Horan v. State, No. 69S00-9510-CR-1118

• Docket Nº: No. 69S00-9510-CR-1118
• Citation: 682 N.E.2d 502
• Case Date: June 27, 1997
• Court: Supreme Court of Indiana

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682 N.E.2d 502 Brian HORAN, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below). No. 69S00-9510-CR-1118. Supreme Court of Indiana. June 27, 1997.
Rehearing Denied Sept. 24, 1997.

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Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for Appellant.

Pamela Carter, Attorney General, Andrew L. Hedges, Deputy Attorney General, Indianapolis, for Appellee.

SULLIVAN, Justice.

A jury convicted Defendant Brian Horan of Murder ¹ and Battery, ² on June 14, 1992. On July 28, 1992, Horan was sentenced to eight years on the battery count and sixty years on the murder count. Horan appealed the conviction because his tendered instruction requesting the jury to draw no inference from his refusal to testify was denied. We vacated this conviction and remanded the case to the trial court for a new trial. Horan v. State, 642 N.E.2d 1374 (Ind.1994). ³

On April 7, 1995, a second jury convicted Horan of Murder and Battery. The trial court sentenced Horan to fifty-five years on the murder count and eight years on the battery count. The sentences were to be served consecutively.

We have jurisdiction over this direct appeal because the longest single sentence exceeds fifty years. Ind. Const. art. 7, § 4; Ind.Appellate Rule 4(A)(7); Wiseman v. State, 521 N.E.2d 942, 943 (Ind.1988).

Background

A summary of the facts most favorable to the verdicts follows. For a more complete discussion, see our opinion in Owens v. State, 659 N.E.2d 466, 469 (Ind.1995). On the evening of June 21, 1991, Brian Horan and brothers Michael and Rodney Owens had been drinking and riding around in Rodney's Thunderbird when they encountered Gary Bennett and Robert Hendricks. Horan and Michael Owens briefly argued with Bennett about Bennett's having had an affair with both Horan's and Rodney's wives. After the argument subsided, Bennett and Hendricks, who had also been drinking, got into the car to drive around and drink with the other three men. Horan, as he would the rest of the evening, did the driving.

This driving and drinking expedition continued until reaching a secluded country area known as Devil's Elbow. At some point, the subject of Bennett's affair with Horan's wife was revisited. Horan then began hitting Bennett and the violence escalated. Michael Owens joined Horan in repeatedly punching and kicking Bennett in the head, chest, groin and stomach and then slamming Bennett's head against the trunk of the car four to five times.

Eventually, the group left Bennett at Devil's Elbow and drove to Rodney Owens's house. Covered in blood, Horan showered

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and changed clothes. Horan, Michael Owens and Hendricks then returned to Devil's Elbow in the Thunderbird. Upon returning to Devil's Elbow, the men found Bennett slumped over a fence. Horan said that he could not "believe the son-of-a bitch was still up," and along with Owens resumed the beating. After this second beating episode, all three men again left Bennett and drove back to town.

After taking Hendricks home, Horan and Michael Owens drove around town but eventually returned to Devil's Elbow. Bennett was dead. Horan and Michael Owens put Bennett's body in the trunk of the Thunderbird. Later the next morning, the police found Bennett's charred body in the trunk of the Thunderbird. Through dental records, police were able to identify Bennett's body. The autopsy revealed that the cause of death was severe trauma to the head before the body was burned.

We will provide additional facts as necessary.

The issues on appeal are as follows:

1. Whether Horan was entitled to instructions on Voluntary Manslaughter and Reckless Homicide.

2. Whether the trial court improperly instructed the jury that voluntary intoxication is a defense only to crimes that require an intentional act.

3. Whether the trial court erred by admitting Horan's statement to the police.

4. Whether the trial court improperly permitted the State to read witness Hendricks's prior consistent statement into evidence.

5. Whether there was sufficient evidence to prove beyond a reasonable doubt that Horan committed Murder.

6. Whether Horan's convictions for Murder and Battery subjected him to double jeopardy.

Discussion

I

Horan contends that the trial court committed reversible error by denying his proposed jury instructions on Voluntary Manslaughter and Reckless Homicide as lesser included offenses of Murder. In Wright v. State, 658 N.E.2d 563 (Ind.1995), we set forth the proper analysis to determine when a trial court should, upon request, instruct the jury on a lesser included offense of the crime charged. This analysis contains three steps: (1) a determination of whether the lesser included offense is inherently included in the crime charged; if not,(2) a determination of whether the lesser included offense is factually included in the crime charged; and, if either, (3) a determination of whether a serious evidentiary dispute existed whereby the jury could conclude the lesser offense was committed but not the greater. Id. at 566-67. If the third step is reached and answered in the affirmative, the requested instruction should be given.

