*1
erroneously
suant to a covenant not to sue constituted
Where evidence is
ex
cluded,
compensation.
pre-
In the trial
justified only
full
court’s
reversal is
if the error
order,
plaintiff
trial
the
conceded the exist-
relates to a material matter or is of such
the covenant not to
substantially
ence and contents of
character as to
affect
the
trial,
ruling permitting
sue. At
the
testi-
rights
parties.
Terre Haute First
mony
existence and amount
about the
Ind.App.,
Nat’l Bank v. Stewart
conformity
in
the settlement was
with the
362;
Posey County v. Cham
then-existing precedent
Bedwell and its
(1982),Ind.App.,
ness
ment of the liability Hintz insur coverage $25,000
ance plus limits additional Hintz,
from Mr. and plain Mrs. and the
tiffs represents belief that the settlement “very, very portion per small PERIGO, Appellant James B. centage of the true value of an amount or (Defendant Below), sum money representing full, ade
quate payment compen reasonable Indiana, Appellee STATE of injuries sation” for damages sustained (Plaintiff Below). as a result of the accident. Such informa No. explain 87S00-8603-CR-316. relevant to the intent and settlement, circumstances of issues in Supreme Court of Indiana. jected by Department with its introduc Aug. tion of regarding evidence the existence prior and amount of the settlement. The
trial court erred in refusing to admit
evidence the covenant not to sue. *2 Boonville, Kelley, appellant.
David for Gen., Linley Pearson, Atty. Cheryl E. Gen., Lynn Greiner, Deputy Atty. Indianap- olis, for appellee.
SHEPARD, Chief Justice. Perigo appellant A James B. found feticide, murder, felony; a class guilty of felony, attempted counts of mur- C and two der, 35-42- class A felonies. Ind.Code §§ 1-1(1), 35-42-1-6, 35-42-1-1 and 35-41-5-1 (Burns Repl.). The court sen- conviction, respec- Perigo each tenced on thirty tively, fifty years, years, five years, each term to years, thirty totals 115 consecutively. run His sentence years prison. relationship pursued a romantic years. Peri- Kathy Evans for several
go
engaged
to be
testified that
married,
relationship
some-
though the
led Per-
times tumultuous. One altercation
possessions from
igo to
all of his
remove
occasion,
apartment.
Evans’
On another
pointed shotgun
at two of Evans’
friends,
and Donna Madden.
Jon Cates
criminal
This led
arrest
He
was released
bond
about the difference
man-
recklessness.
murder;
charge
and,
from that
when he committed the
slaughter and
pregnant
crimes at
Evans became
bar.
IV.Whether the trial
seeing Perigo
told him
while she
nying Perigo’s motion to dismiss
*3
impregnated
her.
he had
request
based
the State’s
for a
13, 1985,
phoned
April
Perigo
Evans
dealth-qualified
On
Perigo
at
told
that she
5 a.m.
had
Evans
Perigo
been on
with another man.
a date
I. Words as Provocation
previous knowledge
had
of Evans’
some
Perigo argues that
court erred
relationship
Perigo
the other
with
man.
objection
it
when
overruled his
and denied
apartment
went to Evans’
and confronted
prosecution’s
motion in
his
limine to
relationship.
her about the
closing argument
provoca-
on the law
Perigo
relationship
Evans told
tion.
preg-
finished.
