Kristy L. Hawkins, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2023)

MEMORANDUM DECISION

Case Summary

[1] Kristy Hawkins appeals her conviction for Murder, a felony.¹ We affirm.

Issues

[2] Hawkins presents for review the following consolidated and restated issues:²

I. Whether sufficient evidence supports her conviction;

II. Whether the trial court abused its discretion in the admission and exclusion of evidence; and

III. Whether the trial court committed fundamental error when instructing the jury on self-defense.

Facts and Procedural History

[3] In June of 2020, Farod Williams and Tatyanna Hawkins lived together with their child in the Beacon Heights Apartments in South Bend, Indiana. On June 12, the couple traveled to Chicago to pick up Farod's cousins – Andre Gonzalez, Allen Williams, and Cailin Gonzalez – for a party.³ They also hosted Tatyanna's mother, Hawkins. As the evening went on, the partygoers grew to a crowd of fifty or more people, and the parking lot was filled.

[4] The guests played music, danced, and talked without incident for a few hours. However, the mood deteriorated when Hawkins touched a girl on her buttocks; the girl who had been touched and her friends responded angrily. After hearing some argument, Farod attempted to diffuse the situation by saying “everything is okay,” and he instructed Tatyanna to take Hawkins to her vehicle. (Tr. Vol. II, pg. 53.) Cailin and some “big girls” began to circle; they were “squaring up” and appeared “ready to fight.” (Id. at 196-97.) Tatyanna and Hawkins walked to Hawkins's truck. Hawkins moved partially into the vehicle, located her handgun, and “came back towards the crowd.” (Id. at 198.)

[5] Farod was walking back into his apartment when he heard shots. Andre, who had been standing next to Allen and in proximity to a “big girl,” heard a shot and saw that Allen had “dropped.” (Id. at 200.) Andre heard “a couple more” shots and observed Hawkins shooting her gun “towards the air.” (Id.) Allen had been fatally wounded. Hawkins rushed to her truck and drove away, traveling through the grass.

[6] The ensuing investigation revealed that three shots had been fired at the scene, including the fatal shot. All three shots had been fired from the same weapon. The State charged Hawkins with murder and alleged that she had used a handgun in the commission of the offense.

[7] A jury trial commenced on March 14, 2022. No witness claimed to have seen the initial shot, but some witnesses testified that they had seen Hawkins holding her gun in the air. Hawkins testified, admitting that she had fired her handgun, but contending that she had discharged it only into the air and that she was acting in self-defense. The jury was instructed on murder, reckless homicide, and self-defense. On March 17, the jury found Hawkins guilty of murder. Hawkins entered her admission to the handgun allegation. On May 4, 2022, Hawkins was sentenced to forty-five years for murder, enhanced by seven years due to the use of a firearm. Hawkins now appeals.

Discussion and Decision

Sufficiency of the Evidence

[8] To convict Hawkins of murder, as charged, the State was required to prove beyond a reasonable doubt that Hawkins knowingly killed Allen. I.C. § 35-42-1-1. “A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he is doing so.” I.C. § 35-41-2-2. Hawkins concedes that she fired a shot that caused Allen's death. However, she argues that the evidence shows only that she fired her gun into the air, and thus did not act with the requisite mens rea to support the murder conviction.

When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt.

Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009) (internal citations omitted).

[9] Dr. Scott Wagner testified that the bullet that killed Allen entered to the right of his armpit. It traveled through his right lung, heart, esophagus, and left lung before exiting above his tenth rib. According to Dr. Wagner, the bullet had made an elliptical configuration from spinning and such spinning was “not consistent with [the bullet] falling from overhead.” (Tr. Vol. II, pg. 98.) Firearms examiner Ray Wolfenbarger testified that a bullet fired straight up will curve and come down at an angle. He clarified that a bullet would not continue to spin after it reached its zenith. Accordingly, the State presented sufficient evidence from which the jury could infer that Hawkins knowingly fired her handgun into the crowd as opposed to exclusively firing overhead.

[10] Alternatively, Hawkins argues that, if the State presented sufficient evidence to establish that she acted knowingly, the State failed to disprove her claim that she did so in self-defense. A valid claim of self-defense is legal justification for an otherwise criminal act. Birdsong v. State, 685 N.E.2d 42, 45 (Ind. 1997). The defense is defined in Indiana Code Section 35-41-3-2(c):

A person is justified in using reasonable force against another person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person:

(1) is justified in using deadly force; and

(2) does not have a duty to retreat;

if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No person, employer, or estate of a person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.

[11] A claim of self-defense is established by showing three facts: (1) she was in a place where she had a right to be; (2) she acted without fault; and (3) she had a reasonable fear of death or serious bodily harm. Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). Once a defendant claims self-defense, the State bears the burden of disproving at least one of these elements beyond a reasonable doubt for the defendant's claim to fail. Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999). The State may meet this burden by rebutting the defense directly, by affirmatively showing the defendant did not act in self-defense, or by simply relying upon the sufficiency of its evidence in chief. Id. Whether the State has met its burden is a question of fact for the factfinder. Id.

