Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                                Aug 25 2014, 7:39 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                                    ATTORNEYS FOR APPELLEE:

HILARY BOWE RICKS                                          GREGORY F. ZOELLER
Indianapolis, Indiana                                      Attorney General of Indiana

                                                           ELLEN H. MEILAENDER
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

TIANDRE HARRIS,                                    )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )   No. 49A04-1401-CR-45
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Marc T. Rothenberg, Judge
                             Cause No. 49G02-1209-MR-62801


                                         August 25, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                         Case Summary

          Tiandre Harris (“Harris”) was convicted of Murder, a Felony.1 He appeals the

conviction. We affirm.

                                               Issues

          Harris raises two issues for our review:

            I.    Whether the State engaged in prosecutorial misconduct during the trial
                  that placed Harris in grave peril; and

           II.    Whether the trial court abused its discretion when it denied Harris’s
                  motion for separate trials, which Harris submitted to the trial court at
                  the close of the State’s evidence.

                                  Facts and Procedural History

          Sometime in August 2012, Harris, together with Daryl Gilbert (“Gilbert”) and a third

individual, purchased drugs from Darrell Newbern (“Newbern”) and Aaron Adams

(“Adams”). Newbern and Adams lived in separate residences at the corner of Michigan

Street and Sherman Avenue in Indianapolis.

          About one week later, on August 26, 2012, individuals later identified as Harris and

Gilbert hired a bootleg taxi that took them to a Valero gas station across the street from

Newbern’s and Adams’s residences. Newbern had moved from the home two days before,

and his housemates, Jonathan Weathers (“Weathers”) and Shanna Pigg (“Pigg”) were in the

process of moving their own belongings from the home when Harris and Gilbert arrived. A

number of other individuals were gathered on the porch of the home, including several

children. Adams was also seated on the porch.

1
    Ind. Code § 35-42-1-1.

                                                 2
       Gilbert, standing on the side of the street adjacent to the gas station with a pistol in his

right hand, started yelling at the group, demanding to see Newbern and insisting that

Newbern had sold him some “bullsh-t dope.” (Tr. at 144.) Weathers told Gilbert that

Newbern had moved away and no longer lived at the residence. He also told Gilbert not to

shoot at the porch of the home because there were children present.

       Adams, still sitting on the porch, told one of the women to take the children inside.

He then got up and began to walk toward the street with a cell phone in his left hand and his

right hand in his pocket. Gilbert recognized Adams as having been involved in the drug

transaction, saying “you look like the n---a that sold me that bad dope,” raised his pistol, and

began to fire at Adams. (Tr. at 191-92.) At that time, Harris, who was also present, began to

fire his own gun at Adams. Adams ran to evade Harris and Gilbert, but was eventually shot

twice: once in the head, and once in the buttocks. Adams, who was known to carry a small

pistol in his front right pocket, was found with a pistol near his right hand and a cell phone

near his left hand. Adams died as a result of the gunshot wound to his head.

       Immediately after this, Harris and Gilbert fled on foot, then called for a ride. Police

investigating the shooting interviewed several witnesses and, as a result of identifications

from photographic arrays, arrested Harris and Gilbert.

       On September 10, 2012 Harris and Gilbert were each charged with Murder.

       A jury trial was conducted from August 19 to 21, 2013, at the conclusion of which the

jury was deadlocked.




                                                3
       A retrial, again in front of a jury, began on December 9, 2013 and continued through

December 11, 2013. Harris and Gilbert each pursued a theory of self-defense at trial. At the

close of the State’s evidence, Harris filed a motion for separate trials as a result of testimony

Harris expected Gilbert to offer. The trial court denied this motion. During its rebuttal

argument at the close of the trial, the State argued that for Harris and Gilbert to have acted in

self-defense, “‘you have to believe that they saw the weapon’” that Adams was carrying at

the time of the shooting. (Tr. at 379.) Harris objected to this statement, but the trial court

overruled the objection.

       At the trial’s conclusion, the jury found Harris and Gilbert each guilty of Murder. On

January 3, 2014, the trial court entered a judgment of conviction against Harris and sentenced

him to fifty-eight years imprisonment.

