Potts v. State
594 N.E.2d 438
Ind.
1992
Check Treatment

*1 POTTS, Larry Appellant, Indiana, Appellee.

STATE

No. 45S00-8907-CR-536. 23, 1992. Sept.

Rehearing Denied Marshall, Div., Appellate Albert Crown

Point, appellant. Pearson, Gen., Linley Atty. E. Arthur Gen., Perry, Deputy Atty. Thaddeus India- napolis, appellee.

GIVAN, Justice. by jury A trial resulted in the conviction of two counts of Murder and Attempted three counts of Murder. jury, the recommendation he re- ceived the death The facts are: Oke they separated. married then part- they continued as business separa- Lounge. ners in After the Oke's tion, appellant. Sharon moved appellant had beaten Shar- after *2 439 breaking jaw, her she moved in was appear back observed that he did not time, Jerry. appellant About this told with intoxicated or from a over- wife, Potts, Phyllis he his former had Autopsies dose or mental illness. showed Sharon, gunshot Sharon died of a jaw, wound to the beaten broken her and on heart, Davey gunshot died of a occasion choked her until wound another she purple. go- He turned stated that he was to the brain. ing kill to her and shoot who tried Appellant claims the trial court stop him.

to erred and committed an abuse of discretion 12, 1987, evening ap- the On October jury when it failed to instruct the on the Okes, pellant in the bar owned voluntary lesser-included offense of man during evening, the course of he slaughter. give It is error to fail to argued. point, they and Sharon At one only included-offense instruction if there is entered the office and outside support evidence in the record to such an though they could hear loud voices as were McCarty instruction. v. State thereafter, arguing. Shortly they emerged 496 N.E.2d 379. claims that be appellant immediately from office cause of his with Sharon there is attempted engage Jerry to in a confronta- heat; showing a of sudden thus the volun However, Jerry up tion. declined take to tary manslaughter instruction should have challenge. point, appellant At given. been Jerry drew a and shot three times. As there is no evidence in him, pleading Sharon came toward with appellant's disagreement record stop shooting, appellant him to shot her anything with Sharon resulted in but Smith, patron and killed her. John a exchange of words. We have held that bar, leg, Davey, was shot and Robert provocation words alone are not sufficient patron, Ap- another was shot killed. manslaughter. Perigo to reduce murder to pellant then walked toward Smith who was (1989), Ind., 541 N.E.2d v. State pleading again; him him not to shoot showing There must be a of sufficient however, appellant shot more Smith two passion induce such to to Oliver, times. He also shot Willis another ordinary obscure the reason of an man. patron, in the shoulder. Fox v. 506 N.E.2d 1090. shoot, he ran appellant As continued to there total is a ab- ammunition, clip, inserted a fresh out sence of such evidence even as to Sharon. firing. point, At one and resumed absolutely is of course no evidence in There up Oke and walked wounded justify finding of this record to sudden shot, striking fired another regard to the other victims of the heat Oke, shot, although This not head. any of shooting. There is no evidence that firing four- virtually left him After blind. people attempted to interfere with someone, shots, struck teen any way or in entered into his the counter and appellant walked behind exchange with Sharon. His cold and verbal Lake Station Police called the calculating firing of shots into who people a in Oke's just shot lot already that he were down and the fact waiting give him- Lounge would to be deliberately every made shot count belies up. self heat. The trial court his claim of sudden why him police arrived and asked When refusing jury did not err to instruct the thing, a he stated that it he had done such voluntary manslaughter. concerning A they jump all tried to him. was because Appellant claims the trial court it was because little later he stated its discretion when it erred and abused stop picking on him. Police offi- would not existing mitigating did failed to credit testified that not cers In addition to his claim of sudden although obviously had factors. intoxicated be heat, points to the fact that hospi- also drinking. He taken sentencing hearing his children again during it complaining of back where tal gener- testified that he had been kind and of the offense and the offender. ous father to them and further that he out, pointed clearly the evidence significant no criminal record. Notwith- supports standing appellant's the fact during trial court that the attack *3 behalf, testified in his their view of their lant's actions were so deliberate that he gainsay father does not the circumstances reloaded his and fired additional shots performance perpetration of his without sufficient into the instant crimes. begging mercy. Under these cireum- stances, judge the trial acted well within Although sig- it is true had no the statute and the Indiana and United record, prior nificant fact that imposing States Constitutions in the death physically abused Sharon on former occasions and had told his ex-wife of his intention to kill and else The trial court is affirmed.

