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BY KRISTA PRIMROSE
Opening arguments were conducted this morning in the trial of Jason Davidson. Davidson, 33, of Warsaw, is charged with the May 2, 2002, shooting death of Samuel Creekmore, 30.
Davidson is being tried in Kosciusko Circuit Court with Judge Rex Reed presiding. Special prosecutor Matthew Rentschler, of Whitley County, laid out the case for the prosecution. He said Davidson’s life crumbled around him in 1999 when Davidson’s wife, Alicia, had an affair with Creekmore and eventually married him.
Davidson and Alicia were divorced in November 2000. Alicia and Creekmore were married a short time later.
Rentschler said Davidson knew Creekmore would be home on May 2 and that he called Alicia knowing it would be upsetting to Creekmore. Rentschler said Davidson, while still on the cell phone, got out of his car, approached the house and asked Alicia where Creekmore was inside the house.
After she told him Creekmore was downstairs, he ended the call, walked inside the home and shots were heard, Rentschler said.
Alicia came downstairs and saw Davidson holding a gun and standing over Creekmore’s body.
Davidson told her, I told you I couldn’t live like this, Rentschler said.
Christina Barton, a friend of Alicia’s who was living at the Creekmore home at the time of the shootings, came downstairs at that time. Rentschler said Davidson told her not to call 911 and said, “I’m not going to jail” before fleeing the home.
Out of … resentment and hatred, he violently took another man’s life and we call that murder, Rentschler told the jury.
Rentschler then held up a photo of a smiling Creekmore in a dress military uniform.
Defense attorney Dennis Hartley, of Colorado Springs, Colo., conducted opening arguments for the defense.
Creekmore [sic] also is represented by Michael Miner, of Warsaw. Creekmore quietly wept during the defense portion of opening arguments.
Hartley said that whether Davidson shot Creekmore is not an issue and has never been an issue. What’s more important, Hartley said, is knowing why he did it and what led up to it.
The events that led up to the murder date back even before Davidson’s birth because of biological issues, Hartley said. He noted that Davidson’s family has a history of bipolar disorder, with a grandmother on his father’s side and an aunt on his mother’s side both diagnosed with the disease. Hartley said bipolar disorder is a genetic disease and is inherited.
Other factors that might predispose Davidson to violent behavior included a head injury that was discovered by a forensic psychologist.
The psychologist noted differences between the frontal and temporal lobes of Davidson?s brain during an examination. Results of a PET scan, which seemed to show the differences, were shown to the jury.
Hartley also noted that at the time of the shooting, Davidson was taking two medications, Ambien and Zoloft. Ambien is a sleep medication and is known as a hypnotic sedative, Hartley said, and Zoloft is an anti-depressant drug known as a specific serotonin reuptake inhibitor.
Both of these drugs affect the frontal and temporal lobes of the brain, which Davidson already had injured, Hartley argued, adding that the drugs include side effects such as hallucinations, agitation, suicidal thoughts and aggressiveness.
The drugs also can cause dissociative reactions in some patients, Hartley told the jury.
In certain circumstances, these drugs (SSRIs) can cause homicide or suicide, Hartley said. Couple that with Ambien, and you get a hypnotic state like disassociative reaction.
Hartley said in the days prior to the shooting, Davidson planned to move to Florida and had no intention of killing Creekmore.
On the night of the shooting, he took his grandparents out to dinner at a local restaurant and returned home around 8 p.m. At that time, he took an Ambien, intending to go to sleep, and was awakened by a phone call from Alicia.
He then had a visitor who left around 10 p.m., Hartley said. At that time Davidson took a second Ambien and shortly after that, Alicia called Davidson again. Neither of them remembers the phone call, despite telephone company records to the contrary.
Davidson then traveled to Alicia’s home and called her on his cell phone on the way to tell her to make a choice between him and Creekmore, Hartley said.
Alicia said Davidson sounded robotic and not like himself. After that, Davidson?s memory is foggy, Hartley said, which is consistent with a dissociative state.
Davidson remembers going the door and hearing gunshots, Hartley said.
