                                                                       FILED
                                                                  Feb 24 2017, 8:34 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                         Curtis T. Hill, Jr.
      Marion County Public Defender Agency                     Attorney General of Indiana
      Indianapolis, Indiana
                                                               Ian McLean
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Billy Brantley,                                          February 24, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A04-1606-CR-1401
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Grant W.
      Appellee-Plaintiff.                                      Hawkins, Judge
                                                               Trial Court Cause No.
                                                               49G05-1411-F2-50827



      Najam, Judge.


                                       Statement of the Case
[1]   Billy Brantley appeals his conviction for Voluntary Manslaughter, a Level 2

      felony. He raises three issues for our review, but we need only consider the



      Court of Appeals of Indiana | Opinion 49A04-1606-CR-1401 | February 24, 2017           Page 1 of 20
      following dispositive issue: whether the State presented sufficient evidence to

      support Brantley’s conviction for voluntary manslaughter. We reverse.


                                 Facts and Procedural History
[2]   In July 2014, Brantley lived in a home in Indianapolis with his sister, Martha

      Gunn (“Martha”), her husband, Bruce Gunn (“Bruce”), and the couple’s eight

      year old son, Sean. Brantley had known Bruce for eighteen years and had lived

      with Martha and Bruce while Brantley was in high school. After he spent

      several years in the Air Force after high school, Brantley moved back in with

      Martha and Bruce in 2012.


[3]   Bruce was a fifty-eight year old retired Eli Lilly chemist who suffered from both

      physical and mental health problems. Bruce suffered from a seizure disorder

      and he had undergone two back surgeries, one of which had been performed at

      approximately the beginning of July 2014. Bruce had been prescribed pain

      medication and had a vagal nerve simulator, which is a device used to interrupt

      nerve transmissions and lessen chronic pain. Bruce also had a history of

      harming himself, had engaged in suicidal behavior on several occasions, and

      had attempted to stab himself with a knife on more than one occasion. Bruce

      had sometimes kept knives under the cushion of the recliner in which he usually

      sat.


[4]   Bruce and Martha had a history of verbally fighting with each other. And, on

      one occasion in 2002, while Brantley was in high school, Bruce had physically

      attacked Martha and Brantley had to intervene to protect his sister. Brantley

      Court of Appeals of Indiana | Opinion 49A04-1606-CR-1401 | February 24, 2017   Page 2 of 20
      had heard Martha and Bruce fighting in their bedroom and, when he had

      subsequently heard his sister softly calling his name, he had entered the couple’s

      bedroom to find Bruce choking Martha. Brantley had then hit Bruce on the

      head with a pool cue, which had forced Bruce to release Martha. Police then

      responded to a 9-1-1 call and arrested Bruce. Bruce’s resulting domestic battery

      charges were later resolved by Bruce entering a mental health diversion

      program.


[5]   Brantley was employed as a locksmith but, on the morning of July 14, 2014, he

      woke up at approximately 9:00 a.m. to prepare for a 10:00 a.m. job interview

      for a better-paying job. Because Brantley knew his job interview was to take

      place in a high-crime neighborhood, he armed himself with a new gun he had

      legally purchased. After he showered, he went downstairs and found Bruce,

      Martha, and Sean all sleeping in the living room. Bruce was asleep in his

      recliner just inside the entryway to the room, and Martha and Sean were on the

      couch. Martha was recuperating from surgery on her foot and hand, and she

      had slept on the couch all night. Brantley woke Martha up, as he was

      concerned that she had overslept. Martha then woke Bruce up and asked him

      to give Brantley the twenty dollars they had decided to give him the night

      before for gas. Bruce gave Brantley the money and wished him good luck with

      the interview.


[6]   Brantley arrived back home at about 11:00 or 11:30 a.m. He warmed some

      pizza for himself in the microwave in the kitchen, went into the living room

      where Bruce, Martha, and Sean were still located, and sat down to eat in front

      Court of Appeals of Indiana | Opinion 49A04-1606-CR-1401 | February 24, 2017   Page 3 of 20
      of the TV. Bruce and Martha were arguing loudly, but Sean was still asleep on

      the couch. The couple stopped yelling at each other for five or ten minutes after

      Brantley came into the room, and Bruce asked Brantley about the interview.

