ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PATRICIA CARESS MCMATH JEFFREY A. MODISETT
Indianapolis, Indiana Attorney General of Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
MICHAEL DEARMAN, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 49S00-9908-CR-422
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION FOUR
The Honorable Mark F. Renner, Magistrate
Cause No. 49G04-9809-CF-145851
ON DIRECT APPEAL
March 9, 2001
RUCKER, Justice
After a trial by jury, Michael Dearman was convicted of murder and
auto theft. The trial court sentenced him to consecutive terms of sixty-
five years and three years respectively. In this direct appeal, Dearman
raises two issues for our review which we rephrase as follows: (1) did the
trial court err in refusing to give Dearman’s tendered instructions on
lesser included offenses; and (2) did the trial court err in admitting an
audiotape recording of a statement Dearman gave police? Finding no error,
we affirm.
Facts
On August 26, 1998, Floyd McClendon’s nude and partially decomposed
body was discovered under a pile of branches and debris in the backyard of
a vacant house on West 31st Street in Indianapolis. A police investigation
eventually led to Dearman who confessed to the killing, but claimed it just
happened as he tried to thwart McClendon’s sexual advances. In a statement
given to police, Dearman said he met McClendon at a liquor store one
evening in August 1998. Dearman told police he had been attempting to
gather information about some of his relatives with whom he apparently had
little contact. McClendon was acquainted with two of Dearman’s uncles and
offered to share what he knew about them with Dearman. The two rode around
in McClendon’s car and eventually stopped at the vacant house. As the two
sat on the hood of McClendon’s car talking, Dearman claimed that McClendon
made sexual advances toward him and a scuffle ensued. Dearman said he was
trying to get McClendon off him and the next thing he knew McClendon was
dead. He immediately fled the scene in McClendon’s car. Returning later
with a friend, Anthony Goodall, Dearman took money, jewelry, and a credit
card from McClendon’s body. Dearman sold the jewelry to a local pawnshop
and eventually abandoned McClendon’s car.
During their investigation, police recovered a thirty-four pound
concrete block that Goodall saw Dearman remove from McClendon’s car.
Dearman told Goodall the block was a “murder weapon.” R. at 355. The
pathologist testified at trial that the cause of death was blunt force
injury to the head. First, there was an impact to the front of McClendon’s
face, which broke the bones to his eye sockets and fractured his upper jaw.
Second, there was an impact to the top of his head, which depressed a
fragment of bone down into the skull. This latter injury caved in
McClendon’s skull and required a great deal of force. According to the
pathologist, the injuries were consistent with having been caused by the
concrete block that Dearman discarded. In the opinion of the pathologist,
if the concrete block was in fact the fatal weapon, then it would have
taken two blows to inflict the injuries that McClendon sustained.
A jury convicted Dearman of murder and auto theft, and the trial court
sentenced him to a total executed term of sixty-eight years imprisonment.
This direct appeal followed. Additional facts are set forth below.
Discussion
I.
Dearman tendered three instructions on lesser included offenses which
the trial court refused: reckless homicide, involuntary manslaughter, and
voluntary manslaughter. Dearman contends the trial court erred in refusing
to give the tendered instructions because there was a serious evidentiary
dispute that distinguished the greater offenses from the lesser included
ones. In deciding whether to give a requested instruction on a lesser
included offense, the trial court is required to determine whether the
offense is either inherently or factually included in the charged offense
and whether there is a serious evidentiary dispute regarding any element
that distinguishes the greater offense from the lesser offense. Evans v.
State, 727 N.E.2d 1072, 1080-81 (Ind. 2000) (citing Wright v. State, 658
N.E.2d 563, 566-67 (Ind. 1995)).