       This appeal ensued.

                                  Discussion and Decision

                               The State’s Rebuttal Argument

       Harris argued during closing arguments that, whether it was he or Gilbert that shot and

killed Adams, that individual had done so in self-defense. On appeal, Harris does not

contend that the State failed in its burden to prove that Harris did not act in self-defense;

rather, Harris contends that during closing arguments the State misstated the law on self-

defense in order “to intentionally mislead the jury,” the trial court did not properly admonish

the jury upon Harris’s objection and, as a result, we must reverse his conviction.

(Appellant’s Br. at 9.)


                                               4
       The gravamen of Harris’s complaint—though he does not say so in as many words—is

a contention that he was prejudiced by prosecutorial misconduct. In reviewing a properly

preserved claim of misconduct, we determine first whether the prosecutor engaged in

misconduct. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). If there has been

misconduct, we must determine whether, “under all of the circumstances,” the misconduct

“placed the defendant in a position of grave peril to which he or she would not have been

subjected.” Id. Whether a prosecutor’s argument constitutes misconduct is determined with

reference to case law and the Rules of Professional Conduct. Id. The gravity of peril is

measured by the probable persuasive effect of the misconduct on the jury’s decision, not the

degree of the impropriety of the conduct itself. Id.

       It is proper for a prosecutor to argue both law and fact during closing arguments and

to offer conclusions based upon analysis of the evidence presented at trial. Poling v. State,

938 N.E.2d 1212, 1217 (Ind. Ct. App. 2010). “A prosecutor is entitled to respond to

allegations and inferences raised by the defense even if the prosecutor’s response would

otherwise be objectionable.” Hand v. State, 863 N.E.2d 386, 394 (Ind. Ct. App. 2007).

       To properly preserve for appellate review a claim of prosecutorial misconduct, the

defendant must request the trial court to admonish the jury. Id. If the defendant is not

satisfied with the admonishment, he must then move for a mistrial; failure to seek an

admonishment or to move for a mistrial waives appellate review. Id.

       Harris pursued a theory of self-defense at trial. Our statutes define this affirmative

defense:


                                             5
       A person is justified in using reasonable force against any other 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 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.

I.C. § 35-41-3-2(c).

       Self-defense is a legal justification for what otherwise would be a criminal act.

Tharpe v. State, 955 N.E.2d 836, 844 (Ind. Ct. App. 2011), trans. denied. To prevail on a

claim of self-defense, the defendant must present evidence that he: (1) was in a place he had

a right to be, (2) did not provoke, instigate, or participate willingly in the violence, and (3)

had a reasonable fear of death or great bodily harm. Id. When a defendant asserts self-

defense at trial, the State must disprove or rebut at least one element of self-defense beyond a

reasonable doubt. Id. The State may do so either by presenting additional evidence or by

relying upon the evidence presented in its case-in-chief. Id.

       At Harris’s trial, during its closing rebuttal, the State argued:

       Now, one thing I want you to ask yourself when you go back there to
       deliberate, in order to believe that they acted in self-defense, reasonably
       believe they acted in self-defense, you have to believe that they saw the
       weapon.

(Tr. at 379.) Harris contends this statement amounted to prosecutorial misconduct.

       The full statement by the prosecutor, in context, was:


                                               6
         If you are on your porch and there is somebody with a weapon across the
         street, what is the first thing you are going to do, get the kids inside. It doesn’t
         mean [Adams] is trying to go over there and be aggressive. It means he
         doesn’t want these kids to get shot because these people across the street have
         weapons. Now, one thing I want you to ask yourself when you go back there
         to deliberate, in order to believe that they acted in self-defense, reasonably
         believe they acted in self-defense, you have to believe that they saw the
         weapon [Adams possessed]. [Gilbert] testified, [Gilbert] testified that the gun
         was out. That [Adams] pulled the gun when he got to the middle of the street.

         [HARRIS]: Judge, Judge I’m going to object, that’s not a correct statement
         of the law at all that they would have had to see a gun as far as my client is
         concerned.

         [COURT]:       Okay. Your objection is over ruled [sic]. Continue [, State].