Jury selection trial continued until 5 p.m. Tuesday, as juror after juror was dismissed for a variety of reasons. In the end, five women and seven men were seated to decide Davidson’s fate. Throughout jury selection, Davidson sat stoically upright in his charcoal suit. He appeared composed but without cool collectivity. His eyes appeared calm yet sad, and he occasionally glanced around.
Jury interview questions posed by Davidson’s attorneys seemed to foreshadow his defense. Potential jurors were questioned about their knowledge of head injuries, the side effects of anti-depressants and sleeping medications and their knowledge of the fields of psychology and neurology.
Jurors also were examined regarding their knowledge of anyone involved in the trial. At least seven jurors were dismissed because they knew Davidson or another key figure in the trial. One prospective juror was a 19-year friend of Davidson and openly admitted a strong bias before his dismissal.
The first 11 jurors were seated by 3 p.m., but the 12th seat proved hard to fill. Six potential jurors were interviewed for that seat with the first five dismissed.
The fourth woman to be interviewed for the final seat attended high school with Davidson but had no contact with him since that time.
As soon as her interview began, Davidson and his attorneys began whispering and passing notes. It was only during that woman?s interview that Davidson lost even an ounce of composure.
Also during that interview, Davidson momentarily lost the sad, calm look he had since morning. The woman made a crack about newspapers and crime coverage that caused nearly everyone in the courtroom to laugh aloud. For a second, Davidson and his defense team all wore smiles.
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Indiana Supreme Court
Appellant Jason Davidson offered expert testimony at trial to the effect that he was acting involuntarily when he shot and killed Samuel Creekmore. The trial court instructed the jury on the issue of voluntariness, but rejected Davidson’s tendered instruction specifically defining “voluntary” and including voluntariness as an element of the crime. We hold that the trial court adequately instructed the jury on the issue of voluntariness. Davidson’s defense was actually one of involuntary intoxication.
Facts and Procedural History
Davidson and Alicia Creekmore-Davidson married in 1995 and divorced in 2000, after Davidson discovered that Alicia was having an affair with Samuel Creekmore. Alicia and Creekmore married shortly thereafter. Despite the divorce and Alicia’s remarriage, Davidson and Alicia still kept in contact and maintained a sexual relationship.
Davidson became depressed after the divorce and mentioned to friends and family that he wished Creekmore were dead. He also expressed an inclination to commit suicide. He began trying different anti-depressants and eventually settled on Zoloft.
On the night of the shooting, Davidson took one dose of Zoloft for his depression and an Ambien to induce sleep. He slept only briefly due to an unexpected visit from two friends around 9 p.m. They stopped by to recount their earlier run-in with Alicia, Creekmore, and Alicia’s friend at a local restaurant. Alicia telephoned to tell her side of the story. During the friends’ visit, the conversation turned to Creekmore, which is when Davidson told them that he could just shoot Creekmore and showed them a gun he had purchased.
After the visitors left, Davidson took a second Ambien and then drove about twenty minutes to Alicia’s house in Warsaw, where Alicia and Creekmore had retired upstairs. He called Alicia on his cell phone, which irritated Creekmore, causing him to go downstairs. Alicia told Davidson he had irritated Creekmore, and Davidson asked what Creekmore was doing.
Learning that Creekmore was downstairs, Davidson asked Alicia to hang on, then entered the house and shot Creekmore. Alicia ran downstairs to find Davidson with a gun in his hand and Creekmore lying on the floor. Davidson stated that he could not live like this and then left shortly before the police arrived.
The State charged Davidson with murder and a firearm enhancement, and a jury found him guilty of murder. The trial court found three mitigating factors: a minimal risk that Davidson would commit another crime, the absence of a criminal record, and Davidson’s positive contribution to society prior to the incident. It declined to reduce Davidson’s sentence, however, saying that this would depreciate the seriousness of the crime. The court found this aggravator “simply for the limited purpose of offsetting the mitigating factors” and sentenced Davidson to fifty-five years in prison, the presumptive term. (Tr. at 704-05); IND. CODE ANN. § 35-50-2-3 (West 2004).
