*1 Sales, 725 at 526. Truck East arguments contrary simply
Wind’s reweigh
seek to have this court the evi appeal consider
dence otherwise evi other than that which is most favor judgment, to the Review Board’s
able Accordingly,
which we will not af do. judgment.
firm Review Board’s
Affirmed. J., J.,
Bailey, May, concur.
Billy BRANTLEY, Appellant-
Defendant, Indiana, Appellee-Plaintiff.
STATE Appeals No.
Court Case
49A04-1606-CR-1401
Court of of Indiana. Appeals
February
Rehearing April Denied
Attorney Appellant: K. Valerie for Boots, County Marion Public Defender Agency, Indianapolis, Indiana. Attorneys Appellee: Hill, Curtis T. for Jr., Indiana, Attorney Ian Mc- General Lean, General, Attorney Deputy Indianap- olis, Indiana. Judge.
Najam, Statement the Case Billy Brantley appeals his conviction for Voluntary Manslaughter, a fel Level review, ony. He three for our raises issues following but we consider the need dispositive issue: whether the State pre sufficient evidence sented Brantley’s conviction for man slaughter. We reverse. History
Pacts and Procedural July Brantley In in a lived sister, Indianapolis home Mar (“Martha”), husband, tha her Brantley employed Gunn Bruce as a lock (“Bruce”), but, couple’s eight July Gunn and the smith morning son, up he woke year approximately old 9:00 a.m. to Sean. had known for prepare job a 10:00 a.m. eighteen years Bruсe for interview and had lived job. better-paying Because Martha and Bruce knew *3 job his place- interview was to in take a high in school. After spent he several high-crime neighborhood, armed him school, he years high in the Air Force after gun self with a legally pur he new had Brantley back in moved with Martha and showered, chased. After he he went down Bruce in 2012. Bruce, Martha, and stairs found Sean and . year fifty-eight a Bruce was old re sleeping all in living room. Bruce was Eli Lilly tired chemist suffered from who asleep in his recliner just entry inside the physical problems. and mental both health room, way to the and and Martha Sean Bruce disorder suffered from seizure and on the recuperat were couch. Martha was he undergone surgeries, had two back one ing hand, on surgery her foot and performed had approxi which been slept and had on all -night. she the couch mately the beginning July 2014. Bruce Brantley up, woke Martha was con as he prescribed had been mediсation and pain overslept. cerned she had Martha simulator, vagal had a nerve which ais then up give woke Bruce and him to asked interrupt device used to nerve transmis Brantley twenty they had dollars de sions and chronic pain. lessen Bruce also give night cided him for gas. before the. himself, a history harming had had en gave Brantley Bruce money and gaged in on suicidal behavior several occa good him wished luck the interview. .with sions, attempted and had to stab himself Brantley arrived back home at about with a knife on one occasion. more than 11:00 or 11:30 pizza a.m. He some warmed kept Bruce had sometimes knives under for himself in the the kitch microwave in in cushion of the recliner which he en, living Bruce, went into the room where usually sat. Martha, located, and Sean were still and in front sat down eat of the TV. Bruce history and Martha Bruce had Martha arguing loudly, and were but Sean And, verbally fighting other. on with each still on the asleep couple couch. Brantley one occasion was in stopped yelling at each other-for five or high school, physically Bruce had attacked Brantley ten minutes after came into the Brantley Martha and had intervene room, Brantley and Bruce asked about the protect Brantley his sister. had heard Soon, though, up interview. Bruce became fighting Martha Bruce in their and bed again—about set something Martha had and, room subsequently he had telephone began said he call—and name, softly calling heard his his sister he again. yelling Brantley at Martha listened couple’s had entered the bedroom chair, argument as he his sat in choking Brantley Bruce Martha. had then eating to tell trying and and Bruce Martha cue, hit pool on the Bruce head with job got up about his interview. Martha which had forced Bruce to release Martha. room, up tried Bruce stood leave but responded Police then to a 9-1-1 call and quickly and her then blocked exit. Martha resulting arrеsted Bruce. Bruce’s domestic couch returned and sat back down. battery charges resolved were later entering argument Bruce mental health diversion continued escalate program. Bruce, between Martha and both of Brantley Martha at each other. re testified had yelling
