Thomas D. Chaille
Jeffrey A. Modisett
Randi F. Elfenbaum
Office of Attorney General
Hasler & Maynard
334 West Eighth Street
Anderson, Indiana 46016
Decker & Lawyer
505 West Ninth Street
Anderson, Indiana 46015
Attorneys for Appellee
Attorney General of Indiana
Deputy Attorney General
Indiana Government Center South,
402 West Washington Street
Indianapolis, Indiana 46204-2770
Thomas D. Chaille
Jeffrey A. Modisett
Randi F. Elfenbaum
Office of Attorney General
STATE OF INDIANA,
) Indiana Supreme Court
) Cause No. 48S00-9608-CR-550
Defendant, Gary Sylvester, admitted that he killed his wife, Debra Sylvester, but claimed
that the act was manslaughter and not murder because it was committed under sudden heat.
Code §§ 35-42-1-1(Murder) and 35-42-1-3 (Voluntary manslaughter)(1993). On April 4, 1996,
the jury found defendant guilty of murder and the trial court sentenced him to sixty years
imprisonment. Defendant raises the following issues on appeal: whether the trial court erred in
denying defendant's Motion for Discharge; whether the trial court erred by excluding statements
made by the victim as hearsay; whether the trial court erred in failing to grant a mistrial or
admonish the jury when the prosecutor referred to defendant's post-arrest silence; whether the
trial court erred in its final instructions by refusing to include defendant's tendered instruction; and
whether the trial court erred in sentencing by imposing the maximum sentence. We answer each
of these issues in the negative and affirm the defendant's conviction and sentence.
and had told his supervisor that he was upset over the situation with his wife and that if he found
out she was having an affair he would kill her. On the day of the murder, defendant had stated to
a co-worker that it was past the point of confronting Debra and that the situation would be
resolved after that day.See footnote
That evening, defendant and Debra engaged in a fight which culminated
in Debra's death by strangulation.
David Caves, upon returning home from work that evening, found both the front and rear doors locked, which was unusual. While walking around the house, David looked into the dining room window and saw his step-father in the bathroom, apparently wiping something off of the floor. David knocked on the window and defendant finally responded by telling David to wait. Defendant eventually allowed him to come inside and told David that Debra was asleep in the bedroom and that David's half-sister was visiting a friend. David left to pick up his girlfriend and when they returned, he noticed that the bedroom door lock had been broken, that the bed was in disarray, and that there appeared to be spatters of blood in the bathroom. Defendant then told David that he had hit Debra during a fight and that she had fled the house on foot. David called the Anderson Police Department to see if his mother had reported a battery. Upon learning that she had not, he reported her as missing.
After defendant killed Debra, he wrapped her head with duct tape and placed her body in garbage bags which he taped together, along with the bloody bathmat, robe, and bedspread. He then put her in the trunk of the car, went to a store to cash a check, stopped at a liquor store to buy beer, drove to Wal-Mart to buy a new jacket, and then drove to his work place, where he hid
her body under a dumpster near his truck. He then shared some pizza with co-workers and went
to sleep at the site to rest before his shift started.
Later that night, two Shelby County police officers were searching the parking lot of the refuse disposal company for a car similar to defendant's on an unrelated incident. Upon finding defendant's car parked in an out-of-the-way location, they ran a check on the license plate and learned that the car belonged to defendant's wife and that they were to detain defendant. Anderson police were contacted, and when they arrived, defendant was advised of his Miranda rights and was questioned on the battery charge, whereupon he told the officer a story similar to that which he had told David. He was then arrested for battery.
Ten days after the incident, Anderson police found Debra's body at the refuse disposal company under an overturned dumpster, approximately sixty feet from the truck which defendant would have driven on a route to the Indianapolis incinerator. The charges against defendant were changed from battery to murder.
discharge for failure to obtain a speedy trial. Defendant argues that any delay beyond the seventy
day period should not have been charged to him, and that he is entitled to discharge.
