Bane v. State

Citation587 N.E.2d 97
Decision Date25 February 1992
Docket NumberNo. 22S00-9107-CR-526,22S00-9107-CR-526
PartiesClayton BANE, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

William L. Francis, Sp. Public Defender, Tackett, Taurman & Sonne, New Albany, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

KRAHULIK, Justice.

Defendant-Appellant, Clayton Bane, was convicted by a jury of murder and received a sentence of 60 years. Additionally, he received one year for contempt of court to be served consecutively with the 60 year sentence. He raises seven issues in this direct appeal. They are:

1. Whether the trial court's instruction on voluntary manslaughter was erroneous;

2. Whether verdicts of guilty of murder and not guilty of voluntary manslaughter are inconsistent;

3. Whether the court erred in failing to give the defendant's instruction regarding a presumption of innocence;

4. Whether the State conducted a prejudicial voir dire;

5. Whether the court erred in admitting a statement the defendant made while in police custody;

6. Whether error occurred when the State filed a motion to revoke the defendant's probation, thereby publicizing his convictions, after a motion in limine had been granted; and,

7. Whether the evidence was sufficient to sustain the conviction.

On July 4, 1990, 44-year-old Bane shot and killed his 17-year-old wife, Laura. Before marrying Laura, Bane had been married to Debbie Bane, Laura's mother. On Independence Day, Laura, along with some of her friends, had gone to her mother's house by the Ohio River to watch a fireworks display. At some point during the evening, Clayton Bane, along with his nephew, Roy Wolfe, Jr., also drove to the riverfront to watch the display. Laura and Debbie Bane approached Bane insisting that he and Wolfe leave the property. An argument ensued between Laura, standing next to the passenger window, and Bane who was seated in the driver's seat of the car. Wolfe, who was seated in the passenger seat, joined in the argument intermittently. Clayton Bane pulled out a .22 semiautomatic pistol, shot past Wolfe striking Laura in the chest several times and drove away. This shooting resulted in Laura's death.

I. Jury Instructions

Bane was charged with both murder and voluntary manslaughter. The jury received the following instruction regarding these charges:

Murder I.C. 35-42-1-1. A person who knowingly kills another human being commits Murder, a felony.

Thus under Indiana law, in order to find the Defendant, Clayton Bane, guilty of the crime of Murder in Count I, you the jury must find proof beyond a reasonable doubt of each of the following elements: (1) The Defendant; Clayton Bane; (2) knowingly; (3) killed; (4) Laura Bane.

If you find that any of these elements have not been proven beyond a reasonable doubt, you should find the Defendant not guilty of Murder in Count I.

If you find that the State has proven each of these elements beyond a reasonable doubt, you should find the Defendant guilty of Murder in Count I.

You are instructed that the offense of Voluntary Manslaughter by Means of a Deadly Weapon in Count II, is defined by Indiana statute including the elements Voluntary Manslaughter. I.C. 35-42-1-3--A person who knowingly kills another human being while acting under sudden heat commits Voluntary Manslaughter, a class B felony.

contained therein insofar as they are applicable, as follows:

However, the offense is a class A felony if it is committed by means of a deadly weapon. The existence of sudden heat is a mitigating factor that reduces what otherwise would be Murder to Voluntary Manslaughter.

Thus under Indiana law, in order to find the Defendant, Clayton Bane, guilty of the offense of Voluntary Manslaughter by Means of a Deadly Weapon in Count II, you the jury must find proof beyond a reasonable doubt of each of the following elements: (1) The Defendant, Clayton Bane; (2) knowingly; (3) killed while acting under sudden heat; (4) Laura Bane; (5) by means of a deadly weapon.

If you find that any of these elements have not been proven beyond a reasonable doubt, you should find the Defendant not guilty of the offense of Voluntary Manslaughter by Means of a Deadly Weapon, a class A felony, in Count II.

If you find that the State has proven each of these elements beyond a reasonable doubt, you should find the Defendant guilty of Voluntary Manslaughter by Means of a Deadly Weapon, a class A felony, in Count II.

* * * * * *

The term "sudden heat" means an excited mind. It is a condition that may be created by strong emotion such as anger, rage, sudden resentment or jealousy. It may be strong enough to obscure the reason of an ordinary person and prevent deliberation and meditation. It can render a person incapable of rational thought.

