ATTORNEYS FOR APPELLANT
Ruth Ann Johnson
                                                       ATTORNEYS FOR APPELLEE
                                                       Curtis T. Hill, Jr.
                                                                                              FILED
Valerie K. Boots                                       Attorney General of Indiana       Feb 16 2018, 10:06 am
Marion County Public Defender Agency                                                          CLERK
Indianapolis, Indiana                                  Ian McLean                         Indiana Supreme Court
                                                                                             Court of Appeals
                                                       Deputy Attorney General                 and Tax Court

                                                       Indianapolis, Indiana




                                             In the
                         Indiana Supreme Court
                                           No. 18S-CR-98

BILLY BRANTLEY,
                                                               Appellant (Defendant below),

                                                  v.

STATE OF INDIANA,
                                                               Appellee (Plaintiff below).


               Appeal from the Marion Superior Court, No. 49G05-1411-F2-50827
                           The Honorable Grant W. Hawkins, Judge


     On Petition to Transfer from the Indiana Court of Appeals, No. 49A04-1606-CR-1401



                                         February 16, 2018

Massa, Justice.


       This case presents the unusual and rare circumstance where a defendant is charged with
voluntary manslaughter without also being charged with murder. At trial, the State conceded the
existence of sudden heat to support the standalone charge and a jury found Billy Brantley guilty.
Brantley appealed arguing the State was required to prove sudden heat and the State’s concession
rendered his self-defense defense illusory. Although the trial court instructed the jury that the State
conceded the existence of sudden heat, we find there was evidence that Brantley acted in either
sudden heat or self-defense. Therefore, the jury was presented with a classic question of fact, and
in its judgment determined Brantley was guilty. Thus, we grant transfer and affirm.




                                 Facts and Procedural History


       Billy Brantley lived in Indianapolis with his sister, Martha Gunn; brother-in-law, Bruce
Gunn; and their son, Sean. Brantley had known Bruce for eighteen years and previously lived with
Martha and Bruce when Brantley was in high school and after spending some time in the military.


       Bruce was retired and suffered from physical and mental health problems. Bruce had had
multiple back surgeries, experienced seizures, and was often in search of pain medication in
addition to his vagal nerve simulator, a device implanted in his shoulder to lessen chronic pain.
Bruce’s poor health often translated into anger, making him a volatile figure in the home. He and
Martha fought often and more than once Martha feared for her life at his hands. When Brantley
was in high school, he had to use a pool cue to stop Bruce from choking Martha. Another time,
Brantley had to protect the couple’s son when Bruce placed a knife to Sean’s neck. Bruce’s
struggles were not limited to others, though; they also led him to self-harm. Bruce stabbed himself
at least two times, tried to overdose with pills, and even drank antifreeze. These suicide attempts
were well known to Brantley, Martha, and Sean who would often find him and intervene. On any
given day, Martha was unsure if Bruce would kill himself, her, or their son.


       On July 14, 2014, Brantley woke up around 9:00 AM, showered, and got ready for a job
interview scheduled for 10:00 AM. Brantley’s interview was in a high-crime area of town so he
armed himself with a gun. When he came downstairs from his bedroom, Brantley found everyone
asleep in the living room: Martha and Sean on a couch and Bruce in a chair. Brantley briefly woke
up Martha, who in turn woke up Bruce and asked him to give Brantley twenty dollars for gas.
Bruce gave him the money, wished him good luck, and Brantley left.




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       An hour or so later, Brantley arrived home and warmed himself some leftover pizza in the
kitchen. He could hear Bruce and Martha arguing, but assumed their screaming was just the usual
type of fighting that occurred between them. Although he could sense the tension, Brantley joined
them in the living room so he could eat in front of the television. Their fighting briefly stopped—
for just five or ten minutes—and Bruce asked about the interview, but when Martha tried to leave
the room, Bruce’s temper flared. His screaming elevated and he forcefully stood up from his chair,
blocking the only exit out of the living room. Martha then returned to the couch and Bruce sat back
down, but the fighting continued. Bruce was “belligerent to where he was very angry, screaming
and he was bouncing up out of his chair, back down into his chair.” Tr. 583. During all of this,
Brantley monitored the situation, asking Bruce “what’s going on,” “let’s talk about this,” “what
can I do,” but the atmosphere remained “very chaotic.” Tr. 583.


