Opinion
23A-CR-2766
09-12-2024
Cherok A. Douglass, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Matthew J. McGovern Fishers, Indiana ATTORNEY FOR APPELLEE Theodore E. Rokita Indiana Attorney General, Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana2W1
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Floyd Superior Court The Honorable Carrie K. Stiller, Judge Trial Court Cause No. 22D01-2204-MR-517
ATTORNEY FOR APPELLANT Matthew J. McGovern Fishers, Indiana
ATTORNEY FOR APPELLEE Theodore E. Rokita Indiana Attorney General, Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana2W1
MEMORANDUM DECISION
BAILEY, JUDGE
Case Summary
[¶1] Cherok Douglass appeals his convictions for two counts of murder, felonies;one count of attempted murder, a Level 1 felony;one count of robbery, as a Level 2 felony; a sentencing enhancement for using a firearm in the commission of an offense; and his adjudication as a habitual offender. We affirm.
Ind. Code § 35-42-1-1(1) (2024).
I.C. § § 35-42-1-1(1); 35-41-5-1.
I.C. § 35-42-5-1(a)(2).
I.C. § 35-50-2-11(d).
I.C. § 35-50-2-8(b).
Issues
[¶2] Douglass raises three issues for our review:
1. Whether the trial court abused its discretion when it admitted as evidence four pretrial statements Douglass had made to police.
2. Whether the court abused its discretion when it declined to instruct the jury on voluntary manslaughter as a lesser-included offense to murder.
3. Whether the trial court abused its discretion when it indicated that it would permit the State to introduce a prior conviction of Douglass if he chose to testify in his defense.
Facts and Procedural History
[¶3] Brandee Douglass ("Brandee") was in an "[o]ff and on" relationship with Douglass, and they had two children together. Tr. Vol. 3 at 142. In early 2022, Brandee and Douglass were married but did not reside together. On the morning of April 4, Brandee drove to meet three family members at a funeral home to make arrangements for her uncle's funeral. Douglass rode with Brandee but stayed in the car.
[¶4] When Brandee and Douglass left the funeral home, Brandee drove to a Circle K gas station. When they arrived, Brandee "f[e]ll out" of the car and said "no, no." Tr. Vol. 2 at 167-68. Douglass then shot Brandee nine times. At approximately the same time, Lorin Yelle exited the store and saw Douglass holding a gun. Yelle turned around, and Douglass shot Yelle in the back. Yelle then turned back toward Douglass and threw something. Douglass shot Yelle two more times. Both Brandee and Yelle died as a result of their gunshot wounds.
Yelle's name is spelled different ways in the record.
[¶5] New Albany Police Officer John Fulton was nearby getting an oil change for his police cruiser. Someone at the garage told him that there had been shots fired at the gas station. Officer Fulton radioed dispatch and then went to the gas station. Officer Fulton saw two bodies on the ground. Officer Fulton also observed Douglass driving Brandee's vehicle and ordered him to stop, but Douglass ignored the commands and fled the scene. Several officers from various agencies pursued Douglass. At some point, Douglass drove Brandee's car into a ditch.
[¶6] Douglass exited the car and went by foot to a nearby restaurant called the Onion Tea House. Douglass entered the restaurant and exited shortly thereafter with Mi Plin Wen ("Winnie") in a "chokehold" and holding a gun to her head. Tr. Vol. 3 at 182. Douglass "dragg[ed]" Winnie to her vehicle and demanded her car keys. Id. at 182. Douglass then got into the driver's seat of Winnie's car with her still in a "headlock" outside the vehicle. Id. at 183. It appeared to witnesses as though Winnie was "attached" to the car. Tr. Vol. 2 at 239. Douglass started the car and began to drive away. Winnie, who was being pulled along, "stumbled" and fell. Id. at 240. Douglass then "turned" the vehicle and "ran over her." Id. Winnie sustained several broken bones. By that point, several officers had surrounded Douglass.
[¶7] Douglass then pointed his vehicle toward Officer Sarah James with the Floyd County Sherriff's Department and "floored" it in her direction. Id. at 243. Officer James thought that Douglass was "trying to kill" her, and she had to jump over a guardrail to avoid getting hit. Id. Douglass struck a concrete barrier, wrecked the car, and exited. Douglass was shot by an officer, and he was ultimately restrained and placed in handcuffs.
