Harrington v. State
516 N.E.2d 65
Ind.
1987
Check Treatment

*1 6§ instructing correctly jury in the argument court acted assume for the sake of would disregard appellant's Tendered Instruction No. 1 to them. properly given, it was not have been bar, appellant present- was In the case at necessary to do so when trial court had. ing did not commit the the defense that he in- subject by covered the matter another crime, going presenting to the extent (1976), Bricker v. State 264 Ind. struction. cireumstances, such alibi witnesses. Under 186, 341 prosecuting attor- it was ridiculous for the ney referring possible remorse. to be court did not err in The trial expect defendant who had One could not appellant's Tendered Instruction No. 1. crime to demonstrate not committed the Appellant claims the evidence is in that the comment remorse. Given the fact support the verdict. He sufficient improper, it does not prosecutor of the that the identification Abbitt did claims a mistrial should automatically follow not take into consideration a scar on his granted. have been face, silver the color of his beard or the (1986), Ind.App., In Woodrum v. State teeth, this lack of caps on his He claims 1318,Judge N.E.2d Neal made an accu 498 testimony "vacillat detail renders Abbitt's type rate of this of situation and evaluation ing, contradictory and uncertain." Where correctly stated the law in Indiana to be testimony identifying of the as here the though prosecuting attor that even trial, only positive not at but witness was misconduct, ney's ap an actions constituted showed the witness had immedi evidence pellant "put that such action must show photograph ately positively identified a position grave peril. him in This stan lineup shortly when shown probable per dard is measured robbery. The failure of the wit after the alleged misconduct had suasive effect appellant's detail of point ness to out the jury's whether there on the decision and description no moment. physical is of repeated of misconduct were instances attempt which would evidence a deliberate in record sufficient The evidence this prejudice the defendant." improperly support the verdict of the Judge say, Neal went on to Id. at 1325-26. court is affirmed. The trial adequately court admonishes "Where the prosecutor, which cures SHEPARD, C.J., and error, any alleged extreme action of a JJ., DICKSON, PIVARNIK at 1326. mistrial is not warranted." Id. in the case at We hold the admonition bar adequate harm done to cure prosecutor. of the

improper conduct

Appellant claims the trial court erred Tendered Instruction

refusing to purported This instruction to cover

No. 1. weigh the manner which the HARRINGTON,Appellant, Allen G. witness. testimony of the identification specifically directed to This instruction was STATEof testimony of Abbitt. In gave as its Final The court con general No. 14 a Supreme Court of Indiana. cerning the manner credibility of the witness weigh the 17, 1987. they presented. the evidence which es and Rehearing 23, Denied Feb. single partic not out a A trial court should in an group of witnesses

ular witness Beasley v. 267

instruction. 360. Even if we 370 N.E.2d Ind. *2 evening, drinking

Later after heavi- ly, appellant went to Bouche's Kupec and knocked but Bouche and didn't He also to call answer the door. tried unplugged but she Bouche rang. Appellant it then armed him- when apartment. to Bouche's self and went key, let himself in with his went to bedroom, lights, turned on the discovered Kupec naked in bed and and fired a Bouche Kupec leapt then out of shot at the wall. bed, dresser, attempted to hide behind a appellant. Ap- was shot and killed and flee, peliant rather he waited at the did not police to for arrive. scene tendered an instruction Defense counsel correctly explaining of burden negate upon the State presence of sudden heat. Holland v. State (1983), Ind., 454 N.E.2d 409. This instruc- judge who tion was refused language informed counsel that Coleman, Valparaiso, Mark Warren pattern he included a instruction which appellant. jury. would read to the No such instrue- Atty. M. Lisa given. tion was Paunicka, Indianapolis, Deputy question presence The of re absence of sudden heat is one to be solved Estes v. State Ind., In the case before a trial This us, purposes the practical this was for all guilty by jury. Appellant was found jury. They re only before the sixty years im- murder and sentenced ignorant of solved the issue but did so prisonment. proof. The which side bore the burden germane ap- are the facts to this These appellant may have believed had peal: Appellant and Suzanne Bouche were They may prove he acted in sudden heat. relationship. tumultuous involved negate its had to have believed frequently Bouche became involved with certainly evidence existence. There was periodically other men and terminated her jury could have presented from which the Later, relationship appellant. with she acting in appellant was sudden determined promise fidelity and assure Kupec. He Christoper killed heat when he only they him that she loved and explaining was entitled to a relationship. their resume presence of negate must that the State 2, 1985, again March Bouche once On reasonable doubt. beyond sudden heat appellant she promised would be faithful Holland, refusal of supra. The court's marry him she wanted to him. told ef to this appellant's tendered instruction days Christopher met Ku- Three later she granting of a new necessitates the fect pee in a bar and went with him to a bowl- trial. img they appellant. alley where encountered and remanded. Reversed Bouche asked to leave because complied. her and he she was with friends DICKSON,J., SHEPARD,C.J., Kupee Subsequently Bouche and went apartment. Bouche's

GIVAN, J., separate dissents with opinion in DOWERY, J. Appellant, Ozell concurs. STATE of

GIVAN, Justice, dissenting. respectfully majority dissent from the opinion in jury may this case. The reason Supreme Court Indiana. ably conclude that one did not act sud *3 "cooling period den heat if a sufficient off" provocation occurred between the (1981), Ind.,

homicide. Sanders v. State

There is no that the trial court

should have instructed the

State had the burden of to establish However, absence of sudden heat. giving

error in an instruction is

harmless if clearly the conviction is sus

tained evidence and the

not have found otherwise. Walker v. State

(1986), Ind., 497 N.E.2d 543.

The State's evidence shows that when

appellant discovered that Bouche had an

other man in her he drove to his

home, calls, made two collected guns apart and drove back Bouche's

ment. clearly This conduct demonstrated had a sufficient time to "cool

off" after he discovered the factual situation. (1985), Ind.,

Ha rlan v. State although would therefore hold that in failing court erred the in- concerning the State's burden of

proof, such error did not rise to reversible

error because a verdict of sudden heat

would have been unreasonable under the Point, King, appel- Scott L. Crown Walker, supra. circumstances. - lant. I would affirm the trial court. Michael Worden, Deputy Atty. Gene India- J., concurs. napolis,

This is determination that committed the 85-42-1-1(2). murder, felony crime of 1.C. (80) thirty year sentence. received a urges appeal that he was Appellant on and that probable arrested cause without by admitting court erred therefore the trial