her
When
asked about
prosecutor
quoted
had
from Vasseur
nancy,
going
give
she
him she
to
told
(1982),Ind.,
v. State
nant. slaughter verdict.” The court overruled Perigo by rushing reacted another into objection. room where Cates and Madden asleep. He stabbed Cates in the chest The trial court excused then knife, and then slashed Madden’s neck attorney moved limine that superficially and sliced off her fin- one of “not argue be ordered to gertips put her when she hand his provides that Indiana law that confession knife and her neck. Cates and Madden sex prov- illicit a fiance is insufficient house, escaped ran to a nearby ocation as a law to matter of warrant a Perigo trapped Evans her and beat head manslaughter verdict. I believe it is the abdomen with baseball bat. Evans law that alone words are insuffi- died and her fetus was terminated. provocation. cient—are insufficient But it is also the law that a confession of a wife four raises issues in this direct or fiance of illicit provoca- sex is sufficient appeal: manslaughter to—to warrant a ver- I. Whether the trial court erred de- dict.” nying his motion in limine and over- ruling objection prosecu- his Perigo asserts in his brief the trial closing argument tor’s that words by overruling objection court erred provocation alone were insufficient closing prosecution’s be- manslaughter; reduce murder to cause: II. Whether trial court ad- required All that is to reduce a homicide mitting gruesome photo- as evidence voluntary from murder to manslaughter graphs, about which Perigo offered is sufficient to excite in the stipulate; mind of the defendant such emotions as by per- anger, III.Whether court erred rage, either sudden resentment or prosecution’s mitting may cross-exami- terror as be sufficient to obscure knowledge on his ordinary man, nation of the reason of an and to circumstances, may In some premeditation, deliberation prevent engendering with actions suffi- malice, the de combined and to render exclude reduce an offense from cient reflection. incapable cool fendant very manslaughter. murder to is the (1977), 267 Ind. Love point in the rule that words alone are not also, Russell v. State N.E.2d 1073. See provocation to reduce an offense sufficient (1981),275 manslaughter. murder to from Even Bryan in the highly emotional words case at bar just are still that —words. cases and the From above-noted particular Photographs II. scription of the facts Gruesome that words alone can be case clear [it] *4 Perigo argues that the trial court erred if are provocation sufficient those words by admitting photographs into evidence to meet standard of in fact sufficient 5) (State’s 2, 3, of exhibits 4 and the mur- as set forth above. Love Perigo argues der victim of her fetus. also refers to Ind.Code First, argues issue on this two levels. (Burns Repl.) sup- 1985 as 35-42-1-31 prejudicial inflammatory § that the or nature argument. his port for photographs outweighed proba- Second, argues tive value. that his of- a in limine argues The State that motion stipulate evidentiary fer to to the value of ruling a does not serve to obtain final photographs these should be considered evidence, citing admissibility e.g., weighing admissibility photo- of the (1985), Ind., v. 472 N.E.2d Johnson State graphs. We find no error the trial 892; (1984), 469 Green v. State court’s admission of the exhibits. true, Perigo this is N.E.2d 1169. While object- adequately preserved this issue photographic Admission of evi ing prosecutor’s at the at trial is a trial court’s discre dence within time. tion, ruling not ex whose we will disturb cept Wesby for abuse of discretion. v. properly The trial court overruled (1989), Ind., N.E.2d 535 State Perigo’s objection correctly denied depict in gory, revolting, or photographs motion in limine. Words alone are not flammatory crime not suf details of the provocation to to sufficient reduce murder reversal, they unless are ficient for basis Vasseur, 1157; manslaughter. any relevance to material issue. without v. 259 New State Photographs generally as are admissible 696, 702; v. 105 Boyle N.E.2d State they depict subject testimony long as (“The Ind. 5 N.E. 210 court orally if related which would be admissible directing the mere did not err in All evidence is relevant by a witness. Id. do such not constitute a prove disprove material tends to or a if it killing an unlawful from as will reduce any light on the in the case or sheds fact manslaughter.”); Murphy to murder guilt or innocence of the accused. Cox (1869) (“But 514 it should State only remembered that