[¶8] Once Douglass was secured, an officer asked: "Where were you hit?" Tr. Vol. 1 at 8. The officer asked that question in an attempt "to figure out where he was injured" and to be able to "render aid." Id. Douglass responded: "I've killed the woman I love." Id. at 9. Medics arrived and attended to Douglass' wounds and then transported him to a hospital for treatment.
[¶9] Detective Matt Busick with the Indiana State Police ("ISP") went to the hospital to question Douglass. Detective Busick read Douglass his Miranda rights and started to question him about the events that had occurred that day. Douglass thought Detective Busick was being a "smarta**" and declined to talk to him. Appellant's App. Vol. 3 at 40. Douglass asked the officers to leave but then asked who ISP Detective Chris Tucker was. Detective Tucker introduced himself, asked if Douglass would speak to him, and stated that he had been sent over "to figure out what happened." Id. at 42. Douglass responded: "Methamphetamines and drugs is what happened." Id. Douglass elaborated that Brandee had pulled into the gas station and then "[d]rugs . . . drove [him] f**king out of [his] mind[.]" Id. at 52. He also said that "[s]omebody was implementing some s**t" in his and Brandee's relationship and that Yelle was "messing with [his] wife, and messing with [him] on purpose." Id. at 53. At that point, hospital staff took Douglass for x-rays, and the detectives paused the interview.
Miranda v. Arizona, 384 U.S. 436 (1966).
[¶10] A few hours later, Detective Busick returned to the hospital along with another officer to finish interviewing Douglass. Detective Busick did not re-read Douglass his Miranda rights but continued to ask him questions. When Detective Busick asked about Brandee's alleged affair, Douglass acknowledged that he "d[id]n't know about that." Id. at 62. Detective Busick then again asked Douglass what had happened at the gas station. Douglass responded: "I was just enraged" and "this guy informed me that he was f**king with my wife." Id. at 63-64. When Detective Busick asked if that was why Douglass had shot Yelle, Douglass responded: "Yes, for multiple different reasons." Id. at 66. Detective Busick then asked if Douglass had been inside or outside of the car when he shot Brandee, and Douglass responded: "Inside." Id. at 67. Detective Busick followed up by asking if Brandee had been "in the driver's seat when [he] shot her," and Douglass responded: "Yes." Id. However, Douglass later stated: "I didn't say that I shot my wife." Id. at 70. He reiterated that people had been "[i]ntentionally driving thoughts" of "[i]nfidelity" and "deception" into his head. Id. at 87.
[¶11] On April 7, the State charged Douglass with two counts of murder, as felonies; one count of attempted murder, as a Level 1 felony; and one count of robbery, as a Level 2 felony. The State additionally alleged that Douglass had used a firearm during the commission of an offense and that he was a habitual offender. At Douglass' initial hearing, the court appointed an attorney to represent him.
The State also initially charged Douglass with one count of kidnapping, as a Level 2 felony. But the trial court dismissed that charge on the State's motion.
[¶12] The next day, Douglass contacted ISP and said that he wanted to speak with officers. Detective Tucker and another officer went to the jail where Douglass was being held and met with Douglass without his attorney present. Detective Tucker read Douglass his Miranda rights and then asked if Douglass wanted to speak to the officers. Douglass responded: "I do want to talk to you. I don't want to keep prolonging things." Id. at 99. Douglass proceeded to say that he was "followed by drones" and that people had planted thoughts in his head "that they were messing with his wife . . . sexually." Id. at 101. Douglass further stated that he had gotten the gun from his cousin "[w]eeks ago" and that, the night before the offenses, he was sitting with people who were "playing mind games" with him and "talking about this guy [who] had been with" Brandee. Id. at 105, 108. Douglass then said that he thought Brandee had gone to the gas station to meet a man and that he "blacked out." Id. at 110. He further stated that he was "pretty sure that [he] shot [his] wife and somebody else." Id. at 111.
[¶13] Thereafter, Douglass filed a motion to suppress all of the statements he had made to the police. As for the first statement made at the crime scene, Douglass asserted that he was in custody, that the officer had not read him his rights, and that the officer's question regarding the location of his injuries "was not anything but bait to get other information from him." Appellant's App. Vol. 2 at 137. He further asserted that he "was high" at the time he made his statement and, as such, it was "not knowingly and voluntarily made." Id. Regarding both statements at the hospital, Douglass contended that he "was awaiting medical care and pain relief" and that the officer's actions caused a delay in his care and "amounted to old-school torture inducing methods to extract a confession." Id. at 138. And, as for the jail interview, Douglass argued that the officers had interrogated him without his previously appointed counsel present such that his statement was taken in violation of his Sixth Amendment rights.
