Hilary Bowe Oakes
Jeffrey A. Modisett
Arthur Thaddeus Perry
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
Hilary Bowe Oakes
Jeffrey A. Modisett
Arthur Thaddeus Perry
refusing his voluntary manslaughter instruction; (2) the prosecutor committed misconduct;
(3) there is insufficient evidence to support the jury's verdict in light of evidence of his
mental disorder; and (4) the trial court erred in denying his motion to correct error based on
newly discovered evidence. We affirm the trial court.
told him to do it. Favors died as the result of two gunshot wounds to the head. The
pathologist testified that both were contact wounds, one in front of the left ear and the other
below and behind the left ear.
Allen was charged with murder and interposed an insanity defense. Although the jury was given the alternative verdicts of not responsible by reason of insanity and guilty but mentally ill, it found Allen guilty of murder.
defendant incapable of cool reflection.' Stevens v. State, 691 N.E.2d 412, 426 (Ind. 1997),
cert. denied ___ U.S. ___, 119 S. Ct. 550, 142 L. Ed. 2d (1998) (quoting Dickens v. State,
260 Ind. 284, 293, 295 N.E.2d 613, 618 (1973)). Accordingly, the propriety of the trial
court's refusal of Allen's instruction turns on whether there was a serious evidentiary
dispute as to the existence of sudden heat. Because the trial court specifically made a
finding that there was no evidentiary dispute,See footnote
we review its rejection of the tendered
instruction for an abuse of discretion. Brown v. State, 703 N.E.2d 1010, 1019 (Ind. 1998)
(citing Champlain v. State, 681 N.E.2d 696, 700 (Ind. 1997)).
We have stated many times that words alone cannot constitute sufficient provocation to warrant a jury instruction on voluntary manslaughter. Stevens, 691 N.E.2d at 426; Champlain, 681 N.E.2d at 702; Matheney v. State, 583 N.E.2d 1202, 1205 (Ind. 1992). This is especially true when the words at issue are not intentionally designed to provoke the defendant, such as fighting words. Stevens, 691 N.E.2d at 426 (citing Perigo v. State, 541 N.E.2d 936, 941 (Ind. 1989) (Dickson, J., concurring and dissenting)). Here, there was no evidence that Favors and Allen even exchanged words in the car.See footnote 2 The trial court did not abuse its discretion by refusing Allen's voluntary manslaughter instruction.
mental disorder. He asks that this Court replace the jury's verdict with a finding of not
responsible by reason of insanity or guilty but mentally ill.
The jury was correctly instructed that Allen bore the burden of proving by a preponderance of the evidence that he was insane at the time of the offense. See Ind. Code § 35-41-4-1(b) (1998). The jury was also instructed that a person is not responsible for having engaged in prohibited conduct if, as a result of mental disease or defect, he was unable to appreciate the wrongfulness of the conduct at the time of the offense. See id. § 35-41-3-6(a). The jury was further instructed [i]f you are convinced from all of the evidence in the case that the defendant was more probably insane than sane, then you should find the defendant not responsible by reason of insanity. However, if the jury found that Allen did appreciate the wrongfulness of his conduct but had a psychiatric disorder at the time of the offense that substantially disturbed his thinking, feeling or behavior and impaired his ability to function, then it was instructed that it should find him guilty but mentally ill. See id. § 35-36-1-1 (1998). In considering these alternative verdicts, the jury was instructed that expert testimony should be weighed and scrutinized in the same manner as any other testimony and that [l]ay witnesses with sufficient personal observation generally may state opinions or conclusions as to another person's mental soundness, or sanity, when relevant.
Allen points to the testimony of lay witnesses and a psychiatrist that he retained. Dr.
Davis testified that in his opinion Allen was insane at the time of the offense.See footnote
Robyn testified that she believed Allen had a mental disease because he reacts and doesn't
think about what he does . . . he's sweet as pie one minute but then all of a sudden he just
goes . . . berserk and nobody knows why . . . . She agreed with defense counsel that Allen
was not in his right mind at the time of the shooting because he was feeling so insecure
at [Parker's] house. Everything was just crazy. I just think his mind was going twenty
thousand (20,000) miles an hour, you know, and he couldn't rationalize exactly what he was
thinking. Allen's other sister Kristi testified that she also believed Allen was suffering from
a mental disease. Kristi testified that Allen believed in ghosts and demons, claimed to have
healing powers, and compulsively changed his clothes and showered several times per day.
Allen also points to the testimony of a police officer who testified that shortly after the
killing Allen told him that a voice had told him to do it. Finally, his father testified that
Allen was not acting like himself immediately after the shooting.
The two court appointed doctors offered a different view. Although Dr. Schuster opined that Allen was suffering from a mixed personality disorder, he concluded that Allen was not suffering from a psychotic illness and that he did have the knowledge, understanding of what was right and wrong such that he was sane at the time of the offense.