The time line
of procedural events is as follows:
November 9, 1994 Defendant files a request for speedy trial (seventy day period to end on January 18, 1995)
Court sets trial date for January 3, 1995, as second choice setting
January 3, 1995 Court resets trial date for January 5, 1995, as second choice setting
Prosecutor files petition to recuse and for appointment of special
January 5, 1995 Due to court congestion, trial is reset for January 17, 1995
January 6, 1995 Court-appointed special prosecutor files his consent
January 11, 1995 Special prosecutor files a motion to continue
Defendant objects to any continuance beyond January 18, 1995
January 13, 1995 Court grants special prosecutor's motion to continue
January 17, 1995 Court resets trial for January 18, 1995
January 18, 1995 Defendant files motion to continue
Seventy-day period for speedy trial motion expires
Defendant claims that his counsel was forced to request a continuance beyond the seventy day speedy trial period due to counsel's reliance on the court's decision on January 13, 1995, to continue the trial date and that the court was thus in error to deny his motion for discharge. We disagree. We have already resolved this situation, under almost identical circumstances, in Carter v. State, 686 N.E.2d 834, 838-39 (Ind. 1997). As in Carter, the delay is properly charged to defendant and he is not entitled to discharge.See footnote 2
wanted to introduce the statements in order to show the circumstances which led to his "sudden
heat." Thus, the statements were not being offered to show the truth of the assertions contained
therein, and were not hearsay. Defendant was not trying to prove the truth of Debra's remarks
but rather was attempting to show the effects of those remarks on his own behavior. Statements
made by a victim which are offered to show the reasons why a person acted in the way he or she
did are not hearsay. See Allen v. State, 686 N.E.2d 760 (Ind. 1997); Isaacs, 659 N.E.2d 1036.See footnote
Since they were not hearsay, the only remaining inquiry is whether the statements were relevant.
Defendant was attempting to support a claim of sudden heat and was seeking to establish the
circumstances which lead to his state of mind. He was allowed to testify as to what he said during
those conversations, but not as to what Debra said. The excluded statements were relevant in
establishing a basis for defendant's own statements and behavior and should not have been
excluded. As we have held in the past, the victim's half of a conversation with defendant is
relevant as it places defendant's statements in context. Cunningham v. State, 256 Ind. 135, 267
N.E.2d 181 (1971); McFarland v. State, 263 Ind. 657, 336 N.E.2d 824, 128 (1975). Defendant
should have been allowed to testify as to the entire conversation, not just his half of the
Where the wrongfully excluded testimony is merely cumulative of other evidence presented, its exclusion is harmless error. Lopez v. State, 527 N.E.2d 1119, 1124 (Ind. 1988);
Smith v. State, 490 N.E.2d 300 (Ind. 1986). Here, the statements excluded as hearsay would have
been cumulative. The jury heard testimony from co-workers that defendant was upset over his
belief that his wife was having an affair and may leave him. Further, defendant testified that the
victim had been talking to a man on the phone late at night a few weeks before the murder and
that it made him upset. Finally, the majority of the conversation between the victim and defendant
during the fight which ended in the victim's death was allowed to come in.See footnote
Thus, the jury had a
clear picture of what occurred, even if they did not hear a verbatim retelling of the conversations
which occurred during the weeks prior to the murder. However, in light of the overwhelming
evidence which tended to show contemplation and premeditation, the jury did not accept the
claim of sudden heat. Because we are convinced that exclusion of the evidence did not
substantially affect defendant's rights in that its inclusion would likely have had little effect on the
jury's decision, we find harmless error.
process to allow the arrested person's silence to be used to impeach an explanation subsequently
offered at trial." Doyle v. Ohio, 426 U.S. 610, 618 (1976). Indiana recognizes the rule set forth
in Doyle, and does not allow prosecutors to use a defendant's post-Miranda silence as a means of
impeachment. Jones v. State, 265 Ind. 447, 355 N.E.2d 402 (1976).
While defendant is guaranteed the right not to have his silence used against him, we find no Doyle violation here since he did not exercise his Miranda right. Quite simply, defendant did not remain silent.See footnote 5 As we have recently observed, if a defendant does not remain silent, he cannot later claim that the silence was used against him. Allen v. State, 686 N.E.2d 760 (Ind. 1997). Here, defendant fabricated a story which he voluntarily told the police during his custodial interrogation. He told the police that he had hit his wife, that she had fled the house on foot and that he did not know where she was. Where a defendant chooses to fabricate a story, he has not remained silent and cannot claim a Doyle violation. See Newhart v. State, 686 N.E.2d 760 (Ind. 1997).