[12] The standard on appellate review of a challenge to the sufficiency of evidence to rebut a claim of self-defense is the same as the standard for any sufficiency of the evidence claim. Wallace, 725 N.E.2d at 840. We neither reweigh the evidence nor judge the credibility of witnesses. Id. If there is sufficient evidence of probative value to support the conclusion of the trier of fact, then the verdict will not be disturbed. Id.

[13] Tatyanna testified that she had become concerned that a group of girls were “gonna fight” and “girls were yelling” as she tried to get Hawkins into her vehicle. (Tr. Vol. II, pgs. 125, 137.) Tatyanna clarified that she and her mother had not been subjected to grabbing or pushing and she had not seen anyone “get physical” before she heard a shot. (Id. at 126.) She had seen no-one other than Hawkins with a weapon. Andre's testimony mirrored that of Tatyanna. He expressed the belief that a group of girls had been “ready to fight,” but stated that no punches had been thrown before shots rang out. (Id. at 197.) He specified that “nobody was going after [Hawkins].” (Id. at 203.) From this testimony, the jury could have reasonably rejected Hawkins's claim that she was justified in using deadly force. The State presented sufficient evidence to rebut a claim of self-defense.

Evidentiary Rulings

[14] Hawkins argues that the trial court should have excluded from evidence the video recording of her investigative interview, because the interviewer made “fabricated claims” during questioning. Appellant's Brief at 11. Additionally, she argues that the trial court should have admitted evidence to counter the alleged fabrications, specifically: a recorded telephone call between Farod and his aunt; social media posts purportedly made by Terrance Smith-Lyons and Facebook user Geenoo DA Yung OG; and a statement purportedly made by Ceasar Gonzalez Linton to a prosecutor's investigator indicating that Hawkins had fired her gun into the air.

[15] A trial court has inherent discretionary power regarding the admission of evidence, and we will review its evidentiary decisions only for an abuse of discretion. Vasquez v. State, 868 N.E.2d 473, 476 (Ind. 2007). A trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Shelby v. State, 986 N.E.2d 345, 359 (Ind. Ct. App. 2013), trans. denied. To reverse a trial court's decision to exclude evidence, there must be error that affects the defendant's substantial rights. Vasquez, 868 N.E.2d at 476. We will not reverse the trial court's decision to admit or exclude evidence if that decision is sustainable on any ground. Crawford v. State, 770 N.E.2d 775, 780 (Ind. 2002).

[16] Hawkins's Statement. Prior to trial, the State provided Hawkins with an unredacted recording of her June 16, 2020 statement to a prosecutorial investigator. At trial, the State proffered State's Exhibit 21, a copy of that statement with redactions to eliminate “dead air” time. (Tr. Vol. II, pg. 244.) Hawkins did not view the redacted version but stated that she had “no objection” to the admission of State's Exhibit 21. (Id. at 246.) Subsequently, the trial court gave a limiting instruction, admonishing the jury that the only evidence to be considered from State's Exhibit 21 consisted of statements made by Hawkins or adopted by her. Again, Hawkins affirmatively stated that she had “no objection.” (Tr. Vol. III, pg. 11.)

[17] “It is axiomatic that to preserve a claim of evidentiary error for purposes of appeal, a defendant must make a contemporaneous objection at the time the evidence is introduced.” Shoda v. State, 132 N.E.3d 454, 460 (Ind. Ct. App. 2019) (citations omitted). Failure to make an objection at trial waives the issue for review, absent fundamental error. Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013). But the fundamental error exception, which is “available only in egregious circumstances,” is inapplicable when the defendant has expressly stated that he or she has “no objection.” Id. at 678-79. The Halliburton Court explained:

The doctrine presupposes the trial judge erred in performing some duty that the law had charged the judge with performing sua sponte. Presumably a trial judge is aware of her own sua sponte duties. But upon an express declaration of “no objection” a trial judge has no duty to determine which exhibits a party decides, for whatever strategic reasons, to allow into evidence. “[O]nly the interested party himself can really know whether the introduction or exclusion of a particular piece of evidence is in his own best interests.” Winston v. State, 165 Ind. App. 369, 332 N.E.2d 229, 233 (1975).

Id. at 679. Hawkins has failed to show that the admission of State's Exhibit 21 was fundamental error.

[18] Recorded Telephone Conversation. Hawkins sought to admit into evidence a four-minute recording of a telephone call between Farod and his aunt, which took place at some unspecified time relatively soon after the shooting. Hawkins argued that the recording was admissible as an exception to the rule against hearsay, under Indiana Evidence Rule 803(5):

Recorded Recollection. A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness's memory; and

(C) accurately reflects the witness's knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

[19] Farod acknowledged having participated in a telephone conversation with his aunt discussing the shooting. He explained that he had told his aunt “things pieced together” from “what everyone was telling” and clarified that he “really didn't see anything.” (Tr. Vol. II, pg. 63.) As such, the telephone call was not a reflection of Farod's knowledge as required by Rule 803(5)(C). The trial court did not abuse its discretion by excluding the recording.⁴

[20] Facebook Post by Terrance Smith-Lyons. According to Hawkins, Smith-Lyons made a social media post claiming that he “shot into the crowd,” but “changed his statement once he was confronted by the police.” Appellant's Brief at 18. Hawkins argues that the social media post should have been admitted as a statement against penal interest, a hearsay exception pursuant to Indiana Rule of Evidence 804(b)(3):

A statement that a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability.

