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Kidd v. State

Court of Appeals of Indiana

March 12, 2014

KANEKA S. KIDD, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

APPEAL FROM THE LAKE SUPERIOR COURT. The Honorable Diane Ross Boswell, Judge. Cause No. 45G03-0911-MR-10.

ATTORNEY FOR APPELLANT: MARCE GONZALEZ, JR., Dyer, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, LARRY D. ALLEN, Deputy Attorney General, Indianapolis, Indiana.

BAKER, Judge. NAJAM, J., and CRONE, J., concur.

OPINION

MEMORANDUM DECISION -- NOT FOR PUBLICATION

BAKER, Judge

Appellant-defendant Kaneka S. Kidd was convicted of Murder,[1] a felony, and claims on appeal that the trial court erred in refusing to give her proffered instruction on self-defense. In lieu of that instruction, the trial court gave two other instructions.

The instructions that the trial court gave were based on the Indiana Pattern Jury Instructions that the Indiana Supreme Court has expressly approved and tracked the language of our self-defense statute. There is no showing that the trial court's refusal to give Kidd's tendered jury instruction had a substantial impact on the jury's decision. As a result, we agree that the trial court properly refused to give Kidd's tendered instruction and affirm her conviction and sentence.

FACTS

Kidd and Jermaine Ellis were sporadically involved in a romantic relationship since Kidd was thirteen or fourteen years old and Ellis was eighteen or nineteen. Although they had not been intimate for almost two years prior to 2009, Ellis and Kidd previously had children together. Ellis lived with Kidd at her grandmother's house. Kidd stated that Ellis had physically and emotionally abused her many times, and she may have suffered from post-traumatic stress disorder (PTSD) from the history of family and domestic abuse that was inflicted upon her at a young age. Ellis hit, battered, and committed acts of violence against Kidd for almost seventeen years.

On November 28, 2009, Kidd ordered a pizza for Ellis but there was a mistake with the order. Ellis was angry and complained to Kidd about it. Kidd then called the restaurant and drove back to pick up the correct pizza.

Both Kidd and Ellis had been invited to a friend's birthday party that same evening. Kidd left for the party by herself around 10:30 p.m., and Ellis arrived at approximately 12:30 a.m. Ellis still appeared angry, and Kidd felt like she could not have fun with Ellis at the party.

At some point, Kidd told Ellis that she was not scared of him. Ellis later allegedly insulted Kidd at the party, telling her that she was dancing like a " slut" and that he should treat her like a " slut." Tr. p. 330-31. Both Ellis and Kidd had been drinking alcohol at the party. Kidd eventually went to the bathroom and called her brother. She told him that Ellis was threatening to hit her while they were at the party. Kidd's brother told her to leave and return home.

At some point, Ellis walked upstairs to the bathroom and told Kidd that he was ready to leave. The hostess of the party walked them to the door. She did not observe them fighting or notice any tension between Ellis and Kidd, but she did notice that Kidd looked sad. She also was not concerned that Ellis and Kidd were leaving together.

At approximately 3:00 a.m., Ellis and Kidd walked out to her vehicle. Kidd started to unlock the driver's side door, but Ellis grabbed the door from her and struck Kidd in the head. Ellis got into the driver's seat and Kidd walked to the passenger side. When Kidd opened the door, Ellis told her to hurry and grabbed for Kidd's purse. At some point, Ellis told Kidd that he was glad her son, who had died in a tragic accident, was dead, and that he had deserved to die.

Kidd always carried a .9mm semi-automatic handgun in her purse for protection. She had her hand on the pistol as Ellis reached across the console. Kidd told Ellis that she had a gun, but Ellis stated that he did not care. Kidd's purse fell in the car, and Kidd pulled out her gun and switched off the safety. Ellis told Kidd that he wished she would shoot him and again tried to grab Kidd across the console with his left hand from the driver's seat. Kidd was still standing outside the vehicle, and as Ellis tried to reach across the car, Kidd shot him ten times. Kidd later admitted that she closed her eyes and shot until the gun was out of bullets. Kidd was struck in the forearm, torso, and legs. Kidd later told police that Ellis said to Kidd, " I thought you loved me." State's Ex. 66. Ellis died in the vehicle. A neighbor heard Kidd say at the time of the shooting, " Now how do you like that?" Tr. p. 198-99. Kidd sat on tip of Ellis's body in the driver's seat and started to drive home. Although Kidd passed several police officers and a police station on her way to her house, she did not stop. Kidd also made twelve phone calls from the time of the shooting until she got home to friends and family members.

On November 30, 2009, Kidd was charged with murder. At Kidd's jury trial that commenced on April 2, 2013, Dr. Stephanie Calloway, a forensic psychologist, testified that he had examined Kidd and opined that Kidd suffered from PTSD. Dr. Calloway also testified that Kidd had developed hypervigilence that gave her a heightened sense of awareness to cues that Ellis was about to become violent. The events prior to the shooting made Kidd aware that Ellis was going to assault her. Id.

Following the presentation of evidence on April 5, 2013, Kidd tendered a proposed final jury instruction regarding the law of self-defense. Over Kidd's objection, the trial court refused to give her proffered instruction that provided:

DEFENDANT'S TENDERED JURY INSTRUCTION NO. 3
The Court further instructs you that one person may kill another under such circumstances that the homicide or killing constitutes no crime, but is justified by the law. This is known as the law or doctrine of ...

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