Matheney v. State

• Decision Date: 09 January 1992
• Docket Number: No. 45S00-9002-DP-116,45S00-9002-DP-116
• Court: Indiana Supreme Court
• Parties: Alan Lehman MATHENEY, Appellant, v. STATE of Indiana, Appellee.

Page 1202

583 N.E.2d 1202

Alan Lehman MATHENEY, Appellant, v. STATE of Indiana, Appellee.

No. 45S00-9002-DP-116.

Supreme Court of Indiana.

Jan. 9, 1992.

Scott L. King, Appellate Public Defender, Crown Point, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana and Arthur Thaddeus Perry, Deputy Public Defender, Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Murder and Burglary. The jury recommended the death penalty. On May 11, 1990, the trial court sentenced appellant to death.

The facts are: On March 4, 1989, appellant was given an eight-hour pass from the Correctional Industrial Complex in Pendleton, Indiana where he was an inmate. Appellant was serving a sentence for Battery and Confinement in connection with a previous assault on his ex-wife, Lisa Bianco, who was the victim in this case. The pass authorized a trip to Indianapolis; however, appellant drove to St. Joseph County. Appellant went to the house of a friend, Rob Snider, where he changed clothes and removed an unloaded shotgun from the house without the knowledge of those present.

Appellant then drove to Mishawaka. He parked his car not far from Bianco's house and broke in through the back door. Bianco ran from her home, pursued by appellant. Neighbors witnessed the chase that ensued.

When appellant caught Bianco, he beat her with the shotgun which broke into pieces. One neighbor confronted appellant and saw him get into a car and drive away. Appellant surrendered to a policeman later that afternoon. The autopsy showed that Bianco died as a result of trauma to the head from a blunt instrument.

Appellant contends the trial court erred in refusing his tendered instruction on voluntary manslaughter. The test applied on review of the trial court's decision to give or refuse a tendered instruction is: 1) whether the tendered instruction correctly states the law; 2) whether there was evidence in the record to support the giving of the instruction; and 3) whether the substance of the tendered instruction was covered by other instructions which were given. Reinbold v. State (1990), Ind., 555 N.E.2d 463.

Appellant claims there is evidence in the record indicating that he acted in sudden heat which would support the giving of the instruction. Appellant points to testimony that he was angry at the time of Bianco's death and made growling noises at his daughter when he broke into Bianco's house.

Killing in the sudden heat of passion is the element that distinguishes voluntary manslaughter from murder, but there must be sufficient provocation to induce such passion to render the defendant incapable of cool reflection. Fox v. State (1987), Ind., 506 N.E.2d 1090. Therefore, the evidence of anger alone does not support giving the instruction on voluntary manslaughter. Additionally, words alone cannot constitute sufficient provocation to give rise to a finding of sudden heat warranting an instruction on voluntary manslaughter. Perigo v. State, (1989), Ind., 541 N.E.2d 936.

The existence of sudden heat is determined by the trier of fact, and the defendant has the burden of showing its existence. Storey v. State (1990), Ind., 552 N.E.2d 477. There is some evidence in the record that appellant was angry at the time of Bianco's death. However, there was no evidence to indicate that Bianco provoked appellant either by words or actions. There is no evidence from which the jury logically could find sudden heat.

Appellant relies on Reinbold, supra, for the proposition that a murder charge may never be drafted to preclude the giving of a voluntary manslaughter instruction. Appellant further relies upon Gilley v. State (1990), Ind., 560 N.E.2d 522, for the proposition that giving a voluntary manslaughter instruction as a lesser-included offense of murder is proper even where there is no evidence of sudden heat. Appellant argues, therefore, that the trial court's refusal to give his tendered instruction on voluntary manslaughter, even in the absence of proof of sudden heat, was error.

We held in Reinbold that a murder charge cannot be drafted so as to preclude the possibility of a conviction on voluntary manslaughter upon the introduction of evidence that the defendant acted in sudden heat and upon the acceptance of that evidence by the jury. Reinbold, supra at 467.

In Gilley, both murder and voluntary manslaughter charges were brought against that defendant. No evidence of sudden heat was presented, and the jury was instructed on both murder and voluntary manslaughter. The jury convicted the defendant of voluntary manslaughter. We held that the State was not required to establish sudden heat in order to sustain a conviction for voluntary manslaughter. Gilley, supra at 523.

