Gant v. State

• Decision Date: 30 April 1998
• Docket Number: No. 49S00-9703-CR-185,49S00-9703-CR-185
• Citation: 694 N.E.2d 1125
• Parties: Telly GANT, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Supreme Court

Page 1125

694 N.E.2d 1125

Telly GANT, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 49S00-9703-CR-185.

Supreme Court of Indiana.

April 30, 1998.

David M. Henn, Cohen & Morelock, Indianapolis, for Defendant-Appellant.

Jeffrey A. Modisett, Attorney General, Carol A. Nemeth, Deputy Attorney General, Indianapolis, for Plaintiff-Appellee.

DICKSON, Justice.

In this appeal from his convictions for the murder ¹ of Anthony Alexander and the attempted murder ² of Gordon Murrell, the defendant, Telly Gant, presents four claims of error: (1) sufficiency of the evidence; (2) denial of tendered instructions on voluntary intoxication and voluntary manslaughter; (3) cumulative autopsy evidence; and (4) manifestly unreasonable sentence. We affirm.

A brief summary of the evidence is necessary for our discussion of the issues. On the evening of June 16, 1994, Gordon Murrell and Anthony Alexander joined defendant and three other men at an Indianapolis apartment building parking lot, where they discussed homosexuality. After the defendant engaged in homosexual activity with Murrell and one of the other men in the basement of the apartment building, the six men went to Murrell's apartment where they talked, consumed alcohol, and watched homosexual pornographic videos. Some of the men again engaged in homosexual activity. At one point, the defendant went into the bathroom with Alexander for about ten minutes. The defendant came out of the bathroom with an "angry expression" on his face. Record at 446. All of the men except Alexander and Murrell left the apartment after about two hours. Immediately outside the apartment door, the defendant stated to the two men who left with him that he wanted to "jump" Alexander. Record at 394. The defendant then knocked on the apartment door and, when Alexander opened the door, the defendant and one companion entered the apartment. The defendant attacked Alexander. Murrell emerged from the bathroom, and a melee ensued among the four men. At some point Alexander yelled that he had been stabbed. Murrell testified that he saw "the motions of arms" and that he saw the defendant stabbing Alexander. Record at 254-55. Murrell ran to assist Alexander, forcing himself between Alexander and the defendant. After Alexander yelled, the defendant's two companions left the apartment building and got into the car they had driven to the apartment complex. The were followed shortly thereafter by the defendant, who was carrying a bloody knife and wearing bloody clothes. The defendant's two companions each testified that neither of them had carried a weapon that night. When the defendant joined them in the car, he told them to drive away and warned them not to mention what happened that night. Murrell sustained numerous stab wounds, but survived. He testified that he did not realize until later that he had been stabbed. Alexander died of his stab wounds.

Sufficiency of Evidence

The defendant contends that there was insufficient evidence to prove that he was the person who stabbed the two victims. He argues that his possession of a knife as he exited the apartment is insufficient to prove that he used it to stab the victims. An appellate claim of insufficient evidence will be denied if, considering the evidence and inferences supporting the judgment, we conclude that a reasonable jury could find the defendant guilty beyond a reasonable doubt. Case v. State, 458 N.E.2d 223, 226 (Ind.1984); Loyd v. State, 272 Ind. 404, 407, 398 N.E.2d 1260, 1264 (1980), cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

Not only was the defendant's possession of the bloody knife probative evidence from which the jury could have reasonably inferred that he was the assailant, Murrell testified that he saw the defendant stabbing Alexander. The evidence was sufficient to find that the defendant used a knife to stab both Alexander and Murrell.

Jury Instructions

The defendant contends that the trial court erroneously refused his tendered instructions as to the defense of voluntary intoxication and as to the lesser-included offense of voluntary manslaughter.

The manner of instructing the jury lies within the sound discretion of the trial court. Wrinkles v. State, 690 N.E.2d 1156, 1161 (Ind.1997). In reviewing a claim that the trial court erred in refusing to give an instruction, an appellate tribunal considers whether: (1) the tendered instruction correctly states the law; (2) there is evidence to support giving the instruction; and (3) the substance of the tendered instruction is covered by other instructions already given. Griffin v. State, 644 N.E.2d 561, 562 (Ind.1994).

Our resolution of this claim is determined by whether the evidence supports the tendered instruction. An intoxication instruction should be given only where "the evidence relevant to the defense, if believed, was such that it could have created a reasonable doubt in the jury's mind that the accused had acted with the requisite mental state or specific intent." State v. Van Cleave, 674 N.E.2d 1293, 1303 (Ind.1996), reh'g granted on other grounds, 681 N.E.2d 181 (Ind.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1060, 140 L.Ed.2d 121 (1998) (quoting Morrison v. State, 462 N.E.2d 72, 74 (Ind.1984)). "[A] defendant should not be relieved of responsibility when he was able to devise a plan, operate equipment, instruct the behavior of others or carry out acts requiring physical skill." Miller v. State, 541 N.E.2d 260, 263 (Ind.1989).

The trial testimony indicated that the defendant had consumed alcohol during the events immediately preceding the incident. However, there was ample evidence of the defendant's ability to carry out acts requiring physical skill, to instruct others, and to devise a plan. His actions evidenced the physical ability to successfully attack and kill one of the victims and the presence of mind immediately after the murder to tell his companions to drive away and not to say anything about the incident. The trial court did not err in refusing the tendered intoxication instruction.

The defendant also contends that the trial court erred in refusing his tendered instruction on the lesser-included offense of voluntary manslaughter. Voluntary manslaughter is a necessarily-included offense of murder and, therefore, we must determine whether there is sufficient evidence to warrant giving the instruction. Griffin, 644 N.E.2d at 562. Sudden heat exists where there is sufficient provocation to engender passion and is shown by "anger, rage, sudden resentment, or terror that is sufficient to obscure the reason of an ordinary person, prevent deliberation and premeditation, and render the defendant incapable of cool reflection." Id. The instruction should be given if there is "any appreciable evidence of sudden heat." Id. (quoting Roark v. State, 573 N.E.2d 881, 882 (Ind.1991)).

The defendant contends that he is heterosexual and that his participation in homosexual activity was unusual conduct for him. He contends that the "sudden heat" prerequisite for such instruction was established by evidence that he acted out of anger toward the "source of his humiliation and anger" which resulted from engaging in consensual homosexual activity. Brief of Appellant at 14. We decline to permit the defendant's own consensual actions to constitute sufficient provocation. Furthermore, we find the evidence of suddenness to be lacking. The defendant had engaged in homosexual activity over the course of several hours. While the defendant, upon leaving the apartment, may have regretted his conduct, there is an absence of appreciable evidence of sudden heat. We decline to find error in the trial...