words —however Perigo suggests utterly that the revolt- may abusive be—cannot outweighs ing photographs a ... and nature these constitute sufficient photo- issues. These from murder to man their relevance to the reduce offense revolting, pur- but the slaughter.”) precedents graphs inform our are indeed These prove, to relevant how- interpretation pose Ind.Code 35-42-1-3 evidence § (Burns slightly, This Repl.), which take to be the material issues. we ever present- done without century a of caselaw. cannot be sometimes consistent with B) mitigating provides The existence heat a 1. This code as follows: of sudden section would, be otherwise A) knowingly intentionally factor reduces what person A who 1(1) chapter being acting under while under section kills another human voluntary manslaughter, voluntary manslaughter. sudden heat commits Felony. B class Revolting disagreeable police, differences, evidence. didn’t know those generate revolting you? crimes evidence. did [Perigo’s MR. ROBERT CANADA attor- Next, Perigo argues that his offer ney honor, may ap- at Your trial]: evidentiary stipulate value of these proach the bench? photographs obviated the need for the Simply put, Perigo urges them. mistrial, to view then Counsel outside moved stipula- an offer presence this Court consider jury. Perigo argued of the balancing relevancy tion in the test of ver- questioning implied a fabricated to ar- prejudicial sus effect. seems Judge Campbell agreed defense. Edward gue that should have re- suggested by the inference defense quired accept stipula- the State to such a counsel drawn but it was “cer- prohibited photographs of the use tainly necessarily not inference.” evidence. Judge Campbell ruled that did rise to the level of Hossman v. party may A stipulate refuse (1985), Ind.App., any An stipulate facts. offer to does not and denied the motion. counsel affect the trial court’s consideration also made a motion in limine on issue. *5 admissibility of evidence. It was denied. jury may A trial court the and learn Upon return the prosecution of the through viewing they an exhibit what asked: through listening have learned think, Q: Perigo, I Mr. I was what re- testimony describing it. See Thomas v. ferring the one before—the dif- [to] 309, 256 ference voluntary Certainly, some are inadmissible exhibits manslaughter. And you would answer prejudicial because nature lack question. relevance, adversary’s but an offer to A. Between murder involuntary stipulate admissibility. does not on bear manslaughter? adversary permitted Each must be offer Q. Voluntary manslaughter, sir. solely admissibility and admit evidence on Voluntary. A. Accepting Perigo’s argument standards. Q. Yes. deny unnecessarily would each side the voluntary A. I’d manslaugh- heard of proper independence which present with ter, I really didn’t know differ* its case. ence. Questioning
III. Prosecution’s Perigo’s That the entire record on asser- tion that the misbehaved im- Perigo argues that the plying Perigo’s defense was fabricated. by denying mistrial, his motion for upon prosecutor’s which was based argues his claim prosecutorial cross-examination him. interroga The solely precedent misconduct tion in contention is: Hossman v. State. further asserts questioning requires above a
Q. mis You’ve learned some- [Prosecutor] trial under the test thing though else Maldonado down there in those 355 too, thinking this, months of about ha- you? ven’t That’s the difference be- We need not reach the Maldonado test voluntary manslaughter tween and mur- because we hold you der. Haven’t learned the difference prosecutorial misconduct under Hoss- between those in those four months Hossman, In Appeals man. Court of you’ve had to about think this? found prosecution misconduct when the [Perigo] A. Yes. used “fabricated defense” its as theme So, Q. throughout decided in after- In prosecutor’s the trial. April noon give your statement, the 13th to opening sec- asserted cooperate ond statement and “burglars with defense witnesses
