Nuss v. State, 1--874A123

Citation164 Ind.App. 396,328 N.E.2d 747
Decision Date05 June 1975
Docket NumberNo. 1--874A123,1--874A123
PartiesBarry D. NUSS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Appellate Court

John A. Kesler, Kenneth E. Levin, Terre Haute, for appellant.

Theodore L. Sendak, Atty. Gen., Harry John Watson, III, Deputy Atty. Gen., Indianapolis, for appellee.


Defendant-appellant, Barry D. Nuss (Nuss) was charged with second degree murder, pleaded self defense, and was found guilty of the lesser included offense of voluntary manslaughter by a jury, and was duly sentenced pursuant to statute.

The facts most favorable to the State are as follows:

Nuss, an electrical systems designer from New Jersey, was on a long-term assignment in Terre Haute for his employer. During his stay in Terre Haute he occupied Room 130 of the Imperial House Motel as his only residence.

Ella Joy, the wife of Alan Joy, the deceased, worked at the Imperial House Motel where Nuss resided and became acquainted with him and occasionally visited his motel room. During their period of friendship Nuss and Ella had several intimate conversations during which Ella related several stories about her marriage and Alan's physical abuse of her. Ella allegedly stated that she associated Alan's violent change in temperment with his usage of drugs. An action for divorce between Alan and Ella had been pending for some time and was still pending at the time of the incident in which Alan lost his life.

As a result of threats and annoyances by Alan to Nuss, Mr. Nuss voluntarily went to Colorado to work so that he would be away from Terre Haute and avoid trouble.

While Nuss was in Colorado Ella phoned him twice and informed him Alan had taken a rifle and a shotgun and had stated that the defendant would 'get his.' Later Nuss returned to Terre Haute to his work and allegedly received a telephone call from Alan and Alan informed him that when Alan finished with him there would not be enough left to bury. On several later occasions Alan allegedly threatened Nuss but none of the threats were reported to the police.

On June 9, 1973, at about 6:00 o'clock A.M. Alan called Ella and asked her about a story which he had heard concerning her relationship with Nuss. Ella then called Nuss and made arrangements to meet him at about 6:30 that morning and she did meet with Nuss away from the motel in an attempt to straighten out the problem with the story and prevent trouble. After this meeting with Nuss, Ella went to Alan's trailer where she awakened Alan and his roommate and attempted to explain things to Alan. After Ella had left the trailer Alan telephoned Nuss and questioned him about going out with married women. During this conversation Alan allegedly told Nuss that the only way he would leave Terre Haute would be in a coffin. Alan allegedly told his roommate, after the telephone conversation with Nuss, that he was going down to Nuss' motel and 'beat his a--- and kick the s--- out of him.' Thereafter, Alan put on his old clothes and removed his watch, rings, jewelry, and wallet before leaving his home. Before Alan left the trailer he was warned by his roommate not to go but Alan responded 'I don't care, it's something I've gotta do.'

On that date Alan arrived at the Imperial House Motel and kicked on the door of Room 130 and yelled at Nuss to come out. After about five minutes of Alan's actions outside Nuss opened the door about six inches, the length of the chain stop, and attempted to convince Alan to leave. Alan refused to leave and Nuss forcibly closed the door. After a short time Nuss removed the chain from the door, as it was then quiet outside. Later Alan, who was unarmed, gained admission to Nuss' room and upon entering the room struck Nuss on the side of the face and stated that 'I'm going to kill you and I'm going to kill her.' An altercation ensued and Alan, who was larger than Nuss, struck Nuss about the face, ears, temple, back of the head and neck, thereby knocking Nuss to his knees. Alan then started toward a night stand near the bed upon which a .357 Magnum revolver was laying in full view. Nuss jumped across the bed, reached the revolver before Alan, and threatened Alan with it, but the threats did not deter Alan in his determination to continue working on Nuss.

Nuss had the revolver loaded so that when the trigger was pulled the firing pin would strike an empty chamber and knowing this Nuss pointed the gun at Alan and pulled the trigger, the click of which halted Alan momentarily, but Alan again began the attack on Nuss who then fired two shots, purposely missing Alan with each of them. (The record discloses that Nuss was an expert marksman and gun collector and had some 30 guns which were in his motel room under a bed.) Nuss then cocked the revolver for a third shot but rested the hammer down, leaving the gun unfired. At this time Alan had retreated to the door of the room and Nuss testified he thought the altercation was over. However, Alan allegedly started back toward Nuss and Nuss fired a third shot, again purposely missing Alan. After this third shot Alan retreated into the hallway and Nuss moved to the doorway. Shortly thereafter Alan allegedly stopped and started back toward Nuss while uttering threats against him. Nuss then allegedly fired a fourth shot, striking Alan in front of his left ear and causing his death. Alan's body lay approximately ten feet from the door of Room 130, with blood spots on the sidewalk some few feet in length from the pool of blood left by Alan.