them down, during to calm calm Bruce but remained the entire incident peatedly asked increasingly July They irate. Bruce be 2014. both Bruce became testified too, Brantley, object statеd as in his gan yelling at that Bruce had an hand as he recliner, going screaming; that he was from his rose from his recliner rose howev- he problems.” er, of all of his Tr. object to “take care neither could see what was. only and Martha Brantley III at testified that he could see Vol. holding something object shiny saw Bruce in Bruce’s hand was both as he rose from his chair. The knife. Both clenched fist and that believed was a they room the rest Martha path out testified that through opening keрt a small be knives in his house knew Bruce recliner large poked by tween Bruce’s recliner and enter they and that had been knives *4 sliding glass unit. was a they tainment There to sit before when had tried yard, “no to the back but there was door Bruce’s recliner. Sean also testified at the yard way out” was fenced and because the trial and stated that his brother had found gate padlocked the on the outside. exit was two butter knives and a steak behind knife 511-12, at 593-94. Id. cushion in on the Bruce’s reclinеr eve- ning July shooting. of after the Sean gun Brantley drew his and fired that, although he occasionally testified had Brantley’s once at Bruce. The bullet from during his parents’ voices raised heard body in gun entered Bruce’s the left chest July of morning events of he was back area and exited the left lower of sleeping pre- most the time. The State It The area. was fatal wound. bullet did position at trial that the sented evidence passed through not enter chair but Bruce’s body Bruce’s aftеr he shot indicated wall and above his recliner. behind coming not he was toward Bruce but was floor, When Bruce fell Martha process rising in the from his chair grabbed took him her son and out the when he was shot. neighbor’s front door to a house. Martha separately placed each calls gave trial court The immediately to 9-1-1-almost after the shot. following charged instruction on the of call, In her 9-1-1 Martha was frantic and fense: crying repeatedly stated her Voluntary Manslаughter, The crime brother shot her husband her had felony Level with which the Defendant had tried to attack and was husband her I, Count is defined coming at mili Brantley, them. who had statute as follows: tary training, law enforcement person knowingly intentionally A who composed more in his 9-1-1 call and told acting kills another under operator Bruce had tried to attack him Voluntary commits Man- sudden heat him. had shoot It was later slaughter, felony. a Level 2 discovered item Bruce had been holding in his not a knife but his hаnd was a miti- existence heat is glasses. gating factor that what other- reduced charged Brantley Voluntary
The State with vol be Murder wise would untary manslaughter. Brantley Manslaughter. The State has conceded self-defense, claim of heat by charging and he and Martha the existence 11-13, 2016, April Voluntary Manslaughter trial testified instead in support of that Both defense. Murder. Defendant,
To convict the the State State had burden of providing suffi proved following have each of must cient thаt he acted with “sudden beyond a elements heat.” Because we doubt: decide this matter Brantley’s sufficiency based of the evi Defendant, Brantley, Billy 1. claim, con need address his knowingly tention that the trial court fun committed 3. killed by instructing damental error 4. Bruce Gunn. heat,” conceded “sudden prove If the State failed to each these contention that State’s there was no doubt, beyond elements a reasonable or, if was, such error there you guilty. must find the Defendant error.1 “invited” the We need consider the State did each these If of the jury the correctness instructions doubt, beyond a reasonable because the Due Process Clause of the you guilty Defendant Constitution protects every United States Voluntary Manslaughter, 2 felo- a Level against upon defendant conviction except ny. proof beyond a reasonable Re doubt. In (emphases II at Appellant’s Vol. 358, 364, Winship, U.S. 90 S.Ct. added). The the jury court instructed (1970). If L.Ed.2d 368 evi there is no on the follows term “sudden heat”: record, dence of heat in *5 heat, applied The term sudden to the State has not met its constitutional burden of Voluntary Manslaughter, means crime proof. of an excited state mind. It is a condition may emotion strong be created The issue of sufficiency resentment, anger, rage, such as the evidence be first jealousy. may strong enough or It be appeal. time on See Ind. Trial Rule ordinary per- obscure the reason of an 50(A)(5); State, Dishmon v. 770 N.E.2d prevent son аnd deliberation and medi- 855, (Ind. 2002), App. Ct. trans. de 857 It can person incapable tation. render a reviewing nied. In evi sufficiency thought. of rational claim, reweigh evi we neither (emphasis