The only element distinguishing murder from reckless homicide is the
defendant’s state of mind. Reckless homicide occurs when the defendant
“recklessly” kills another human being. Ind.Code § 35-42-1-5. Murder, as
charged in this case, occurs when the killing is done “knowingly.” I.C. §
35-42-1-1. A person engages in conduct knowingly if, when he engages in
the conduct, he is aware of a high probability that he is doing so. I.C. §
35-41-2-2(b). One engages in conduct recklessly if he engages in the
conduct in plain, conscious, and unjustifiable disregard of harm that might
result and the disregard involves a substantial deviation from acceptable
standards of conduct. I.C. § 35-41-2-2(c). Had there been a serious
evidentiary dispute as to whether Dearman acted knowingly or recklessly,
the trial court would have had to give an instruction on reckless homicide.
Lyttle v. State, 709 N.E.2d 1, 3 (Ind. 2000). In like fashion, the
element of intent distinguishes involuntary manslaughter from murder. The
trial judge would have been required to give an instruction on involuntary
manslaughter only if there was a serious evidentiary dispute about what
Dearman intended to do – kill or batter. Lynch v. State, 571 N.E.2d 537,
539 (Ind. 1991).
Dearman’s own statement to police confirmed that he killed McClendon,
and the State’s evidence showed that McClendon died as the result of being
twice struck in the head with a thirty-four pound concrete block. At least
one of the blows, resulting in a bone fragment being depressed into
McClendon’s skull, required a great deal of force. Contrary to Dearman’s
contention, this evidence indicates that Dearman intended to kill
McClendon, not to batter him. The evidence also indicates that Dearman was
aware there was a high probability that his assault would result in
McClendon’s death. There was no serious evidentiary dispute on either
point. We conclude the trial court did not err in refusing to give
Dearman’s tendered instructions on reckless homicide and involuntary
manslaughter.
The element distinguishing murder from voluntary manslaughter is
“sudden heat,” which is an evidentiary predicate that allows mitigation of
a murder charge to voluntary manslaughter. Bane v. State, 587 N.E.2d 97,
100 (Ind. 1992). It 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. Wilson v. State, 697 N.E.2d 466, 474 (Ind.
1998). An instruction on voluntary manslaughter is supported if there
exists evidence of sufficient provocation to induce passion that renders a
reasonable person incapable of cool reflection. Roark v. State, 573 N.E.2d
881, 882 (Ind. 1991). Any appreciable evidence of sudden heat justifies an
instruction on voluntary manslaughter. Id.
The trial court expressed its belief that there was a serious
evidentiary dispute concerning whether Dearman acted under sudden heat,
namely: that he was provoked by McClendon’s alleged sexual advances.
However, the trial court refused to give Dearman’s tendered instruction on
voluntary manslaughter relying on this Court’s decision in Battles v.
State, 688 N.E.2d 1230 (Ind. 1997). In that case, we held that the
defendant was not entitled to an instruction on the defense of accident
when the only evidence introduced at trial to support such a defense was
the defendant’s own out-of-court statement. Id. at 1234. Specifically, we
declared “[A] defendant cannot make exculpatory statements outside court,
present no evidence in defense, preclude the state from cross-examining the
assertions, and then be entitled to have the self-serving statements
constitute substantive evidence supporting an instruction on the defense of
accident.” Id.
Here, the record shows that Dearman elected not to testify or present
evidence on his own behalf. The only evidence of alleged sudden heat was
contained in Dearman’s out-of-court statement to police, which the State
introduced at trial. The trial court reasoned that like the defense of
accident, a serious evidentiary dispute concerning sudden heat could not be
created solely by the defendant’s out-of-court statement. Accordingly, the
trial court refused Dearman’s tendered instruction of voluntary
manslaughter. We conclude the trial court erred in its reliance on
Battles. However the error does not warrant reversal and a new trial.
The quote in Battles on which the trial court relied was part of a
larger quote in which we declared:
While a criminal defendant has the constitutional right not to
testify at trial, the defendant has the burden of proof on any
affirmative defense. In this case the appellant did not testify at
trial or present other evidence to support his affirmative defenses.
