Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
May 4, 2000
Voluntary Manslaughter is a lesser included offense of Murder, distinguishable by the factor
of a defendant having killed, while acting under sudden heat. Ind. Code
§ 35-42-1-3 (1993). To establish sudden heat, the defendant must show sufficient
provocation to enge
nder . . . passion. Johnson v. State, 518 N.E.2d
1073, 1077 (Ind. 1988). Sufficient provocation is demonstrated by such emotions as
anger, rage, sudden resentment, or terror [that are] sufficient to obscure the reason
of an ordinary person, prevent deliberation and premeditation, and render the defendant incapable
of cool reflection. Id.
To obtain a conviction for Murder, the State is not required to negate
the presence of sudden heat because [t]here is no implied element of the
absence of sudden heat in the crime of murder. Earl v. State,
715 N.E.2d 1265, 1267 (Ind. 1999). However, once a defendant places sudden
heat into issue, the State then bears the burden of negating the presence
of sudden heat beyond a reasonable doubt. McBroom v. State, 530 N.E.2d
725, 728 (Ind. 1988). It may meet this burden by rebutting the
defendants evidence or affirmatively showing in its case-in-chief that the defendant was not
acting in sudden heat when the killing occurred. See Earl, 715 N.E.2d
at 1267-68; Gregory v. State, 540 N.E.2d 585, 593 (Ind. 1989).
Defendant claims that a sudden rage came over him in that he snapped
tnessing Marianne and Harris having sexual intercourse. He alleges that his
actions were the result of him experiencing the whole relationship, anger, the whole
five years, everything. Given Defendants recent prior live-in relationship with Marianne and
the fact that he fathered one of her children, we agree that this
evidence adequately introduced the element of sudden heat. However, we find that
the totality of the evidence presented in this case is sufficient to support
the courts conclusion that Defendant did not act in sudden heat.
The State directs us to Defendants own testimony where he detailed the events
that took place on the night of the murder: After ascending the
stairs and realizing that Marianne was with someone in the upstairs bedroom, Defendant
went downstairs to arm himself with knives. He then cut the telephone
lines before going back upstairs, standing outside the bedroom for a minute, minute
and a half.
Next, he entered the bedroom and engaged Marianne and
Harris in a short conversation before the melee ensued. The two men
soon spilled out in the hallway with Defendant jump[ing] over the railing of
the staircase . . . [and] over the couch to pursue Harris as
he attempted to get out of the house, ultimately stopping Harris for the
fatal fight at the front door.
We find the evidence sufficient to conclude that the State negated Defendants claim
of sudden heat beyond a reasonable doubt. There is ample evidence to
show that Defe
ndant acted with the premeditation and deliberation sufficient to support the
jurys verdict of murder, rather than voluntary manslaughter. See, e.g., Ellis
v. State, 508 N.E.2d 790, 791 (Ind. 1987) (affirming a jury verdict rejecting
a claim of sudden heat where the victim stopped fighting and attempted to
flee the fight scene).
In reviewing sufficiency claims, we neither reweigh the evidence nor judge the cred
of the witnesses. We only consider the evidence favorable to the jurys
verdict, together with all reasonable inferences to be drawn therefrom. Allen v.
State, 575 N.E.2d 615, 616 (Ind. 1991). If there is substantial
evidence of probative value to support the conclusion of the jury, we will
affirm the judgment. Blanche v. State, 690 N.E.2d 709, 712 (Ind. 1998).
To convict a defendant of attempted murder, the State must prove beyond a
reasonable doubt that the defendant possessed the intent to kill while taking a
substantial step toward the crime of murder. Ind. Code §§ 35-41-5-1(a) and
Greenlee v. State, 655 N.E.2d 488, 492 (Ind. 1995). Intent
may be inferred from the use of a deadly weapon in a manner
likely to cause death or great bodily harm. Mitchem v. State, 685 N.E.2d
671, 676 (Ind. 1997) (quoting Johnson v. State, 455 N.E.2d 932, 936 (Ind.
At trial, Marianne testified that she woke up and saw Defendant standing over
[her], maybe two feet away . . . with [a] knife in
each hand. She then testified that both she and Harris jumped back
against the bedroom wall. At that point, Defendant asked Marianne if the
man in bed with her was the reason [why she] wouldnt take him
back. Apparently not satisfied with her no answer, Defendant then a
were all going to die tonight. And according to Marianne, Thats when
[Defendant] went to stab me, so that Harris grabbed [the] comforter that was
on [the] bed and threw it over her in an effort to frustrate
We find there was sufficient evidence from which a jury could reasonably have
nferred that Defendant acted with the requisite intent to kill Marianne with the
knife and that his actions in the bedroom constituted a substantial step towards
the crime of killing her.