941 juries, death-qualified citing Grigsby and “have of thieves,” regulars,” “courtroom Cir.1980), Court,” (8th ir- re- F.2d 525 prior Mabry, in 637 Circuit been witnesses mand, F.Supp. (E.D.Ark.1983). which 1273 comments violated relevant Responsibili- defen- opinion of Professional held that the Grigsby Code The Indiana 7-106(c)(l). 473 ty, Rule a Disciplinary hearing entitled to on whether dant was closing prosecutor’s In the N.E.2d at 1063. con- death-qualified jury likely was more bluntly asserted: argument, regard for selected vict than without I to estab- juror penalty, trial was on the death made a decision views I had constitutional to call their witnesses before lish whether defendant’s going put impartial Before right on. to an was violated. State’s evidence however, they got together, their acts before the subse- Perigo, fails to cite I so opportunity create stories Supreme had an decision which quent U.S. Court again. perjury to listen to reasoning. wouldn’t have Grigsby reverses its McCree, occurred reversal Lockhart v. prosecutorial conduct Hossman The 476 U.S. S.Ct. needle quilter of a subtle not the work (1986). Lockhart is stare L.Ed.2d eager that of an thread but blacksmith against position. decisis Ap- The hammer and anvil. Court stated, not ob- peals “Even had Hossman affirm the trial court. We remarks, final jected to these error them fundamental would review DeBRULER, PIVARNIK, GIVAN and Id. at 1065. and reverse.” JJ., concur. cross-examina scope and extent of DICKSON, Justice, concurring and dis- tion within the sound discretion *6 senting. court, an and we reverse majority the cases in the While cited v. discretion is abuse of shown. Williams rule that opinion support (1986), Ind., State provoca- are not sufficient “words alone” permitting argues manslaughter, to reduce murder to implied of discretion it an abuse because “fight- they primarily arise from claims Campbell cor Judge defense. fabricated do provocation. cases Such implication that more one words” rectly noted than discovery infidelity, the questioning. sexual might drawn from this not involve Further, support provoca- impeachment legitimate part can a claim is a of which and this tion. cross-examination ham a needle rather than a worked with 386, (1886), Henning In v. State questions Peri- The limited asked of mer. 803, stated: N.E. this Court go within the bounds of effective were no abundantly it settled that think We and did not constitute cross-examination life, deliberately man can take a woman’s prosecutorial misconduct. betrothed, though be- she is his even Impartiality IV. him, is false to cause he believes that she Death-Qualified Jury her, time for slay if he does after deliberation, in the guilty he is Perigo argues that court erred discovering If denying degree. his motion dismiss for denial first first her, then, impar- infidelity slays possibly, he right sixth amendment to an her to man- killing tial asserts that reduced impartial jury nothing it than slaughter, nied an because less qualified penalty pas- re- murder, ample to consider a death time for when after and, thus, quest prone subside, was more to convict. kills her. deliberately sion to infideli provocation arising from argument has Claims Perigo concedes v. involved against position, ty as re both Wollam resolved been cently as Hammers Perigo urges 1339. this Court Harlan v. State upheld conviction guilt proneness a murder the issue of reconsider Wollam ex-wife, fatally of a defendant who shot his
with whom he shared a “connubial and ELLIOTT, Leroy Appellant, Dennis stormy relationship,” after she demanded money “unfavorably sexual favors Indiana, Appellee. STATE of compared prowess the defendant’s sexual of her Regarding with that other lovers.” No. 49S00-8809-CR-810. possible provocation, this noted: Court Supreme Court of Indiana. nothing provo- show [t]here cation day offered the decedent on the Aug. killing was unusual her continu-
ing relationship with the defendant....
Harlan the of an instruction on the
“cooling period upheld off” where the fatally
defendant shot his wife’s lover
three weeks after he discovered the two
engaged in sexual intercourse. The Court
rejected the defendant’s that his flaunting
wife’s of her affair and sexual
belittling himof was so continuous as to
maintain sudden heat.
Significantly, neither Wollam nor Har-
lan cites the “mere words” or “words
alone” reject rationale to infidelity-
based recognized claim. As by implication,
these cases and in Henning
by express language, discovery infidelity
may properly serve as a basis for a defense provocation.
claim of
Clearly, one person manner which a
could infidelity discover such verbal
communication. The recital that
mere words are insufficient for appropriate
is more taunting or
words, particularly in “fighting words”
cases, but it necessarily should not ap-
plied to informing of conduct that properly
could justify claim.
Provocation should recognized when a
defendant qualifying discovers inflammato- conduct,
ry regardless whether such knowl-
edge acquired visually verbally.
Upon issues, the other I concur with the
majority.