While defendants have the prerogative to choose the trial strategy
deemed best for them, appellant cannot make exculpatory statements to
a court appointed psychiatrist, present no evidence on his defense,
preclude the State from cross-examining appellant’s assertions made
through the psychiatrist, and then expect such self-serving statement
to constitute substantive evidence for his tendered instructions.
Clemens v. State, 610 N.E.2d 236, 241 (Ind. 1993) (emphasis added) (quoting
Brown v. State, 485 N.E.2d 108, 111 (Ind. 1985)). Unlike the defense of
accident, mitigation in the form of sudden heat is not an affirmative
defense on which the defendant bears an initial burden of proof by a
preponderance of the evidence. Instead, the defendant bears no burden of
proof with respect to sudden heat, but only bears the burden of placing the
issue in question where the State’s evidence has not done so. Bradford v.
State, 675 N.E.2d 296, 300 (Ind. 1996); Wolfe v. State, 426 N.E.2d 647, 652
(Ind. 1981). In this case, the State’s evidence placed the question of
sudden heat before the jury. Dearman had no further obligation on this
point, and if the evidence was sufficient to raise a serious evidentiary
dispute, then he was entitled to a jury instruction on the lesser offense
of voluntary manslaughter. However our review of the record shows no such
dispute, and therefore the trial court properly refused the instruction.
In his statement to police, Dearman said that as the two men sat on
McClendon’s car at the vacant property, McClendon began talking about gay
men and told Dearman that he was “nice looking.” R. at 262. Dearman told
police that McClendon began biting on his neck and grabbing his thighs. R.
at 262. Dearman said he resisted, and McClendon threw him to the ground.
R. at 262. Dearman then stated that he was afraid, tried to get McClendon
off him, and the next thing he knew McClendon was dead. R. at 262.
At best, the statement shows that Dearman got into a scuffle with
McClendon when McClendon made sexual advances toward him. There is no
indication in the record before us that Dearman was in such a state of
terror or rage that he was rendered incapable of cool reflection. Further,
the evidence showed that Dearman struck McClendon twice in the head with a
thirty-four pound concrete block. Lifting and striking a person in the
head twice with such a large object in a claimed attempt to thwart sexual
advances does not indicate that the killing was done in sudden heat and
without reflection. We conclude there was no appreciable evidence of
sudden heat and thus no serious evidentiary dispute on the element
distinguishing murder from voluntary manslaughter. Accordingly, the trial
court properly refused to give Dearman’s tendered instruction on this
lesser included offense.
II.
Dearman next contends the trial court erred in allowing into evidence
his tape-recorded statement to police along with a typed transcript of the
recording. According to Dearman, the recording was largely inaudible and
thus it likely caused the jury to speculate as to its content.
To be admissible at trial, a recording must be of such clarity as to
be intelligible and enlightening to the jury. Lamar v. State, 258 Ind.
504, 282 N.E.2d 795, 800 (1972). However, every word of a recording need
not be intelligible. Patton v. State, 501 N.E.2d 436, 438 (Ind. 1986).
Rather, the tape recording, taken as a whole, must be of such clarity and
completeness to preempt speculation in the minds of the jurors as to its
content. Id. The trial court has wide discretion in deciding whether to
admit a tape recording as evidence. McCollum v. State, 582 N.E.2d 804, 812
(Ind. 1991); Sharp v. State, 534 N.E.2d 708, 712 (Ind. 1989).
We have listened to the tape recording and viewed the transcript.
Although a few of Dearman’s words and comments are inaudible or
indiscernible, Dearman’s account of the events on the night McClendon was
killed and the days that followed is abundantly clear on the tape. Thus,
the recording as a whole is sufficiently clear and intelligible to be
admissible. The trial court did not abuse its discretion in admitting the
recording as evidence.
Conclusion
We affirm the judgment of the trial court.
SHEPARD, C.J., and SULLIVAN and BOEHM, JJ., concur.
DICKSON, J., dissents without opinion.