voluntary manslaughter instruction in Indiana

2020Id. [12] Here, the trial court in its sound discretion determined that a voluntary manslaughter instruction was appropriate, and instructed the jury, in relevant part, as follows: Court of Appeals of Indiana | Memorandum Decision 18A-PC-2738 | January 21, 2020 Page 9 of 17 The Defendant is charged with Murder in Count I.

2017Id. at 1233 . [38] Epstein’s tender of the voluntary manslaughter instruction notwithstanding, his decision not to object to or seriously contest the trial court’s failure to give it flowed from his pursuit of the “legitimate trial strategy,” id., outlined in Watts: I think a large part of that was, you know, I was of the opinion that I was presenting an all or nothing defense; and, you know, some of the other instructions[, particularly as to self-defense,] would have been contradictory and, you know, . . . [tended] to establish a basis . . . for a compromise[] verdict. . . . [F]rom a lawyer’

2015Massey, Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-87| October 7, 2015 Page 11 of 18 955 N.E.2d at 257 .

2013Furthermore, “[a] mere expression of one[’]s desire to end a relationship cannot, as a matter of law, constitute sufficient provocation to induce passion that renders a reasonable person incapable of cool reflection sufficient to warrant a voluntary manslaughter instruction.” Massey v. State, 955 N.E.2d 247, 257 (Ind. Ct. App. 2011) (citing and comparing Perigo v. State, 541 N.E.2d 936 (Ind. 1989) and Evans v. State, 727 N.E.2d 1072 (Ind. 2000)).

1997A trial court should grant the requested Voluntary Manslaughter instruction if the evidence demonstrates a serious evidentiary dispute regarding the mitigating factor of “sudden heat.” Griffin v. State, 644 N.E.2d at 562 (quoting Roark v. State, 573 N.E.2d 881, 882 (Ind.1991) (Voluntary Manslaughter instruction is warranted if there is “ ‘any appreciable evidence of sudden heat.’ ”)).

1997A voluntary manslaughter instruction is warranted if there is “any appreciable evidence of sudden heat[.]” See Roark v. State, 573 N.E.2d 881, 882 (Ind.1991).

2020Lambert v. State, 743 N.E.2d 719, 730 (Ind. 2001).

2009See Morgan v. State, 755 N.E.2d 1070, 1076 (Ind.2001) (declining to find ineffective assistance of counsel where it "would have been a reasonable strategic decision for defense counsel to conclude that a voluntary manslaughter instruction would have been inconsistent with Defendant's testimony"); Lambert v. State, 743 N.E.2d 719, 735 (Ind.2001) (declining to find ineffective assistance of counsel where trial counsel "could have reasonably decided" that raising certain objections would have harmed his client).

2015Orr maintains that the evidence is sufficient to support a voluntary manslaughter instruction because, “[b]ased on this evidence, the [trial court] agreed to give the voluntary manslaughter instructions.” Id. [16] We agree with the State that there was no serious evidentiary dispute on the issue of sudden heat.

2013“Where the trial court rejects a Voluntary Manslaughter instruction based on a lack of evidence of sudden heat, we review the trial court’s decision for an abuse of discretion.” Suprenant, 925 N.E.2d at 1283 .

2014Id. at 159 . 8 Turning to the record, we find nothing comparable about Henderson’s case.

2011An instruction on voluntary manslaughter is warranted if the evidence demonstrates a serious evidentiary dispute regarding the mitigating factor of sudden heat; that is, there must be evidence showing sufficient provocation to induce passion that renders a reasonable person incapable of cool reflection. 6 Clark v. State, 834 N.E.2d 153, 158 (Ind.Ct.App.2005).

2013Furthermore, “[a] mere expression of one[’]s desire to end a relationship cannot, as a matter of law, constitute sufficient provocation to induce passion that renders a reasonable person incapable of cool reflection sufficient to warrant a voluntary manslaughter instruction.” Massey v. State, 955 N.E.2d 247, 257 (Ind. Ct. App. 2011) (citing and comparing Perigo v. State, 541 N.E.2d 936 (Ind. 1989) and Evans v. State, 727 N.E.2d 1072 (Ind. 2000)).

2011See Perigo v. State, 541 N.E.2d 936, 939 (Ind.1989) (concluding that girlfriends confession of illicit sex was not sufficient provocation to reduce murder to voluntary manslaughter); but cf. Evans, 727 N.E.2d at 1077 (concluding that mitigating factor of sudden heat was adequately introduced by evidence that sudden rage came over defendant after he saw another man engaging in sexual intercourse with his girlfriend, the mother of his child).

2001Therefore, even if the trial court had erred in giving a voluntary manslaughter instruction, such error would be harmless. 3 See Porter, 671 N.E.2d at 155 .

1999See Porter v. State, 671 N.E.2d 152, 155 (Ind.Ct.App.1996).

2020Court of Appeals of Indiana | Memorandum Decision 18A-PC-2738 | January 21, 2020 Page 12 of 17 Appellant’s App. Vol. III, pp. 26–27, citing In re Winship, 397 U.S. 358 (1970); Brantley v. State, 91 N.E.3d 566, 572 (Ind. 2018) (internal citations omitted, emphases original to post-conviction court’s order). [16] The post-conviction court reasoned that, although the voluntary manslaughter instruction erroneously and imprecisely included sudden heat as an element of the offense, the error was harmless because it held the State to a higher burden of proof; that is to say, as written, the jury was

2020Appellant’s App. Vol. III, p. 27, citing Brantley, 91 N.E.3d 566 .