[¶14] The State responded to Douglass' motion to suppress. The State acknowledged that, during the first statement at the scene, Douglass was in custody but asserted that the officer's question about the location of Douglass' injuries was not asked "for the purpose of eliciting a confession, but to secure [the] safety of the Defendant and other individuals." Id. at 131. As for the first hospital interview, the State argued that the officers had properly advised Douglass of his Miranda rights and that Douglass had voluntarily waived those rights when he chose to speak to officers. The State further argued that, while Douglass claimed he was intoxicated, Douglass "was conscious of what he was doing[.]" Id. at 132. Regarding the second hospital interview, the State conceded that officers did not read Douglass his Miranda rights again but argued that it was not necessary because he "was interviewed in the same place and manner, with regard to the same incident, and by some of the same investigators" and because officers "were continually investigating" Douglass during the break between interviews. Id. at 133. Finally, the State argued that Douglass' statements during the jail interview were proper because Douglass initiated the interview, officers advised Douglass of his rights, and Douglass gave a statement without requesting his attorney.
[¶15] On February 15, 2023, the trial court held a hearing on Douglass' motion to suppress. During the hearing, ISP Trooper David Barclay testified that officers had asked Douglass about the location of his injuries following his arrest in order "to figure out where he was injured" and to "render aid." Tr. Vol. 1 at 8. Detective Tucker also testified at the hearing. He testified that, when he saw Douglass during the first interview at the hospital, Douglass "appeared to be irritated and agitated" but was "coherent and talking." Id. at 17. He also testified that Douglass had initiated the interview at the jail, that he was read his Miranda rights, and that he never indicated that he wanted his attorney. Detective Tucker testified that Douglass admitted to the shootings during that interview but that Douglass stated he had been "influenced" by "drones." Id. at 28. At a second hearing on the motion to suppress on February 21, Detective Tucker clarified that he was aware that Douglass had been appointed an attorney prior to the jail interview. Following the hearings, the court denied Douglass' motion to suppress.
[¶16] On July 10, the State filed a notice that it intended to use a prior conviction of Douglass as impeachment evidence under Indiana Evidence Rule 609 should Douglass chose to testify. In particular, the State sought to introduce evidence that Douglass had previously been convicted of robbery. In an amended brief in support of its motion, the State acknowledged that Douglass had been released from custody "approximately 11 years and 3 months prior to when he would be anticipated to testify," but argued that the probative value outweighed any prejudice because Douglass was under the supervision of community corrections for that offense when he committed the instant ones and because the State sought to use a conviction for armed robbery and armed robbery was one of the instant charges. Appellant's App. Vol. 2 at 221.
[¶17] The trial court held a multi-day jury trial. Several different witnesses and officers testified about the events that had occurred on April 4. In addition, Brandee's son from a prior relationship, Deven Hackney, testified that approximately "a month to a month and a half before" the instant offenses, Brandee and Douglass had argued and that, after Brandee walked away, Hackney heard Douglass say that "he should kill his self [sic] and kill her and stuff like that." Tr. Vol. 3 at 154. Hackney also testified that, on another occasion following an argument between Brandee and Douglass, Douglass got in his car, "cracked" the window, and pointed a gun at Brandee. Id. at 155.
[¶18] After the State had rested, the parties discussed the State's intent to use Douglass' prior conviction to impeach him under Indiana Evidence Rule 609. Douglass argued that the prior conviction was "unduly prejudicial" and that allowing the State to introduce evidence of that conviction would "chill his right to testify." Tr. Vol. 4 at 244. The court found that "its probative value outweighs the prejudicial effect" and allowed the State to introduce the evidence should Douglass testify. Id. at 247.