      Soon, though, Bruce became upset again—about something Martha had said in

      a telephone call—and he began yelling at Martha again. Brantley listened to

      the argument as he sat in his chair, eating and trying to tell Martha and Bruce

      about his job interview. Martha got up and tried to leave the room, but Bruce

      stood up quickly and blocked her exit. Martha then returned to the couch and

      sat back down.


[7]   The argument continued to escalate between Martha and Bruce, with both of

      them yelling at each other. Brantley repeatedly asked Bruce to calm down, but

      Bruce became increasingly irate. Bruce began yelling at Brantley, too, and

      stated as he rose from his recliner that he was going to “take care of all of his

      problems.” Tr. Vol. III at 679, 686. Brantley and Martha both saw Bruce

      holding something in his clenched fist as he rose from his chair. The only path

      out of the room to the rest of the house was through a small opening between

      Bruce’s recliner and a large entertainment unit. There was a sliding glass door

      to the back yard, but there was “no way out” because the yard was fenced and

      the exit gate was padlocked on the outside. Id. at 511-12, 593-94.


[8]   Brantley drew his gun and fired it once at Bruce. The bullet from Brantley’s

      gun entered Bruce’s body in the left chest area and exited from the left lower

      back area. It was a fatal wound. The bullet did not enter Bruce’s chair but

      passed through the wall behind and above his recliner. When Bruce fell to the

      Court of Appeals of Indiana | Opinion 49A04-1606-CR-1401 | February 24, 2017   Page 4 of 20
      floor, Martha grabbed her son and took him out the front door to a neighbor’s

      house. Martha and Brantley each separately placed calls to 9-1-1 almost

      immediately after the shot. In her 9-1-1 call, Martha was frantic and crying and

      repeatedly stated that her brother had shot her husband when her husband had

      tried to attack her and was coming at them. Brantley, who had military and

      law enforcement training, was more composed in his 9-1-1 call and told the

      operator Bruce had tried to attack him and he had to shoot him. It was later

      discovered that the item Bruce had been holding in his hand was not a knife but

      his glasses.


[9]   The State charged Brantley with voluntary manslaughter. Brantley raised a

      claim of self-defense, and he and Martha testified at his April 11-13, 2016, jury

      trial in support of that defense. Both Brantley and Martha testified that

      Brantley had remained calm during the entire incident on July 14, 2014. They

      both also testified that Bruce had an object in his hand as he rose from his

      recliner, screaming; however, neither could see what the object was. Brantley

      testified that he could only see that the object in Bruce’s hand was shiny and

      that he believed it was a knife. Both Brantley and Martha testified that they

      knew Bruce had kept knives in his recliner and that they had been poked by

      knives before when they had tried to sit in Bruce’s recliner. Sean also testified

      at the trial and stated that his brother had found two butter knives and a steak

      knife behind the cushion in Bruce’s recliner on the evening of July 14, after the

      shooting. Sean testified that, although he occasionally had heard his parents’

      voices raised during the events of the morning of July 14, he was sleeping most


      Court of Appeals of Indiana | Opinion 49A04-1606-CR-1401 | February 24, 2017   Page 5 of 20
       of the time. The State presented evidence at trial that the position of Bruce’s

       body after he was shot indicated he was not coming toward Bruce but was only

       in the process of rising from his chair when he was shot.


[10]   The trial court gave the jury the following instruction on the charged offense:


               The crime of Voluntary Manslaughter, a Level 2 felony with
               which the Defendant is charged in Count I, is defined by statute
               as follows:


               A person who knowingly or intentionally kills another person
               while acting under sudden heat commits Voluntary
               Manslaughter, a Level 2 felony.


               The existence of sudden heat is a mitigating factor that reduced
               what otherwise would be Murder to Voluntary Manslaughter.
               The State has conceded the existence of sudden heat by charging
               Voluntary Manslaughter instead of Murder.