2020Id., citing McDowell v. State, 102 N.E.3d 924, 937 (Ind. Ct. App. 2018) (addressing the same erroneous voluntary manslaughter language and determining a jury was not misinformed regardless of the error, and also that counsel was not ineffective for failing to object to such an instruction), trans. denied. [15] The post-conviction court identified the second error in the voluntary manslaughter instruction as sudden heat being characterized as an element of the offense, which it is not: 17. . . .

2020All that is required, as noted above, is that a serious evidentiary dispute regarding the presence of sudden heat is before the jury. [17] The post-conviction court ultimately found that the objection to the voluntary manslaughter instruction lodged by Edmond’s counsel was unlikely to have been sustained because the specific wording of sudden heat as an “element” of the offense was standard at the time.2 Furthermore, the post-conviction court found that Edmond was not prejudiced because, even though the voluntary manslaughter instruction contained errors, it held the State to a higher-than- 2

2019According to Lay, “[b]y not requesting the Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019 Page 18 of 25 voluntary manslaughter instruction for Kelly, if the jury were to conclude Lay knowingly killed Mary but acted in sudden heat, it would convict him of voluntary manslaughter for Mary but then be forced to convict him of murder for Kelly which is not rationale [sic].” Id. [27] While our Supreme Court has previously held that voluntary manslaughter is a lesser included offense to murder, it has also determined that “a tactical decision not to tender a lesser inc

2019We will not second-guess counsel’s strategy “through the distortions of hindsight.” Autrey, 700 N.E.2d at 1141 . [29] Moreover, at the post-conviction hearing, Lay did not ask trial counsel why she did not tender a voluntary manslaughter instruction.

2019See Wilkins v. State, 716 N.E.2d 955, 957 (Ind. 1999) (finding that a voluntary manslaughter instruction in the absence of sudden heat was harmless because the “instruction merely presented the jury with another lesser option that it rejected”).

2018See Burris v. State, 590 N.E.2d 576, 581 (Ind. Ct. App. 1992) (“Where there is no evidence of sudden heat, an incorrect instruction on voluntary manslaughter is not reversible error.”) (citing Hensley v. State, 499 N.E.2d 1125, 1127 (Ind. 1986) (holding that there was no evidence of provocation or sudden heat and that the defendant “was not entitled to an instruction on attempted voluntary manslaughter and thus giving an incorrect definition of that offense cannot be a basis for reversal of the attempted murder conviction”)), trans. denied; see also Fleenor v. State, 622 N.E.2d 140, 146 (Ind.

2018See Burris v. State, 590 N.E.2d 576, 581 (Ind. Ct. App. 1992) (“Where there is no evidence of sudden heat, an incorrect instruction on voluntary manslaughter is not reversible error.”) (citing Hensley v. State, 499 N.E.2d 1125, 1127 (Ind. 1986) (holding that there was no evidence of provocation or sudden heat and that the defendant “was not entitled to an instruction on attempted voluntary manslaughter and thus giving an incorrect definition of that offense cannot be a basis for reversal of the attempted murder conviction”)), trans. denied; see also Fleenor v. State, 622 N.E.2d 140, 146 (Ind.

2018See Burris v. State, 590 N.E.2d 576, 581 (Ind. Ct. App. 1992) (“Where there is no evidence of sudden heat, an incorrect instruction on voluntary manslaughter is not reversible error.”) (citing Hensley v. State, 499 N.E.2d 1125, 1127 (Ind. 1986) (holding that there was no evidence of provocation or sudden heat and that the defendant “was not entitled to an instruction on attempted voluntary manslaughter and thus giving an incorrect definition of that offense cannot be a basis for reversal of the attempted murder conviction”)), trans. denied; see also Fleenor v. State, 622 N.E.2d 140, 146 (Ind.

2018See Burris v. State, 590 N.E.2d 576, 581 (Ind. Ct. App. 1992) (“Where there is no evidence of sudden heat, an incorrect instruction on voluntary manslaughter is not reversible error.”) (citing Hensley v. State, 499 N.E.2d 1125, 1127 (Ind. 1986) (holding that there was no evidence of provocation or sudden heat and that the defendant “was not entitled to an instruction on attempted voluntary manslaughter and thus giving an incorrect definition of that offense cannot be a basis for reversal of the attempted murder conviction”)), trans. denied; see also Fleenor v. State, 622 N.E.2d 140, 146 (Ind.

2018See Burris v. State, 590 N.E.2d 576, 581 (Ind. Ct. App. 1992) (“Where there is no evidence of sudden heat, an incorrect instruction on voluntary manslaughter is not reversible error.”) (citing Hensley v. State, 499 N.E.2d 1125, 1127 (Ind. 1986) (holding that there was no evidence of provocation or sudden heat and that the defendant “was not entitled to an instruction on attempted voluntary manslaughter and thus giving an incorrect definition of that offense cannot be a basis for reversal of the attempted murder conviction”)), trans. denied; see also Fleenor v. State, 622 N.E.2d 140, 146 (Ind.

2015Stevens v. State, 691 N.E.2d 412, 426 (Ind.1997).

2015See Harrington v. State, 516 N.E.2d 65, 66 (Ind. 1987), reh’g denied. [14] But the State contends that Orr was not entitled to a voluntary manslaughter instruction and was not, therefore, prejudiced by the erroneous jury instructions.

2013Roberson v. State, 982 N.E.2d 452, 456 (Ind. Ct. App. 2013).