       Bruce would not calm down and became increasingly irate. He turned his attention to
Brantley and told him he was “‘getting ready to get rid of all [his] problems right now.’” Ex. 6, p.
15. Then Bruce “lunged” from his chair, and Brantley and Martha each noticed his fist was
clenched around something shiny. Tr. 640. Brantley thought it was a knife because Bruce was
known for keeping sharp objects, including knives, in his chair. Fearing Bruce was going to “kill”
or “destroy” him, Brantley drew his gun and told Bruce to stop. Tr. 601. But Bruce continued
toward him and Brantley fired. Bruce fell to the ground.


       Martha grabbed Sean and they quickly ran out of the living room, past Bruce’s body, and
out the front door to a neighbor’s house. Martha then called 911. She frantically reported that her
brother, Brantley, had shot her husband after her husband tried to “attack” them. Ex. 2. In a separate
911 call, Brantley calmly told the operator that his “brother-in-law tried to attack [him] and [he]
shot him.” Ex. 2. When police arrived, they found Bruce’s body crumpled on the floor next to his
glasses—the shiny object Brantley and Martha had seen.


       Brantley was charged with one count of voluntary manslaughter. At trial, Brantley claimed
self-defense, and both he and Martha testified to that effect. The State, however, pointed to
inconsistencies between Brantley’s version of events and the physical evidence to undermine the


                                                  3
defense. The trial court’s proposed final instructions included instructions on self-defense,
voluntary manslaughter, and the definition of sudden heat. Regarding voluntary manslaughter, the
instruction provided that “sudden heat is a mitigating factor” and “[t]he State has conceded the
existence of sudden heat by charging Voluntary Manslaughter instead of Murder.” App. 95. Prior
to the end of trial, Brantley and the State were given the opportunity to review the instructions.
Each indicated the instructions were correct. The jury found Brantley guilty, and he was
subsequently sentenced to ten years with five years suspended.


       The Court of Appeals reversed Brantley’s conviction. In doing so, it declined to address
issues of instructional error and whether such error was invited, instead holding that the State failed
to present sufficient evidence that Brantley acted with sudden heat and, therefore, the State was
barred from retrial. Brantley v. State, 71 N.E.3d 397, 401, 403-04 (Ind. Ct. App. 2017). A
dissenting judge agreed Brantley’s conviction should be reversed, but not for lack of evidence. Id.
at 404. Rather, the dissent believed by instructing the jury that the State had conceded the existence
of sudden heat, the province of the jury was invaded and the trial court committed fundamental
error. Id. But in the dissent’s view, retrial was possible because there was evidence of sudden heat.
Id. at 404-05.


       We now grant the State’s petition to transfer and vacate the Court of Appeals opinion. Ind.
Appellate Rule 58(A).




                                        Standard of Review


       Sufficiency-of-the-evidence arguments invoke a deferential standard of review, in which
we neither reweigh the evidence nor judge witness credibility, instead reserving those matters to
the province of the jury. Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007). We consider all the
evidence and reasonable inferences supporting the verdict and will affirm the conviction if
probative evidence supports each element of the crime beyond a reasonable doubt. Walker v. State,
998 N.E.2d 724, 726 (Ind. 2013).


                                                  4
    Under appropriate circumstances, evidence supporting sudden heat as a mitigating factor
       may also support a self-defense defense, and a jury may consider both theories in
                                     delivering its verdict.


         As a preliminary matter, we address whether voluntary manslaughter may be brought as a
standalone charge. We find that it can.


         While it is true that in most cases voluntary manslaughter is charged as a lesser-included
offense to a murder charge, “[t]he authority to define crimes and establish penalties” is vested
exclusively in the legislature as a matter of public policy and discretion. State v. Downey, 476
N.E.2d 121, 122-23 (Ind. 1985). We may not substitute our judgment as to the “desirability or
wisdom of legislation” for that of the General Assembly. Id. at 122. Our General Assembly has
separately defined the crime of voluntary manslaughter. See Ind. Code § 35-42-1-3(a) (2017) (“A
person knowingly or intentionally . . . kills another human being . . . while acting under sudden
heat commits voluntary manslaughter, a Level 2 felony.”). As evident by its own definition, we
find that voluntary manslaughter may be brought as a standalone charge and, accordingly, the State
was permitted to charge Brantley with only voluntary manslaughter. 1


         Turning to the merits, we must determine, first, whether sudden heat is an element or a
mitigating factor to a freestanding charge of voluntary manslaughter; and, second, who bears the
burden of proving sudden heat. Relying on this Court’s opinion in Watts v. State, 885 N.E.2d 1228
(Ind. 2008), and the language of the voluntary manslaughter statute, the State argues sudden heat




1
  A search of our library turns up few precedents on which to resolve this question. And the prosecution’s charging
decision cannot help but raise questions. Was it based on mild empathy, for the choice Brantley faced in an instant?
Did the State’s attorneys show Brantley consideration by taking murder off the table, leaving a jury to choose between
manslaughter or self-defense? Or were their motives more strategic, hoping to undermine self-defense by conceding
sudden heat? The record provides no clues and its appellate story tells a cautionary tale that counsels against the
approach. Our Court of Appeals likewise warned that simply because the State may charge voluntary manslaughter
as a standalone, it “does not mean the State selected a wise course.” Brantley, 71 N.E.3d at 405. Murder and voluntary
manslaughter both require a knowing killing; whether culpability is mitigated by sudden heat is best left to a factfinder
to determine, and avoids the thicket we must cut through today.