Therefore, under Reinbold and Gilley, if the defendant meets his burden of proving sudden heat, the State may not preclude the giving of the voluntary manslaughter instruction. In the absence of evidence of sudden heat, it is the State's prerogative to elect which charge to proceed with against a defendant. Absolute discretion rests in the State to determine the crimes with which a defendant will be charged. Compton v. State (1984), Ind., 465 N.E.2d 711.

The insanity defense also was raised in the present case. We have held that a trial court does not err when it refuses to instruct the jury as to a lesser-included offense in a prosecution for murder where the defense of insanity is used to disprove intent to commit the greater offense, and thus would not be compatible with the inference of guilt of a lesser-included offense. Rowe v. State (1989), Ind., 539 N.E.2d 474.

Prior to trial, appellant's counsel discovered a letter dated January 20, 1989, written by Michael Barnes, prosecuting attorney for St. Joseph County, to appellant's family regarding appellant. In the letter, Barnes referred to appellant as a "troubled" and "very sick [original emphasis] man."

Appellant made a pretrial motion to call Barnes as a witness for the defense. The trial court denied this motion at a pretrial hearing. Appellant renewed his motion at trial which, again, was denied. Appellant then moved to admit a portion of the transcript of the pretrial hearing and the letter under the theory that the transcript was prior recorded testimony which authenticated the letter. The trial court denied this motion as well. Appellant claims the trial court's denial of these motions violated his right to present favorable evidence as guaranteed by the compulsory process clause of the Sixth Amendment made applicable to state criminal prosecutions by way of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

Appellant notes that he relied upon an insanity defense at trial. He cites Haggard v. State (1989), Ind., 537 N.E.2d 28, for the proposition that lay witnesses are competent to testify on the issue of sanity. He argues that the trial court denied him due process by not compelling Barnes to testify.

Ordinarily, counsel is not subject to being called as a witness. Chatman v. State (1975), 263 Ind. 531, 334 N.E.2d 673. There are exceptions, such as when counsel is believed to have material information that cannot be disclosed otherwise. Id. As a general rule, a prosecuting attorney cannot be called as a defense witness unless the testimony sought is required by compelling and legitimate need. U.S. v. Dempsey (N.D.Ill.1990), 740 F.Supp. 1295; U.S. v. LaRouche (D.Mass.1988), 695 F.Supp. 1290. The trial court in its discretion may deny the request if the prosecutor does not have information vital to the case. U.S. v. Troutman (1987), 814 F.2d 1428. Where the evidence is easily available from other sources and absent "extraordinary circumstances" or "compelling reasons," an attorney who participates in a case should not be called as a witness. U.S. v. Dack (1984), 747 F.2d 1172.

Appellant claims that Barnes' testimony would have helped prove the insanity defense. However, Barnes testified at the pretrial hearing that at the time he wrote the letter, he had not formed an opinion as to appellant's mental condition. If he were compelled to testify regarding his characterization of appellant as being "sick," he would state that appellant was not remorseful or regretful of his actions leading to his arrest for Battery and Confinement. Regarding appellant's mental condition, he would have testified that appellant was sane. Barnes stated that he was "fed up" with appellant's family bringing what he felt were meritless claims concerning items believed to be wrongfully in Bianco's possession prior to the killing, and that this frustration precipitated the writing of the letter.

The trial court did not abuse its discretion by refusing to compel the testimony of the prosecuting attorney where evidence from other sources, such as the defense psychiatrist, was available and utilized by the defense to present the insanity defense. The availability of such evidence indicates that there was neither a compelling need nor extraordinary circumstances for the testimony.

Appellant also contends that he should have been able to introduce at trial Barnes' testimony at the pretrial hearing under the prior recorded testimony exception to the hearsay rule. Appellant argues that Barnes' former testimony would have authenticated the letter which appellant could have introduced in evidence. The trial court denied appellant's request to introduce the former testimony.

It is an exception to the hearsay rule to introduce in evidence testimony that was adduced at a former trial. Schwartz v. State (1978), 177 Ind.App. 258, 379 N.E.2d 480. The "former testimony" exception to the hearsay rule requires the movant to prove that the testimony given at a formal judicial proceeding: (1) was given under oath; (2) that the party against whom the former testimony is offered had an opportunity to cross-examine the witness at the former proceeding, and (3) that the...