On appeal from The Marion Superior Court ">

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Date: 05-06-2022

Case Style:

Romello McGee v. State of Indiana

Case Number: 21A-CR-02023

Judge: Robert R. Altice, Jr.

Court:

COURT OF APPEALS OF INDIANA

On appeal from The Marion Superior Court

Plaintiff's Attorney: Theodore E. Rokita
Attorney General of Indiana

Catherine E. Brizzi
Deputy Attorney General

Defendant's Attorney:





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Description:

Indianapolis, IN - Criminal Defense lawyer represented defendant with appealing his conviction for Level 2 felony voluntary manslaughter charge.



On the evening of January 11, 2021, McGee and his girlfriend, Malshavia
Campbell, went to the Indianapolis home of Campbell’s mother, Tomkima
Brown. Brown lived there with her longtime boyfriend, James Lewis, and her
younger children, T.L. and J.L. While the family was visiting in the kitchen,
seventeen-year-old T.L. confronted Lewis about a recording he had recently
made of T.L. playing loud music in her room. Campbell sided with T.L. during
the ensuing discussion. Lewis became angry and started yelling and cussing
because he felt he was being disrespected in his own home.
[4] When Lewis stormed to the master bedroom, Brown followed to attempt to
calm him down. T.L. and Campbell then came into the bedroom and a verbal
argument ensued between them and Lewis concerning the recording and other
grievances. McGee stayed in the hallway just outside the bedroom.
Eventually, Lewis made sarcastic apologies to each of the individuals in the
home. McGee indicated that he did not require an apology, but then brought
Court of Appeals of Indiana | Memorandum Decision 21A-CR-2023 | May 6, 2022 Page 3 of 7
up another issue with Lewis, which the two had discussed previously. McGee
and Lewis exchanged words.
[5] At some point, Lewis, who was “tired of being disrespected,” grabbed a 12-
gauuge shotgun from behind his dresser. Transcript Vol. III at 63. He waved the
shotgun around but did not point it at anyone. Everyone, except Brown and
Lewis, then rushed out of the room as Brown closed the bedroom door and
wrestled the shotgun away from Lewis, returning it to behind the dresser.
Thereafter, Lewis sat on the bed, still angry, and Brown attempted to calm him
down for a couple minutes.
[6] In the meantime, the other individuals in the home went to the front door and
put on their shoes to leave. McGee handed car keys to Campbell and, at some
point, removed the safety cable from the handgun he was carrying in a hip
holster and loaded it. Campbell yelled from the hallway to make sure her
mother, Brown, was okay. Brown responded, “yeah, just go ahead and leave.
I’m fine.” Id. at 65. Although Campbell, who was panicking, did not hear the
reply, she left the home and went to the car parked out front to wait for the
others so that they could leave together. T.L. and J.L. were in the front yard,
and McGee, with his loaded gun, stood just off the front porch and to the side
of the door to ensure everyone’s safety.
[7] At some point while in the bedroom with Brown and as the others were leaving
the house, Lewis called his son on the phone and could be heard by all present
yelling, “come over here now, before I kill me a M-F-er.” Id. at 91. About a
Court of Appeals of Indiana | Memorandum Decision 21A-CR-2023 | May 6, 2022 Page 4 of 7
minute after getting off the phone with his son, Lewis grabbed his car keys from
the dresser and walked out of the bedroom, indicating to Brown that he was
“about to just go for a ride,” which Brown indicated that Lewis typically did
when he was mad. Id. at 66.
[8] Lewis walked out the open front door with his keys in one hand and his
cellphone in the other hand. As Lewis crossed the threshold, McGee, whose
back was initially toward the door, turned around and immediately began
shooting at Lewis. McGee quickly fired seven shots, with at least five bullets
striking Lewis about the head, chest, arm, and hand. Lewis collapsed and died
at the scene from the multiple gunshot wounds. At the time of the shooting, it
was dark outside, but there was a porch light on.
[9] On January 28, 2021, the State charged McGee with murder. A jury trial was
held on August 2-4, 2021, at which McGee claimed self-defense. McGee
testified that he was scared that he was “gonna die” that night, especially after
hearing Lewis, who had been armed with a shotgun, yelling that he was going
to “kill this motherf***er.” Id. at 201, 202. McGee explained that he was
“scared beyond scared.” Id. at 202. He indicated that he was “out of [his]
mind” and “terrified.” Id. at 217. McGee acknowledged that he had not heard
any shots from inside the house and that, before shooting Lewis, he did not
have a chance to see whether Lewis was still armed with the shotgun.
[10] The trial court instructed the jury on voluntary manslaughter and murder, as
well as self-defense. The jury ultimately found McGee not guilty of murder but
Court of Appeals of Indiana | Memorandum Decision 21A-CR-2023 | May 6, 2022 Page 5 of 7
guilty of voluntary manslaughter. On September 8, 2021, the trial court