Immediately following the shooting Nuss placed the revolver on his dresser, went to the motel office where he was in tears, and requested someone to call the police and an ambulance.

The first issue raised by Nuss is that the evidence was not sufficient to uphold the verdict of the jury and that Nuss should be discharged under the holding of Banks v. State (1971), 257 Ind. 530, 276 N.E.2d 155. Nuss points out that the defendant in Banks was discharged by our Supreme Court for the reason there was nothing in the record to indicate the evidential deficiency might be corrected upon a retrial, and insists that the same rule would be applicable to the case at bar and that Nuss should be freed by this court. Evidence was introduced at trial by the State of Indiana in an attempt to show Nuss did not act in self defense. Therefore, this raises an issue to be passed upon by the jury and on retrial if the same or similar evidence or additional evidence is presented by the State, and this would be an issue of fact to be determined by the jury on the retrial. On the other hand, if there was no evidence presented by the State the jury could possibly infer from Nuss' own testimony that his claim of self defense was not worthy of belief and their determination would not be disturbed on appeal for lack of sufficient evidence.

The offense of voluntary manslaughter is defined by IC 1971, 35--13--4--2, Ind.Ann.Stat. § 10--3405 (Burns Supp.1974), as follows:

'Whoever voluntarily kills any human being without malice, expressed or implied, in a sudden heat, is guilty of voluntary manslaughter, and, on conviction, shall be imprisoned in the state prison for not less than two (2) nor more than twenty-one (21) years.'

Thus, the essential elements of the crime of voluntary manslaughter are: (1) voluntary killing of a human being; (2) without malice; and (3) in sudden heat. Fisher v. State (1973), Ind., 291 N.E.2d 76; Green v. State (1957), 249 Ind. 86, 229 N.E.2d 726; Ellis v. State (1973), Ind.App., 304 N.E.2d 546.

While Nuss has argued that the State failed to show that he acted 'in a sudden heat,' it does not appear that such an omission amounts to reversible error as a matter of law. With respect to this point, Chief Judge Robertson, in Hopkinsv. State (1975), Ind.App., 323 N.E.2d 232, stated as follows:

'Historically, manslaughter has been treated as a lesser included offense of murder in this State, even after the manslaughter statute was bifurcated in 1969 to distinguish between voluntary and involuntary manslaughter. (Citations omitted.) The rule has been that if there is evidence which would support a conviction of murder in either degree, then the jury has the right to find the defendant guilty of voluntary (or involuntary) manslaughter as a lesser included offense, even in the absence of proof of 'sudden heat." 323 N.E.2d at 239.

Thus, the mere absence of evidence tending to prove provocation giving rise to 'sudden heat' will not, as a matter of law, amount to reversible error.

However, a meritoriously asserted claim of self defense will be a legal justification of an otherwise criminal act. Jennings v. State (1974), Ind., 318 N.E.2d 358. The guidelines for this court's review of a claim of self defense, as established by the Indiana Supreme Court in King v. State (1968), 249 Ind. 699, 234 N.E.2d 465, are as follows:

'Where one has taken the life of another human being, and thereafter contends that he did so in self-defense, he can only be successful in his contention if:

(1) he acted without fault,

(2) he was in a place where he had a right to be, and

(3) he was in real danger of death or great bodily harm, or in such apparent danger as caused him in good faith to fear death or great bodily harm.

Bullard v. State (1964), 245 Ind. 190, 195 N.E.2d 856, 197 N.E.2d 295; Hightire v. State (1966), 248 Ind. 164, 213 N.E.2d 707. The burden is upon the State to show that defendant does not meet one or more of these requirements. Dorak v. State (1915), 183 Ind. 622, 109 N.E. 771. Whether the State has borne its burden of showing that the homicidal act was not carried out in self-defense is a question of ultimate fact to be decided by the jury. Robinson v. State (1962), 243 Ind. 192, 184 N.E.2d 16.

After the jury has made this determination in favor of the State and against the defendant, this Court, on appeal:

'* * * has upon it a...

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