Dr. Dixon testified that she did not have enough information to say definitely whether Allen
was suffering from a personality disorder and concluded that Allen was probably of sound
mind at the time of the offense. She explained that her probably limitation was based on
the fact that she did not interview Allen on the day of the offense. In addition to the
testimony of the two court-appointed doctors, the State points to the lay testimony of two
police officers who observed Allen minutes after the shooting. Deputy Carter testified that
Allen appeared to be aware of what he way saying, responded to his questions appropriately,
and never stared blankly or appeared to be in a trance of any sort. Deputy Garrard testified
that Allen appeared to be aware of his surroundings and what was going on and spoke clearly
A determination of sanity is a question for the jury, and the jury may consider the testimony of both experts and lay witnesses in making its determination. See Gambill v. State, 675 N.E.2d 668, 672 (Ind. 1996); Barany v. State, 658 N.E.2d 60, 63 (Ind. 1995). It is the jury's exclusive prerogative to weigh conflicting evidence, Robinson v. State, 699 N.E.2d 1146, 1148 (Ind. 1998), and our standard of review of its verdict is a deferential one. Gambill, 675 N.E.2d at 672.See footnote 5 Because the defendant is appealing from a negative judgment, the jury's verdict will be reversed only when the evidence is without conflict and leads to but one conclusion which the trier of fact did not reach. Id. (quoting Metzler v. State, 540
N.E.2d 606, 610 (Ind. 1989)).
The jury was properly instructed on the alternative verdicts of not responsible by reason of insanity and guilty but mentally ill. Its guilty verdict was a rejection of Allen's contention that he was suffering from a mental illness at the time of the offense and is supported by both expert and lay testimony. Although Allen focuses on the testimony of the psychiatrist he retained and selective lay testimony, this testimony was not uncontested and it does not lead inexorably to the conclusion that he was either mentally ill or insane at the time of the offense. Accordingly, we affirm the jury's guilty verdict.
[her] swerving the car. The affidavit submitted by Allen's trial counsel stated that, because
Robyn had denied witnessing any argument between Allen and Favors before the shooting
and denied seeing Favors reach for anything, it was his legal opinion that a self-defense
claim was ill-advised. His affidavit concluded that had Robyn told defense counsel about
the argument and seeing Favors reach for something from the beginning it would have
materially affected the defense.See footnote
In order to obtain relief because of newly discovered evidence, the defendant must show that (1) the evidence has been discovered since the trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due diligence was used to discover it in time for trial; (7) the evidence is worthy of credit; (8) it can be produced on a retrial of the case; and (9) it will probably produce a different result. Bradford v. State, 675 N.E.2d 296, 302 (Ind. 1996). The movant has the burden of showing that the newly discovered evidence meets all nine prerequisites for a new trial. Webster v. State, 699 N.E.2d 266, 269 (Ind. 1998). Although determining the credibility of witnesses is normally the function of the jury, when ruling on a motion for new trial based on newly discovered evidence the trial court must assess the credibility of any proffered new evidence. Id. We review the trial court's ruling for an abuse of
We cannot conclude that the trial court abused its discretion in denying the motion for new trial. First, there was a substantial basis to conclude that Robyn's affidavit was not worthy of credit. It not only conflicted with her pretrial statements and sworn trial testimony but also conflicted with other evidence surrounding the crime. Allen never claimed in his statements to police that the killing was in self-defense but instead boasted that he had splattered Favors' brain all over the windshield. Similarly, in an interview with a television station the day after the shooting Allen stated that he hated Favors because he did my sister wrong, but did not say anything about self-defense. Finally, the physical evidence conflicts with Robyn's affidavit. Both wounds to Favors' head were contact wounds, and one shell casing was found in the back seat and the other in the front. The placement of the latter casing would have required Allen to reach around to the front seat while shooting. In short, the trial court had ample basis to conclude that Robyn's amended version of events was simply not worthy of credit.
In view of these problems with Robyn's affidavit, the trial court was also within its discretion in concluding that Robyn's changed testimony was not likely to produce a different result at a new trial. Assuming that Robyn would testify at a new trial consistent with her affidavit, the State would thoroughly impeach her testimony based on the very different version of events given in her pretrial statements to police and her prior sworn trial testimony. Moreover, as explained above, Allen's pretrial statements to police and the physical evidence also contradicted Robyn's changed version. A jury would almost certainly
reject the highly improbable self-defense claim and equally improbable sudden heat
contention necessary to warrant a voluntary manslaughter verdict. In sum, the trial court did
not abuse its discretion in denying Allen's motion to correct error. See Bellmore v. State,
602 N.E.2d 111, 122 (Ind. 1992) (affirming the denial of request for new trial based on the
alleged newly discovered evidence that a witness's trial testimony was not entirely true
because it was not worthy of credit and would not produce a different result).
SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.
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