Id. at in The trial original). 98 credibility dence nor assess gave court also an See, instruction e.g., Jackson v. witnesses. self-defense. (Ind. 2010). 369, 375 We consider reason probative evidence and guilty found therefrom that support able inferences voluntary manslaughter, the trial conviction, Gorman v. acсordingly. ap court sentenced him This (Ind. 2012), peal ensued. denied, trans. conflict and we “consider Discussion and Decision ing most favorabl[e] evidence Standard Review verdict],” [jury’s v. Wright that, if it if maintains affirm We permissible bring for the probative State to evidence and reasonable charge voluntary stand-alone from that “could man ferences drawn him, slaughter against doing then in so trier of fact have allowed thus, might and, 1. It also be invited said heat that the State should not agreed in the when own invited error instruction it allowed to benefit from error its by obtaining the instruction that it had ''conceded” sudden a retrial this case. authority charge guilty beyond rear between State’s the defendant Jackson, voluntary manslaughter together an with sonable doubt.” murder, charge, other such as itself. Requirement that the State Voluntary Manslaughter as Prove Sudden Heat Charge a Stand-Alone Because we conclude that the State Brantley first contends permitted bring is a stand-alone permitted charge him State was voluntary manslaughter, turn to voluntary manslaughter without hav that, Brantley’s argument when ing charged him murder. The so, prove it required did that he voluntary manslaughter crime of is defined it acted under sudden heat. is clear While as follows: heat is not an “element” (a) knowingly A who or inten- § voluntary manslaughter, 35-42- see I.C. tionally: l-3(b), supreme nonetheless our court has (1) being; kills another human prove held must (2) kills fetus that has via- attained charges a defendant with (as 16-18-2-365); bility defined IC voluntary manslaughter as a lesser includ acting under commits sudden heat charge. offense to a ed murder Watts voluntary a Level felo- manslaughter, 2008). ny. Watts, In the State had both mur (b) is existence of sudden heat der as a less factor that oth- mitigating reduces what offense, er held that and the court included would be murder under section erwise voluntary heat requirement the sudden 1(1) man- chapter of this factor, manslaughter mitigating “a slaughter. element, must murder,” *6 addition to the elements which (2014). § Ind. Code 35-42-1-3 comprise the remaindеr a Usually, either defendant voluntary manslaughter. offense of Id. manslaughter in an at voluntary raises added). (emphasis This court has also held to or tempt mitigate charge murder prove that the State has the burden to charges voluntary manslaughter as State charges sudden heat when it the defendant charge. lesser included offense murder to voluntary manslaughter. Suprenant v. fact, any In to parties do us direct State, 1280, 1282(Ind. App. 925 N.E.2d Ct. brought Indiana case which the State 2010), denied; State, trаns. v. 598 Misztal voluntary manslaughter aas stand-alone 1119, 1992), N.E.2d 1122 offense, any unable to find such and we are trans. denied. However, that, vol case. we hold because why untary manslaughter appears perceive in the crimi no reason We crime, to required prove nal code as its own the State State should be charging voluntary manslaugh it as a State heat stand-alone offense. when Cf. 121, 123 (Ind. 1995) Downey, v. ter as a lesser to murder 476 N.E.2d included offense (“The authority proof to estab but be rеlieved of that define crimes and burden brings penalties belongs legislature.”). lish when it as perceive charge.2 And no substantive difference hold that stand-alone We disagree ment heat We with the trial court’s assess- that the State "conceded” sudden jective to required prove subjective was opposed as stan- dard. See Stevens v. Brantley 412, (Ind. 1997) manslaughter. (refusing to find that threat disclose molestation would Sufficiency of the Evidence “understandably” provoke ordinary “an tеrror). twenty-year-old rage man” Having concluded Voluntary Finally, Manslaughter in- prove had the burden to an “impetus volves to kill” which arises heat, we turn whether the State met “suddenly.” Id. at 427. that that burden.3 We hold failed evidence, produce any let alone Suprenant, at 1282-83. doubt, beyond a Brantley Here, party presented any neither acted under heat” when he “sudden know argu evidence sudden heat or made ingly explained: killed Bruce. As we have jury Brantley ment to acted un heat” is as an “Sudden characterized der sudden heat.4 There was no evidence resentment, ger, rage, or terror suffi presented Brantley angry, en cient to of an obscure reason ordi raged, resentful, suddenly To terror. nary person, preventing deliberation contrary, only evidence before the malice, premeditation, excluding regarding Brantley’s state mind rendering person incapable cool testimony only was the from the witnesses reflection. Dearman