                                                           5
is nothing more than a mitigating factor, and thus it could concede its existence. In other words,
the State claims sudden heat is not an element of the offense of voluntary manslaughter. Brantley,
citing to the same sources, contends that sudden heat is only a mitigating factor when the State
charges murder, and in this novel situation the State must prove sudden heat. We find that sudden
heat is a mitigating factor. However, there must be some evidence of sudden heat, not merely a
concession, to enable the factfinder to evaluate a defendant’s culpability.


         Although Watts involved a murder charge and an instruction on voluntary manslaughter,
we agree that it is instructive. Watts was charged with murder and at trial requested jury
instructions on involuntary manslaughter and criminal recklessness as lesser-included offenses. Id.
at 1231. The State then requested a voluntary manslaughter instruction, to which Watts objected,
arguing that he had not introduced any evidence of sudden heat. Id. at 1233-34. In reversing Watts’
voluntary manslaughter conviction, we noted that “sudden heat is a mitigating factor, not an
element,” and found that the trial court erred in instructing the jury on voluntary manslaughter
because there was “no possible evidence of sudden heat before the jury,” thus no serious
evidentiary dispute existed to warrant the instruction. 2 Id. at 1232-33.


         At least three things can be gleaned from Watts and applied to this novel case. One, sudden
heat is a mitigating factor, not an element. See also Bane v. State, 587 N.E.2d 97, 100-01 (Ind.
1992) (finding it was error to instruct the jury that sudden heat was an element). Two, there must
be some evidence that a defendant acted in sudden heat before a jury may consider voluntary
manslaughter. As such, to the extent the State argues it can concede the existence of sudden heat
without evidence of such in the record, we disagree. Three, even when voluntary manslaughter is
the lead charge, the State must prove the elements of murder: the knowing or intentional killing of
another human being. I.C. § 35-42-1-1. Here, it is undisputed that Brantley knowingly killed Bruce




2
  The essence of Watts is that the State cannot get a compromise verdict option in the absence of evidence in the record
to support the instruction. 885 N.E.2d at 1233.



                                                           6
Gunn. Therefore, even without a lead murder charge, the State must prove the elements of murder
and there must be some evidence of the sudden-heat mitigating factor for a defendant to be found
guilty of voluntary manslaughter. This is consistent with subsection 3(b) of the voluntary
manslaughter statute, which says “[t]he existence of sudden heat is a mitigating factor that reduces
what otherwise would be murder . . . to voluntary manslaughter.”


       Turning to the record in this case, we find there was evidence of sudden heat, although
scant. Sudden heat exists when a defendant is “provoked by anger, rage, resentment, or terror, to
a degree sufficient to obscure the reason of an ordinary person, prevent deliberation and
premeditation, and render the defendant incapable of cool reflection.” Isom v. State, 31 N.E.3d
469, 486 (Ind. 2015) (internal citation omitted). Evidence of sudden heat may be found in either
the State’s case or the defendant’s. Jackson v. State, 709 N.E.2d 326, 328 (Ind. 1999). It is up to
“the jury to decide whether the evidence presented constitute[s] sudden heat sufficient to warrant
a conviction for voluntary manslaughter.” Bane, 587 N.E.2d at 100.


       Brantley consistently testified that the situation in his home on July 14, 2014, was chaotic.
Central to this chaos was Bruce, whose temper raged and anger oscillated between Martha and
Brantley. But this situation was not a one-off occurrence, and it would be misguided to think of it
in a vacuum. Brantley’s relationship with Bruce was strained. Bruce saw Brantley as a financial
burden on him and Martha. Brantley had witnessed Bruce’s domestic violence against his sister
and nephew. Brantley also knew that Bruce had a history of mental illness. And crucially, Brantley
knew that Bruce kept sharp objects in his chair. So, when Bruce angrily rose from his chair, after
telling Brantley he was “‘getting ready to get rid of all [his] problems right now’” and Brantley’s
eye caught something shiny in Bruce’s hand, it was well within the jury’s province to consider
whether Brantley experienced terror and had the sudden impetus to kill. See Fisher v. State, 671
N.E.2d 119, 121 (Ind. 1996) (“Existence of sudden heat is a classic question of fact to be
determined by the jury.”); Stevens v. State, 691 N.E.2d 412, 427 (Ind. 1997) (the impetus to kill
arises suddenly in the context of voluntary manslaughter).




