Watts v. State, No. 45A03-0506-CR-249 (Ind. App. 9/7/2006)
| Decision Date | 07 September 2006 |
| Docket Number | No. 45A03-0506-CR-249,45A03-0506-CR-249 |
| Parties | ANDREW LEE WATTS, Appellant-Defendant, v. STATE OF INDIANA, Appellee. |
| Court | Indiana Appellate Court |
MARCE GONZALEZ, JR., Merrillville, Indiana, ATTORNEY FOR APPELLANT.
STEVE CARTER, Attorney General of Indiana, MICHAEL GENE WORDEN, Deputy Attorney General, Indianapolis, Indiana, ATTORNEYS FOR APPELLEE.
Following a jury trial, Appellant, Andrew Lee Watts, was convicted of Voluntary Manslaughter as a Class A felony1 and Criminal Recklessness as a Class C felony.2 Upon appeal, Watts presents three issues for our review: (1) whether the trial court erred when it instructed the jury on the lesser included offense of voluntary manslaughter, (2) whether the trial court committed fundamental error in failing to instruct the jury on the definition of sudden heat, and (3) whether the trial court abused its discretion in imposing aggravated and consecutive sentences.
We affirm.
The facts most favorable to the convictions reveal that on the night of August 23, 2003, Roy Atkins, whose nickname was "Champ," went to the Face to Face Lounge in Gary, Indiana. Watts, whose nickname is "Pissy," was also at the Face to Face Lounge and was accompanied by his friends Ronald Crawford, Roy McDuffie, and others. That night, Atkins was involved in a verbal altercation with Watts, Crawford, and McDuffie, which appeared to be gang-related. Gary Police Officer Anthony Boleware was at the Face to Face Lounge working undercover and witnessed the altercation. Officer Boleware observed Atkins, who attracted his attention because he was being "loud," approach a group of men, which included Watts, Crawford, McDuffie, and others, as they were standing in the corner of the Lounge. Two other bar patrons, Roshonda Crump and Justin David, also observed Atkins's loud demeanor and his encounter with the group of individuals.
Atkins first approached Watts and was "getting in [his] face," yelling, Transcript at 437, 214. Atkins then repeated this same sentiment to each individual standing within the group. Perhaps because of Boleware's close proximity to the group that had gathered in the corner, Atkins made the same statement to the officer. As Atkins turned to walk away, four to five shots rang out in rapid succession. Officer Boleware looked toward the corner where the shots came from and saw the shooter holding a gun and then run down a back hallway. Roshonda Crump also looked toward the corner where she saw the shooter and also saw "fire from the gun." Transcript at 349. Justin David observed the shooter pull the gun from his waistband and fire shots at Atkins. After being shown photographic line-ups, Officer Boleware, Roshonda Crump, and Justin David each positively identified Watts as the shooter. At approximately 3:30 a.m. on August 24, Atkins died as a result of injuries sustained from three gunshot wounds to the back. Roshonda Crump was shot in the knee.
On August 27, 2003, the State charged Watts with murder. On September 4, 2003, the State filed an amended information adding charges for battery as a Class C felony and criminal recklessness as a Class C felony. A jury trial was held from February 28, 2005 through March 5, 2005, at the conclusion of which the jury found Watts guilty of voluntary manslaughter as a lesser included offense of murder and criminal recklessness. After a sentencing hearing held on May 2, 2005, the trial court sentenced Watts to an enhanced sentence of forty-seven years for voluntary manslaughter and an enhanced sentence of six years for C felony criminal recklessness. The court ordered the sentences served consecutively for a total aggregate sentence of fifty-three years.
Upon appeal, Watts argues that the trial court erred in instructing the jury on voluntary manslaughter over his objection because he claims that there was insufficient evidence of sudden heat. The State requested a final instruction on voluntary manslaughter after Watts requested final instructions on the lesser included offenses of reckless homicide and involuntary manslaughter.3 Watts objected to the State's request, arguing that he had not interjected evidence of sudden heat. The trial court overruled Watts's objection and instructed the jury regarding voluntary manslaughter, of which the jury ultimately found Watts guilty.
Instructing the jury is left to the sound discretion of the trial court, and we will not reverse absent an abuse of that discretion. Clark v. State, 732 N.E.2d 1225, 1230 (Ind. Ct. App. 2000). Further, we note that instructions upon lesser included offenses given over a defendant's objection have been approved by our Supreme Court and by this court. See e.g., Wilkins v. State, 716 N.E.2d 955 (Ind. 1999); Porter v. State, 671 N.E.2d 152 (Ind. Ct. App. 1996), trans. denied. To be sure, a trial court's determination as to whether to give instructions on lesser included offenses does not depend upon which party tenders them and whether or not the other party poses an objection. Garrett v. State, 756 N.E.2d 523, 528 (Ind. Ct. App. 2001), trans. denied.