v. to the shоoting—Brantley and (Ind. 2001). Martha— Anger before, calmly had behaved alone is sufficient during, shooting.5 and after the That evi sudden heat. Wilson struction (Ind. 1998). was not but undisputed closing argu on it in its relied Nor will words alone “constitute suffi in ment. no provocation cient to warrant a heard on voluntary manslaughter,” it could “experi struction which find that “especially this is true” when ‘terror’ sufficient to obscure his rea enced intentionally are de words issue impetus son that a to kill’ ‘sudden defendant, provoke signed such Op. arose.” at 406. was no evidence There Allen v. fighting words. anything but calm at all relevant times. State never ar And the gued jury—rather, otherwise requirement In addition some- *7 closing argument agreed words,” prosecutor the thing prov- more than “mere the was not excited state that an ocation must be to obscure “sufficient man,” during immediately 9-1-1 ordinary the reason of an an ob- the call that was by charging Brantley only 4. The time the State mentioned not with murder. A sudden voluntary yielding to defining "[t]he "concession” the was the Information sake of (10th Black's demand the a settlement.” charge manslaughter. voluntary 2014). Here, Dictionary Law ed. Brant- ley no acted in made demand he had that disregard Even if we were to this 5. evidence sudden heat to which the could have demeanor, Brantley's calm we would Rather, yielded. issue regarding no at Brant- left with evidence all was the issue of self-defense. and, thus, ley's state of mind no factual basis proved 3.It is uncontested the State that suppоrt inference that Brant- reasonable Brantley knowingly See I.C. killed Bruce. ley Op. at 399. acted out "terror.” § 35-42-1-3. ty has not conceded the issue. Nor shooting. to the After
subsequent
jury,
proof
call for the
its burden of
prosecutor played that
avoid
stated, “[a]wfully, awfully “conceding”
is no
prosecutor
sudden heat when there
of fact on that. And that is bother
matter
evidence of sudden heat
in the record.
Watts,
Ill
714.
some.” Tr. Vol.
at
words” or mere as to constitute dence.”). heat. Id. at provocation leading to Conclusion that, (holding “[although there was charged Brantley When victim, some non-verbal action voluntary manslaughter, with it was re do lawful conduct quired provide evidence sufficient gathering belongings goes so far one[’]s prove beyond a doubt that he beyond ‘mere words’ as to ‘sud constitute wholly acted under heat. The State heat[,]’ ”). den burden, carry provided failed as Certainly, vantage from our remote no evidence at all of sudden heat. There point, prosecutor’s the reason for the deci fore, Brantley’s conviction for charge sion not to murder is obvious. manslaughter must be reversed. Nonetheless, the State is not to a entitled Reversed. mulligan. prosecutor chose to and, only voluntary manslaughter, J.,May, concurs. offense, requires law than more Supre
proof of the murder. J., Bailey, separate dissents nant, Again, at 1282. our opinion. supreme explained, court has the State that, required was to show shot Bailey, Judge, dissenting.
Bruce, Brantley angry, enraged, sud agree I majority Dearman, resentful, denly inor terror. not properly did obtain its convic simply There is no such tion. 19 of the Article Section Indiana here. evidence prоtects province Constitution trials,
Although allocating in criminal heat,” right on the the law and the structed definition of “sudden determine 1205, 1208 facts. Keller v. provide any State failed *8 (Ind. 2016). Instead, Here, jury it. it of province the State asserted that the the by charging by fundamentally erroneous “conceded” sudden invaded a attempting But a the of instruction to relieve the party murder. burden However, may proof. of proof on an issue not meet bur of its burden unlike the by “conceding” majority, permissi I is рar den when the other believe retrial ble, light of the evidence of heat. sudden and the lesser-included offense of volun burden-shifting a instruction has tary Where manslaughter, the State establishes process of of deprived defendant due voluntary manslaughter by proving all the law, reversed, and a conviction is retrial is murder, heat, of plus if allowable the evidence at trial was suffi mitigating State, factor. Misztal v. original the cient conviction. (Ind. 1119, 1992). App. Ct. Matthews v. Here, injected the Stаte the issue of 1999). (Ind. App. Ct. sudden heat means of its charging legislature Our has described volun Recognizing formation. heightened bur tary manslaughter independent as an den—proof of plus the elements of murder crime, committed when a “know attempted sudden heat—the State to meet intentionally or ingly kills another human of proof by its burden of a final means being acting under sudden heat.” whereby instruction purported the State § prose Code Ind. 35-42-1-3. Whether “concede” the existence sudden heat. charges bring cute at all and what are argued The State then that the issue had generally the prosecutor’s within discre By methodology, been its conceded. 