who interfered is evidence from which the presiding judge could find that SHEPARD, C.J., J., KRAHULIK, he had committed two murders and three concur. attempted murders in a willful and wanton fashion. DeBRULER, J., concurs and dissents DICKSON, separate opinion in

Appellant also contends the trial court J., concurs. should have taken into consideration the mitigating pain factor that he was on medi- DeBRULER, Justice, concurring and dis- cation for his back and had consumed a senting. amount of day. considerable alcohol that mitigating The trial court found one cir- indicated, all cumstance, namely that had no observing appellant testifying concern- significant history prior eriminal con- ing his condition at the time of the occur- duct. The trial rejected court a second rence stated he did not that mitigating by circumstance claimed the de- intoxicated or under drugs. fense, namely appellant's capacity that The trial court did not err in that legal requirements conform his conduct aggravating circumstances far out- substantially impaired by mental dis- weighed mitigating circumstances review, ease. I find that the evi- this case. disease, dence of mental when viewed with Appellant penalty claims the death mind, open convincingly supports this statute, 35-50-2-9, Ind.Code is unconsti § mitigating cireumstance. applied tutional as to his case. He con Appellant was in his forties in 1987 when mitigating tends that in view circum 1970, he shot and killed. In arbitrary stances the death sentence is his first mar- riage ended. He had four by capricious and constituted eruel and un marriage. marriage His second of thirteen punishment prohibited by usual as 1986, Eighth Amendment to the United States years year ended in within of these killings. His adult children testified Constitution, citing Fleenor v. State always throughout he was alcoholic denied, cert. 488 U.S. lifetimes, good their but that he had been a 102 L.Ed.2d 109 S.Ct. 158. In father to them and had not been violent at case, however, we held the trial court had considered the factors home. mitigation mitigating to be of little or no severely injured In 1979 Similarly,

weight. job. years Over the next seven thoroughly trial court examined and bal laminectomies, underwent four was treated mitigators aggravators anced both Clinic, Mayo suffered constant and fully justified pronounced sentence. and became addicted to a variety drugs. also contends the death narcotic disproportionate diagnosed is to the nature by sentence 1982 and 1986 he was differ- psychiatrists ent from the ailment and Fleenor fled the state rather depression. mental disease turning During himself in. Appellant should period he was disabled and received social fare better than Johnson and Fleenor. security payments. During period I would affirm this grant conviction but reported repeatedly emergency room mitigating circumstances more hospital, suffering from acute back weight than did the trial court and conclude pain and under the influence of alcohol. outweighed are not aggra- His second wife testified that his mental vating circumstance of the double murder. greatly condition deteriorated with the add- 35-50-2-9(b)(8). 1.C. The death sentence ed addiction to killing medications and years be vacated and a term of that the one time that he struck her oc- *4 imposed. murder curred at the end of their marriage. In January shortly after his DICKSON, J., concurs. divorce, appellant and the victim together. Oke moved in They ar- gued violently, in the summer and fall

of 1987 he twice beat her and threatened to later,

kill her. A month still under the care physician under Percodan, opium

medication of the family, and alco-

hol, in the immediate aftermath of a heated BEESON, Appellant, H. William tavern, with Sharon Oke in the (Respondent Below), opened upon husband, fire her and her killing wounding two and three. He then v. police, ealled (Beeson) CHRISTIAN, Debra Ann get come and him as he was tired of (Petitioner Below). Appellee.

people.

Juxtaposed array impressive to this No. 29S02-9206-CV-495. evidence is the weak evidence of the two court-appointed physicians. They con- appellant briefly jail ferred with upon relied his brief statements about his history in arriving opinions

medical at their legally sane at the time of the

killings. On cross-examination each admit- great gaps knowledge

ted in their history.

actual medical I cannot but find impairment mitigator

the mental disease

present in this case. It resembles the im-

pairment due to alcohol and contraband present abuse Johnson v. State

(1992),Ind., but is entitled mitigating weight greater due to resulting

lant's battle with legal pain killing drugs

addiction to

analgesics. Appellant's history lack of a age forty is also conduct at enti- greater weight present

tled to in some

capital Appellant's cases. circumstance re- present

sembles Fleenor 514 N.E.2d 80 that case however, physical there was no extreme