               To convict the Defendant, the State must have proved each of the
               following elements beyond a reasonable doubt:


               1. The Defendant, Billy Brantley,


               2. knowingly


               3. killed


               4. Bruce Gunn.


               If the State failed to prove each of these elements beyond a
               reasonable doubt, you must find the Defendant not guilty.

       Court of Appeals of Indiana | Opinion 49A04-1606-CR-1401 | February 24, 2017   Page 6 of 20
               If the State did prove each of these elements beyond a reasonable doubt,
               you may find the Defendant guilty of Voluntary Manslaughter, a Level
               2 felony.


       Appellant’s App. Vol. II at 95 (emphases added). The court also instructed the

       jury as follows on the term “sudden heat”:


               The term sudden heat, as applied to the crime of Voluntary
               Manslaughter, means an excited state of mind. It is a condition
               that may be created by strong emotion such as anger, rage,
               sudden resentment, or jealousy. It may be strong enough to
               obscure the reason of an ordinary person and prevent
               deliberation and meditation. It can render a person incapable of
               rational thought.


       Id. at 98 (emphasis in original). The trial court also gave the jury an instruction

       on self-defense.


[11]   The jury found Brantley guilty of voluntary manslaughter, and the trial court

       sentenced him accordingly. This appeal ensued.


                                      Discussion and Decision
                                             Standard of Review

[12]   Brantley maintains that, if it was permissible for the State to bring a stand-alone

       charge of voluntary manslaughter against him, then in so doing the State had

       the burden of providing sufficient evidence that he acted with “sudden heat.”

       Because we decide this matter based on Brantley’s sufficiency of the evidence

       claim, we need not address his contention that the trial court committed

       fundamental error by instructing the jury that the State had conceded “sudden

       Court of Appeals of Indiana | Opinion 49A04-1606-CR-1401 | February 24, 2017   Page 7 of 20
       heat,” or the State’s contention that there was no such error or, if there was,

       that Brantley “invited” the error.1 We need not consider the correctness of the

       jury instructions because the Due Process Clause of the United States

       Constitution protects every defendant against conviction except upon proof

       beyond a reasonable doubt. In Re Winship, 397 U.S. 358, 364 (1970). If there is

       no evidence of sudden heat in the record, the State has not met its constitutional

       burden of proof.


[13]   The issue of sufficiency of the evidence may be raised for the first time on

       appeal. See Ind. Trial Rule 50(A)(5); Dishmon v. State, 770 N.E.2d 855, 857

       (Ind. Ct. App. 2002), trans. denied. In reviewing a sufficiency of the evidence

       claim, we neither reweigh the evidence nor assess the credibility of the

       witnesses. See, e.g., Jackson v. State, 925 N.E.2d 369, 375 (Ind. 2010). We

       consider only the probative evidence and reasonable inferences therefrom that

       support the conviction, Gorman v. State, 968 N.E.2d 845, 847 (Ind. Ct. App.

       2012), trans. denied, and we “consider conflicting evidence most favorabl[e] to

       the [jury’s verdict],” Wright v. State, 828 N.E.2d 346, 352 (Ind. 2005). We

       affirm if the probative evidence and reasonable inferences drawn from that

       evidence “could have allowed a reasonable trier of fact to find the defendant

       guilty beyond a reasonable doubt.” Jackson, 925 N.E.2d at 375.




       1
          It might also be said that the State invited the error in the instruction when it agreed to the instruction that
       it had “conceded” sudden heat and, thus, that the State should not be allowed to benefit from its own invited
       error by obtaining a retrial in this case.

       Court of Appeals of Indiana | Opinion 49A04-1606-CR-1401 | February 24, 2017                          Page 8 of 20
                         Voluntary Manslaughter as a Stand-Alone Charge

[14]   Brantley first contends that the State was not permitted to charge him with

       voluntary manslaughter without having also charged him with murder. The

       crime of voluntary manslaughter is defined as follows:


               (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 Level 2 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.


       Ind. Code § 35-42-1-3 (2014).