sentenced McGee to ten years, with seven years suspended and the remaining
three years served on community corrections.
Discussion & Decision
[11] McGee does not dispute that he knowingly or intentionally killed Lewis. He
argues, however, that the State failed to prove that he was acting in sudden
heat1 at the time rather than in self-defense.2
That is, McGee contends that his
mental state of terror did not obscure his reason nor render him incapable of
deliberation or cool reflection and that he acted rationally in defense of himself
and others when he shot Lewis.
[12] When addressing sufficiency of the evidence claims, our standard of review is
well settled: we do not reweigh the evidence or judge the credibility of the
witnesses. McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018). Rather, we
consider only the evidence most favorable to the verdict and the reasonable
inferences drawn therefrom. Purvis v. State, 87 N.E.3d 1119, 1124 (Ind. Ct.
1 Pursuant to Ind. Code § 35-42-1-3(b), sudden heat is a mitigating factor that reduces what otherwise would
be murder to voluntary manslaughter. It exists when a defendant is “provoked by anger, rage, resentment, or
terror, to a degree sufficient to obscure the reason of an ordinary person, prevent deliberation and
premeditation, and render the defendant incapable of cool reflection.” Isom v. State, 31 N.E.3d 469, 486 (Ind.
2015).
2 Ind. Code § 35-41-3-2(c) provides, in relevant part, that a person is justified in using deadly force “if the
person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third
person.” Reasonable belief, under the statue, requires both the defendant’s subjective belief that the force was
necessary and an objective determination that the defendant’s belief was one that a reasonable person would
have under the circumstances. Hood v. State, 877 N.E.2d 492, 495 (Ind. Ct. App. 2007), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 21A-CR-2023 | May 6, 2022 Page 6 of 7
App. 2017). We will affirm a conviction if there is substantial evidence of
probative value supporting each element of the crime from which a reasonable
trier of fact could have found the defendant guilty beyond a reasonable doubt.
Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009); see also T.H. v. State, 92
N.E.3d 624, 626 (Ind. 2018) (“Convictions should be affirmed unless no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.”).
[13] Claims of self-defense and killing in sudden heat are not fundamentally
inconsistent and, in appropriate circumstances, a jury may properly consider
both theories. Brantley v. State, 91 N.E.3d 566, 573 (Ind. 2018), cert. denied, 139
S. Ct. 839 (2019). Thus, where there is evidence presented that a defendant
acted in either sudden heat or self-defense when knowingly or intentionally
killing another, “the jury [is] presented with a classic question of fact.” Id. at
569. Our Supreme Court explained in Brantley:
As with most cases, the jury here was faced with two stories: one
where Brantley acted irrationally out of sudden heat, the other
where Brantley acted rationally in self-defense. These
explanations for Brantley’s actions are not conflicting since the
nature of each defense is different, and it was within the province
of the jury to weigh the evidence and assess witness credibility in
arriving at its verdict.
Indeed, common to both defenses is terror. A defendant acts in
self-defense when confronted with real danger of death or great
bodily harm, or in such apparent danger as caused him, in good
faith, to fear death or great bodily harm. The danger need not be
actual, but the belief must be in good faith and the reaction must
Court of Appeals of Indiana | Memorandum Decision 21A-CR-2023 | May 6, 2022 Page 7 of 7
be reasonable. Similarly, sudden heat, which is sufficient to
reduce murder to voluntary manslaughter, requires evidence of
anger, rage, sudden resentment, or terror that is sufficient to
obscure the reason of an ordinary man. Thus, terror sufficient to
establish the fear of death or great bodily harm necessary for self-defense
could be equally sufficient to invoke sudden heat. In other words, the
same evidence can either mitigate murder or excuse it altogether. It’s the
jury’s call.
Id. at 573-74 (internal citations and quotations omitted) (emphasis supplied).
[14] Here, it is undisputed that Lewis’s actions provoked terror in McGee and
precipitated the shooting. We do not disagree that the evidence established that
McGee objectively feared for his life as he stood outside the home ushering
loved ones to safety. But the evidence also showed that Lewis was unarmed at
the time McGee rapidly shot him at least five times and that McGee
immediately turned and fired seven times without looking to see whether Lewis
was even still armed with the shotgun. Though certainly a close call, it was
well within the jury’s province to determine that McGee’s actions as Lewis
walked out of the home were impulsive and unreasonable and resulted from
terror and a sudden impetus to kill. Accordingly, we affirm the conviction for
voluntary manslaughter.

Outcome: Judgment affirmed

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