Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MARK A. BATES GREGORY F. ZOELLER

Office of the Lake County Public Defender Attorney General of Indiana

Crown Point, Indiana

ANGELA N. SANCHEZ

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

KEVIN CORTEZ BROWN, )

)

Appellant-Defendant, )

)

vs. ) No. 45A03-1212-CR-543

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE LAKE SUPERIOR COURT

The Honorable Thomas P. Stefaniak, Jr., Judge

Cause No. 45G04-1005-MR-8

September 24, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge 
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In this case, appellant-defendant Kevin Cortez Brown admitted that he shot 

Vernale Givens three times and killed him. A jury rejected Brown’s self-defense claim 

and found him guilty of murder. Brown subsequently admitted to being a habitual 

offender. 

Brown now appeals, arguing that the trial court erred in instructing the jury 

because it 1) failed to give an instruction on reckless homicide as a lesser-included

offense of murder and 2) gave four repetitious self-defense instructions. Brown also 

argues that the prosecutor engaged in misconduct by appealing to the jury’s sympathy 

during closing argument.

Concluding that the trial court did not err in instructing the jury and that the 

prosecutor did not engage in misconduct, we affirm the judgment of the trial court.

FACTS

At approximately 7:30 a.m. on May 22, 2010, Brown shot Givens three times as 

he walked through a parking lot to his tire repair business in Gary. Givens died from the 

gunshot wounds, and the State charged Brown with murder and being a habitual offender. 

Brown chose to represent himself at trial with standby counsel. The evidence at trial 

revealed that Givens had a close-knit family and worked long hours at his business. He 

gave his cousin, Bremiah Snyder, a job to help Snyder start a new life after he was 

released from prison. Givens did not own or carry a gun. According to Givens’s father, 

Givens “didn’t believe in guns.” Tr. p. 95. 
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While working at Givens’s business, Snyder sold guns to Brown, who was 

working as an informant for the Bureau of Alcohol, Tobacco, Firearms, and Explosives. 

Snyder was subsequently arrested, convicted of selling the guns, and sent to prison. 

While he was in prison, Snyder learned that Brown was an informant. According to 

Snyder, he never told his family about Brown.

Brown, on the other hand, testified that Snyder’s family, including Givens, began 

harassing him for his part in sending Snyder to prison. Specifically, Brown testified that 

he received five harassing telephone calls from an unknown caller, which Brown 

construed as threats. Brown also testified that he was followed twice, and that Givens 

drove past Brown’s grandmother’s house one time.

The morning of the shooting, Brown noticed Givens behind him in his rear view 

mirror. Brown ran a red light to get away from Givens, and although Givens did not 

pursue Brown, Brown immediately drove to his mother-in-law’s house to get a gun so 

that he could confront Givens. Brown then drove to Givens’s tire repair business and 

approached Givens in the parking lot. Brown claims that when he asked Givens why 

Givens was harassing him, Givens yelled obscenities, lifted up his shirt to show a gun, 

and headed towards Brown. Brown explained that he immediately shot Givens in selfdefense and fled the scene. No weapon was found on or around Givens.

At the final instruction conference, the trial court asked Brown if he wanted a 

lesser-included offense instruction on reckless homicide. Brown conferred with standby 

counsel, and then responded that he did not want the instruction. Also during the 
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conference, Brown objected that the self-defense instructions tendered by the State were 

covered by the trial court’s instructions. The trial court gave four self-defense

instructions over Brown’s objection.

During rebuttal closing argument, the State argued as follows without objection:

As you watch this [surveillance] video, you watch Vernale Givens, this 

man, this father, this husband, this son, this brother, take his last breaths. 

The last breaths of his life that he will ever take. Understand that you’re 

watching this because of what the defendant did. He didn’t just kill 

anyone, he killed a person who was mentoring people in the neighborhood. 

A person who was helping Bremiah Snyder get back on the right track. He 

took away all of the memories that his father will ever have of him. He 

didn’t just kill Vernale Givens, he killed a family. And what he is asking 

you to do is to go back into the jury room and justify it.

Tr. p. 1003-04.

The jury convicted Brown of murder, and he pleaded guilty to being a habitual 

offender. The trial court sentenced him to sixty years for murder, enhanced by thirty 

years for being a habitual offender, for a total executed sentence of ninety years. Brown 

now appeals.

DISCUSSION AND DECISION

I. Jury Instructions

Brown argues that the trial court erred in instructing the jury. Specifically, he first 

contends that the trial court erred in failing to instruct the jury that it had the option of 

convicting him of reckless homicide as a lesser-included offense of murder. However, 

Brown did not request that the jury be so instructed. Rather, when asked by the trial 

court whether he wanted a lesser-included offense instruction, Brown conferred with 
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standby counsel and refused it. A claim of error based on a trial court’s failure to give an 

instruction is waived if the defendant failed to tender that instruction. Russell v. State, 

981 N.E.2d 1280, 1286 (Ind. Ct. App. 2013). In such a case, the defendant must establish 

that the failure to give the instruction constituted fundamental error. Id. A fundamental 

error is one that constitutes a blatant violation of basic principles, creating or potentially 

creating substantial harm, with a resulting denial of fundamental due process to the 

defendant. Id. Indiana courts have held that it is not fundamental error for a court not to 

sua sponte give a jury instruction on a lesser-included offense. Sarwacinski v. State, 564 

N.E.2d 950, 951 (Ind. Ct. App. 1991) (citing Metcalf v. State, 451 N.E.2d 321, 326 (Ind. 

1983)). Brown has failed to demonstrate the existence of fundamental error in the trial 

court’s failure to sua sponte give a reckless homicide instruction to the jury. See Russell, 

981 N.E.2d at 1286 (stating that Russell failed to demonstrate the existence of 

fundamental error in the trial court’s failure to sua sponte give a voluntary manslaughter 

instruction to the jury).