                                                 7
       This terror brings us to the next issue: whether the State’s concession of sudden heat
nullified Brantley’s claim of self-defense. Brantley argues that it did because the self-defense
defense completely excuses conduct based on the rational decision that force is necessary to protect
oneself, whereas a person acting in sudden heat is incapable of rational thought. By instructing the
jury that the State conceded sudden heat, Brantley contends, the trial court removed the question
from the jury’s consideration and committed fundamental error. The State counters that
fundamental error did not occur because Brantley and the State agreed to the instruction.


       After Brantley and the State rested, the trial court provided counsel with proposed final
instructions, and asked “Can you think of anything we omitted or I stated incorrectly?” Tr. 705.
Counsel replied:

               [State]: After I check something real quickly . . . no, Your Honor, I
               think it’s (inaudible).

               [Court]: You satisfied with the instructions, [Defense]?

               [Defense]: They appear to be correct, Judge.

               [Court]: All right, then.

Tr. 705-06. Included in the court’s instructions was the State’s concession. Although Brantley did
not object at trial, he now seeks to avoid waiver by claiming fundamental error. See Brewington v.
State, 7 N.E.3d 946, 974 (Ind. 2014) (the fundamental error doctrine is an exception to the rule
that failure to object precludes consideration of the issue on appeal). However, we find that, if any
error occurred, it was invited. Wright v. State, 828 N.E.2d 904, 907 (the doctrine of invited error
prevents a party from taking advantage of an error she “commits, invites, or which is the natural
consequence of her own neglect or misconduct”) (internal quotation and citation omitted).
Assuming the instruction was in error, Brantley invited the error by indicating the instructions
were “correct” and met the defense’s satisfaction. Tr. 705


       Invited error notwithstanding, claims of self-defense and killing in sudden heat are not
inherently inconsistent and, in appropriate circumstances, juries may be instructed on both.
Pinegar v. State, 553 N.E.2d 525, 528 (Ind. Ct. App. 1990) (finding self-defense and sudden heat


                                                 8
are not “necessarily inconsistent” and a “jury should be allowed to determine the elements of self
defense and whether there was adequate provocation and, in fact, killing in a sudden heat”). As
with most cases, the jury here was faced with two stories: one where Brantley acted irrationally
out of sudden heat, the other where Brantley acted rationally in self-defense. These explanations
for Brantley’s actions are not conflicting since the nature of each defense is different, and it was
within the province of the jury to weigh the evidence and assess witness credibility in arriving at
its verdict. Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016) (“It is the fact-finder’s role, not that of
[the] appellate court[’s], to assess witness credibility and weigh the evidence to determine whether
it is sufficient to support a conviction.”); Harris v. State, 269 Ind. 672, 674-75, 382 N.E.2d 913,
915 (1978) (finding a jury must consider the parties’ viewpoints and relevant facts, but it is not
required to believe one side’s evidence).


        Indeed, common to both defenses is terror. A defendant acts in self-defense when
confronted with “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. The danger need not be actual, but the belief
must be in good faith and the reaction must be reasonable.” Franklin v. State, 266 Ind. 540, 544,
364 N.E.2d 1019, 1021 (1977) (internal citation omitted). Similarly, sudden heat, which is
sufficient to reduce murder to voluntary manslaughter, requires evidence of “anger, rage, sudden
resentment, or terror that is sufficient to obscure the reason of an ordinary man.” Washington v.
State, 685 N.E.2d 724, 727 (Ind. Ct. App. 1997). Thus, terror sufficient to establish the fear of
death or great bodily harm necessary for self-defense could be equally sufficient to invoke sudden
heat. In other words, the same evidence can either mitigate murder or excuse it altogether. See
Palmer v. State, 425 N.E.2d 640, 644 (Ind. 1981). It’s the jury’s call. Here, faced with competing
evidence, the jury rejected Brantley’s self-defense defense, a decision we affirm.




                                                   9
                                           Conclusion


       Because we find the record contained evidence of sudden heat and the jury properly
rejected Brantley’s self-defense defense, we grant transfer and affirm his conviction for voluntary
manslaughter.


Rush, C.J., and David, Slaughter, and Goff, JJ., concur.




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