manslaughter. In analyzing jury instructions, we note that the instructions are to be considered as
a whole and with reference to each other. Bonham v. State, 644 N.E.2d 1223, 1227 (Ind. 1994)
(citing Reinbold v. State, 555 N.E.2d 463 (Ind. 1990)). The instructions must be a complete,
accurate statement of the law which will not confuse or mislead the jury. Reaves v. State, 586
N.E.2d 847, 855 (Ind. 1992). In determining whether the trial court judge erred in refusing
defendant's tendered instruction, we look to whether: (1) the tendered instruction correctly states
the law; (2) there is evidence in the record to support the giving of the instruction; and (3)
whether the substance of the tendered instruction is covered by other instructions which were
given. Reinbold v. State, 555 N.E.2d 463, 466 (Ind. 1990), overruled in part on other grounds
by Wright v. State, 658 N.E.2d 563, 570. For purposes of this case, it is the third analysis which
will be determinative.See footnote
The trial court correctly rejected defendant's sudden heat instruction, finding that the substance of the instruction was contained in other instructions.See footnote 7 Defendant argues that the instructions given leave out the fact that sudden heat is what is needed to reduce murder to manslaughter. However, the instructions given do contain that element. After instructing the jury
on the elements required for the state to prove murder, the judge instructed the jury on the lesser
included offense of voluntary manslaughter. The instructions which the jury received included the
The crime of voluntary manslaughter [is] defined by statute as follows: a person who knowingly kills another human being while acting under sudden heat, commits voluntary manslaughter, a class B felony, however, it is a class A felony if it is committed by means of a deadly weapon. The existence of sudden heat is a mitigating fact but it reduces what would otherwise be murder to voluntary manslaughter. To convict the defendant of voluntary manslaughter, the State must've proved each of the following elements. The defendant, Gary Sylvester, 1) knowingly; 2) killed; 3) Debra Sylvester; 4) while acting under sudden heat. . . . The term "sudden heat" means an excited mind. It is a condition that may be created by strong emotions such as anger, rage, sudden resentment or jealousy. It may be strong enough to obscure the reason of an ordinary person and prevent deliberation and [sic] meditation. It can render a person incapable of rational thought. When evidence of sudden heat is introduced, the burden is on the State to negate such evidence beyond a reasonable doubt before the defendant may be convicted of murder. Mere evidence of anger is insufficient sudden heat.
(R. at 997-99) (emphasis added). The instructions given fully and accurately express the law with
respect to sudden heat. See Clark v. State, 668 N.E.2d 1206, 1209 (Ind. 1996). Where the
tendered instruction is correctly contained within other instructions, it is not error to reject the
tendered instruction. McCurry v. State, 558 N.E.2d 817, 819 (Ind. 1990). Thus, it was not error
for the trial court to deny defendant's tendered instruction.
aggravator. Bustamante v. State, 557 N.E.2d 1313 (Ind. 1990). The judge cited ample evidence
presented at trial to support the finding of premeditation and plan: defendant had made statements
to co-workers regarding what he would do if he found that his wife had been cheating on him;
defendant had commented on how he could dispose of a body; and defendant appeared to have
done precisely what he had predicted, as the body was found at the disposal company site near
defendant's work truck, which defendant would have driven on a route to the incinerator the very
morning after the murder. We find the court's statement to be sufficient to support the finding of
an aggravating circumstance.
With respect to any mitigators, defendant first contends that he showed remorse. We have noted in the past that " [w]hen a defendant argues mitigating circumstances to the trial court, the sentencing judge is not obligated to explain why he has chosen not to make a finding of mitigation. Moreover, the trial court is not obligated to credit or weigh the defendant's evidence of mitigating circumstances the same way the defendant does." Hammons v. State, 493 N.E.2d 1250, 1254-1255 (Ind. 1986) (citations omitted).
Defendant also argues that the evidence of sudden heat, while insufficient to sway the jury, should have been given some weight as a mitigator. Defendant cites no authority for the proposition, and we find it to be unpersuasive. Sudden heat is a mitigator only in the sense that it can be used to "mitigate" what would otherwise be murder to a conviction on manslaughter. See Ind.Code §35-42-1-3 (1993); Taylor v. State, 681 N.E.2d 1105 (Ind. 1997). The jury was not persuaded that sudden heat existed for the guilt phase and the sentencing judge was not required to find that sudden heat was a mitigating factor in the sentencing determination. The record otherwise supports the findings of the sentencing judge as to both aggravators and mitigators and
we find no error.
such communication occurred, it would merely be administrative and would thus fall under the exception to Ind. Judicial Conduct Canon 3(8). See also Mahrdt v. State, 629 N.E.2d 244 (Ind. Ct. App. 1994). Such communication raises no inference of impropriety and was not improper in this case.
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