Konkle v. State

1

Zachariah David Konkle, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff

No. 23A-CR-783

Court of Appeals of Indiana

January 24, 2024

Appeal from the Jackson Circuit Court The Honorable Richard W Poynter, Judge Trial Court Cause No. 36C01-2108-MR-1

ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General Megan M. Smith Deputy Attorney General Indianapolis, Indiana

OPINION

VAIDIK, JUDGE.

Case Summary

[¶1] To convict a defendant of murder or voluntary manslaughter, it is a basic tenet of criminal law that the State must prove that the killing was done "knowingly." A person engages in conduct "knowingly" if, when they engage in the conduct, they are aware of a high probability that they are doing so.

[¶2] Zachariah David Konkle fought Michael Steele, and Steele died. Before the fight, Steele had an enlarged heart, 90% occlusion of his coronary arteries, and a history of prior heart attacks. Konkle did not know about Steele's heart problems, yet the State charged him with murder. During trial, the sole issue was whether Konkle knowingly killed Steele, as the State conceded that the killing was not intentional. The State's position was that Steele died because of asphyxiation caused by Konkle placing Steele in a headlock or lying on his chest and thus he was guilty of knowingly killing Steele. Konkle argued that Steele would not have died but for his preexisting heart problems of which he was unaware. Thus, he argued that he was guilty of a lesser-included offense, either reckless homicide or involuntary manslaughter, neither of which requires a knowing killing. There was evidence from pathologists and eyewitnesses supporting both the State's and the defense's theories.

[¶3] During closing argument, the State, for the first time, contended the "eggshell victim rule" applied, which relieved the State of proving that Konkle knowingly killed Steele. The State argued that the eggshell-victim doctrine provides that the defendant takes the victim as they find them and that "if one throws a piece of chalk at a victim with an eggshell skull and the chalk strikes the victim and fractures his skull, the perpetrator would be guilty even if he didn't intend to bring bodily harm." The jury found Konkle guilty of the lesser-included offense of voluntary manslaughter.

[¶4] Because the issue was whether Konkle knowingly killed Steele and there was credible evidence supporting both theories, we find the prosecutor's statement constituted misconduct and fundamental error. We reverse Konkle's conviction and remand for a new trial.

Facts and Procedural History

[¶5] On July 27, 2021, forty-two-year-old Steele and thirty-two-year-old Konkle were working at the Jackson County Fair in Brownstown. That night, a mother and a father attended the fair with their three daughters. When one of their daughters, who has "multiple mental and behavioral issues," threw a tantrum after losing the goldfish game a worker made fun of her. Tr. Vol. II p. 234. The mother went to look for a supervisor to make a complaint about the worker. Konkle approached the mother and told her he "would take care of it." Id. at 235. The family then went home.

[¶6] Later that night, Konkle told some fellow workers that "somebody [had been] messing with a mentally handicapped child" and that "if he found the person . . . he was going to hurt them." Tr. Vol. III pp. 18-19. The workers told Konkle not to take matters into his owns hands and to let management handle it. Konkle did not take their advice. At first, Konkle believed that Robert Clark was the worker who had made fun of the girl, so Konkle attacked Clark. Clark, however, was the wrong person.

[¶7] Konkle later encountered Steele and told him that if he found out "he hit the wrong person the first time the second one was going to get it twice as worse." Tr. Vol. II pp. 244-45. Unknown to Konkle, however, Steele had several heart problems, including significantly blocked coronary arteries and an enlarged heart. Steele, who appeared "intimidated" by Konkle, eventually "got tired of hearing it" from Konkle and said, "let's go." Id. at 245, 250. Steele threw the first punch, following which both men exchanged punches. Both men ended up on the ground. Steele had his face "in the ground," and Konkle's chest was on Steele's head. Id. at 250; Tr. Vol. III p. 11. It "looked like" Konkle's arms were "around" Steele's neck. Tr. Vol. III p. 4; see also Tr. Vol. II p. 245 ("[Y]ou really couldn't see [Konkle's] arms where they were located so I really can't say he was choking [Steele] because I don't know."); Tr. Vol. III p. 132 (testifying that Konkle's arm was around Steele's neck as they fell to the ground). Konkle hit Steele five or six times in the back of the head and said, "[G]o to sleep bit**." Tr. Vol. II p. 246; Tr. Vol. III p. 11. Steele then started making gurgling sounds. At that point, Konkle got off Steele, as it appeared that Konkle didn't "mean[]" for "anything like that" to happen. Tr. Vol. II p. 247. Another worker started CPR, and Konkle joined in.

