Roark v. State, 45S00-9004-CR-260

• Decision Date: 21 June 1991
• Docket Number: No. 45S00-9004-CR-260,45S00-9004-CR-260
• Citation: 573 N.E.2d 881
• Parties: Dennis ROARK, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 881

573 N.E.2d 881

Dennis ROARK, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 45S00-9004-CR-260.

Supreme Court of Indiana.

June 21, 1991.

Albert Marshall, Appellate Div., Crown Point, for appellant.

Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

Appellant Dennis Roark was found guilty by a jury of murdering his girlfriend their two small children, and the girlfriend's mother. The court sentenced him to death. On direct appeal, he presents four issues, one of which we find dispositive: Did the trial court commit reversible error by failing to instruct the jury on the issue of sudden heat?

At trial, defense counsel tendered the following instruction:

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.

Record at 199. The court denied the tender on grounds the instruction was not "appropriate." Record at 1307.

The sudden heat instruction tendered by the defense is usually part of a larger set of instructions on voluntary manslaughter, Ind.Code Sec. 35-42-1-3 (West 1986), which is a lesser included offense to murder. Russell v. State (1981), 275 Ind. 679, 419 N.E.2d 973. The trial court did not instruct the jury on voluntary manslaughter.

To determine whether a trial court erred in refusing to instruct on a lesser included offense we inquire first whether the language of the statute and the charging instrument necessarily include the lesser offense in the greater. Second, we determine whether "a serious evidentiary dispute exists respecting the element that distinguishes the greater from the lesser offense." Ingram v. State (1989), Ind., 547 N.E.2d 823, 830. Voluntary manslaughter is distinguished from murder by the presence of sudden heat, which serves as a mitigating factor. Ind.Code Sec. 35-42-1-3(b) (West 1986). Error in a particular instruction will justify reversal if the error is of such a nature that the whole charge misleads the jury as to the law of the case. Grossenbacher v. State (1984), Ind., 468 N.E.2d 1056.

An instruction on voluntary manslaughter is supported if there exists evidence of sufficient provocation to induce passion that renders the reasonable person incapable of cool reflection. Fox v. State (1987), Ind., 506 N.E.2d 1090. We have repeatedly held that any appreciable evidence of sudden heat justifies an instruction on voluntary manslaughter. Underwood v. State (1989), Ind., 535 N.E.2d 118, 120 (citing Finch v. State (1987), Ind., 510 N.E.2d 673; Wright v. State (1985), Ind., 474 N.E.2d 89; and Palmer v. State (1981), Ind., 425 N.E.2d 640).

Here, the evidence warrants such an instruction. The defendant's statement to the police, made a few hours after the killings, was admitted at trial. According to this statement, Roark, who lived with the four victims, killed them in the early morning hours of February 3, 1989, after returning home from a night of drinking. He arrived home around 5 a.m. and spoke with his girlfriend. She warned him that her mother would be angry that he had been out all night. Roark decided to leave rather than face the mother. The girlfriend opted to leave with him and take the children with her. Before they could leave, the mother got a knife from the kitchen and grabbed the defendant's twenty month old son. The mother said that she would kill herself if they left. She then moved toward the defendant in a striking manner. Roark wrestled the knife away from the mother while the girlfriend grabbed the son. The defendant then stabbed the mother, his girlfriend, and both children, and fled the house.

Moreover, in testifying about the defendant's mental state, one of the court-appointed psychiatrists said, "probably there was some conflict which went on with that lady who died in this whole thing, that, and I think that partially became the kind of issue that he couldn't control his revenge, his anger...." Record at 1120 (testimony of Dr. Mohammad Arshad). The other court-appointed psychiatrist offered the following testimony in response to questions put to him by defense counsel:

Q: Doctor, I'm not a psychiatrist. I have had no psychiatric training, but I am familiar with the concept called "losing it." Everyone once in a while--we kind of "lose it." We do something so out of character for us or anyone else and we wonder--are you familiar with the concept of "losing it?"

A: I have heard that term, yes.

Q: Is there a psychiatric basis in that layman's term?

A: For a temporary loss of control, yes.

Record at 1171 (testimony of Dr. Myron Berkson).

The State argues this evidence is not sufficient to warrant an instruction on voluntary manslaughter either because the mother's act was not sufficiently provocative or because it was interrupted when the defendant disarmed her and his girlfriend pulled the child away. We disagree.

Roark's version of the facts in this case is similar to the version told by the defendant in Bryan v. State (1983), Ind., 450 N.E.2d 53. In Bryan, the defendant testified he killed his ex-wife after she threatened to take their children and leave the state. According to the defendant, while they were arguing the victim grabbed a baseball bat and threatened to "knock [his] brains out." He wrestled the bat away from her and then strangled her with a piece of wire he had in his pocket. Id. at 56-57. Although the jury convicted Bryan of murder, it was instructed on voluntary manslaughter. Record at 1016-17, 1019-20,...