Wolfe v. State

• Decision Date: 05 October 1981
• Docket Number: No. 1278S292,1278S292
• Citation: 426 N.E.2d 647
• Parties: Robert W. WOLFE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 647

426 N.E.2d 647

Robert W. WOLFE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1278S292.

Supreme Court of Indiana.

Oct. 5, 1981.

John F. Hoehner, Valparaiso, for appellant.

Theodore L. Sendak, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted of Murder, Ind. Code § 35-42-1-1 (Burns 1979), in a trial by jury and sentenced to imprisonment for fifty (50) years. His direct appeal raises the following issues:

(1) Whether Indiana's voluntary manslaughter statute unconstitutionally shifts the burden of proving the existence of sudden heat from the State to the accused.

(2) Whether the trial court erred in admitting into evidence Defendant's tape recorded statement.

(3) Whether the trial court erred in admitting into evidence a letter purportedly written by Defendant.

(4) Whether the trial court erred in giving instructions to the jury which incorporated the concept of "the reasonable person" into the doctrine of sudden heat.

(5) Whether the trial court erred in refusing to instruct the jury that sudden heat need not be "exclusive between the accused and the victim."

(6) Whether the trial court erred in instructing the jury concerning evidence of flight.

(7) Whether the trial court erred in failing to admonish the jury or to declare a mistrial in response to objections to the trial prosecutor's allegedly improper closing argument.

(8) Whether the trial court's instruction upon self-defense was incomplete.

(9) Whether the trial court erred in sentencing Defendant to fifty years imprisonment.

On October 28, 1977, Defendant, the deceased, and several other men were having an argument. One of the men said to the defendant, "Shoot the son of a bitch." Whereupon, Defendant shot the decedent four or five times. He then fled the scene but was arrested several days later at his brother's apartment in Hammond, a nearby city.

ISSUE I

Defendant contends that Indiana's voluntary manslaughter statute unconstitutionally shifts the burden of proof upon an issue of sudden heat from the State to the accused. He relies upon the United States Supreme Court's holdings in the recent cases of Mullaney v. Wilbur, (1975) 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 and Patterson v. New York, (1977) 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281.

In Mullaney, the Supreme Court struck down a Maine statute which put the burden upon a Defendant, charged with murder, to prove by a preponderance of the evidence, in order to reduce the homicide to voluntary manslaughter, that he acted in a sudden heat of passion. The Court reasoned that such a shifting of the burden of proof upon "a fact so critical to criminal culpability" violates the Due Process Clause. Mullaney, 421 U.S. at 702, 95 S.Ct. at 1891, 44 L.Ed.2d at 522.

The Court found it necessary to examine Maine's statutory scheme of distinguishing between murder and manslaughter. Under the Maine statute, malice was an element of murder. The existence of sudden heat reduced what would otherwise be murder to manslaughter. The Court stated: "Satisfying this burden (of proving the absence of self defense) imposes an obligation that, in all practical effect, is identical to the burden involved in negating the heat of passion on sudden provocation." Id. Thus, the Court reasoned that placing upon the defendant the burden of proving the existence of sudden heat was tantamount to giving him the burden of disproving the existence of malice an element of the crime. The Court further reasoned that since the presumption of innocence requires the prosecution to prove every fact necessary to constitute the crime charged beyond a reasonable doubt, citing In Re Winship, (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 a statute which, for all practical purposes places the burden on the defendant to disprove malice, violates due process.

Several years later the United States Supreme Court was called upon, in Patterson, supra, to determine the constitutionality of New York's homicide scheme. The New York statute required a defendant charged with murder in the second degree to prove the affirmative defense of "extreme emotional disturbance" by a preponderance of the evidence in order to reduce the crime to manslaughter. In a 5 to 3 decision, the Court upheld the statutory arrangement against a constitutionality challenge similar to that raised in Mullaney. The majority opinion distinguished the Maine case upon the basis that New York's murder statute did not include malice as an element of the crime, and held:

"We cannot conclude that Patterson's conviction under the New York law deprived him of due process of law. The crime of murder is defined by the statute, which represents a recent revision of the state criminal code, as causing the death of another person with intent to do so. The death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder. No further facts are either presumed or inferred in order to constitute the crime. The statute does provide an affirmative defense that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation which, if proved by a preponderance of the evidence, should reduce the crime to manslaughter, an offense defined in a separate section of the statute. It is plain enough that if the intentional killing is shown, the State intends to deal with the defendant as a murderer unless he demonstrates the mitigating circumstances."

"Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here."

Patterson, 432 U.S. at 205, 210, 97 S.Ct. at 2324-27, 53 L.Ed.2d at 289, 292.

In Indiana, murder and manslaughter are defined under the new penal code as follows:

"35-42-1-1. Murder. A person who:

(1) Knowingly or intentionally kills another human being; or

(2) Kills another human being while committing or attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape, or robbery; commits murder, a felony.

"35-42-1-3. Voluntary manslaughter.

(a) A person who knowingly or intentionally kills another human being while acting under sudden heat commits voluntary manslaughter, a class B felony.

(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."

Indiana's statutory scheme for homicide differs in at least one key respect with those of Maine and New York. Our statute does not express an intention that the defendant carry the burden of showing sudden heat, while both New York's and Maine's expressly put this burden upon the defendant and further require him to carry that burden by a preponderance of the evidence. ¹

Section 3 (voluntary manslaughter) of our homicide chapter must be read in conjunction with section 1 (murder). "Sudden heat" is the only factor which distinguishes the two. While it may not be mandated by our federal constitution (Patterson, supra ) it has long been a basic tenet of Indiana law that, although the defendant bears the burden of placing his affirmative defense in issue, the prosecution bears the ultimate burden of negating any defense which is sufficiently raised by the defendant. See, e. g., Jackson v. State, (1978) 267 Ind. 501, 371 N.E.2d 698 and Dorak v. State, (1915) 183 Ind. 622, 109 N.E. 771 (self-defense); Casterlow v. State, (1971) 256 Ind. 214, 267 N.E.2d 552 and French v. State, (1859) 12 Ind. 670 (alibi), Sceifers v. State, (1978) 267 Ind. 687, 373 N.E.2d 131 and Bradley v. State, (1870) 31 Ind. 492, 506 (insanity); Henry v. State, (1978) 269 Ind. 1, 379 N.E.2d 132 (entrapment); Smith v. State, 255 Ind. 687, 689, 266 N.E.2d 216 (intoxication). See also, 224 C.J.S. Criminal Laws § 573 (1961).

The issue of shifting burdens of proofs and presumptions was carefully examined by this Court in Welty v. State, (1912) 180 Ind. 411, 428, 100 N.E. 73, 80-81, wherein it was stated:

"An unexplained homicide with a deadly weapon upon a provocation by words only, can have no other interpretation than that of malice. It implies malice, because the unexplained killing of a human being is unlawful, and public policy requires that an implication of malice shall arise, hence, it is not a question of reducing the offense of (sic) manslaughter because the State has a right to stand on a prima facie case, and if it is rendered valueless by the evidence, the State still has the burden of proving malice, if it insists upon a conviction of murder."

We believe that the following statement found in the West Anno. Indiana Statutes at 237 of the unofficial commentary following Ind.Code § 35-42-1-3 accurately reflects the law on this subject:

"If there is some evidence of 'sudden heat' then the state must bear the burden of negating the existence of sudden heat beyond a reasonable doubt. The failure to negate 'sudden heat' would reduce what otherwise would be murder to voluntary manslaughter. The defendant strictly speaking, bears no burden with respect to 'sudden heat'; however, he bears the risk of not being entitled to an instruction on 'sudden heat' if there is no evidence in the case to put the issue of sudden heat in question. Thus, in one sense, he bears the 'burden' of placing the issue in question where the state's evidence has not done so."

Our holding is that the homicide chapter of the new penal code does not evidence a legislative intent to relocate the burden of proof of sudden heat. Ind.Code § 35-41-4-1 (Burns 1979) places the burden upon the prosecution to prove defendant's guilt beyond a reasonable doubt; only the defense Nor do we agree with the contention that, since sudden...