[¶8] Konkle asked those who were present to tell law enforcement that Steele had fallen in the shower. Law enforcement was summoned from the other side of the fairgrounds and took over CPR until EMS arrived. Konkle was interviewed on the scene and then again at the police department. On the scene, Konkle said he was mad at Steele for making fun of the special-needs girl because he has a special-needs child. Ex. 5. He explained that Steele punched him in the head, he punched Steele back, they both went to the ground, and he put his arms around Steele and laid on him to calm him down. Id. He said that when Steele started gasping for air, bystanders told him to let go and that Steele had heart issues. Id.

[¶9] Steele was taken to IU Methodist Hospital in Indianapolis, where he died. Dr. Bruce Wainer, a forensic pathologist at the Marion County Coroner's Office, performed the autopsy. He concluded that Steele's cause of death was "[m]echanical asphyxiation complicating compression of the carotid artery through a 'choke hold.'" Ex. 31. The autopsy report also noted Steele's heart problems.

[¶10] The State charged Konkle with murder. A jury trial was held in February 2023. The key issue at trial was whether Konkle knowingly killed Steele, as the State conceded that Konkle did not intentionally kill Steele. Dr. Wainer was no longer employed at the Marion County Coroner's Office, so Dr. Christopher Poulos, the chief forensic pathologist at the office, testified instead. He largely agreed with the two causes of death that Dr. Wainer identified in the autopsy report^1] First, Dr. Poulos found that Steele's brain was not functioning properly from lack of blood flow due to "mechanical asphyxiation," that is, outside compression of the body that results in the inability to transmit oxygen to the brain. Tr. Vol. III p. 81. Dr. Poulos said the asphyxia could have been from a chokehold, which Dr. Wainer based his cause of death on, or compression of Steele's chest, which witnesses testified to at trial. Dr. Poulos acknowledged that there were no injuries to Steele's neck (externally or internally). Id. at 107.

[¶11] Second, Dr. Poulos found that Steele had "bilateral conjunctival petechial hemorrhages consistent with repetitive compression of the carotid arteries." Id. at 81. Dr. Poulos acknowledged that petechiae have several other causes, including heart disease, and that Steele's cardiovascular system was in "poor" health. Id. at 83, 104. Steele's heart was enlarged and his coronary arteries were "narrowed by 90 percent," which constituted "critical stenosis" and had the potential, on its own, to cause death. Id. at 84. His heart also showed signs of "previous heart attacks," one of which was recent. Id. Dr. Poulos said it was "[q]uite possible" that Steele had a heart attack during the fight with Konkle. Id. at 85. Dr. Poulos maintained that Steele did not die from natural causes but rather "homicide," that is, death "at the hands of another." Id. at 110. He concluded his testimony by saying that "if just the struggle caused a heart attack [he] would still call it a homicide." Id. at 113.

[¶12] Another forensic pathologist, Dr. George Nichols, II, testified for the defense that Steele died from natural causes, specifically, a "terribly diseased heart" and heart attack. Id. at 232. Dr. Nichols pointed out that there were no injuries to Steele's neck and that he had only minor injuries, such as scratches and bruises. In short, Dr. Nichols said that Steele had no injuries "that would have prevented him from walking away had he not ceased activity of his heart." Id.

[¶13] Following the close of the evidence, the jury was instructed on murder (knowing or intentional killing) as well as Level 2 felony voluntary manslaughter (knowing or intentional killing under sudden heat), Level 5 felony reckless homicide (reckless killing), and Level 5 felony involuntary manslaughter (killing while committing or attempting to commit battery). The jury was also instructed on the definition of "knowingly":

A person engages in conduct "knowingly" if, when he engages in this conduct, he is aware of a high probability that he is doing so. If a person is charged with knowingly causing a result by his conduct, the State is required to prove beyond a reasonable doubt that he must have been aware of a high probability that his conduct would cause the result.

Appellant's App. Vol. II p. 130.

[¶14] During closing argument, the State argued that Konkle acted knowingly and asked the jury to find him guilty of murder. The State told the jury that because Konkle ...