MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Aug 07 2018, 6:58 am

court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
the defense of res judicata, collateral                                 Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Keith A. Smith,                                          August 7, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         12A02-1711-CR-2820
        v.                                               Appeal from the Clinton Circuit
                                                         Court
State of Indiana,                                        The Honorable Donald E. Currie,
Appellee-Plaintiff.                                      Senior Judge
                                                         Trial Court Cause No.
                                                         12C01-1603-MR-293



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2820| August 7, 2018         Page 1 of 11
[1]   Keith A. Smith (“Smith”) was convicted of murder after a jury trial in the

      Clinton Circuit Court. Smith now appeals and presents two issues for our

      review which we restate as:


                I.    Whether the trial court erred when it refused to instruct
                      the jury on voluntary manslaughter; and


               II.    Whether the trial court abused its discretion when it
                      declined to admit certain evidence at trial.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Smith and his wife Lisa had been friends with Matt Gilbert (“Gilbert”) for

      several years. The three regularly engaged in consensual sexual activity

      together. At some point, Lisa and Gilbert became sexually involved without

      Smith, but with Smith’s knowledge and consent. This went on for about a

      month at which point Gilbert ended the relationship because he felt Lisa was

      becoming attached, and Smith was becoming jealous. The three agreed that

      they would remain close friends.

[4]   On the morning of March 26, 2016, Smith went to Gilbert’s home and the two

      spoke about going fishing the next day. Just before 6:00 p.m. later that day,

      Gilbert received a phone call from which Smith during which he sounded




      Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2820| August 7, 2018   Page 2 of 11
      “frantic” and “very upset.” Tr. Vol. 1, p. 162.1 Gilbert immediately got into his

      vehicle and traveled to Smith’s residence. When Gilbert arrived, Smith walked

      out of the home, and the two spoke in the front yard. Smith was visibly upset,

      and “he looked pale.” Id. at 165.


[5]   Shortly after 7:00 p.m., Smith called 911 and in a monotone voice stated, “I just

      shot my wife and killed her.” Ex. Vol., State’s Tr. Exs. 1, 30. Officers arrived

      soon after, and it took Frankfort Police Department Captain Scott Shoemaker

      (“Captain Shoemaker”) approximately seventeen minutes to convince Smith to

      exit the house and surrender. Captain Shoemaker explained that Smith sounded

      “emotionless” on the phone while he was trying to convince him to come

      outside, and this gave him concern that Smith was suicidal. Captain Shoemaker

      stated, “it was either we were gonna have to do something or he was gonna do

      something himself.” Tr. Vol. 1, p. 207.


[6]   After Smith surrendered, officers entered the home and found Lisa’s lifeless

      body on the bedroom floor. Smith had fired a single shot that struck Lisa in the

      left shoulder and severed a vein on the right side of her neck. She died from a

      loss of blood as a result of the gunshot wound. On March 31, 2016, the State

      charged Smith with Lisa’s murder.




      1
        Although the table of contents for the transcript is labeled as volume one, so too is the first volume of the
      trial transcript. Thus, all citations to “Vol. 1” of the transcript herein are citations to the first volume of the
      trial transcript.

      Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2820| August 7, 2018                     Page 3 of 11
[7]   A three-day jury-trial commenced on September 11, 2017. During the State's

      direct examination of Gilbert, he testified that he spoke with Smith on the day

      of the murder both on the phone while driving to Smith’s home and once he

      arrived. Tr. Vol. 1, pp. 153–57. On cross-examination, Smith’s counsel sought

      to elicit testimony about the conversations Gilbert and Smith had, and the State

      raised a hearsay objection. Outside of the presence of the jury, Smith’s counsel

      argued that the contents of the conversation should be admitted under the

      completeness doctrine. After hearing argument from both sides, the trial court

      sustained the State’s objection. Smith’s counsel then made an offer of proof that

      in Smith’s initial phone call to Gilbert, he stated, “I lost it. I snapped.” Id. at

      175. And then once Gilbert arrived at Smith’s home, Gilbert testified that Smith

      said he “lost it in the moment,” and “it was too late.” Id. at 176.


[8]   At the close of the three-day trial, Smith’s counsel asked the court to give the

      pattern jury instructions on sudden heat and voluntary manslaughter. To

      support his request, Smith’s counsel relied on Gilbert’s testimony regarding

      Smith’s demeanor and Smith’s neighbor’s testimony that he “looked white as a

      ghost” after the shooting. Tr. Vol. 1, p. 140. The State responded that although

      provocation can arise from jealousy and acknowledged that there was

      testimony of jealousy during trial, “there is no official evidence on the record . .

