn't hold up to your end and I did what I did and you got mad because you didn't hold up to your end of the deal, so you felt I took something from you, I felt I didn't. I felt you owe me.

Id.

[5] Brown became mad, said "[o]kay," and put his hand in his hoodie pocket. Id. Walker looked at him, became mad, set the baby down, and "confronted him again and [Brown] shot" him. Id. The first shot struck Walker in the back of the arm, and he "took off running ... to try to get out of harm's way." Id. at 222. Brown chased Walker and shot him in the back of the leg from behind. At some point, Walker fell to the ground, noticed he was shot in the leg, and began crawling away. Brown left Walker for a period of time. Walker turned around to try to see where Brown was and saw him walking towards him. Brown extended his arm, pointed the gun at Walker's face, and attempted to fire, but the gun "must have malfunctioned." Id. at 224.

[6] Tony Banks, who was in the store with two of his children and their mother, Cassandra Brown ("Cassandra"), was "right next" to Walker when he was shot and saw the second shot. Transcript Volume 3 at 54. Banks started yelling at Brown "and asking him like what's wrong with him, why he's shooting, my kids are right here." Id. at 44. Brown left the store and was later taken into custody.

[7] The first bullet shattered the bone in Walker's upper arm. The second bullet struck the main artery in his leg and stomach. Walker's stomach and arm were reconstructed, and he underwent eight surgeries and spent almost two months in the hospital. His leg is partially paralyzed "until the nerves grow back, because it hit the main artery." Transcript Volume 2 at 227.

[8] On December 28, 2018, the State charged Brown with Count I, attempted murder as a level 1 felony, and Count II, criminal recklessness as a level 6 felony.¹ On July 8, 2020, A-Aaa Bail Bonds, Inc., d/b/a Markey Bonding and Allegheny Mutual Casualty Company filed a Motion to Surrender Defendant and for Release from Bail Bond and alleged that Brown changed his residence "without notifying the Surety in violation of the terms and conditions" of the bail bond agreement. Appellant's Appendix Volume 2 at 61. On July 20, 2020, the court entered an order releasing Markey Bonding and Allegheny Mutual Casualty Company from the bail bond, and ordering that Brown be remanded to the Allen County Jail.

[9] In November 2020, the court held a jury trial. The State introduced and the court admitted a DVD containing video surveillance from December 19, 2018. The video shows Walker and Brown meet, Walker place the baby into the car seat in the grocery cart and approach Brown, Walker and Brown stand near each other for approximately fifteen seconds, and Brown suddenly shoot Walker who appears to be standing still. The video also shows Walker fall out of view behind a grocery aisle after the shot and Brown pursue him down the aisle, walk away for approximately ten seconds before returning to the aisle where Walker was located for a few seconds, and then walk away again. The video also shows other people running away from the area of the shooting. Fort Wayne Police Detective Stephen Tegtmeyer testified that one shot was fired through the hoodie and "without sound and better video, I can't tell you if both shots were fired through that hoodie." Transcript Volume 3 at 41.

[10] Banks testified that there was no physical contact between Walker and Brown, and that Walker was on the ground on his back when Brown fired the second shot. Cassandra testified that Walker was in Brown's face but she did not see any physical contact between Walker and Brown. When asked what happened next, she said she remembered Brown grabbing his gun. She also stated that Walker fell onto her cart when he was shot and was "inches away from [her] kids." Id. at 66. When asked if she knew the gunshots were being fired close to her, she answered: "Yes, way, way too close to my children." Id. She testified that she felt like she and her children were in danger.

[11] Anitra Woodson testified that she had known Brown since 2012 and he was the father of her two children. She described two prior encounters between Brown and Walker.² When asked a juror question regarding why she did not file a police report if she was concerned about Walker, she answered: "I personally wasn't concerned about him because I had – I know that he know my family and I know that he wouldn't do nothing to me personally, so I left that decision up to [Brown] to contact somebody if he felt any harm." Id. at 207. Anitra's parents testified regarding prior encounters with Walker.³ Anitra's father testified that he did not call the police to indicate that Walker was threatening members of his family. Anitra's mother indicated that she did not advise Anitra against being around Brown nor advise her or Brown to obtain a protective order against Walker or report the encounter to the police.

[12] Brown testified that he was from Jamaica, owned a restaurant, and went to college at Ivy Tech and Purdue University Fort Wayne. He stated he met Walker in September 2017. When asked if he had a permit to carry a handgun, he stated that he was "a lifetime firearm holder for the state of Indiana." Transcript Volume 3 at 239. He testified that there was an incident in which Walker pulled alongside his vehicle and said "I heard you was looking for me," and Walker and his friend both had guns. Id. at 242. He testified that an incident occurred at Burlington Coat Factory three weeks before the shooting in which Walker said, "This is my city" and "what he's gonna do to" him, and he replied: "I already tell you, I don't have any problem with you, you know. This is not the time or place for what you're trying to do, so you need to keep it moving." Id. at 245. He stated that Walker kept following him, put his hands on him, pushed him off the cart, his son tried to hit Walker and said "[s]top," and Walker said, "You're lucky, n-----, your son tell me to stop." Id. He testified that Walker's friend reached for his weapon and that Walker "pounced on him as to put his weapon back down in his waist." Id. Walker then said to his friend: "Come on, man, come on, let's just go. Let's go. Eff this n-----. You better not come outside." Id. at 246. Brown testified to another incident at the Kroger store three days before the shooting in which he and Anitra drove into the parking lot and observed Walker exiting the store pushing a cart, Walker "dipped in his waist for his firearm," and Anitra sped around him. Id. at 247.

[13] With respect to the day of the shooting, he testified that Walker was irate and angry and yelled, "Yeah, I got you now." Transcript Volume 4 at 3. Brown stated he said, "Man, this is not the time or place. You need to keep it moving with your family." Id. Walker replied: "Oh, yeah n-----? What you talking about?" Id. He stated that, when he saw Walker put the baby down, he thought he was not going to "give this guy my back anymore" and stopped. Id. He testified that Walker came at him "very quickly," "seemed very mad," was cussing him out, and said "N-----, I got you where I want you now." Id. at 4. He testified that he walked away three times, and Walker put his hands on him. He also testified he shot Walker through his clothes when Walker reached underneath his coat and he believed Walker was reaching for a weapon. He stated that Walker "fell on a cart and then he faced me" and "as he...