Romello McGee v. State of Indiana

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

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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

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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

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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.

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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

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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.

Judgment affirmed