The test for when a lesser included offense instruction is appropriate, if not required, was set out by our Supreme Court in Wright v. State, 658 N.E.2d 563 (Ind. 1995). Under the Wright test, we first determine whether the lesser offense is either inherently or factually included in the offense charged. Id. at 566-67. There is long-established precedent which holds that voluntary manslaughter is an inherently lesser included offense of murder. See O'Conner v. State, 272 Ind. 460, 465, 399 N.E.2d 364, 368 (1980); McDonald v. State, 264 Ind. 477, 483, 346 N.E.2d 569, 574 (1976); Washington v. State, 685 N.E.2d 724, 727 (Ind. Ct. App. 1997); Landers v. State, 165 Ind. App. 221, 238, 331 N.E.2d 770, 780 (1975). To be sure, voluntary manslaughter is simply the crime of murder mitigated by evidence of sudden heat. Washington, 685 N.E.2d at 727.
Because the lesser offense of voluntary manslaughter is included in the charged offense of murder, we must next determine whether a serious evidentiary dispute exists as to which offense the defendant committed. See Wright, 658 N.E.2d at 567. This is the crux of Watts's argument in that he contends that there was no evidence of sudden heat, let alone a serious evidentiary dispute, and therefore, the trial court should not have given the lesser included offense instruction on voluntary manslaughter.
Killing in the sudden heat of passion is the feature which distinguishes voluntary manslaughter from murder. Washington, 685 N.E.2d at 727. Sudden heat, however, is not a positive element of the crime of voluntary manslaughter, but rather a mitigating factor for conduct which would otherwise constitute murder. Gilley v. State, 560 N.E.2d 522, 523 (Ind. 1990) (citing Russell v. State, 275 Ind. 679, 684, 419 N.E.2d 973, 976 (1981)). Sudden heat is demonstrated by evidence of anger, rage, sudden resentment, or terror that is sufficient to obscure the reason of an ordinary man. Washington, 685 N.E.2d at 727. There must be sufficient provocation to induce such passion to render the defendant incapable of cool reflection. Id. Generally, insulting or taunting words are not sufficient provocation to reduce murder to voluntary manslaughter. Jackson v. State, 709 N.E.2d 326, 329 (Ind. 1999).
We agree with Watts that there was no evidence of sudden heat before the jury. Under the evidence presented by the State, the victim approached Watts and the others, got in their faces and in a loud tone of voice stated, Transcript at 214. As the victim turned to walk away, Watts shot him three times in the back. While the victim got in Watts's face in somewhat of a verbal confrontation, such is not the type of provocation that the law recognizes as sufficient to cause one to abandon all reason under sudden heat. Thus, under the Wright test, there was no appreciable evidence of sudden heat that justified an instruction on voluntary manslaughter. This, however, does not necessarily equate to a finding of reversible error.
We first note that in Wilkins, 716 N.E.2d at 957, our Supreme Court acknowledged that it had not yet explicitly addressed whether giving an instruction in the absence of a serious evidentiary dispute is per se reversible error under Wright. Here, we need not address such issue, for there is a series of pre-Wright cases which hold that if the evidence supports a conviction for murder, the jury has a right to find the defendant guilty of voluntary manslaughter, even in the absence of sudden heat. Griffin v. State 644 N.E.2d 561, 564 (Ind. 1994); Gilley, 560 N.E.2d at 523-24; O'Conner, 272 Ind. at 465, 399 N.E.2d at 368; McDonald, 264 Ind. at 484, 346 N.E.2d at 574; Landers, 165 Ind.App. at 238, 331 N.E.2d at 780; Hopkins v. State, 163 Ind.App. 276, 286, 323 N.E.2d 232, 239 (1975). Our Supreme Court has acknowledged that it has not yet addressed the continued viability of pre-Wright cases which stand for the proposition that it is not erroneous in a murder trial to give the jury an instruction on voluntary manslaughter, even where there is no evidence of sudden heat. Wilkins, 716 N.E.2d at 957. Given that these pre-Wright cases have yet to be expressly overruled, we must conclude that, notwithstanding the fact that there was no evidence of sudden heat, the trial court did not commit reversible error in instructing the jury on voluntary manslaughter.
Having concluded that the trial court committed no reversible error in instructing the jury on voluntary...
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