Keith A. Smith v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 7, 2018
• Docket: 12A02-1711-CR-2820
• Status: Published

Opinion

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.

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