         [STATE]: Had they seen that gun, okay, if what [Gilbert] says is true, that
         [Adams] pulled out that gun and that’s why felt the need to defend himself,
         and that’s why anybody needed to defend themselves because [Adams] had his
         gun out, when he was being fired at, why didn’t [Adams] fire back?

(Tr. at 379-80.)

         In context, the statement that Harris contends was made to improperly instruct the jury

as to the law does not serve Harris’s claimed purpose. Rather, the prosecutor’s statement

comes within the context of argument concerning the implications of the evidence before the

jury concerning Gilbert’s account of the events on August 26, 2012 that led to Adams’s

death.

         Moreover, even if the State’s argument was impermissible, Harris has failed to

establish that the single statement to which he objected placed him in the grave peril

necessary for us to reverse the verdict. During the trial, numerous witnesses testified that

Adams was known to carry a small firearm in his front right jeans pocket, and at least one

witness was aware that Adams had it on his person that day. Several witnesses testified that


                                                  7
Adams was reaching into his right pocket as he crossed the street from the house toward the

location where Gilbert was standing. Several of the same witnesses also testified that Gilbert

was already holding his pistol at his side and not, as Gilbert testified, in a holster. Several

witnesses testified that Gilbert was shouting at the individuals on the porch, looking for

Newbern, who had allegedly sold “bad dope” to him and Harris, and that when Adams

stepped off the porch Gilbert appeared to recognize Adams from the same drug transaction.

Weathers testified, without objection from Harris or Gilbert, that Gilbert’s demeanor

indicated that Gilbert was “ready to do what he did”—that is, to shoot Adams. (Tr. at 146.)

        With respect to Harris’s conduct, several witnesses testified that Harris was not

standing with Gilbert, but rather had come around the side of a building and also had his gun

out. Gilbert testified that he fired two shots in the air and began to run away. Testimony

from witnesses on the porch indicated that Adams, too, ran to evade gunfire. Detective

Sergeant Breedlove of the Indianapolis Metropolitan Police Department testified that

Adams’s body fell approximately fifty feet from the point at which Adams was said to have

been standing when the shooting began. The moment at which Adams fell was captured on a

video recording that was characterized at trial as showing the moment at which Adams was

shot.

        Thus, without reference to whether Adams’s gun was visible to either Gilbert or

Harris, there was ample testimony that Harris shot at Adams after he was already running

away. We therefore cannot conclude that the State’s argument concerning whether Adams’s




                                              8
gun was visible as he walked toward Gilbert, if that argument was improper, placed Harris in

grave peril.

                                               Motion to Sever

        We turn now to Harris’s second contention on appeal, that the trial court abused its

discretion when it did not sever the trial upon Harris’s motion after the close of the State’s

case-in-chief.2

        Indiana Code section 35-34-1-9, in relevant part, permits joinder of two or more

defendants in a single charging information when each defendant is charged with each

offense included in the information, I.C. § 35-34-1-9(b)(1), or when “not all of the

defendants are charged in each count” but the information alleges that the offenses charged

were either “part of a common scheme or plan” or “were so closely connected in respect to

time, place, and occasion that it would be difficult to separate proof of one (1) charge from

proof of the others.” I.C. §§ 35-34-1-9(b)(3)(A) & (B). Section 35-34-1-11 provides that

when two or more defendants have been joined in a single prosecution, one of the defendants

may move for a separate trial. I.C. § 35-34-1-11(b). The motion must be granted “whenever

the court determines that a separate trial is necessary to protect a defendant’s right to a

speedy trial or is appropriate to promote a fair determination of the guilt or innocence of a

defendant.” Id.




2
 Before the first trial, Harris pursued a motion for separate trial on the basis of out-of-court statements made by
Gilbert. He does not now challenge the trial court’s denial of that motion, and we therefore do not address that
question here.

                                                        9
       Ordinarily, a defendant’s motion for severance must be made before the

commencement of the trial. I.C. § 35-34-1-12(a). However, the motion to sever “may be

made before or at the close of all evidence during trial based upon a ground not previously

known.” Id. Where a pretrial motion for severance is denied, the motion may be renewed on

the same grounds at or before the close of all evidence at trial, and failure to renew the

motion waives the right to severance. I.C. § 35-34-1-12(b).