Rule 804 provides exceptions to the rule against hearsay when the declarant is unavailable as a witness. As the trial court observed, Hawkins did not present any evidence from which the trial court could determine that Smith-Lyons was unavailable. Hawkins has shown no abuse of the trial court's discretion in this regard.

[21] Facebook Post by User Geenoo DA Yung OG. According to Hawkins, this Facebook user posted a statement that Hawkins had shot her gun in the air. Hawkins argues that the social media post should have been admitted as a recorded recollection under Indiana Evidence Rule 803(5). As previously stated, a recorded recollection is a record that “is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately.” Ind. Evid. Rule 803(5)(A). At trial, no witness with a surname of Yung appeared; nor did a witness claiming to have the Facebook username of Geenoo DA Yung OG. Again, Hawkins has shown no abuse of the trial court's discretion.

[22] Ceasar Gonzalez Linton Statement. Investigator Dave Wells of the St. Joseph Prosecuting Attorney's Office testified that he had learned there were individuals who said that Hawkins fired into the air. Hawkins asserted that one such person was Linton, and she sought to have the investigator testify to the same. The trial court excluded specific testimony that would have attributed the statement to Linton. We conclude that Hawkins's substantial rights were not affected by the lack of specific attribution, where the investigator informed the jury both that some individuals reported having seen Hawkins fire into the air and “another individual” said that he fired a gun, but then recanted. (Tr. Vol. III, pg. 16.) Hawkins has demonstrated no abuse of the trial court's discretion in its evidentiary rulings.

Jury Instruction

[23] The trial court instructed the jury on self-defense, utilizing the statutory definition of Indiana Code Section 35-41-3-2(c).⁵ The instruction also included language substantially tracking subsection (h):

A person is not justified in using force if:

(1) The person is committing or escaping after the commission of a crime;

(2) The person provokes unlawful action by another person, with intent to cause bodily injury to the other person; or

(3) The person has entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action.

(App. Vol. II, pg. 118.) Hawkins did not object. She now claims that it was fundamental error to include the phrase “the person is committing or escaping after the commission of a crime.”

[24] When an appellant challenges an instruction as an incorrect statement of law, the standard of review is de novo. Batchelor v. State, 119 N.E.3d 550, 554 (Ind. 2019). Here, Hawkins argues fundamental error occurred. “The fundamental error exception 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.” Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010) (internal quotation omitted). The exception is available only in egregious circumstances. Id.

[25] Hawkins claims that the phrase “the person is committing or escaping after the commission of a crime” is “improper language” in light of Gammons v. State, 148 N.E.3d 301 (Ind. 2020). There, the defendant who claimed self-defense had been carrying a gun illegally. Id. at 302. At trial, the court had utilized language from a pattern jury instruction providing that “a person may not use force if,” among other things, “he is committing a crime that is directly and immediately related to the confrontation.” Id. at 303. Our Indiana Supreme Court agreed with Gammons that the phrase “related to the confrontation” was an imprecise statement of the law; instead, there must be an immediate “causal connection” between the crime and the confrontation. Id. at 304 (emphasis in original). Self-defense is barred only in the latter circumstance. Id. at 304-05.

[26] The concerns present in Gammons are not present here. The jury was not informed that self-defense was unavailable to Hawkins based upon her commission of a crime. The trial court used language substantially tracking the self-defense statute. Hawkins has shown no fundamental error in jury instruction.

Conclusion

[27] The State presented sufficient evidence to negate Hawkins's claim of self-defense and support her conviction for murder. Hawkins demonstrated no fundamental error or abuse of discretion in the trial court's evidentiary rulings, and she demonstrated no fundamental error in the jury instruction.

[28] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-1-1.

2.   The Statement of the Issues in the Appellant's Brief is inconsistent with the issues addressed in the argument portion of the brief. We address those issues for which Hawkins has presented cogent argument and citation to authority, in accordance with Indiana Appellate Rule 46(A)(8).

3.   Because several of the individuals involved share last names, at times persons will be referred to by a first name.

4.   Moreover, it appears in the context of Hawkins's proffer that she was requesting a procedure inconsistent with Evidence Rule 803(5) That is, she was not requesting that a transcript of the telephone call be read into evidence but rather that the recording be played for the jury.

5.   The instruction tracked the statutory definition, except that the phrase “employer or estate of a person” was omitted.

Opinion by Judge Bailey

Judges Brown and Weissmann concur. Brown, J., and Weissmann, J., concur.