ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PATRICIA CARESS MCMATH JEFFREY A. MODISETT
Indianapolis, Indiana Attorney General of Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
SUPREME COURT OF INDIANA
) Supreme Court Cause Number
v. ) 49S00-9908-CR-422
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION FOUR
The Honorable Mark F. Renner, Magistrate
Cause No. 49G04-9809-CF-145851
ON DIRECT APPEAL
March 9, 2001
After a trial by jury, Michael Dearman was convicted of murder and auto
theft. The trial court sentenced him to consecutive terms of sixty-five years
and three years respectively. In this direct appeal, Dearman raises two issues
for our review which we rephrase as follows: (1) did the trial
court err in refusing to give Dearmans tendered instructions on lesser included offenses;
and (2) did the trial court err in admitting an audiotape recording of
a statement Dearman gave police? Finding no error, we affirm.
On August 26, 1998, Floyd McClendons nude and partially decomposed body was discovered
under a pile of branches and debris in the backyard of a vacant
house on West 31st Street in Indianapolis. A police investigation eventually led
to Dearman who confessed to the killing, but claimed it just happened as
he tried to thwart McClendons sexual advances. In a statement given to
police, Dearman said he met McClendon at a liquor store one evening in
August 1998. Dearman told police he had been attempting to gather information
about some of his relatives with whom he apparently had little contact.
McClendon was acquainted with two of Dearmans uncles and offered to share what
he knew about them with Dearman. The two rode around in McClendons
car and eventually stopped at the vacant house. As the two sat
on the hood of McClendons car talking, Dearman claimed that McClendon made sexual
advances toward him and a scuffle ensued. Dearman said he was trying
to get McClendon off him and the next thing he knew McClendon was
dead. He immediately fled the scene in McClendons car. Returning later
with a friend, Anthony Goodall, Dearman took money, jewelry, and a credit card
from McClendons body. Dearman sold the jewelry to a local pawnshop and
eventually abandoned McClendons car.
During their investigation, police recovered a thirty-four pound concrete block that Goodall saw
Dearman remove from McClendons car. Dearman told Goodall the block was a
murder weapon. R. at 355. The pathologist testified at trial that
the cause of death was blunt force injury to the head. First,
there was an impact to the front of McClendons face, which broke the
bones to his eye sockets and fractured his upper jaw. Second, there
was an impact to the top of his head, which depressed a fragment
of bone down into the skull. This latter injury caved in McClendons
skull and required a great deal of force. According to the pathologist,
the injuries were consistent with having been caused by the concrete block that
Dearman discarded. In the opinion of the pathologist, if the concrete block
was in fact the fatal weapon, then it would have taken two blows
to inflict the injuries that McClendon sustained.
A jury convicted Dearman of murder and auto theft, and the trial court
sentenced him to a total executed term of sixty-eight years imprisonment. This
direct appeal followed. Additional facts are set forth below.
Dearman tendered three instructions on lesser included offenses which the trial court refused:
reckless homicide, involuntary manslaughter, and voluntary manslaughter. Dearman contends the trial
court erred in refusing to give the tendered instructions because there was a
serious evidentiary dispute that distinguished the greater offenses from the lesser included ones.
In deciding whether to give a requested instruction on a lesser included
offense, the trial court is required to determine whether the offense is either
inherently or factually included in the charged offense and whether there is a
serious evidentiary dispute regarding any element that distinguishes the greater offense from the
lesser offense. Evans v. State, 727 N.E.2d 1072, 1080-81 (Ind. 2000) (citing
Wright v. State, 658 N.E.2d 563, 566-67 (Ind. 1995)).
The only element distinguishing murder from reckless homicide is the defendants state of
mind. Reckless homicide occurs when the defendant recklessly kills another human being.
Ind.Code § 35-42-1-5. Murder, as charged in this case, occurs when
the killing is done knowingly. I.C. § 35-42-1-1. A person engages
in conduct knowingly if, when he engages in the conduct, he is aware
of a high probability that he is doing so. I.C. § 35-41-2-2(b).
