136 N.E.3d 604
Ind. Ct. App.2019Background
- On June 6, 2017 Anthony Gammons shot Derek Gilbert eight times, hitting him six times; Gilbert survived with serious permanent injuries.
- Gammons conceded he was carrying an unlicensed handgun; he claimed he shot in self-defense after Gilbert acted aggressively and reached toward his pants.
- The State charged Gammons with Level 1 felony attempted murder and Class A misdemeanor carrying a handgun without a license; jury trial held May 21–22, 2018.
- Trial court gave Instruction 7b on self-defense which stated a person may not use force if he is "committing a crime that is directly and immediately related to the confrontation;" defense objected after resting.
- During deliberations the jury sent a note asking roughly, "What if we can’t come to an agreement/ verdict?" The court consulted counsel by phone, instructed the jury to continue deliberating, and the jury later returned a verdict.
- The jury note was later lost; defense sought a copy and a new trial. Trial court denied relief and sentenced Gammons; Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Self-defense instruction correctness | State: Instruction correctly tracked statutory language that self-defense is unavailable when defendant is committing a crime related to the confrontation. | Gammons: The instruction’s "related to" wording is overbroad; Mayes requires an "immediate causal connection" between the crime and the confrontation, so the instruction misstated the law. | Any instructional error was harmless given the evidence (multiple shots, shots to victim’s back); conviction affirmed. |
| Lost jury note / new trial | State: Jury’s communication was a question (not an impasse); telling jurors to continue was proper; July Order memorialized the content; loss of the physical note not prejudicial. | Gammons: Loss of the note creates a presumption of prejudice and prevents assessing whether the court mishandled the jurors’ question; new trial required. | No presumption of prejudice; record (court’s July Order and counsel’s recollection) established the substance; directing further deliberation was within discretion; no new trial. |
Key Cases Cited
- Mayes v. State, 744 N.E.2d 390 (Ind. 2001) (contemporaneous-crime exception requires an immediate causal connection between the crime and the confrontation).
- Fuentes v. State, 952 N.E.2d 275 (Ind. Ct. App. 2011) (refusal to give an instruction reflecting Mayes was error but harmless where defendant fired multiple times, including after victim was incapacitated).
- Treadway v. State, 924 N.E.2d 621 (Ind. 2010) (trial court may direct further deliberation; jury question is not necessarily an impasse).
- Ronco v. State, 862 N.E.2d 257 (Ind. 2007) (a question from jurors is distinct from an impasse; trial courts have leeway to assist deliberations).
- Randolph v. State, 802 N.E.2d 1008 (Ind. Ct. App. 2004) (instructional error can be harmless where multiple shots undercut claim of self-defense).
- Kane v. State, 976 N.E.2d 1228 (Ind. 2012) (standards of review for jury instructions).