      . [that] at the time the act was committed . . . that such emotion had

      overwhelmed [Smith’s] reason.” Tr. Vol. 2, p. 105. The court acknowledged the

      instructions were tendered, and it then declined to give them to the jury.




      Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2820| August 7, 2018   Page 4 of 11
[9]    The jury found Smith guilty, and he was sentenced to fifty years in the Indiana

       Department of Correction. Smith now appeals.


             Failure to Instruct the Jury on Voluntary Manslaughter
[10]   Smith first claims that the trial court abused its discretion when it failed to

       instruct the jury on voluntary manslaughter,2 as a lesser included offense of

       murder. Trial courts are provided broad discretion when instructing juries, and

       we review a trial court’s decision with regard to jury instructions only for an

       abuse of that discretion.3 Harrison v. State, 32 N.E.3d 240, 251 (Ind. Ct. App.

       2015), trans. denied.


[11]   When determining whether to give a lesser included offense instruction, trial

       courts apply the three-part test our supreme court set out in Wright v. State, 658




       2
         We acknowledge that Smith alleges that the trial court abused its discretion when it failed to instruct the
       jury on both sudden heat and voluntary manslaughter, however, if the trial court had instructed the jury on
       voluntary manslaughter it also would have needed to instruct the jury on sudden heat. Therefore, our
       discussion below regarding the voluntary manslaughter instruction also encompasses Smith’s claims relating
       to the sudden heat instruction.
       3
         Smith contends that we should review the trial court’s decision here de novo. See Appellant’s Br. at 14–16.
       Our supreme court has explained that if a “trial court rejects a tendered instruction on the basis of its view of
       the law, as opposed to its finding that there is no serious evidentiary dispute,” then we will review that
       decision de novo. Brown v. State, 703 N.E.2d 1010, 1019 (Ind. 1998). But when a trial court makes an express
       finding “as to the existence or absence of a substantial evidentiary dispute,” then we review its decision for an
       abuse of discretion. Id. After hearing argument from both sides relating to evidence of sudden heat, the trial
       court rejected Smith’s tendered instructions. Tr. Vol. 2, pp. 104–05. Although the court did not explicitly
       state that it found no serious evidentiary dispute, the record indicates that this was the basis for its decision.
       Id. For these reasons, we will apply an abuse of discretion standard of review. See Brown, 703 N.E.2d at 1019
       (where the trial court does not make an explicit finding as to whether a serious evidentiary dispute existed,
       “we will presume that the trial court followed controlling precedent and applied” the law). However, we note
       that even if we reviewed the trial court’s decision de novo, we would still conclude that the trial court did not
       err when it declined to give Smith’s tendered instructions to the jury.

       Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2820| August 7, 2018                 Page 5 of 11
       N.E.2d 563 (Ind. 1995). The supreme court succinctly explained this test in

       Wilson v. State:


                The first two parts require the trial court to determine whether
                the offense is either inherently or factually included in the
                charged offense. If so, the trial court must determine whether
                there is a serious evidentiary dispute regarding any element that
                distinguishes the two offenses.


       765 N.E.2d 1265, 1271 (Ind. 2002) (citations omitted). If the evidence in the

       record does not support giving an instruction on an inherently or factually

       included lesser offense, then the trial court should not give it to the jury. Wright,

       658 N.E.2d at 567.


[12]   Murder and voluntary manslaughter are distinguished by evidence of sudden

       heat, “which is an evidentiary predicate that allows mitigation of a murder

       charge to voluntary manslaughter.” Washington v. State, 808 N.E.2d 617, 625

       (Ind. 2004); Ind. Code § 35-42-1-3. Our courts characterize sudden heat “as

       anger, rage, resentment, or terror sufficient to obscure the reason of an ordinary

       person, preventing deliberation and premeditation[.]” Washington, 808 N.E.2d

       at 626. An instruction on voluntary manslaughter is appropriate only “if there

       exists evidence of sufficient provocation to induce passion that renders a

       reasonable personal incapable of cool reflection.” Id. And words alone do not

       constitute sufficient provocation. Gibson v. State, 43 N.E.3d 231, 240 (Ind.

       2015).




       Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2820| August 7, 2018   Page 6 of 11
[13]   Because voluntary manslaughter is an inherently included offense to murder,

       step one of the Wright test is satisfied, and we thus turn to step three, whether

       there is a serious evidentiary dispute as to sudden heat. Wright, 658 N.E.2d at

       567. Smith argues that “there was appreciable evidence of sudden heat in the

       record,” and thus the trial court erred when it declined to instruct the jury on

       voluntary manslaughter. Appellant’s Br. at 19–20. Specifically, Smith points to

       the facts that: (1) He became jealous during Lisa and Gilbert’s exclusive sexual

       relationship; (2) He was frantic and crying when he called Gilbert on the day of

       the murder; and (3) He looked pale when Gilbert arrived, and he had a look in

       his eyes that Gilbert had never seen before. Id. at 17.


[14]   We find no evidence in the record supporting Smith’s claim of sudden heat.

       Any jealousy that Smith harbored is belied by the facts that Smith knew Gilbert

       had already ended the relationship with Lisa, and Smith and Gilbert remained

       good friends. Smith visited Gilbert on the morning of the murder to discuss

       going fishing, and he called Gilbert immediately after shooting Lisa later that

       day. And even if we assume Smith was jealous and upset with Lisa, this alone

       is not enough to constitute sudden heat. See Isom v. State, 31 N.E.3d 469, 486–

       87 (Ind. 2015).


[15]   Moreover, the fact that Smith was visibly upset, frantic, and looked pale after

       shooting his wife does not constitute evidence of sudden heat. This is merely

       evidence indicative of a man who has just committed a heinous act. There is

       nothing in the record regarding what took place inside Smith’s home that led

       him to murder Lisa. And without any evidence in the record from which a

       Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2820| August 7, 2018   Page 7 of 11
       reasonable person could conclude that Smith acted in sudden heat when he shot

       and killed his wife, there is no evidentiary dispute.4 As such, the trial court did

       not abuse its discretion when it declined to give a voluntary manslaughter

       instruction to the jury.


             Exclusion of Conversations Between Smith and Gilbert
[16]   Smith next contends that under the completeness doctrine, the trial court erred

       when it excluded evidence of his conversations with Gilbert on the day of the

       murder. See Appellant’s Br. at 20–27. The completeness doctrine provides that

       “when a party introduces part of a conversation or document, the opposing

       party is [generally] entitled to have the entire conversation or entire instrument

       placed into evidence.” McElroy v. State, 553 N.E.2d 835, 839 (Ind. 1990). The

       doctrine has been incorporated into Indiana Evidence Rule 106 5 with respect to

       written and recorded statements, but the common-law doctrine of completeness

       is also still viable with respect to conversations. Lewis v. State, 754 N.E.2d 603,

       607 (Ind. Ct. App. 2001), trans. denied.




       4
         Smith’s reliance on Griffin v. State, 644 N.E.2d 561 (Ind. 1994), is unavailing. In that case, before the
       defendant shot and killed his wife, she pointed a gun at him, the two engaged in a physical altercation, and
       she attempted to coerce him into having sexual intercourse. Id. at 562–63. On appeal, we concluded that the
       trial court erred when it refused to instruct the jury on voluntary manslaughter because there was “sufficient
       evidence in [the] record which, if believed by the jury, could have established sudden heat.” Id. at 563. Here,
       there is no evidence of what occurred inside Smith’s home prior to the shooting.
       5
         Indiana Evidence Rule 106 states, “If a party introduces all or part of a writing or recorded statement, an
       adverse party may require the introduction, at that time, of any other part-—or any other writing or recorded
       statement—that in fairness ought to be considered at the same time.”

       Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2820| August 7, 2018               Page 8 of 11
[17]   The doctrine prevents a party from misleading the jury by presenting statements

       out of context. Sanders v. State, 840 N.E.2d 319, 323 (Ind. 2006). But portions of

       evidence not expository of nor relevant to already-introduced sections of

       evidence need not be admitted. Barnett v. State, 916 N.E.2d 280, 286 (Ind. Ct.

       App. 2009), trans. denied. We review a trial court’s decision to admit or exclude

       evidence under this doctrine for an abuse of discretion. Hawkins v. State, 884

       N.E.2d 939, 943 (Ind. Ct. App. 2008), trans. denied.


[18]   Here, the State elicited testimony from Gilbert that on the day of Lisa’s murder,

       Gilbert spoke with Smith both on the phone and in person. After Smith shot

       Lisa, he called Gilbert, and the two had a conversation while Gilbert drove to

       Smith’s home, and the two then had another conversation after Gilbert arrived.

