McKee v. State

1

Dustin J. McKee, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.

No. 23A-CR-549

Court of Appeals of Indiana

November 3, 2023

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Elkhart Circuit Court Trial Court Cause No 20C01-2108-MR-5 The Honorable Michael A. Christofeno, Judge

ATTORNEY FOR APPELLANT Donald R. Shuler Barkes, Kolbus, Rife &Shuler, LLP Goshen, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

Bailey, Judge.

Case Summary

[¶1] Dustin McKee appeals his conviction for Murder, a felony,^[1] and he challenges his aggregate eighty-three-year sentence for Murder and Unlawful Possession of a Handgun by a Serious Violent Felon.^[2] We affirm.

Issues

[¶2] McKee presents three consolidated and restated issues for review:

I. Whether any error in the jury instructions regarding sudden heat and self-defense was invited when defense counsel acknowledged that the instructions were given by agreement of the defense;

II. Whether the State presented sufficient evidence to rebut McKee's claim of self-defense and to negate the existence of sudden heat, which would mitigate murder to voluntary manslaughter; and

III. Whether his sentence is inappropriate.

Facts and Procedural History [¶3] McKee and Brandon Lowe met in Dismas House, a facility offering transitional housing. Each of the men moved to Elkhart in 2021; McKee leased an apartment, but Lowe experienced ongoing housing insecurity. In August of 2021, McKee agreed that Lowe could move into McKee's apartment and sleep in the living room.

[¶4] On August 25, after both men had been drinking, a disagreement arose over whether one of them should leave to purchase household items. The situation escalated into a physical confrontation, with the men "throwing punches" for about five minutes. (Tr. Vol. III, pg. 165.) McKee, the smaller man, sustained several scrapes and bruises and a cut over one eye. He believed that Lowe "got the better end of" the fight. (Id. at 166.) At 7:50 p.m., in an attempt to get Lowe removed from the apartment, McKee called 9-1-1. He reported that he wanted someone out of his apartment, but did not identify Lowe by name, ostensibly because he did not want Lowe arrested for the probation violation of drinking alcohol.

[¶5] When officers from the Elkhart Sheriff's Department arrived and questioned the men, they denied that there had been a physical altercation between them. Lowe advised the officers that he would be moving out of the apartment at the end of the week. Because the dispute was represented as verbal and both men appeared to be too inebriated to drive, officers allowed both men to remain in the apartment but directed them to "stay separated." (Id. at 9.) McKee assured the officers that he would comply with that directive, and he went into his bedroom and at least partially closed the door.

[¶6] According to the testimony that McKee would later give at trial, Lowe "kept approaching" him and was "pissed" that McKee had called the police. (Id. at 185.) Also, the men began to argue over whether Lowe could use McKee's motor scooter, either to go buy window blinds or to get to work the next day. At some point, McKee put together a "gun kit" he had ordered online, pointed the assembled gun at Lowe, and told him to "get out." (Id. at 188.) Lowe left the room and made two phone calls.

[¶7] Sometime after 9:00 p.m., Lowe called Maria Stancati, the executive director of Dismas House, and expressed his concern about getting to work the next day. During the call, Stancati could hear Lowe "yelling" and "banging on a door." (Id. at 238.) Stancati advised Lowe to take an Uber to work, and she assured Lowe that she would pick him up after work and bring him back to Dismas House. After about fifteen minutes, Stancati perceived that Lowe had "calmed down," and she considered the situation "resolved." (Id. at 239-240.) Lowe also called his uncle, Mark Hensley. Sounding "distraught," Lowe asked his uncle to call McKee and find out "why he was so upset." (Id. at 184-85.) Hensley attempted to call McKee, but McKee had shut off his phone.

[¶8] At 9:21 p.m., McKee placed a 9-1-1 call. He advised the dispatcher that he had shot his roommate; he had thrown down his gun in the yard; and he would be waiting on the porch for officers to arrive. First responders found Lowe lying on the floor of McKee's bedroom, deceased. McKee admitted to officers that he shot Lowe five times in quick succession. He gave as his reason for doing so: "I was afraid I was gonna get my ass kicked." (Tr. Vol. IV, pg. 23.)

McKee claimed that he had been lying in his bed when Lowe had forced his way through a closed and locked door, acting in an aggressive manner.