[15]   Usually, either a defendant raises voluntary manslaughter in an attempt to

       mitigate a murder charge or the State charges voluntary manslaughter as a

       lesser included offense to a murder charge. In fact, the parties do not direct us

       to any Indiana case in which the State brought voluntary manslaughter as a

       stand-alone offense, and we are unable to find any such case. However, we

       hold that, because voluntary manslaughter appears in the criminal code as its

       own crime, the State may charge it as a stand-alone offense. Cf. State v. Downey,


       Court of Appeals of Indiana | Opinion 49A04-1606-CR-1401 | February 24, 2017      Page 9 of 20
       476 N.E.2d 121, 123 (Ind. 1995) (“The authority to define crimes and establish

       penalties belongs to the legislature.”). And we perceive no substantive

       difference between the State’s authority to charge voluntary manslaughter

       together with another charge, such as murder, or by itself.


                            Requirement that the State Prove Sudden Heat

[16]   Because we conclude that the State is permitted to bring a stand-alone charge of

       voluntary manslaughter, we turn to Brantley’s argument that, when the State

       did so, it was required to prove that he acted under sudden heat. While it is

       clear that sudden heat is not an “element” of voluntary manslaughter, see I.C. §

       35-42-1-3(b), nonetheless our supreme court has held that the State must prove

       sudden heat when it charges a defendant with voluntary manslaughter as a

       lesser included offense to a murder charge. Watts v. State, 885 N.E.2d 1228,

       1232 (Ind. 2008). In Watts, the State had charged both murder and voluntary

       manslaughter as a lesser included offense, and the court held that the sudden

       heat requirement of voluntary manslaughter is “a mitigating factor, not an

       element, that the State must prove in addition to the elements of murder,” which

       elements comprise the remainder of the offense of voluntary manslaughter. Id.

       (emphasis added). This court has also held that the State has the burden to

       prove sudden heat when it charges the defendant with voluntary manslaughter.

       Suprenant v. State, 925 N.E.2d 1280, 1282 (Ind. Ct. App. 2010), trans. denied;

       Misztal v. State, 598 N.E.2d 1119, 1122 (Ind. Ct. App. 1992), trans. denied.


[17]   We perceive no reason why the State should be required to prove sudden heat

       when charging voluntary manslaughter as a lesser included offense to murder
       Court of Appeals of Indiana | Opinion 49A04-1606-CR-1401 | February 24, 2017   Page 10 of 20
       but be relieved of that burden of proof when it brings voluntary manslaughter as

       a stand-alone charge.2 We hold that the State was required to prove sudden

       heat when it charged Brantley with voluntary manslaughter.


                                             Sufficiency of the Evidence

[18]   Having concluded that the State had the burden to prove sudden heat, we turn

       to whether the State met that burden.3 We hold that the State failed to produce

       any evidence, let alone prove beyond a reasonable doubt, that Brantley acted

       under “sudden heat” when he knowingly killed Bruce. As we have explained:

                  “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. Dearman v. State,
                  743 N.E.2d 757, 760 (Ind. 2001). Anger alone is not sufficient to
                  support an instruction on sudden heat. Wilson v. State, 697
                  N.E.2d 466, 474 (Ind. 1998). Nor will words alone “constitute
                  sufficient provocation to warrant a jury instruction on voluntary
                  manslaughter,” and this is “especially true” when the words at
                  issue are not intentionally designed to provoke the defendant,
                  such as fighting words. Allen v. State, 716 N.E.2d 449, 452 (Ind.
                  1999).


                  In addition to the requirement of something more than “mere
                  words,” the provocation must be “sufficient to obscure the reason



       2
         We disagree with the trial court’s assessment that the State “conceded” sudden heat by not charging
       Brantley with murder. A “concession” is “[t]he voluntary yielding to a demand for the sake of a settlement.”
       Black’s Law Dictionary (10th ed. 2014). Here, Brantley made no demand that he had acted in sudden heat to
       which the State could have yielded. Rather, the only issue Brantley raised was the issue of self-defense.
       3
           It is uncontested that the State proved that Brantley knowingly killed Bruce. See I.C. § 35-42-1-3.