One engages in conduct recklessly if he engages in the conduct in
plain, conscious, and unjustifiable disregard of harm that might result and the disregard
involves a substantial deviation from acceptable standards of conduct. I.C. § 35-41-2-2(c).
Had there been a serious evidentiary dispute as to whether Dearman acted
knowingly or recklessly, the trial court would have had to give an instruction
on reckless homicide. Lyttle v. State, 709 N.E.2d 1, 3 (Ind. 2000).
In like fashion, the element of intent distinguishes involuntary manslaughter from murder.
The trial judge would have been required to give an instruction on
involuntary manslaughter only if there was a serious evidentiary dispute about what Dearman
intended to do kill or batter. Lynch v. State, 571 N.E.2d
537, 539 (Ind. 1991).
Dearmans own statement to police confirmed that he killed McClendon, and the
States evidence showed that McClendon died as the result of being twice struck
in the head with a thirty-four pound concrete block. At least one
of the blows, resulting in a bone fragment being depressed into McClendons skull,
required a great deal of force. Contrary to Dearmans contention, this evidence
indicates that Dearman intended to kill McClendon, not to batter him. The
evidence also indicates that Dearman was aware there was a high probability that
his assault would result in McClendons death. There was no serious evidentiary
dispute on either point. We conclude the trial court did not err
in refusing to give Dearmans tendered instructions on reckless homicide and involuntary manslaughter.
The element distinguishing murder from voluntary manslaughter is sudden heat, which is an
evidentiary predicate that allows mitigation of a murder charge to voluntary manslaughter.
Bane v. State, 587 N.E.2d 97, 100 (Ind. 1992). It is characterized
as anger, rage, resentment, or terror sufficient to obscure the reason of an
ordinary person, preventing deliberation and premeditation, excluding malice, and rendering a person incapable
of cool reflection. Wilson v. State, 697 N.E.2d 466, 474 (Ind. 1998).
An instruction on voluntary manslaughter is supported if there exists evidence of
sufficient provocation to induce passion that renders a reasonable person incapable of cool
reflection. Roark v. State, 573 N.E.2d 881, 882 (Ind. 1991). Any
appreciable evidence of sudden heat justifies an instruction on voluntary manslaughter. Id.
The trial court expressed its belief that there was a serious evidentiary dispute
concerning whether Dearman acted under sudden heat, namely: that he was provoked by
McClendons alleged sexual advances. However, the trial court refused to give Dearmans
tendered instruction on voluntary manslaughter relying on this Courts decision in Battles v.
State, 688 N.E.2d 1230 (Ind. 1997). In that case, we held that
the defendant was not entitled to an instruction on the defense of accident
when the only evidence introduced at trial to support such a defense was
the defendants own out-of-court statement. Id. at 1234. Specifically, we declared
[A] defendant cannot make exculpatory statements outside court, present no evidence in defense,
preclude the state from cross-examining the assertions, and then be entitled to have
the self-serving statements constitute substantive evidence supporting an instruction on the defense of
Here, the record shows that Dearman elected not to testify or present evidence
on his own behalf. The only evidence of alleged sudden heat was
contained in Dearmans out-of-court statement to police, which the State introduced at trial.
The trial court reasoned that like the defense of accident, a serious
evidentiary dispute concerning sudden heat could not be created solely by the defendants
out-of-court statement. Accordingly, the trial court refused Dearmans tendered instruction of voluntary
manslaughter. We conclude the trial court erred in its reliance on Battles.
However the error does not warrant reversal and a new trial.