[¶9] Officers examined the bedroom door and discovered blood spatter on the back of the door and the wall behind it, leading them to believe that the door had been closed when the shooting occurred. On August 30, the State charged McKee with murder and unlawful possession of a firearm by a serious violent felon. The State subsequently filed a request for a sentencing enhancement due to the use of a firearm.

[¶10] On January 25, 2023, a jury found McKee guilty of murder and possessing a handgun. In bifurcated proceedings, McKee admitted to his status as a serious violent felon and admitted that he had used a handgun in the killing of Lowe. On February 23, the trial court imposed upon McKee an aggregate sentence of eighty-three years. This consisted of a sixty-three-year sentence for murder, enhanced by ten years for the use of a firearm, and a ten-year sentence for unlawful possession of a firearm by a serious violent felon. McKee now appeals.

Discussion and Decision

Jury Instructions

[¶11] McKee challenges two of the final instructions, Final Instruction 4 on voluntary manslaughter and Final Instruction 8 on self-defense. First, he claims the jury was misled when the trial court directed that "[i]f you find that the State of Indiana failed to prove the Defendant guilty of the crime of Murder you may next consider whether the Defendant committed the crime of Voluntary Manslaughter."^[3] (App. Vol. II pg. 75.)

[¶12] Regarding the explanation in Final Instruction Eight as to unavailability of a self-defense claim to a person committing a crime, McKee challenges the inclusion of the language that the crime be "directly and immediately connected to the confrontation." (Id. at 80.) He argues that a proper instruction would have informed the jury there must be an "immediate causal connection between the crime and the confrontation" and "the possession of a firearm did not cause the shooting of Brandon Lowe." Appellant's Brief at 25.^[4]

[¶13] Instructing the jury lies within the discretion of the trial court. Hartman v. State, 669 N.E.2d 959, 962 (Ind. 1996). Under this standard, we look to whether evidence presented at trial supports the instruction and to whether its substance is covered by other instructions. Batchelor v. State, 119 N.E.3d 550, 554 (Ind. 2019). But when an appellant challenges an instruction as an incorrect statement of law, we apply a de novo standard of review. Id.

[¶14] McKee admits that he lodged no objection to either instruction but contends that there are instructional infirmities that amount to fundamental error. "The fundamental error doctrine serves, in extraordinary circumstances, to permit appellate consideration of a claim of trial error even though there has been a failure to make a proper contemporaneous objection during the course of a trial." Hardley v. State, 905 N.E.2d 399, 402 (Ind. 2009). The fundamental error doctrine is extremely narrow and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process. Boesch v. State, 778 N.E.2d 1276, 1279 (Ind. 2002) (citations omitted).

[¶15] But even if an error is fundamental, the invited error doctrine generally precludes a party from obtaining appellate relief for his own errors. Miller v. State, 188 N.E.3d 871, 874-875 (Ind. 2022) (citing Brewington v. State, 7 N.E.3d 946, 974-975 (Ind. 2014), cert. denied, 574 U.S. 1077 (2015)). That is, "a party may not take advantage of an error that [he] commits, invites, or which is the natural consequence of [his] own neglect or misconduct." Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005) (internal quotation omitted).

[¶16] A party invites an error if it was "part of a deliberate, 'well-informed' trial strategy." Miller, 188 N.E.3d at 875 (citing Batchelor, 119 N.E.3d at 558 quoting Brewington, 7 N.E.3d at 954)). This means there must be "evidence of counsel's strategic maneuvering at trial" to establish invited error. Id. (citing Batchelor, 119 N.E.3d at 557). "[M]ere 'neglect' or the failure to object, standing alone, is simply not enough." Id. (citing Batchelor, 119 N.E.3d at 557558). And "when there is no evidence of counsel's strategic maneuvering, we are reluctant to find invited error." Id. (citing Batchelor, 119 N.E.3d at 558). However, we have found invited error when the appellant's counsel affirmatively requests the error. Thus, in Miller, for example, our Supreme Court found invited error in jury instructions where defense counsel had requested the instruction and thus "did far more than simply fail to object" to it. 188 N.E.3d at 875. Similarly, in Isom v. State, the Supreme Court found invited error when the...