Davidson argued on appeal that the trial court should have defined “voluntary” conduct and inserted voluntariness into the elements of murder. The Court of Appeals agreed and reversed. Davidson v. State, 825 N.E.2d 414, 419-20 (Ind. Ct. App. 2005) vacated. We granted transfer.
- Voluntariness Is Not an “Element”
Our statute defines murder as the knowing or intentional killing of another human being. IND. CODE ANN. § 35-42-1-1 (West 2005). The trial court adhered to this definition by instructing the jury as follows:
To convict the Defendant, the State must have proved each of the following elements:
- knowingly or intentionally
- Samuel Creekmore.
(Tr. at 638-39.) The trial court sustained the State’s objection to Davidson’s corresponding tendered instruction No. 3, which read basically the same, except “and voluntarily” was inserted as an additional element between “knowingly or intentionally” and “killed.” (Tr. at 637.)
“The purpose of an instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.” Overstreet v. State, 783 N.E.2d 1140, 1163 (Ind. 2003). A trial court erroneously refuses a tendered instruction if: 1) the instruction correctly states the law, 2) evidence supports the instruction, and 3) no other instructions cover the substance of the tendered instruction. Id. at 1164; Davis v. State, 265 Ind. 476, 355 N.E.2d 836 (1976).
Davidson observes that Indiana’s Pattern Jury Instructions inserts the phrase “and voluntarily” into the elements of a crime when the evidence raises a voluntariness issue. INDIANA PATTERN JURY INSTRUCTIONS § 9.01 (3rd ed. 2005) (using theft as an example). The pattern instructions rely on Baird v. State, 604 N.E.2d 1170, 1176 (Ind. 1992), which declared that if the evidence raised voluntariness as an issue, “the [S]tate must prove the defendant acted voluntarily beyond a reasonable doubt.” See also IND. CODE ANN. § 35-41-2-1(a)(West 2004) (requiring that a person must act voluntarily in order for criminal liability to attach).
Davidson did supply testimony from medical experts concerning the voluntariness of his conduct. They testified that a combination of Ambien and Zoloft can adversely affect a person’s control over impulsive behavior, causing one to become uninhibited. (Tr. at 235-36, 243, 355-57.) They also testified that Davidson was unaware of any potential adverse effects. (Tr. at 236.) They opined that Davidson was in a disassociative state rendering his conduct involuntary. (Tr. at 391, 393, 476, 489-90.)
Davidson argues that an inclusion of “and voluntarily” in the elements of the offense would have ensured that the jury knew that the State must prove he acted voluntarily beyond a reasonable doubt, and that no other instruction guided the jury on the State’s burden as regards this element. (Appellant’s Br. at 15-16.)
The real problem with this contention is that the condition that underlay Davidson’s defense is covered by our Code section on intoxication and not by the section on voluntariness.
The drafters of Indiana’s voluntariness provision used section 2.01 of the Model Penal Code as the source. IND. CRIM. LAW STUDY COMM’N, IND. PENAL CODE PROPOSED FINAL DRAFT 11-12 (1974). The American Law Institute report on the provision indicates that its purpose is to exclude from voluntary conduct those mental impairments that are the product of an otherwise healthy mind. The illustrative examples are reflexes, convulsions, unconsciousness (for example, a driver who loses consciousness and runs over a pedestrian), somnambulism, hypnosis, and a residual category for movements not a product of the actor’s effort (where the actor is moved by force). MODEL PENAL CODE § 2.01 cmts. 1 & 2 (Official Draft and Revised Comments 1985). Because the Model Penal Code’s list of such conditions was not imported into our Code, we have recognized that certain conditions not included in the ALI model can be covered under the Indiana statute. See McClain v. State, 678 N.E.2d 104, 108 n.7 (Ind. 1997).
There is no indication in the Model Code that it was designed to cover garden-variety or even exotic claims about the use of drugs or alcohol. Indeed, the Model Code contains a separate section on intoxication as a defense. MODEL PENAL CODE § 2.08 (Official Draft and Revised Comments 1985). So it is with our Code. Indiana law provides that intoxication is a defense only if the defendant did not consent to the introduction of the substance into his body or if the defendant was unaware the substance might cause intoxication. IND. CODE ANN. § 35-41-3-5 (West 2004).