The quote in Battles on which the trial court relied was part of
a larger quote in which we declared:
While a criminal defendant has the constitutional right not to testify at trial,
the defendant has the burden of proof on any affirmative defense. In
this case the appellant did not testify at trial or present other evidence
to support his affirmative defenses. While defendants have the prerogative to choose
the trial strategy deemed best for them, appellant cannot make exculpatory statements to
a court appointed psychiatrist, present no evidence on his defense, preclude the State
from cross-examining appellants assertions made through the psychiatrist, and then expect such self-serving
statement to constitute substantive evidence for his tendered instructions.
Clemens v. State, 610 N.E.2d 236, 241 (Ind. 1993) (emphasis added) (quoting Brown
v. State, 485 N.E.2d 108, 111 (Ind. 1985)). Unlike the defense of
accident, mitigation in the form of sudden heat is not an affirmative defense
on which the defendant bears an initial burden of proof by a preponderance
of the evidence. Instead, the defendant bears no burden of proof with
respect to sudden heat, but only bears the burden of placing the issue
in question where the States evidence has not done so. Bradford v.
State, 675 N.E.2d 296, 300 (Ind. 1996); Wolfe v. State, 426 N.E.2d 647,
652 (Ind. 1981). In this case, the States evidence placed the question
of sudden heat before the jury. Dearman had no further obligation on
this point, and if the evidence was sufficient to raise a serious evidentiary
dispute, then he was entitled to a jury instruction on the lesser offense
of voluntary manslaughter. However our review of the record shows no such
dispute, and therefore the trial court properly refused the instruction.
In his statement to police, Dearman said that as the two men sat
on McClendons car at the vacant property, McClendon began talking about gay men
and told Dearman that he was nice looking. R. at 262.
Dearman told police that McClendon began biting on his neck and grabbing his
thighs. R. at 262. Dearman said he resisted, and McClendon threw
him to the ground. R. at 262. Dearman then stated that
he was afraid, tried to get McClendon off him, and the next thing
he knew McClendon was dead. R. at 262.
At best, the statement shows that Dearman got into a scuffle with McClendon
when McClendon made sexual advances toward him. There is no indication in
the record before us that Dearman was in such a state of terror
or rage that he was rendered incapable of cool reflection. Further, the
evidence showed that Dearman struck McClendon twice in the head with a thirty-four
pound concrete block. Lifting and striking a person in the head twice
with such a large object in a claimed attempt to thwart sexual advances
does not indicate that the killing was done in sudden heat and without
reflection. We conclude there was no appreciable evidence of sudden heat and
thus no serious evidentiary dispute on the element distinguishing murder from voluntary manslaughter.
Accordingly, the trial court properly refused to give Dearmans tendered instruction on
this lesser included offense.
Dearman next contends the trial court erred in allowing into evidence his tape-recorded
statement to police along with a typed transcript of the recording. According
to Dearman, the recording was largely inaudible and thus it likely caused the
jury to speculate as to its content.
To be admissible at trial, a recording must be of such clarity as
to be intelligible and enlightening to the jury. Lamar v. State, 258
Ind. 504, 282 N.E.2d 795, 800 (1972). However, every word of a
recording need not be intelligible. Patton v. State, 501 N.E.2d 436, 438
(Ind. 1986). Rather, the tape recording, taken as a whole, must be
of such clarity and completeness to preempt speculation in the minds of the
jurors as to its content. Id. The trial court has wide
discretion in deciding whether to admit a tape recording as evidence. McCollum
v. State, 582 N.E.2d 804, 812 (Ind. 1991); Sharp v. State, 534 N.E.2d
708, 712 (Ind. 1989).
We have listened to the tape recording and viewed the transcript. Although
a few of Dearmans words and comments are inaudible or indiscernible, Dearmans account
of the events on the night McClendon was killed and the days that
followed is abundantly clear on the tape. Thus, the recording as a
whole is sufficiently clear and intelligible to be admissible. The trial court did
not abuse its discretion in admitting the recording as evidence.
We affirm the judgment of the trial court.
SHEPARD, C.J., and SULLIVAN and BOEHM, JJ., concur.
DICKSON, J., dissents without opinion.