       However, the State was careful to ensure that Gilbert did not testify to any of

       the contents of those conversations. The State concluded its direct examination

       of Gilbert by asking him, “Did you encourage [Smith] to call 911 as you spoke

       with him that day?” Tr. Vol. 1, p. 157. Gilbert responded that he did not. Id.

       Smith asserts that “[b]y eliciting testimony from [Gilbert] about the content of

       the conversations he had with [Smith] that day, the State opened the door to the

       admission of the entirety of their conversations.” Appellant’s Br. at 20. We

       disagree.


[19]   No portion of any of the conversations that Gilbert had with Smith on the day

       of the murder was put before the jury. And the purpose of the completeness

       doctrine is to allow “a party [to] place into evidence the remainder of a statement

       or document which the opposing party has introduced when the portions relied

       Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2820| August 7, 2018   Page 9 of 11
       upon by the opposing party may be misleading to the jury when taken out of

       context.” Norton v. State, 772 N.E.2d 1028, 1033 (Ind. Ct. App. 2002) (emphasis

       added), trans. denied. But when a party does not introduce any portion of a

       conversation, then there is nothing to complete. The trial court shared this

       concern when it asked Smith’s counsel, “[W]hat is this completing?” Tr. Vol. 1,

       p. 168.


[20]   Here, the only testimony the State elicited was that Gilbert did not encourage

       Smith to call 911. Smith asserts that this statement is misleading without the

       remainder of their conversations being admitted into evidence. See Tr. Vol. 1, p.

       168; Appellant’s Br. at 25. But Smith fails to explain how this would mislead

       the jury.6 Moreover, Gilbert’s statement about his inaction is not part of any

       conversation he had with Smith, nor does it constitute testimony about

       anything Gilbert or Smith said to each other on the day of the murder. Cf.

       McElroy, 553 N.E.2d at 839 (holding that the trial court erred when it allowed a

       police officer to testify about certain statements the defendant made during

       interrogation but did not allow the officer to testify to other exculpatory




       6
         Smith also takes issue with a portion of the State’s closing argument in which it speculated as to what
       Gilbert and Smith discussed the day of the murder, see Tr. Vol. 2, p. 117, even though it knew the contents of
       the conversation because it came out during the offer of proof. Smith contends that “[t]he prosecutor
       misrepresented his own knowledge to the jury, took unfair advantage of the trial court’s decision to exclude
       the evidence, and encouraged the jury to conjure up the most sinister possible dialogue between [Gilbert] and
       [Smith.]” Appellant’s Br. at 26. However, the State’s comments came after Smith’s counsel: (1) argued that
       the jury could not convict Smith without knowing why he did it; (2) noted that the State elicited testimony
       from Gilbert but did not ask him one question about what was said during his conversations with Smith; and
       (3) wondered aloud, “What is it they don’t want you to know?” Tr. Vol 2, p. 113–14. Thus, the State’s
       response was a proper rebuttal to arguments raised by Smith’s counsel.



       Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2820| August 7, 2018             Page 10 of 11
       statements the defendant made during the same interview). For these reasons, it

       was unnecessary to admit the otherwise inadmissible hearsay statements of

       Smith under the completeness doctrine, and thus the trial court did not abuse its

       discretion when it declined to admit the testimony at trial.7


                                                     Conclusion
[21]   Based on the facts and circumstances before us, the trial court did not abuse its

       discretion when it refused to instruct the jury on voluntary manslaughter, and it

       did not err when it denied Smith’s request to admit Gilbert’s testimony relating

       to conversations he had with Smith on the day of Lisa’s murder. Accordingly,

       we affirm.


       Riley, J., and May, J., concur.




       7
        Even if the trial court erred in excluding the evidence of conversations between Smith and Gilbert on the
       day of the murder, the error is harmless. Smith argues that if testimony regarding the conversations had been
       admitted, then it would have strengthened his argument for jury instructions on sudden heat and voluntary
       manslaughter. Appellant’s Br. at 27. However, during the offer of proof, Gilbert merely stated that Smith told
       him that he “lost it” and that he “snapped.” Tr. Vol. 1, pp. 175–176, 179. Gilbert also testified that Smith told
       him that there had been talk of divorce. Even if this testimony was admitted, Smith still would have lacked a
       valid claim that he acted under sudden heat. See Massey v. State, 955 N.E.2d 247, 256–57 (Ind. Ct. App.
       2011); Supernant v. State, 925 N.E.2d 1280, 1283–84 (Ind. Ct. App. 2010), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2820| August 7, 2018               Page 11 of 11