[¶19] Douglass did not testify in his defense. Following the close of evidence, the parties discussed final instructions. Douglass requested that the court instruct the jury on voluntary manslaughter as a lesser included offense to murder. Douglass asserted that the evidence "alluded to a snapping, becoming enraged . . . and to just losing it[.]" Tr. Vol. 5 at 6. He argued that it "was a sudden onset of a mindset" and that "he was not making [a] malicious decision in that moment[.]" Id. The State responded and asserted that "what was going on in [Douglass'] mind . . . was the result of his intoxication" and that intoxication "has no bearing on the presence or absence of sudden heat." Id. at 6-7. The State further asserted that, with regard to Brandee, Douglass believed that Brandee was cheating on him "well prior to this day[.]" Id. at 9. And, as to Yelle, the State asserted that there was no provocation. The court denied Douglass' request for the jury instruction.
[¶20] The jury found Douglass guilty of both counts of murder, one count of attempted murder, and one count of robbery, as charged. Douglass then waived his right to a jury trial as to the enhancements and admitted to both having used a firearm during the commission of an offense and to being a habitual offender. The court entered judgment of conviction accordingly and sentenced Douglass to an aggregate sentence of two hundred and forty years in the Department of Correction. This appeal ensued.
Discussion and Decision
Issue One: Motion to Suppress
[¶21] Douglass first contends that the trial court abused its discretion when it admitted his pretrial statements to police as evidence. Douglass initially challenged the admission of this evidence through a motion to suppress but now appeals following a completed trial. Thus, the issue is appropriately framed as whether the trial court abused its discretion by admitting evidence at trial. Lanham v. State, 937 N.E.2d 419-421-22 (Ind.Ct.App. 2010). A trial court is afforded broad discretion in ruling upon the admissibility of evidence, and we will reverse such a ruling only when the defendant has shown an abuse of discretion. Id. at 422. An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances before the court. Id. We do not reweigh evidence, and we consider conflicting evidence in the light most favorable to the trial court's ruling. Id.
Statement Following Arrest
[¶22] Douglass asserts that the trial court abused its discretion when it admitted the statement he made to police immediately following his arrest. According to Douglass, he was in custody at the time he made the statement; he had not been read his Miranda rights; and Trooper Barclay's question, which he asked while Douglass "was suffering from multiple gunshots" and "surrounded by police," was "an invitation to tell [Trooper Barclay] what had occurred." Appellant's Br. at 21.
[¶23] It is well settled that "Miranda rights only apply when a person is subject to a custodial interrogation." Ross v. State, 151 N.E.3d 1287, 1290 (Ind.Ct.App. 2020). There is no dispute here that Douglass was in custody after officers had handcuffed him at the scene. However, "[s]tatements that are volunteered do not amount to interrogation." Id. Our review of the record reveals that Douglass' first statement was volunteered.
[¶24] After officers had detained Douglass, one officer asked where he had been shot. While Douglass responded by saying that he had killed Brandee, it is clear that the officer asked the question in an attempt "to figure out where he was injured" and to "render aid." Tr. Vol. 1. at 8. The officer's question was not "reasonably likely to elicit an incriminating response[.]" Ross, 151 N.E.3d at 1291. Because Douglass gave his statement voluntarily, the trial court did not abuse its discretion when it admitted his first statement as evidence.
First Hospital Interview
[¶25] Douglass next challenges the admission of the first statement he gave while at the hospital. There is again no dispute that Douglass was in custody when officers conducted that interview, and Douglass does not challenge the fact that officers read him his rights prior to questioning him. However, he contends that he "repeatedly insisted that he wanted officers to leave and that he did not want to speak." Appellant's Br. at 23. In other words, Douglass maintains that he attempted to assert his right to be silent but that officers nonetheless continued to question him.
[¶26] "An assertion of Miranda rights must be clear and unequivocal, and in determining whether a person has asserted his or her rights, the defendant's statements are considered as a whole." Clark v. State, 808 N.E.2d 1183, 1190 (Ind. 2004). A person must do more than express reluctance to talk to invoke his right to remain silent. Id. "A statement that 'I'm through with this,' followed by continued dialogue without pausing or indicating that the defendant would no longer respond," does not "unambiguously assert the right to remain silent." Id. (quoting Haviland v. State, 677 N.E.2d 509, 415 (Ind. 1997)).