       Court of Appeals of Indiana | Opinion 49A04-1606-CR-1401 | February 24, 2017                        Page 11 of 20
               of an ordinary man,” an objective as opposed to subjective
               standard. See Stevens v. State, 691 N.E.2d 412, 426 (Ind. 1997)
               (refusing to find that a threat to disclose molestation would
               “understandably” provoke “an ordinary twenty-year-old man” to
               rage or terror). Finally, Voluntary Manslaughter involves an
               “impetus to kill” which arises “suddenly.” Id. at 427.


       Suprenant, 925 N.E.2d at 1282-83.


[19]   Here, neither party presented any evidence of sudden heat or made argument to

       the jury that Brantley acted under sudden heat.4 There was no evidence

       presented that Brantley was angry, enraged, suddenly resentful, or in terror. To

       the contrary, the only evidence before the jury regarding Brantley’s state of

       mind was the testimony from the only witnesses to the shooting—Brantley and

       Martha—that Brantley had behaved calmly before, during, and after the

       shooting.5 That evidence was not only undisputed but the State also relied on it

       in its closing argument. The jury heard no evidence from which it could find

       that Brantley “experienced ‘terror’ sufficient to obscure his reason and that a

       ‘sudden impetus to kill’ arose.” Slip op. at 4. There was no evidence that

       Brantley was anything but calm at all relevant times. And the State never

       argued otherwise to the jury—rather, in his closing argument the prosecutor

       agreed that Brantley was not in an excited state during the 9-1-1 call that was




       4
        The only time the State mentioned sudden heat was in the Information defining the charge of voluntary
       manslaughter.
       5
         Even if we were to disregard this evidence of Brantley’s calm demeanor, we would be left with no evidence
       at all regarding Brantley’s state of mind and, thus, no factual basis to support a reasonable inference that
       Brantley acted out of “terror.” Slip op. at 4.

       Court of Appeals of Indiana | Opinion 49A04-1606-CR-1401 | February 24, 2017                   Page 12 of 20
       immediately subsequent to the shooting. After the prosecutor played that call

       for the jury, the prosecutor stated, “[a]wfully, awfully matter of fact on that.

       And that is bothersome.” Tr. Vol. III at 714.


[20]   Although there was some evidence that Bruce was angry at Brantley as well as

       Martha, his anger alone is not sufficient evidence of provocation to cause a

       person to act under sudden heat. Suprenant, 925 N.E.2d at 1282. Neither are

       Bruce’s words as he stood up evidence of such provocation. Id. at 1283.

       Bruce’s conduct of rising from his chair while making an angry statement did

       not go so far beyond “mere words” or mere anger so as to constitute

       provocation leading to sudden heat. Id. at 1284 (holding that, “[a]lthough there

       was some non-verbal action by the victim, we do not find that the lawful

       conduct of gathering one[’]s belongings goes so far beyond ‘mere words’ as to

       constitute ‘sudden heat[,]’”).


[21]   Certainly, from our remote vantage point, the reason for the prosecutor’s

       decision not to charge murder is not obvious. Nonetheless, the State is not

       entitled to a mulligan. The prosecutor chose to charge only voluntary

       manslaughter, and, to prove that offense, the law requires more than proof of

       the elements of murder. Suprenant, 925 N.E.2d at 1282. Again, as our supreme

       court has explained, the State was required to show that, when he shot Bruce,

       Brantley was angry, enraged, suddenly resentful, or in terror. Dearman, 743

       N.E.2d at 760. There is simply no such evidence here.




       Court of Appeals of Indiana | Opinion 49A04-1606-CR-1401 | February 24, 2017   Page 13 of 20
[22]   Although the jury was instructed on the definition of “sudden heat,” the State

       failed to provide any evidence of it. Instead, the State asserted that it had

       “conceded” sudden heat by not charging murder. But a party with the burden

       of proof on an issue may not meet that burden by “conceding” it when the

       other party has not also conceded the issue. Nor may the State avoid its burden

       of proof by “conceding” sudden heat when there is no evidence of sudden heat

       in the record. Watts, 885 N.E.2d at 1233.


[23]   Because the State failed to present any evidence of sudden heat to the jury,

       Brantley’s conviction for voluntary manslaughter cannot stand. And, since

       there was insufficient evidence to support the conviction, Brantley cannot be

       retried. See Cuto v. State, 709 N.E.2d 356, 362 (Ind. Ct. App. 1999) (citation

       omitted) (“Double jeopardy bars retrial if a conviction is reversed on the basis

       of insufficient evidence.”).