1061, 1067 tion. Moala v. from opportu State withdrew 2012). Thus, strictly speak nity to determine existence ing, permitted State was heat. “Existence sudden heat is a classic question fact to be determined him having charged without with mur jury.” Fisher v. This der. does mean that the State (Ind. 1996). selected a wise course. being a human When has been hеat, Having “conceded” sudden knowing or killed because intention if it proceeded as needed another, starting point al conduct of Brantley knowingly or inten legislature provided that our has is the tionally being. Brantley killed a human (“A § offense murder. See I.C. 35-42-1-1 or defense self-defense defense knowingly intentionally or person who kills of to that another and testified end. Brant- murder, being ... another human commits ley gun testified that he drew his and shot felony.”) heat exists that When sudden Bruce, act. no а deliberate There was § mitigated. offense See I.C. 35-42-1- accident, insanity, involuntary claim of 3(b) (“The existence sudden heat is a dispute movement. was no There mitigating factor that reduces what other Brantley knowingly whether or intention wise ... would be murder Bruce, ally a human caused death manslaughter”) being. Essentially, Brantley conceded elements murder but claimed heat is not an element of
Sudden However, justified. act was but, voluntary manslaughter, to obtain a conviction, opportunity the clear de afforded disprove murder must heat, complete cide whether acted with beyond the existence of sudden justification culpabili criminal doubt, had some the defendant has ty because the erroneous instruction injected that issue. Jackson v. process. skewed the deliberative erro effectively neous taken of sudden heat from instruction had derived “the jury’s very case or the defendant’s own.” Id. deliberations issue State’s injected, has both murder heаt. Where the State had *9 however, It of the say, responsibility is classic This is jury culpability of evidence of to evaluate the associated is devoid record testimony, one’s actions. In his Brant- show with heat. heat is established Sudden experienced “anger, ley claimed that he was confronted with ing that the defendant resentment, According to his or terror sufficient to extreme circumstances. rage, ordinary person, argument, jury fault. reason of an he acted without obscurе the premeditation, rejected this claim self-defense. Howev preventing deliberation malice, er, require ignore rendering this did excluding It incapable of cool reflection.” Dearman v. the extremities the situation. could 757, well have that Bruce’s conduct fell found manslaughter “im of that cause a involves an short which would reason Voluntary petus “suddenly.” kill” arises Ste man to his life the life of which able fear 412, another, provoked but nevertheless Brant- vens v. 1997). ley deliberatеly prevented It kill. was doing from so the “concession” strate Here, from heard evidence gy- Brantley experi find that which it could provocation As there is sufficient to obscure his enced “terror” killing, there and a sudden is evidence kill” impetus and that a reason “sudden could have which concluded See id. The situation was not limited arose. I acted sudden heat. he mere words. testified that giving error in would fundamental say taking heard Bruce “he was care of all erroneous, instruction, of the invasive And right now” problems (emphasis of his add permit evidence to retrial on the ed) sufficient so “he and Bruce did came out voluntary manslaughter,6 (Tr. and re shiny object chair” hand. trial court. 592.) mand Necessarily, Brantley evaluated advancing verbal movement this taunt background: light of the relational there ongoing argument
had been an between over
Bruce and Martha finances and medi
cation, had refused allow Martha Bruce room, living to leave the Bruce once JEAN-BAPTISTE, Jefferson Martha, himself, choked had stabbed Appellаnt-Defendant, propensity to keep he had a knives v. open packages. near him Whatever Indiana, Appellee-Plaintiff. STATE were, Brantley’s processes they internal Appeals Case No. Court resulting in triggered rapid response 49A02-1608-CR-1798 weapon of his into discharge Bruce. justification or he acted under Whether Appeals Court of of Indiana. provocation squarely is within the realm of February By drafting jury’s process. deliberative “concession,” distorted instruction process. the deliberative der,” cannot tried on a murder Watts (Ind. 2008) charge. long been (citing has held in Indiana "[I]t Ind. Clem v. (1873)). a conviction for greater acquittal offense of mur-