       Whether to grant a motion for separate trials is within the discretion of the trial court.

Lampkins v. State, 682 N.E.2d 1268, 1272 (Ind. 1997). The court must grant such a motion

“where the parties’ defenses are mutually antagonistic and acceptance of one party’s defense

precludes the acquittal of the other.” Id. On appellate review, “‘consideration is given to

events which actually occurred at trial and not allegations in the motion for severance.’” Id.

(quoting Hopper v. State, 539 N.E.2d 944, 947 (Ind. 1989)). A defendant is not entitled to a

separate trial simply because a co-defendant’s testimony implicates the defendant. Id.

       On appeal, Harris contends that he moved for severance during trial—and not before

trial—“based upon a ground not previously known,” specifically, whether Gilbert would

testify and what that testimony would be, and that Gilbert’s defense would be antagonistic to

Harris’s. See I.C. § 35-34-1-12(a). Contrary to the State’s assertion in its brief, these

contentions correspond to Harris’s contentions at trial, where Harris’s counsel argued that the

defenses were antagonistic and that “it’s not really a motion I can make until I know for sure

that he [Gilbert] is gonna take the stand.” (Tr. at 276.) Thus, the issues were not waived for

appeal on the basis of inconsistent argument at trial.


                                              10
       However, we cannot agree with the substance of Harris’s contentions; we thus agree

with the State that Harris’s motion to sever was untimely in light of Subsection 35-34-1-

12(a)’s provision concerning “a ground not previously known.” Harris argued before the

trial court, “I’m going to move to sever … because … co-defendants have made a strategy

decision that I don’t agree with” that was “contradictory to the defense” because it would not

be truthful—“if his testimony is similar to the testimony … he [Gilbert] gave last time.” (Tr.

at 274, emphasis added.) Harris’s reference to “last time” was to the first trial of this case,

which resulted in a hung jury, and during which Gilbert testified that he lacked any

knowledge of a drug transaction.

       Yet Gilbert offered the same testimony at the first trial and at the second trial, the

proceedings of which are now subject to appellate review. Harris attempts to distinguish his

position in the instant case from other cases interpreting the applicable language of

Subsection 35-34-1-12(a), noting that one case pertained to an appellant’s responsibility to

know the provisions of the rape-shield statute, and the other related to whether a defendant

could know in advance of a co-defendant’s intent to testify about out-of-court statements.

See Stovall v. State, 477 N.E.2d 252, 254-55 (Ind. 1985) (pertaining to the rape-shield

statute); Terry v. State, 457 N.E.2d 546, 548-49 (Ind. 1984) (pertaining to a co-defendant’s

out-of-court statements, but finding no prejudice in the denial of a mid-trial motion to sever).

       Unlike these two cases, here, Harris was aware in advance of the second trial (the

results of which he presently appeals) not only of the substance of any out-of-court

statements, but also of the substance of Gilbert’s testimony at the first trial. Harris could,


                                              11
prior to the second trial, have moved for severance, but did not do so. We cannot conclude

that he lacked previously-known grounds for severance before the second trial.

       Nor can we conclude Harris was in any manner prejudiced by the denial of his motion

to sever the trials. For while Harris contends that his defense was antagonistic to that of

Gilbert’s, as the State observed both at trial and on appeal, the core of the defenses of each

defendant was, at bottom, self-defense. The self-defense statute privileges not only self-

defense, but also defense of others, and Gilbert’s testimony was that he was privileged to use

reasonable force as a result of Adams’s movement toward him while Adams pulled a gun

from his jeans. Harris also advanced a self-defense argument at trial; their arguments are not

so antagonistic that acceptance of Gilbert’s defense would have precluded Harris’s acquittal.

See Lampkins, 682 N.E.2d at 1272.

       Accordingly, we decline to reverse the trial court’s denial of the motion to sever.

                                        Conclusion

       Harris was not placed in grave peril by prosecutorial misconduct during the State’s

rebuttal argument. The trial court did not err when it denied Harris’s mid-trial motion for

severance.

       Affirmed.

NAJAM, J., and PYLE, J., concur.




                                             12
