Opinion
Court of Appeals Case No. 21A-CR-988
12-28-2021
Tighe BIBBS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
Attorney for Appellant: Christopher Kunz, Marion County Public Defender, Indianapolis, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Catherine E. Brizzi, Deputy Attorney General, Indianapolis, Indiana
Attorney for Appellant: Christopher Kunz, Marion County Public Defender, Indianapolis, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Catherine E. Brizzi, Deputy Attorney General, Indianapolis, Indiana
MEMORANDUM DECISION
Robb, Judge.
Case Summary and Issue
[1] Following a jury trial, Tighe Bibbs was convicted of murder, a felony, and carrying a handgun without a license, a Class A misdemeanor. Bibbs appeals his convictions, raising one issue for our review which we restate as whether the trial court committed fundamental error when it omitted from a pattern jury instruction language that would have advised the jury it had a duty to unanimously agree on a verdict. Concluding the trial court did not commit fundamental error, we affirm.
Facts and Procedural History
[2] Bibbs and Shiloh Britton had previously been romantically involved but in December 2018, when Bibbs was nineteen and Shiloh was sixteen, they were just friends. Around midnight on December 5-6, 2018, after Shiloh's mother and brothers were asleep, Bibbs went to Shiloh's apartment. Bibbs had with him a gun he carried for protection, although he had never been trained on proper handling of a firearm. Once in Shiloh's room, the two were "being goofy" and Bibbs pulled his gun out and pointed it around the room. Transcript, Volume 4 at 54-55. At some point, still "[j]ust being goofy," Bibbs pointed the gun at Shiloh, who was two or three feet away from him. Shiloh walked up to the gun so that it was touching her head and said, "You do it." Id. at 55. Bibbs pulled the trigger and shot Shiloh in the head. She fell to the ground and Bibbs, "in shock" that the gun went off, called Shiloh's name and shook her leg. Id. at 56. Realizing Shiloh was dead, Bibbs left the apartment, got rid of the gun, and ultimately left town. While Bibbs was gone, police learned from Facebook messages and surveillance footage that he had been at Shiloh's apartment at the time of her death.
[3] Bibbs returned to town in February 2019 and was arrested in April. He gave a statement to police in which he acknowledged his presence in Shiloh's room but gave several different versions of what happened, including that Shiloh committed suicide and that she pulled a gun on him and he shot her in self-defense. At trial, however, he admitted those stories were lies and stated that he accidentally shot her while goofing around with the gun. He testified, "I wasn't expecting it to go off.... I usually always keep my gun on safety, and I ... never keep a bullet in the head of the gun for it to be fired." Id. at 63.
[4] In closing arguments, Bibbs’ counsel argued that Bibbs did not knowingly kill Shiloh: "He is guilty of something, but that in and of itself is not evidence of murder." Id. at 111.
Yes, he knew he was holding a gun. He knew he was pulling the trigger. But he didn't expect that the gun was going to go off. He didn't expect that the safety would be off. He didn't expect that there would be a bullet in the chamber.
When he pulls that gun, that's the action that you have to think of, like, what was he thinking at that point, what is his state of mind. Was he doing that to kill Shiloh? Was he doing it to be goofy? Was he being reckless with that?
Yes, he was being reckless with that, but he wasn't trying to kill her. He wasn't ... knowingly pulling this trigger to kill her.
Id. at 119.
[5] The trial court instructed the jury on the elements of carrying a handgun without a license, murder, and, at Bibbs’ request, reckless homicide as a lesser included offense of murder. The trial court also instructed the jury regarding its duties as follows:
To return a verdict, each of you must agree to it. Each of you must decide the case for yourself, but only after considering the evidence with other jurors. It is your duty to consult with each other. You should agree on a verdict, if you can do so without compromising your individual judgment. Do not hesitate to reexamine your own views and change your mind if you believe you are wrong, but do not give up your honest belief just because the other jurors may disagree or just to end the deliberations. After the verdict is read in court, you may be asked individually whether you agree with it.
* * *
The Court is submitting to you forms of possible verdicts you may return. The foreperson should sign and date the verdict to which you all agree. Do not sign more than one verdict form for each count. The foreperson must return all verdict forms, signed or unsigned.
Supplemental Transcript, Volume 2 at 13-14; see also Appellant's Appendix, Volume III at 29-30. Bibbs did not object to this instruction, nor did he tender his own on this subject.
[6] The jury found Bibbs guilty of murder and carrying a handgun without a license. Following the verdict, the trial court polled the jury and each juror indicated that the verdict was his or her individual verdict. See Tr., Vol. 4 at 127-29. The trial court ultimately sentenced Bibbs to fifty-five years at the Indiana Department of Correction. Bibbs now appeals his convictions.