During the course of Mariannes cross-examination, defense counsel attempted to elicit her testimony
that Harris was a dangerous person, who was the initial a
ggressor in the
fatal encounter with Defendant. (R. at 147; So, its just as possible
that James Harris struck out at [Defendant] as vis[a] versa, is it not?).
Before beginning her redirect of Marianne, the deputy prosecutor approached the bench with
defense counsel and announced at sidebar that the choking incident that ha
the 22nd I think is now fair game. Her basis for this
statement was that [D]efendant is now alleging self-defense, although it was not listed
as a defense. The deputy prosecutor pointed out that the evidence had
entered the specter that somehow James Harris was the aggressor and . .
. a dangerous person.
Defense counsel objected to this rationale, claiming, Theres no evidence to show that
[Defendant] had any kind of disagreement with James Harris prior to this.
eless, defense counsel did confirm to the trial court that he was going
to raise self-defense in presenting the remainder of his case.
The States position is that the evidence of uncharged misconduct was properly admitted
under the intent exception to Indiana Evidence Rule 404(b) which provides that [e]vidence
of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. Id. (emphasis
When the State attempts to introduce evidence of a defendants uncharged misco
trial court must perform a two-part inquiry: first, the court must determine whether
the evidence of other crimes, wrongs, or acts is relevant to a matter
at issue other than the defendants propensity to commit the charged act.
Hicks v. State, 690 N.E.2d 215, 221 (Ind. 1997). If the evidence
is offered only to produce the forbidden inference, that is, that the defendant
had engaged in other, uncharged misconduct and that the charged conduct was in
conformity with the uncharged misconduct, then the evidence is inadmissible. Id. at 219;
see also Poindexter v. State, 664 N.E.2d 398, 400 (Ind. Ct. App. 1996).
The second part of the two-part inquiry involves the trial court balanc[ing] the
probative value of the evidence against its prejudicial effect pursuant to Rule 403.
Hicks, 690 N.E.2d at 221 & n.10.
The trial court has
wide latitude, however, in weighing the probative value of the evidence against the
possible prejudice of its admission, and its ruling will be reviewed only for
an abuse of discretion. Poindexter, 664 N.E.2d at 400.
We noted that intent the defendants culpability is a matter to
be proven in vi
rtually every criminal prosecution, so that applying a broad construction
to the intent exception of Rule 404(b) might cause it to overwhelm the
rules primary objective of prohibiting [impermissible character] evidence of other crimes, wrongs, or
acts. Id. at 797. However, we then noted that the intent
exception to Rule 404(b) would
be available when a defendant goes beyond merely denying the charged culpability and affirmatively presents a claim of particular contrary intent. When a defendant alleges in trial a particular contrary intent, whether in opening statement, by cross-examination of the States witnesses, or by presentation of his own case-in-chief, the State may respond by offering evidence of prior crimes, wrongs, or acts to the extent genuinely relevant to prove the defendants intent at the time of the charged offense.
Id. at 799. We ultimately reversed the defendants child molestation conviction, finding that his pre-trial assertion to police that he was not a devious character was insufficient to establish the requisite claim of particularly contrary intent. Id. at 800.
In the present case, Defendant went
beyond merely denying the charged culpability and
affirmatively presented a claim of particular contrary intent self defense
his cross-examination of Marianne. Here, the evidence of Defendants prior bad act
was that he recently fought with and choked Marianne after she insisted on
ending their relationship.
At first blush, this evidence of Defendants prior bad act
against Marianne may
seem irrelevant in rebutting Defendants assertion of self-defense against Harris. However, this
evidence was particularly relevant and probative in aiding the jurys decision with regards
to Defendants alleged murder of Harris. First, it directly rebutted Defendants claim
that Harris was the dangerous aggressor and tended to show that Defendant initiated
their fatal fight after he saw Harris in bed with Marianne and asked,
Is he the reason why you wont take me back? Second, this
evidence of Defendants prior misconduct was close enough in time (approximately 48 hours)
to be genuinely relevant in showing Defendants intent at the time of the
murder. See Hicks, 690 N.E.2d at 220 (A trial courts discretion in
admitting evidence of the defendants prior bad acts includes determining the significance of
the similarity or remoteness of evidence.) (citing Fisher v. State, 641 N.E.2d 105
(Ind. Ct. App. 1994)).
This evidence was also relevant and probative in that it directly involved and
shed light on Defendants relationship with Marianne, whom the jury considered as Defendants
second alleged victim in deciding the States attempted murder charge.
Ross v. State, 676 N.E.2d 339, 346 (Ind. 1996) ([A] defendants prior bad
acts are . . . usually admissible to show the relationship between the
defendant and the victim.).
