Dennis A. Vowels
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Deputy Attorney General
Dennis A. Vowels
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
voluntary manslaughter because the evidence was insufficient to convict him of murder.
We affirm the trial court.
garage to resume moving items into Strueh's apartment. As Howell returned from the
garage, Jackson leaned over the balcony and pointed the barrel of a shotgun in Kneer's face.
Jackson then turned the gun on Howell and, with the gun no farther than two feet from
Howell's head, pulled the trigger inflicting a fatal wound. Immediately after firing the
shotgun, Jackson said I told you I would put a cap in your ass. Jackson then threatened
to come down there and put another one in you and walked toward the staircase. Kneer
told Jackson to stop, but Jackson instead again raised the shotgun. Kneer then fired the
handgun in Jackson's direction, but, according to Kneer, intentionally missed Jackson.
Jackson was arrested when the police arrived seconds later.
The foregoing is largely Kneer's account. Its essential points were corroborated by the testimony of several other witnesses. Kristin Cardin shared an upstairs apartment with her boyfriend Todd Hochstetler. She saw and heard the initial verbal exchange, but after Jackson pulled the handgun and the initial struggle began, Cardin went into her apartment to call 911. Hochstetler then saw Howell punch Jackson two or three times, but he also returned to the apartment believing the fight between Howell and Jackson had ended. He soon saw Jackson leaving his apartment with a shotgun in hand. Hochstetler shut the door to his apartment and remained inside where he heard the shots fired. Cardin also heard the shots during the 911 call.
Dan and Vicky Bealmear, who resided in another upstairs apartment, also heard the verbal exchange between Jackson and Howell, and saw Jackson as he was walking up the steps. They observed Jackson enter his apartment alone, heard him loading a gun, then saw
him leave his apartment with a shotgun. Jackson politely said excuse me as he passed the
Bealmears on the balcony, then proceeded a few steps where he stopped, held the gun over
the railing, and shot Howell.See footnote
Finally, Heath Garrett was at his girlfriend's first floor apartment. He went outside to smoke a cigarette after hearing the commotion. He observed Jackson leave his apartment with the shotgun, walk a short distance, reach over the balcony, mutter a cussword, and then shoot Howell.
Jackson was charged with murder. The jury was also instructed on the lesser included offense of voluntary manslaughter, but found Jackson guilty of murder.
of cool reflection. Horan v. State, 682 N.E.2d 502, 507 (Ind. 1997) (internal quotation
marks and citations omitted). Sudden heat is a mitigating factor that reduces otherwise
murderous conduct to voluntary manslaughter, see Ind. Code § 35-42-1-3(b) (1998), but is
not an element of voluntary manslaughter. See Horan, 682 N.E.2d at 507. Although the
State has the burden of negating the existence of sudden heat beyond a reasonable doubt, in
order to inject that issue at all the defendant must point to some evidence supporting sudden
heat whether this evidence be in the State's case or the defendant's own. Bradford v. State,
675 N.E.2d 296, 300 (Ind. 1996); see also Clark v. State, 668 N.E.2d 1206, 1209 (Ind. 1996);
Gregory v. State, 540 N.E.2d 585, 593 (Ind. 1989); McBroom v. State, 530 N.E.2d 725, 728
(Ind. 1988); Raub v. State, 517 N.E.2d 80, 82 (Ind. 1987); Smith v. State, 502 N.E.2d 485,
489 (Ind. 1987).See footnote
Jackson contends that he was sufficiently provoked by Howell and that there was inadequate time to engage in cool reflection before the firing of the fatal shot. He points to the following four factors in support of his claim:
1) In the initial struggle, Howell struck Jackson in the face two to four times and knocked Jackson to the ground.
2) Howell was yelling and swearing at Jackson.
3) Howell provoked Jackson by calling him a pussy.
4) The interval between Jackson's being knocked to the ground by Howell and firing the fatal shot at Howell was a minute or less.
manslaughter. Potts v. State, 594 N.E.2d 438, 439 (Ind. 1992) (citing Perigo v. State, 541
N.E.2d 936, 939 (Ind. 1989).See footnote
At the beginning of their confrontation, Howell merely joined
Hancock in requesting Jackson to go upstairs. It was only after Jackson revealed that he had
a gun and knife and threatened Howell that any type of physical confrontation occurred.
Howell's subsequent pushing or punching of Jackson was not itself provocation, but rather
a response to Jackson's threat on his life. Moreover, Jackson did not immediately shoot
Howell after the physical struggle. Rather, he walked to his second floor apartment where
he took the time to load a shotgun and walk past neighbors before shooting Howell. Under
these circumstances, the jury could have concluded that this was sufficient time for cool
reflection. Finally, Jackson's words after the shooting also support the inference that
Jackson was carrying out his earlier desire to put a cap in [Howell's] ass, which existed
prior to the physical altercation between the men. In sum, these facts are sufficient to
support the jury's conclusion that Jackson was not acting in sudden heat when he shot
As a final point, Jackson contends that his case presents an issue of inherently improbable testimony . . . of incredible dubiosity. See Jenkins v. State, 686 N.E.2d 1278, 1278 (Ind. 1997) (internal quotation marks and citations omitted). The incredible dubiosity rule allows a reviewing court to reverse the trial court when a sole witness presents
inherently contradictory testimony which is equivocal or the result of coercion and there is
a complete lack of circumstantial evidence of the appellant's guilt. Tillman v. State, 642
N.E.2d 221, 223 (Ind. 1994). Jackson asserts that Kneer's testimony falls under this
doctrine. We disagree.
Kneer was not the only person who saw Jackson shoot Howell. Dan and Vicky Bealmear and Heath Garrett also witnessed the shooting. Kristin Cardin and Todd Hochstetler heard the verbal exchange between Howell and Jackson, and Hochstetler saw Jackson with a shotgun seconds before both heard shots fired. Kneer's testimony was in no way contradictory, equivocal, or the result of coercion. It is corroborated by a wealth of other evidence.
Converted from WP6.1 by the Access Indiana Information Network