A

Horan first argues that the trial court erred in refusing his instruction on Voluntary Manslaughter, an inherently lesser included offense of Murder. To determine if the lesser offense is inherently included in the crime charged, the court must compare the statute defining the crime charged with the statute defining the alleged lesser included offense. "If (a) the alleged lesser included offense may be established 'by proof of the same material elements or less than all the material elements' defining the crime charged, or (b) the only feature distinguishing the alleged lesser included offense from the crime charged is that a lesser culpability is required to establish the commission of the lesser offense, then the alleged lesser included offense is inherently included in the crime charged." Id. (citations and footnotes omitted).

Indiana's Murder statute provides in relevant part that "[a] person who ... knowingly or intentionally kills another human being ... commits Murder, a felony." Ind.Code § 35-42-1-1 (1993). By comparison, Indiana's Voluntary Manslaughter statute provides in relevant part: "A person who knowingly or intentionally kills another human being while acting under sudden heat commits Voluntary Manslaughter, a Class B

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felony." Ind.Code § 35-42-1-3(a) (1993). Sudden heat is a mitigating factor which reduces murderous activity from Murder to Voluntary Manslaughter. Ind.Code § 35-42-1-3(b) (1993). Sudden heat is not another element of Voluntary Manslaughter. Isom v. State, 651 N.E.2d 1151, 1152 (Ind.1995). See also, Griffin v. State, 644 N.E.2d 561, 562 (Ind.1994) ("[T]he elements of [Murder and Voluntary Manslaughter] are identical. Voluntary manslaughter is simply Murder mitigated by evidence of 'sudden heat.' "); Estes v. State, 451 N.E.2d 313, 314 (Ind.1983) ("Sudden heat is a mitigating factor in conduct that would otherwise be Murder. It is not an element of Voluntary Manslaughter."). A comparison of the Murder and Voluntary Manslaughter statutes demonstrates that the elements of these crimes are identical save for the mitigating factor of "sudden heat." Voluntary Manslaughter is an inherently lesser included offense of Murder. ⁴

Because Voluntary Manslaughter is inherently included in a Murder charge, we turn to step three of the Wright analysis to determine whether Horan's instruction should have been granted. A trial court should grant the requested Voluntary Manslaughter instruction if the evidence demonstrates a serious evidentiary dispute regarding the mitigating factor of "sudden heat." Griffin v. State, 644 N.E.2d at 562 (quoting Roark v. State, 573 N.E.2d 881, 882 (Ind.1991) (Voluntary Manslaughter instruction is warranted if there is " 'any appreciable evidence of sudden heat.' ")).

The evidence here does not demonstrate that Horan acted in sudden heat. Sudden heat requires " 'sufficient provocation to engender ... passion' " which is demonstrated 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.' " Griffin v. State, 644 N.E.2d at 562 (quoting Johnson v. State, 518 N.E.2d 1073, 1077 (Ind.1988)). Horan contends that the evidence establishing that Bennett had an affair with his wife coupled with Bennett's admission to the affair was sufficient to establish that Horan acted with sudden heat. Horan further points to Hendricks's testimony establishing that Horan "just flared up" at Devil's Elbow to demonstrate his actions were in sudden heat. (R. 2199.) However, Horan and Bennett had previously argued about Bennett's affair in town while Bennett was on his bicycle. Horan then invited Bennett to join them in the car, and after numerous stops and drinks in and around town, the men ended up at Devil's Elbow.

Much time had passed between the initial discussion between Bennett and Horan regarding Bennett's affair thereby discounting Horan's claim of a serious evidentiary dispute that he acted in sudden heat. Further, Horan hit Bennett and left him bloody and bruised at Devil's Elbow only to return to the scene to continue the beating. This behavior does not demonstrate that Horan acted in sudden resentment of Bennett's affair with Horan's wife. He had ample time for "cool reflection" between the initial argument and the first beating at Devil's Elbow, as well as to deliberate his return to Devil's Elbow to continue beating Bennett. Given the absence of a serious evidentiary dispute regarding the sudden heat factor, the trial court did not commit reversible error by denying Horan's Voluntary Manslaughter instruction.

B

Horan also contends that the trial court committed reversible error by denying his tendered...