Discussion and Decision
I. Standard of Review
[7] Instructing a jury is left to the sound discretion of the trial court, and we review its decision only for an abuse of discretion. Washington v. State , 997 N.E.2d 342, 345 (Ind. 2013). To constitute an abuse of discretion, the instruction given must be erroneous, and the instructions viewed as a whole must misstate the law or otherwise mislead the jury. Winkleman v. State , 22 N.E.3d 844, 849 (Ind. Ct. App. 2014), trans. denied. However, if the defendant fails to object to an allegedly erroneous instruction or to tender a different instruction, he generally waives any claim of error on appeal. Abd v. State , 120 N.E.3d 1126, 1136 (Ind. Ct. App. 2019), trans. denied.
[8] Bibbs concedes he did not object to the trial court's instructions, and therefore, he raises this issue as fundamental error. See Brief of Appellant at 10. "A fundamental error is one that make[s] a fair trial impossible or constitute[s] a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm." Kelly v. State , 122 N.E.3d 803, 805 (Ind. 2019) (quotation omitted). The element of harm is not shown merely by the fact that a defendant was ultimately convicted. Davis v. State , 835 N.E.2d 1102, 1107 (Ind. Ct. App. 2005), trans. denied. In determining whether fundamental error occurred in the giving of instructions, we consider all the relevant information provided to the jury including that in closing arguments and other instructions. Boesch v. State , 778 N.E.2d 1276, 1279 (Ind. 2002). There is no due process violation where all such information, considered as a whole, does not mislead the jury as to a correct understanding of the law. Id.
II. Instructional Error
[9] In Indiana, a verdict in a criminal case must be unanimous. Fisher v. State , 259 Ind. 633, 646, 291 N.E.2d 76, 82 (1973). Bibbs contends that the trial court committed fundamental error by failing to fully instruct the jury about its duty to reach a unanimous verdict without any concessions. Bibbs relies on the fact that although the instructions given to the jury were largely identical to the pattern jury instructions, they omitted the one sentence that is the "only sentence in Indiana's pattern instructions explicitly commanding the jury to reach a verdict by ‘unanimous agreement.’ " Br. of Appellant at 13. The pattern instruction reads:
[The Court is] submitting to you forms of possible verdicts you may return. The foreperson should sign and date the verdict[s] to which you all agree. Do not sign any verdict form for which there is not unanimous agreement. Sign only one verdict form for each count. The foreperson must return all verdict forms, signed or unsigned.
Id. at 12 (quoting Indiana Criminal Jury Instruction No. 13.2700).
[10] It is true that the preferred practice in Indiana is to use the pattern jury instructions. See Santiago v. State , 985 N.E.2d 760, 763 (Ind. Ct. App. 2013), trans. denied. But Bibbs points to no authority stating that use of the pattern instructions is required, and it appears the opposite is in fact true. Cf. Ramirez v. State , 174 N.E.3d 181, 199 (Ind. 2021) (stating that although it is preferred practice to use pattern jury instructions, "we do not require it"). Thus, the trial court's instruction is not fundamental error simply because it does not mimic the pattern instruction as long as it, considered with the other instructions as a whole, correctly informs the jury of the law. See Boesch , 778 N.E.2d at 1279.
[11] As noted above, jury instructions are not viewed in isolation; they are viewed as a whole and in reference to each other. McDowell v. State , 102 N.E.3d 924, 935-37 (Ind. Ct. App. 2018), trans. denied. And here, the jury was specifically instructed to consider "all of the instructions together." Supp. Tr., Vol. 2 at 5. The trial court instructed the jury that to return a verdict, "each of you must agree to it." Id. at 13. Relevant to Bibbs’ concern that the instructions did not advise the jurors that they should not compromise or concede their own position in order to agree to a verdict, see Br. of Appellant at 13-14, the trial court instructed the jurors that they "should agree on a verdict, if you can do so without compromising your individual judgment." Supp. Tr., Vol. 2 at 13. And the foreperson was instructed to only sign a verdict with which all jurors agree. Id. at 14. Therefore, we conclude that taken as a whole, the instructions given by the trial court regarding the necessity of reaching a unanimous verdict properly conveyed the law to the jury even though they did not explicitly use the term "unanimous agreement."
In making this argument, Bibbs cites to the printed instructions the trial court provided wherein the instruction stated, "[Y]ou should try to agree on a verdict[.]" Br. of Appellant at 14 (citing Appellant's App., Vol. III at 29). However, as Bibbs acknowledges in a footnote, see id. at 14 n.4, when the trial court read the instructions to the jury in court, it stated, "You should agree on a verdict[.]" Supp. Tr., Vol. 2 at 13.
[12] Further, fundamental error occurs only in egregious cases where the harm or potential for harm is substantial. Lyons v. State , 993 N.E.2d 1192, 1194-95 (Ind. Ct. App. 2013). We are not persuaded that this is one of those cases: the jury was polled after the verdict was read, and each and every juror stated that the verdict was his or her individual verdict. Thus, Bibbs has not shown he was substantially harmed even if the instruction were erroneous.
Conclusion
[13] Bibbs has failed to show that the trial court committed fundamental error in instructing the jury. His convictions are therefore affirmed.
[14] Affirmed.
Riley, J., and Molter, J., concur.