Schaefer v. State
| Decision Date | 19 April 2013 |
| Docket Number | No. 49A02–1206–CR–468.,49A02–1206–CR–468. |
| Citation | 985 N.E.2d 1151 |
| Parties | Kenneth SCHAEFER, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Marion Superior Court; The Honorable Carol Orbison, Judge; Cause No. 49G22–1105–MR–30677.
Mark Small, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Kenneth Schaefer (“Schaefer”) was convicted of murder and Class C felony battery. He was sentenced to an aggregate of sixty years executed with the last five years to be served through Community Corrections. Schaefer raises the following issues on appeal:
I. whether the trial court abused its discretion in refusing to give his tendered jury instructions on sudden heat and voluntary manslaughter and
II. whether his sentence was inappropriate in light of the nature of the offense and his character.
We affirm.
In spring 2011, Schaefer and Bobbie Schaefer (“Bobbie”) had been married twenty-three years, and they had three children together—a nineteen-year-old son in the Marines, a sixteen-year-old 1 daughter (“A.S.”), and an eleven-year-old daughter (“R.S”). In March 2011, Schaefer suspected Bobbie was having an affair. In the middle of April 2011, Schaefer and Bobbie talked about separating or getting a divorce. On Friday, April 29, 2011, Bobbie told A.S. that she was going to file for divorce on May 2, 2011, and later that evening, Schaefer and Bobbie told A.S. and R.S. that they would be moving with Bobbie to Alabama, where Bobbie's niece lived.
On Saturday, April 30, 2011, A.S. and R.S. stayed the night at a friend's house because of their parents arguing. And that evening Schaefer and Bobbie discussed the finances of their separation. Schaefer believed that, while they were working on their finances, Bobbie was texting Alvin Plank (“Plank”), the man with whom Schaefer suspected Bobbie was having an affair.2 Tr. pp. 379–80. However, Schaefer and Bobbie slept that night in the same bedroom. Tr. p. 363.
On Sunday, May 1, 2011, Schaefer and Bobbie attended church as did A.S. and R.S. During a sermon on responsibility, Schaefer became “infuriated” when Bobbie remarked about his belongings in the bedroom. Tr. pp. 364–65. He left the church and went to cool down. He then returned to the church to drive another church member home. He testified that his memory was spotty during this time. A.S. and R.S. arrived home first from church. Bobbie arrived shortly thereafter, and she went into her bedroom to take a nap. When Schaefer arrived home, he told his daughters to watch their movie on the computer in A.S.'s room to save electricity, and then he left to get a newspaper.
Schaefer returned about ten minutes later. He then took two knives from the kitchen and went into the room where Bobbie was sleeping. He stabbed Bobbie repeatedly. A.S. and R.S. heard their mother scream, and they ran towards their parent's bedroom where their mother was screaming. The bedroom was dark but the door to the room was open, and they could see their father straddling their mother on the bed. They saw his arm moving, and their mother trying to fight him off. A.S. went into the room and tried to push her father off her mother. She testified that her father did not seem aware that she was even there. A.S. eventually managed to get her father off the side of the bed. However, he then got back onto the bed, and while he was getting back up onto the bed, he stabbed A.S. in the left arm with the knife.
A.S. and R.S. fled back to A.S.'s bedroom and called 911. Schaefer then walked past A.S.'s bedroom door, dropped his phone, and told her to call the police. A.S. went to find a clean cloth to put on her arm, and she observed her dad standing in the bathroom. While he was in the bathroom, Schaefer tried to cut his own throat. Officer John Wallace (“Officer Wallace”) arrived on the scene, and A.S. let him into the home. Officer Wallace observed Schaefer in the bathroom and ordered him to drop the knife. Medics came in to treat Bobbie; however, she died at the scene. An autopsy of Bobbie revealed that there were 51 wounds on her body, and the cause of death was “[m]ultiple stab wounds to the chest, neck and abdomen.” Tr. pp. 302, 315.
Schaefer was tried by a jury on April 30 and May 1, 2012. At trial, Schaefer tendered instructions for voluntary manslaughter and sudden heat, but the trial court refused to deliver the instructions to the jury after finding “nothing in the evidence that falls within the definition of sudden heat.” Tr. p. 391. The jury found Schaefer guilty of murder and Class C felony battery. Schaefer was sentenced on May 18, 2012 to concurrent sentences of sixty years for murder and eight years for Class C felony battery with the last five years to be served in Community Corrections.
Schaefer now appeals. Additional facts will be provided as necessary.