Brown also argues that the trial court erred in giving Final Instruction No. 9 

because it “was covered by Final Instruction No. 7 and should not have been given. In 

sum, the jury was given a total of four instructions on self-defense, of which three were 

virtually the same instruction given over and over again. (Final Instructions Nos. 6, 7, 

and 9 . . . .) This unduly highlighted Brown’s claim and unfairly focused the jury’s 

attention on this matter and the instructions should not have been given over Brown’s 

objection.” Amended Appellant’s Br. p. 18.
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First, our review of the final instructions reveals that Final Instruction No. 9

advised the jury that the State had the burden of proving beyond a reasonable doubt that 

Brown did not act in self-defense. This burden of proof requirement is not included in 

Final Instruction No. 7. Thus, Final Instruction No. 9 was not covered by Final 

Instruction No. 7.

Further, regarding Brown’s argument that the repetitive nature of the instructions 

constituted fundamental error, we note that a certain amount of repetition is inherent in 

the nature of jury instructions. Gebhart v. State, 525 N.E.2d 603, 605 (Ind. 1988). The 

defendant’s substantive rights are not violated by instructions that are to some extent

repetitive. Id. Instructions become improper and reversal is required only when the 

instructions are so repetitive as to unduly emphasize a particular point or become 

argument by the court. Id. (citing Robbins v. Fugit, (1920), 189 Ind. 165, 126 N.E. 321 

(giving fourteen or fifteen instructions on undue influence in will contest case was 

needless repetition amounting to argument by the court which may mislead the jury).

Here, the trial court gave four instructions on self-defense. Our review of the 

instructions reveals minimal repetition. We do not find Final Instructions Nos. 6, 7, 8 

and 9 to be so repetitious as to violate Brown’s substantial rights or to become an 

argument of the court on one particular phase of the case. See Coleman v. State, 465 

N.E.2d 1130, 1133 (Ind. 1984) (stating that final instructions on felony murder were not 

so repetitious as to violate the substantial rights of the defendant or become argument of 
7

the court on a particular phase of the case). The trial court did not err in instructing the 

jury. 

II. Prosecutorial Misconduct

Lastly, Brown argues that the prosecutor committed misconduct during her rebuttal 

closing argument. As discussed above, the prosecutor remarked that:

As you watch this [surveillance] video, you watch Vernale Givens, this 

man, this father, this husband, this son, this brother, take his last breaths. 

The last breaths of his life that he will ever take. Understand that you’re 

watching this because of what the defendant did. He didn’t just kill 

anyone, he killed a person who was mentoring people in the neighborhood. 

A person who was helping Bremiah Snyder get back on the right track. He 

took away all of the memories that his father will ever have of him. He 

didn’t just kill Vernale Givens, he killed a family. And what he is asking 

you to do is to go back into the jury room and justify it.

Tr. p. 1003-04. Specifically, Brown argues that this argument constituted misconduct 

because it urged the jury to convict Brown for a reason other than his guilt. According to 

Brown, the prosecutor improperly “appealed to the jury’s sympathy for the victim’s 

family because of the victim’s role as a mentor, son and family member and the family’s 

need for justice.” Appellant’s Br. p. 21.

When an improper argument is alleged to have been made, the correct procedure is 

to request the trial court to admonish the jury. Hand v. State, 863 N.E.2d 386, 394 (Ind. 

Ct. App. 2007). If the party is not satisfied with the admonishment, then he or she should 

move for a mistrial. Id. Failure to request an admonishment or to move for a mistrial 

results in waiver. Id. Where a claim of prosecutorial misconduct has not been properly 

preserved, our standard of review is different from that of a properly preserved claim. Id. 
8

Specifically, the defendant must establish not only the grounds for the misconduct but 

also the additional grounds for fundamental error. Id. Fundamental error is an extremely 

narrow exception that allows a defendant to avoid waiver of an issue. Id. It is error that 

makes a fair trial impossible or constitutes clearly blatant violations of basic and 

elementary principles of due process presenting an undeniable and substantial potential 

for harm. Id.

Here, Brown neither requested an admonishment nor moved for a mistrial when 

the prosecutor made the comments that Brown now argues constituted prosecutorial 

misconduct. Brown has therefore waived this argument and must show that any 

misconduct resulted in fundamental error to succeed on appeal.

It is proper for a prosecutor to argue both law and fact during final argument and 

propound conclusions based upon his analysis of the evidence. Hollowell v. State, 707 

N.E.2d 1014, 1024 (Ind. Ct. App. 1999). A prosecutor is entitled to respond to 

allegations and inferences raised by the defense even if the prosecutor’s response would 

otherwise be objectionable. Lopez v. State, 527 N.E.2d 1119, 1125 (Ind. 1988).

Here, during trial, Brown testified that Snyder’s family, including Givens, 

harassed him for his part in sending Snyder to prison. Brown also claimed that when he 

drove to Givens’s tire repair business and approached Given in the parking lot, Givens 

shouted obscenities, lifted up his shirt to show a gun, and headed towards Brown. During 

closing argument, the State pointed out that Givens was a close-knit family man who 

mentored people in the neighborhood. This argument was simply a permissible response 
9

to Brown’s allegations. See Splunge v. State, 641 N.E.2d 628, 630 (Ind. 1994), 

superseded by rule on other grounds, (observing that the State’s alleged improper appeal 

to the jury’s sympathy was proper commentary upon argument of appellant’s counsel). 

We find no error, fundamental or otherwise.

The judgment of the trial court is affirmed.

FRIEDLANDER, J., and VAIDIK, J., concur.