                                                   Conclusion

[24]   When the State charged Brantley with voluntary manslaughter, it was required

       to provide evidence sufficient to prove beyond a reasonable doubt that he acted

       under sudden heat. The State wholly failed to carry that burden, as it provided

       no evidence at all of sudden heat. Therefore, Brantley’s conviction for

       voluntary manslaughter must be reversed.


[25]   Reversed.




       Court of Appeals of Indiana | Opinion 49A04-1606-CR-1401 | February 24, 2017   Page 14 of 20
May, J., concurs.

Bailey, J., dissents with separate opinion.




Court of Appeals of Indiana | Opinion 49A04-1606-CR-1401 | February 24, 2017   Page 15 of 20
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Billy Brantley,
       Appellant-Defendant,

               v.                                               Court of Appeals Case No.
                                                                49A04-1606-CR-1401
       State of Indiana,
       Appellee-Plaintiff.




       Bailey, Judge, dissenting.


[26]   I agree with the majority that the State did not properly obtain its conviction.

       Article 1, Section 19 of the Indiana Constitution protects the province of the

       jury in criminal trials, allocating to the jury the right to determine the law and

       the facts. Keller v. State, 47 N.E.3d 1205, 1208 (Ind. 2016). Here, the province

       of the jury was invaded by a fundamentally erroneous instruction attempting to

       relieve the State of its burden of proof. However, unlike the majority, I believe

       that retrial is permissible, in light of the evidence of sudden heat. Where a

       burden-shifting instruction has deprived a defendant of due process of law, and

       a conviction is reversed, retrial is allowable if the evidence at trial was sufficient



       Court of Appeals of Indiana | Opinion 49A04-1606-CR-1401 | February 24, 2017         Page 16 of 20
       to support the original conviction. Matthews v. State, 718 N.E.2d 807, 810 (Ind.

       Ct. App. 1999).


[27]   Our legislature has described voluntary manslaughter as an independent crime,

       committed when a person “knowingly or intentionally kills another human

       being while acting under sudden heat.” Ind. Code § 35-42-1-3. Whether to

       prosecute at all and what charges to bring are generally within the prosecutor’s

       discretion. Moala v. State, 969 N.E.2d 1061, 1067 (Ind. Ct. App. 2012). Thus,

       strictly speaking, the State was permitted to charge Brantley with voluntary

       manslaughter without having also charged him with murder. This does not

       mean that the State selected a wise course.


[28]   When a human being has been killed because of the knowing or intentional

       conduct of another, the starting point that our legislature has provided is the

       offense of murder. See I.C. § 35-42-1-1 (“A person who knowingly or

       intentionally kills another human being … commits murder, a felony.”) When

       sudden heat exists that offense is mitigated. See I.C. § 35-42-1-3(b) (“The

       existence of sudden heat is a mitigating factor that reduces what otherwise

       would be murder … to voluntary manslaughter.”)


[29]   Sudden heat is not an element of voluntary manslaughter, but, to obtain a

       murder conviction, the State must disprove the existence of sudden heat,

       beyond a reasonable doubt, when the defendant has injected that issue. Jackson

       v. State, 709 N.E.2d 326, 328 (Ind. 1999). The evidence of sudden heat may be

       derived from “the State’s case or the defendant’s own.” Id. Where the State


       Court of Appeals of Indiana | Opinion 49A04-1606-CR-1401 | February 24, 2017   Page 17 of 20
       has charged both murder and the lesser-included offense of voluntary

       manslaughter, the State establishes voluntary manslaughter by proving all the

       elements of murder, plus sudden heat, a mitigating factor. Misztal v. State, 598

       N.E.2d 1119, 1122 (Ind. Ct. App. 1992).


