ATTORNEY FOR APPELLANT
Michael Gene Worden
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Randi E. Froug
Deputy Attorney General
SUPREME COURT OF INDIANA
WALLACE WILKINS, )
Appellant (Defendant Below), )
v. ) Supreme Court
) Cause No. 49S00-9803-CR-160
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-9701-CF-002372
ON DIRECT APPEAL
October 4, 1999
Wallace Wilkins was convicted of murder and sentenced to fifty-five years
imprisonment. In this direct appeal, Wilkins contends that the trial court erred by instructing
the jury on the lesser included offense of voluntary manslaughter. We affirm the decision
of the trial court.Factual and Procedural Background
On January 4, 1997, Wilkins went to Robert Tony Bond's house to see Tony and
his brother, David, who was Wilkins' best friend. The three men then visited the Bonds'
grandmother and completed several errands. Later that afternoon, all three returned to
Tony's house. Tony had left two dollars for gas on the dashboard of Wilkins' car. When
Wilkins discovered that David had taken the money, he began to argue with David. The fight
escalated to the point that David pulled out a screwdriver and hit Wilkins in the neck.
Wilkins then went to the hospital, where he received one stitch for his wound.
Wilkins called Tony from the hospital to threaten David, and proceeded to his uncle's house.
Wilkins told his uncle what had transpired and threatened to kill David. The two decided
to go get David using a metal pole that Wilkins' uncle provided.
Wilkins and his uncle found David on his front porch. Wilkins delivered a number
of blows with the pole to David's head and body while repeating that David had tried to kill
him. Wilkins' uncle attempted to intercede, but Wilkins hit David several more times before
David fell to the ground. When Wilkins and his uncle left the porch, David was
At approximately 5:30 p.m., the police were called because two women had seen
David bleeding on the porch. David was pronounced dead slightly before 6:00 p.m. He had
eleven blunt force injuries to his head and body. His death was the result of a blow to the
head that caused bleeding into his brain. The jury convicted Wilkins of murder and he was
sentenced to fifty-five years imprisonment. Voluntary Manslaughter Instruction
Wilkins was charged with murder and tendered instructions on involuntary
manslaughter and reckless homicide, but objected to the State's proposed instruction on
voluntary manslaughter. The trial court gave instructions on murder, voluntary
manslaughter, involuntary manslaughter, and reckless homicide. Wilkins' sole claim of error
is that the trial court improperly instructed the jury on voluntary manslaughter in the absence
of any evidence of sudden heat. Wilkins contends that this instruction confused the jury and
therefore denied him due process.
Wright v. State, 658 N.E.2d 563 (Ind. 1995), established the test for a trial court's
instructions on lesser included offenses. Under Wright, an instruction is to be given if the
lesser offense is inherently or factually included in the greater offense and there is a serious
evidentiary dispute about an element that distinguishes the two offenses. 658 N.E.2d at 566-
67. Voluntary manslaughter is simply murder mitigated by evidence of 'sudden heat.'
Griffin v. State, 644 N.E.2d 561, 562 (Ind. 1994). As such, it is an inherently included
offense of murder. The trial court made no explicit finding as to the presence or absence of
sudden heat. Accordingly, we review that determination de novo. See Brown v. State, 703
N.E.2d 1010, 1019-20 (Ind. 1998); Champlain v. State, 681 N.E.2d 696, 700 (Ind. 1997).
Although the length of time between the inflammatory incident in which David
stabbed Wilkins and Wilkins killing David is normally sufficient cooling off time to refute
a claim of sudden heat, see, e.g., Stevens v. State, 691 N.E.2d 412, 427 (Ind. 1997), the State
cites several pre-Wright cases that note it is not erroneous in a murder trial to give the jury
an instruction on voluntary manslaughter, even in the absence of evidence of sudden heat.
Griffin, 644 N.E.2d at 564; Gilley v. State, 560 N.E.2d 522, 523-24 (Ind. 1990). Wright held
that it is reversible error to refuse an instruction on a lesser included offense if there is a
serious evidentiary dispute, but observed only that the trial court should not give an
instruction if the evidence does not support it. See 658 N.E.2d at 567. This Court has not
addressed the continued viability of these pre-Wright cases, nor have we explicitly addressed
the question of whether giving an instruction in the absence of a serious evidentiary dispute
is per se reversible error.
In this case it is not necessary to resolve this question. The jury convicted Wilkins
of murder. The defense's theory of the case was that the death was not intentionally or
knowingly caused. If the jury had chosen to believe this theory, the mens rea element of
both murder and voluntary manslaughter would have been negated, leaving the other two
charges as possible convictions. The voluntary manslaughter instruction merely presented
the jury with another lesser option that it rejected, and the addition of the voluntary
manslaughter instruction to the jury instructions given was not substantially more confusing
than the defense-supported instructions on involuntary manslaughter and reckless homicide.
Accordingly, if there was any error in giving the voluntary manslaughter instruction, it was
harmless. See Porter v. State, 671 N.E.2d 152, 155 (Ind. Ct. App. 1996).
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and SELBY, JJ., concur.
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