Schaefer argues that the trial court abused its discretion by failing to instruct the jury on voluntary manslaughter and on sudden heat, which “is a mitigating factor that reduces the crime of murder to voluntary manslaughter.” Conner v. State, 829 N.E.2d 21, 24 (Ind.2005) (citing I.C. § 35–42–1–1 and I.C. § 35–42–1–3; see also Massey v. State, 955 N.E.2d 247, 253 (Ind.Ct.App.2011) (). Indiana's Voluntary Manslaughter statute provides:
(a) A person who knowingly or intentionally:
(1) kills another human being; or
(2) kills a fetus that has attained viability (as defined in IC 16–18–2–365);
while acting under sudden heat commits voluntary manslaughter, a Class B felony. However, the offense is a Class A felony if it is committed by means of a deadly weapon.
(b) The existence of sudden heat is a mitigating factor that reduces what otherwise would be murder under section 1(1) of this chapter to voluntary manslaughter.
“Voluntary Manslaughter is a lesser-included offense of Murder,” but it is an “atypical example of a lesser-included offense” since sudden heat is a mitigating factor that must be proven in addition to the elements of murder. Suprenant v. State, 925 N.E.2d 1280, 1282 (Ind.Ct.App.2010). The trial court should instruct the jury on voluntary manslaughter “if the evidence demonstrates a serious evidentiary dispute regarding the mitigating factor of sudden heat; that is, there must be evidence showing sufficient provocation to induce passion that renders a reasonable person incapable of cool reflection.” Massey v. State, 955 N.E .2d 247, 256 (Ind.Ct.App.2011).
“ ‘Sudden heat’ is characterized as anger, rage, resentment, or terror sufficient to obscure the reason of an ordinary person, preventing deliberation and premeditation, excluding malice, and rendering a person incapable of cool reflection.” Suprenant, 925 N.E.2d at 1282 (quoting Dearman v. State, 743 N.E.2d 757, 760 (Ind.2001)). “[T]he provocation must be ‘sufficient to obscure the reason of an ordinary man[.]’ “ Id. at 1282–83 (quoting Stevens v. State, 691 N.E.2d 412, 426 (Ind.1997)).
Here, the trial court instructed the jury on murder but refused to instruct the jury on voluntary manslaughter after finding “nothing in the evidence that falls within the definition of sudden heat.” Tr. p. 391. “Where the trial court rejects a Voluntary Manslaughter instruction based on a lack of evidence of sudden heat, we review the trial court's decision for an abuse of discretion.” Suprenant, 925 N.E.2d at 1283.
Schaefer argues that there was a serious evidentiary dispute whether there was sudden heat. Schaefer argues that there was evidence of sudden heat because Bobbie informed him that she (1) wanted a divorce, (2) was moving with A.S. and R.S. to Alabama, and (3) was having an affair. Appellant's Br. at 14. Schaefer also contends that there was evidence of sudden heat, because a passerby heard them arguing on the day of the incident,3 and Bobbie made comments to him during the church service regarding picking up clothing on his side of the room. Though these events may have made Schaefer angry, mere words or anger, without more, is not provocation sufficient to cause sudden heat. Suprenant, 925 N.E .2d at 1282. Moreover, an expression of desire to end a relationship is not sufficient provocation by itself to warrant a voluntary manslaughter instruction. Massey v. State, 955 N.E.2d 247, 257 (Ind.Ct.App.2011).
Schaefer further argues that it was not mere words, because he suspected that Bobbie was texting Plank while working with him on their finances the day before he killed her. However, even if Bobbie was texting Plank, this was not an action that would be sufficient to obscure the reason of an ordinary person. Rather, we find this situation similar to the situation in Suprenant, where the victim ended the relationship with the defendant and proceeded to pack up her belongings. 925 N.E.2d at 1284. Our court held that “[a]lthough there was some non-verbal action by the victim, we do not find that the lawful conduct of gathering ones belongings goes so far beyond ‘mere words' as to constitute ‘sudden heat’ justifying a Voluntary Manslaughter instruction.” Id. Similarly, here, Bobbie's action of texting does not goes so far beyond mere words as to constitute sudden heat, because an ordinary person would not be so enraged by this texting that a day later his reasoning would be obscured.
Even if the events were provoking, we also look at whether there was a sufficient period after the allegedly provoking events to de-escalate tensions. See Aguilar v. State, 811 N.E.2d 476, 479 (Ind.Ct.App.2004), on reh'g,820 N.E.2d 762 (Ind.Ct.App.2005) and trans. granted, opinion vacated on other grounds,831 N.E.2d 741 (Ind.2005) and aff'd,827 N.E.2d 31 (Ind.2005) (...
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