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A trial court didn’t err or violate a defendant’s Sixth Amendment rights in an attempted murder case when it denied his objection to a jury instruction regarding intent to kill and his request to cross-examine two people that allegedly used a racial slur in reference to him, the Court of Appeals of Indiana affirmed Monday.
Sabrina Reynolds, along with her two children, lived in a townhouse provided to her by her father, Mark. Reynolds was in an on-again, off-again relationship with Jason Monroe at the time.
In late December 2020, Reynolds met Darius Birk and the two eventually started dating, with Birk moving his belongings into the townhouse.
The following March 13, Birk and Reynolds got into an argument about how Reynolds’ stimulus money should be used. Birk wanted to use the money to purchase a gun, while Reynolds wanted to use it on a down payment on her own apartment.
As the argument progressed, Reynolds decided to take Birk to his mother’s house. Reynolds drove her van, and as the argument escalated, she began screaming for Birk to exit the vehicle.
Birk refused, pulled a gun on her and threatened to shoot her. He then shot Reynolds in the face.
Reynolds got out of the van but Birk ran after her, grabbed her and put her in the back seat. A bystander testified that Birk stated, “I’m sorry, baby, I’m sorry,” when he grabbed Reynolds and put her back in the van.
Birk drove Reynolds to the hospital. When they arrived, he ran inside screaming, “I need help.” Reynolds underwent three surgeries and was in the hospital for two-and-a-half weeks.
When the police spoke with her four days after the shooting, Reynolds couldn’t speak, but she wrote a note to a police detective saying Birk “didn’t mean to do it.”
But after she was discharged from the hospital, she spoke to the same detective and told him Birk did mean to shoot her.
In April 2021, the state charged Birk with aggravated battery causing serious permanent disfigurement as a Level 3 felony; pointing a firearm at another as a Level 6 felony; and carrying a handgun without a license as a Class A misdemeanor. The state later added a charge of Level 1 felony attempted murder.
At the ensuing jury trial in Johnson Superior Court, Birk objected to the state’s jury instruction regarding intent during preliminary jury instructions and again during the final jury instructions. The trial court denied the request both times.
Birk was found guilty on all four counts.
He appealed and raised the issues of whether the trial court violated his Sixth Amendment right to confront and cross-examine certain witnesses, and whether the trial court’s jury instruction regarding intent was misleading, prejudicial and impermissibly relieved the state from its burden of proof.
Specifically, Birk argued the trial court erred when it excluded evidence of the racial animus of Mark Reynolds, Sabrina’s father, and Monroe toward him because it curtailed his right to confront and cross-examine them under the Sixth Amendment. He also argued the jury instruction regarding intent improperly instructed the jury to not consider any acts and circumstances that may have occurred immediately after the shooting.
The appellate court disagreed with Birk and affirmed.
Judge Peter Foley wrote the opinion for the appellate court.
During his trial, Birk sought to introduce testimony regarding Mark Reynolds and Monroe’s alleged use of a racial slur in reference to Birk and their racial animus toward him.
Neither Mark nor Monroe testified at trial, but they did testify outside the presence of the jury during an offer of proof. Both men denied using a racial slur.
Birk called two witnesses during the offer of proof that claimed Mark and Monroe did use racial slurs in reference to him. The trial court denied Birk’s request to introduce evidence regarding the two men’s alleged racial animus toward Birk, ruling that such evidence was “collateral.”
“Birk argued that Marks and Monroe’s racial animus towards Birk provided, at least in part, Reynold’s motive for changing her characterization of the shooting from an accident to an intentional act,” Foley wrote. “… Birk’s theory is not that Reynolds harbored racial animus towards Birk, but that the racial animus of Mark and Monroe influenced Reynolds to testify at trial that Birk shot her intentionally, in apparent contradiction to her hospital note stating that Birk ‘didn’t mean to do it.’”
The appellate court determined that the probative value of evidence of the two men’s racial animus to explain Reynolds’s motive for changing her story was minimal, at best. Further, the prejudicial effect of the testimony substantially outweighed its probative value.
“Evidence of racist remarks that were uttered by Mark and Monroe, who were not present when the shooting occurred, was too remote and unfairly prejudicial to aid Birk in accomplishing his goal. The trial court did not err in excluding the testimony,” Foley wrote.
Birk also argued the trial court’s jury instruction improperly confined the jury’s evidence of intent to those acts and circumstances at or immediately preceding the shooting and excluded acts or circumstances that occurred immediately after the shooting.
But Foley wrote that the given instruction was a correct statement of law and was supported by evidence of Birk pulling out his gun, cocking it, pointing it at Reynolds, firing the gun, saying “I should shoot you” to Reynolds right before doing so and shooting her in the face at close range.
The jury also heard evidence of Birk’s acts, declarations and conduct that occurred immediately after the shooting, he added.
“The jury not only heard evidence that supported Birk’s theory of an accidental shooting, but, considering the instructions as a whole, was not prevented from considering Birk’s post-shooting actions in its determination of intent,” Foley concluded.
Judges L. Mark Bailey and Melissa May concurred.
The case is Darius Jordan Birk v. State of Indiana, 22A-CR-1133.
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