dissenting.
I dissent from the Majority Opinion for the following reasons:
1.The Majority has ignored the most recent attempt by the Indiana Supreme Court to have the “appellate courts of this state speak with one voice.” Wright v. State, 658 N.E.2d 563, 565 (Ind.1995). The third prong of the Wright test has been ignored.
2. There is an absolute absence of a serious evidentiary dispute regarding Washington’s sudden heat in the record. A court-induced instruction on voluntary manslaughter over the timely objection of the defendant is reversible error.
3. The court-induced voluntary manslaughter instruction undermined the defendant’s defense of self-defense by suggesting a compromise verdict to the jury-
The reversible error here was created by the trial court faffing to follow the third prong of the analysis set forth in Wright. Once the trial court determines that a lesser included offense is inherently included in the crime of murder, "... it must look at the evidence presented in the case by both parties.” Wright, 658 N.E.2d at 567. In Wright, Justice Sullivan pointed to the second phase of the third prong analysis. The second phase requires that a serious eviden-tiary dispute exists:
If there is a serious evidentiary dispute about the element or elements distinguishing the greater from the lesser offense and if, in view of this dispute, a jury could conclude that the lesser offense was committed but not the greater, then it is reversible error for a trial court not to give an instruction, when requested, on the inherently or factually included lesser offense.
Here, there was no serious evidentiary dispute regarding Washington’s sudden heat, and there was no request to give the voluntary manslaughter instruction. It was given sua sponte by the trial court. Giving this instruction to the jury crippled Washington’s self-defense argument and made a strong suggestion to the jury for a compromise verdict.
None of Washington’s conduct or spoken words reflect sudden heat. In his testimony at trial, he testified that he felt that he was in danger. This is the only evidence that mirrors Washington’s subjective state of mind. On the other hand, Bradford’s state of mind is quite different. It was boiling over with rage.
*730In the Blue Max parking lot, Bradford jumped in his truck and raced over to the parking space where Washington was about to leave. Bradford shouted abusive language at Washington: “I’m going to handle my business”; “I want to talk to you mother fucker”; and “I’m going to kill this mother fucker.” Then, Bradford pulled out a hand gun and pulled the trigger. The cracking thunder from the exploding hand gun caused Washington to feel that he was in danger. During this interlude, he had said and done nothing. But now, he decided to obtain a hand gun from his car and run for cover— shooting in the general direction of Bradford. The sudden heat, if any existed, had been generated by Bradford — not Washington. To attribute Bradford’s feelings of anger and retribution to Washington is entirely unjustified. Bradford was the aggressor who angrily threatened death. Nothing in the record shows sudden heat on the part of Washington. Nothing in the record justifies the giving of a voluntary manslaughter instruction. To do so surely invited and suggested to the jury a compromise verdict.
“Although compromise verdicts doubtlessly are often forthcoming, they are not sanctioned in law and certainly should not be court-induced.” Whitten v. State, 263 Ind. 407, 333 N.E.2d 86, 91 (1975).
As a basis for giving a lesser included offense instruction, the trial court has transferred to Washington the sudden heat exhibited by Bradford’s conduct. In so doing, the trial court undercut Washington’s defense of self-defense and suggested to the jury that a compromise verdict was in the offering. This was reversible error.
Washington made the proper objection when the trial court announced that it would give the voluntary manslaughter instruction which requires evidence of sudden heat on the part of Washington. This was reversible error because the only evidence in the record of Washington’s state of mind is by his own testimony that he felt himself in danger. The instruction is not consistent with the evidence. Henning v. State, 477 N.E.2d 547, 550 (Ind.1985).
Additionally and more important, the “one voice” dictates of Wright have been ignored. The law should have a high degree of predictability. Wright has made this possible with lesser included offenses, and we have but to follow it.
Therefore, I would reverse the judgment.