Under these circumstances, we conclude that the probative value of this evidence su
outweighed any danger of unfair prejudice. Therefore, the trial court did not
abuse its discretion in permitting the State to introduce evidence of this recent,
uncharged prior altercation under the intent exception to Evidence Rule 404(b).
Finally, if the court concludes that the lesser offense is either inherently or
factually included in the offense charged, then part three requires the court to
determine whether a s
erious evidentiary dispute exists as to which offense was committed
by the defendant, given all the evidence presented by both parties. Id.
If a serious evidentiary dispute does exist, it is reversible error
not to give the instruction on the inherently or factually included lesser offense.
In this case, the trial court held a hearing on Defendants tendered instructions after the close of evidence and before closing arguments began. During this hea ring, Defendant argued that he was entitled to the lesser included instructions given the evidence adduced at trial. The record indicates that the trial court then performed the type of factual analysis contemplated by Wright and Wilson to determine that no serious evidentiary dispute existed warranting the lesser included offense instructions on involuntary manslaughter and reckless homicide. (Id.) Because it is apparent that the trial court refused the instructions on these grounds, as opposed to reject[ing] the tendered instructions on the basis of its view of the law, we review its ruling only for an abuse of discretion. Brown v. State, 703 NE.2d 1010, 1019 (Ind. 1998) (establishing an abuse of discretion standard of review if the trial court performed a factual analysis and a de novo standard of review if the trial court performed a legal analysis).
Following a similar analysis as presented above, we again note that the record
reveals no serious evidentiary dispute concerning the mens rea element. Therefore, we
agree with the trial court when it ruled that Defendants professed intent to
kill excludes any arguable grounds to suggest that he didnt have an intent
to kill, and thus [r]eckless [was] out too. The trial court did
not abuse its discretion in refusing to give the instruction.
In general, the legislature has prescribed standard sentences for each crime, allowing the
sentencing court limited discretion to enhance each sentence to reflect aggravating ci
reduce the sentence to reflect mitigating circumstances. When the trial court imposes
a sentence other than the presumptive sentence, or imposes consecutive sentences where not
required to do so by statute, this Court will examine the record to
insure that the court explained its reasons for selecting the sentence it imposed.
Archer v. State, 689 N.E.2d 678, 683 (Ind. 1997) (citing Hammons v.
State, 493 N.E.2d 1250, 1254 (Ind. 1986)). The trial courts statement of
reasons must include the following components: (1) identification of all significant aggravating and
mitigating circumstances; (2) the specific facts and reasons that lead the court
to find the existence of each such circumstance; and (3) an articulation demonstrating
that the mitigating and aggravating circumstances have been evaluated and balanced in determining
the sentence. Mitchem v. State, 685 N.E.2d 671, 678 (Ind.1997) (citing Jones
v. State, 675 N.E.2d 1084, 1086 (Ind.1996)).
At the time Defendant committed these crimes, murder carried a presumptive 50-year sentence,
with not more than ten years added for aggravating circumstances and not more
than ten years subtracted for mitigating circumstances. See Ind. Code § 35-50-2-3
(Supp. 1995). The trial court sentenced Defendant to an enhanced term of
60 years and listed no significant mitigating factors in its sentencing order.
The trial court did identify several significant aggravating circumstances to include: (1) Defendant
stabbing his ex-girlfriends new boyfriend to death; (2) Defendant trying to stab his
ex-girlfriend; (3) Defendants prior criminal history, including a misdemeanor battery conviction, and convictions
for and pending charges concerning his status as a habitual traffic offender; (4)
the risk that Defendant would commit future crimes; and (5) the fact that
Defendants prior lenient treatment has had no deterrent effect.
It is within the sentencing courts discretion to determine whether remorse should be considered as a significant mitigating factor. Battles v. State, 688 N.E.2d 1230, 1237 (Ind. 1997); see also Jones v. State, 698 N.E.2d 289, 291 (Ind. 1998) (What constitutes a significant mitigating factor is generally within the discretion of the trial court.); Ross v. State, 676 N.E.2d 339, 347 (Ind.1997) (stating that the proper weight to be afforded by the trial court to the mitigating factors may be to give them no weight at all).
In light of the extremely brutal nature of Harriss death, we find no abuse of the trial courts sentencing discretion in choosing not to assign any significant weight to Defendants claim of remorse. Furthermore, we find that any weight that might have been assigned to this proffered mitigating circumstance is more than offset by Defendants prior criminal history and the trial courts decision to impose concurrent in lieu of consecutive sentences for Defendants murder and attempted murder convictions. As such, we conclude that the sentence was not manifestly unreasonable.