[30]   Here, the State injected the issue of sudden heat by means of its charging

       information. Recognizing a heightened burden – proof of the elements of

       murder plus sudden heat – the State attempted to meet its burden of proof by

       means of a final jury instruction whereby the State purported to “concede” the

       existence of sudden heat. The State then argued that the issue had been

       conceded. By its methodology, the State withdrew from the jury an

       opportunity to determine the existence of sudden heat. “Existence of sudden

       heat is a classic question of fact to be determined by the jury.” Fisher v. State,

       671 N.E.2d 119, 121 (Ind. 1996).


[31]   Having “conceded” sudden heat, the State proceeded as if it needed only to

       prove that Brantley knowingly or intentionally killed a human being. Brantley

       raised a defense of self-defense or defense of another and testified to that end.

       Brantley testified that he drew his gun and shot Bruce, a deliberate act. There

       was no claim of accident, insanity, or involuntary movement. There was no

       dispute as to whether Brantley knowingly or intentionally caused the death of

       Bruce, a human being. Essentially, Brantley conceded the elements of murder

       but claimed that the act was justified. However, the jury was not afforded the

       clear opportunity to decide whether Brantley acted with complete justification

       or had some criminal culpability because the erroneous instruction skewed the

       Court of Appeals of Indiana | Opinion 49A04-1606-CR-1401 | February 24, 2017   Page 18 of 20
       deliberative process. The erroneous instruction had effectively taken from the

       jury’s deliberations the very issue that the State had injected, sudden heat.


[32]   This is not to say, however, that the record is devoid of evidence of sudden

       heat. Sudden heat is established by showing that the defendant experienced

       “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.” Dearman v. State, 743

       N.E.2d 757, 770 (Ind. 2001). Voluntary manslaughter involves an “impetus to

       kill” which arises “suddenly.” Stevens v. State, 691 N.E.2d 412, 427 (Ind. 1997).


[33]   Here, the jury heard evidence from which it could find that Brantley

       experienced “terror” sufficient to obscure his reason and that a “sudden impetus

       to kill” arose. See id. The situation was not limited to mere words. Brantley

       testified that he heard Bruce say “he was taking care of all of his problems right

       now” (emphasis added) and Bruce did so as “he came out of the chair” with a

       shiny object in hand. (Tr. at 592.) Necessarily, Brantley evaluated this verbal

       taunt and advancing movement in light of the relational background: there had

       been an ongoing argument between Bruce and Martha over finances and

       medication, Bruce had refused to allow Martha to leave the living room, Bruce

       had once choked Martha, he had stabbed himself, and he had a propensity to

       keep knives near him to open packages. Whatever Brantley’s internal processes

       were, they triggered a rapid response resulting in the discharge of his weapon

       into Bruce. Whether he acted under justification or provocation is squarely



       Court of Appeals of Indiana | Opinion 49A04-1606-CR-1401 | February 24, 2017   Page 19 of 20
       within the realm of the jury’s deliberative process. By drafting a “concession,”

       the instruction distorted the deliberative process.


[34]   It is a classic responsibility of the jury to evaluate the culpability associated with

       one’s actions. In his testimony, Brantley claimed that he was confronted with

       extreme circumstances. According to his argument, he acted without fault.

       The jury rejected this claim of self-defense. However, this did not require the

       jury to ignore the extremities of the situation. It could well have found that

       Bruce’s conduct fell short of that which would cause a reasonable man to fear

       for his life or the life of another, but nevertheless provoked Brantley to

       deliberately kill. It was prevented from doing so by the “concession” strategy.


[35]   As there is evidence of provocation and a sudden killing, there is evidence from

       which the jury could have concluded that Brantley acted in sudden heat. I

       would find fundamental error in the giving of the erroneous, invasive

       instruction, find sufficient evidence to permit retrial on the charge of voluntary

       manslaughter,6 and remand to the trial court.




       6
        Brantley cannot be tried on a murder charge. “[I]t has long been held in Indiana that a conviction for
       voluntary manslaughter is an acquittal of the greater offense of murder.” Watts v. State, 885 N.E.2d 1228,
       1232 (Ind. 2008) (citing Clem v. State, 42 Ind. 420, 426 (1873)).

       Court of Appeals of Indiana | Opinion 49A04-1606-CR-1401 | February 24, 2017                    Page 20 of 20