Bane argues that this instruction is both misleading and a misstatement of the law. He contends that the voluntary manslaughter instruction necessitates the State's proving beyond a reasonable doubt that the defendant killed while acting under sudden heat. If the State fails to prove sudden heat beyond a reasonable doubt, it is impossible for Bane to be sentenced on a lesser offense. The instruction, Bane argues, misleads the jury regarding the quantum of evidence necessary to reduce murder to voluntary manslaughter.

Ind.Code Sec. 35-42-1-3 defines voluntary manslaughter as the knowing or intentional killing of another human being while acting under sudden heat. Subsection (b) notes that the existence of sudden heat is a mitigating factor that reduces what would otherwise be murder to voluntary manslaughter. See also Palmer v. State (1991), Ind., 573 N.E.2d 880, 1261 (on Petition for Rehearing of Post-Conviction Relief); Finch v. State (1987), Ind., 510 N.E.2d 673, 675. Sudden heat is an evidentiary predicate which allows the mitigation of a murder charge to voluntary manslaughter.

The instruction in this case improperly suggested to the jury that sudden heat is an element which must be proven beyond a reasonable doubt by the State. The statute defining voluntary manslaughter clearly, however, determines that sudden heat is not an element of the crime of voluntary manslaughter; rather it is a mitigator. As such, once the issue of sudden heat has been injected into the case, the burden is on the State to negate its existence. See, Reinbold v. State (1990), Ind., 555 N.E.2d 463. It is then for the jury to decide whether the evidence presented constituted sudden heat sufficient to warrant a conviction for voluntary manslaughter.

Once the evidentiary predicate of sudden heat has been introduced in a murder case, the defendant is entitled to a correct instruction on the lesser offense of voluntary manslaughter, as well as an instruction on murder which places the burden on the prosecution to negate the presence of sudden heat to the satisfaction of the jury. Palmer v. State (1990), Ind, 563 N.E.2d 601 (DeBruler, J., dissenting). "An instruction which does not place this burden on the prosecution is erroneous, detrimental to the substantial right of the defendant In this case, Bane did not object to the court's instruction given on voluntary manslaughter, nor did he tender a proper instruction. Consequently, Bane's argument has been waived. Ind.Trial Rule 51(C). Bane, however, contends that the giving of the instruction constituted fundamental error. The instruction at one point suggested to the jury that sudden heat was an element of the crime of voluntary manslaughter. At another point, it cited the voluntary manslaughter statute and informed the jury that the sudden heat was a mitigating factor. Although inartfully drafted and, in fact, technically erroneous, the instruction does not constitute fundamental error because it did not deprive the defendant of his due process rights. 1

and, where properly objected to and such objection is accompanied by a proper instruction, is cause for a new trial on the murder charge." Id. at 605.

II. Inconsistent Verdicts

Bane also contends that it was inconsistent for the jury to have found him guilty of murder, but not guilty of voluntary manslaughter. Bain argues that the jury should have been instructed that, if they found him not guilty of murder, they must also find him not guilty of voluntary manslaughter. Such is simply not the case. Murder is the knowing or intentional killing of another person. Voluntary manslaughter is the knowing or intentional killing of another person while acting under the condition of sudden heat. Sudden heat is a mitigating factor that reduces what otherwise would be murder to a lesser degree felony. By returning a verdict of guilty of murder and not guilty of voluntary manslaughter, the jury has simply concluded that the condition of sudden heat was not sufficiently present to warrant mitigation. The verdicts are not contradictory.

III. Presumption Instruction

Bane also argues that error occurred when the trial court failed to give his tendered instruction regarding his presumption of innocence and the reasonable deductions to be made from the evidence in light of that presumption. In Flowers v. State (1985), Ind., 481 N.E.2d 100, 103, this Court said that when reviewing the denial of a tendered instruction, three factors must be considered: (1) Whether the instruction correctly states the law; (2) whether the evidence supports the instruction; and (3) whether other instructions have adequately covered the substance of the tendered instruction. See also Davis v. State (1976), 265 Ind. 476, 355 N.E.2d 836. The Court in Flowers found that the tendered instruction was correct and that the evidence supported giving the instruction. However, the Court also found that the substance of the instruction was in fact covered by the other instructions given. Such was the case here. The jury received instructions on presumption of innocence, the jury's approach to the evidence, and reasonable doubt and, consequently, no...

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