[¶27] Here, at the start of the interview, Douglass answered the officers' questions, thereby initially waiving his rights. But a few minutes into the interview, Douglass stated that he did not want to speak to the officers. See Appellant's App. Vol. 3 at 40. Specifically, Douglass told officers to "[b]eat it," and Detective Busick responded, "Okay," and Detective Tucker said that he "appreciate[d]" Douglass' time. Id. at 40. It is apparent that the detectives then began to leave, but Douglass continued to speak to the officers. After the second time that the detectives thanked Douglass for his time, Douglass asked who Detective Tucker was. Detective Tucker responded that he had been "sent over trying to figure out what happened." Id. at 42. Douglass responded: "Methamphetamines and drugs is what happened." Id. At that point, Detective Tucker continued to ask questions, and Douglass freely participated in the interview. In other words, while Douglass stated that he did not want to speak to officers, he continued to engage in conversation even as the officers attempted to leave. He then freely answered all of the officer's questions. Because Douglass continued to speak to officers after asking them to leave, he did not unambiguously assert his right to remain silent.
[¶28] Douglass also contends that his first hospital statement was involuntary because he "was suffering from serious life[-]threatening injuries," he was "in pain," and he "was under the influence." Appellant's Br. at 23. However, at the hearing on Douglass' motion to suppress, Detective Tucker testified that, while Douglass was "irritated and agitated," he was "coherent and talking." Tr. Vol. 1 at 18. And while we acknowledge that Douglass was in the hospital after having sustained gunshot wounds, there is no evidence in the record that he was in unbearable pain, that he was heavily medicated, or that he was unable to speak. See Mincey v. Arizona, 437 U.S. 385, 398 (1978) (holding that a defendant's statement was not voluntarily given where he gave it shortly after he was seriously wounded, was depressed almost to the point of a coma, his pain was unbearable, he was clearly confused, and he had several tubes and needles in his body such that he could not even talk and had to respond to officers' questions by writing them down). We cannot say that the court abused its discretion when it admitted Douglass' first hospital statement as evidence.
Second Hospital Interview
[¶29] Douglass next challenges the admission of his second hospital interview. Douglass focuses much of his argument on his belief that his first hospital interview was involuntary and that it "tainted" his subsequent statement. Appellant's Br. at 24. But as we discussed above, Douglass' first hospital interview was not involuntary or otherwise improper. As such, it did not taint his second interview.
We note that Douglass does not make any argument that the officers were required to re-read him his Miranda rights prior to conducting the second hospital interview.
[¶30] Still, Douglass also briefly contends that his second hospital interview was involuntary because the "interrogating officer conditioned protecting [Douglass'] family with [Douglass] giving a statement." Id. at 25. However, Douglass misconstrues the record. At the beginning of the second hospital interview, Detective Busick told Douglass:
Hey, I talked to the prosecutor about maybe 20 minutes ago, okay? He's willing to hear what you have to say to see if we can help you out. I know that you're worried about some people coming at you. And he said he had no problem, in fact, he'd like to hear what you need-hear what you know [so] he can see how he can help you out. That make sense?Appellant's App. Vol. 3 at 60. We read nothing in this statement that conditioned an officer's help upon Douglass giving a statement. Rather, on its face, it is clear that the officer was saying that he needed additional information from Douglass to determine how officers could help. At no time did Detective Busick say that officers would not protect Douglass or his family if he declined to speak or otherwise coerce Douglass into speaking to officers. The trial court did not abuse its discretion when it admitted Douglass' second hospital interview.
Jail Interview
[¶31] Lastly on this issue, Douglass asserts that the trial court abused its discretion when it admitted his jail interview. As with his second hospital interview, Douglass maintains that this interview was "tainted" by the prior three statements. Appellant's Br. at 26. But, again, there was no violation of Douglass' rights for any of the prior three statements, and they did not taint his final statement.
[¶32] In addition, Douglass asserts that his jail interview was inadmissible because he "was interrogated without his attorney being notified." Id. However, we agree with the trial court that the record indicates that Douglass voluntarily chose to make his statement without his attorney present. Indeed, the day after Douglass had been appointed counsel to represent him, Douglass contacted ISP and said that he "wanted to talk[.]" Appellant's App. Vol. 3 at 98. Detective Tucker then read Douglass his Miranda rights, which included the following advisements: "You have the right to talk to a lawyer for advice before we ask any questions and to have him with you during questioning," and "If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time." Id. at 99. Douglass indicated that he "underst[oo]d." Id. Detective Tucker then asked Douglass if he "want[ed] to talk," and Douglass responded: "Yeah . . . I do want to talk to you. I don't want to keep prolonging things." Id. Douglass then reaffirmed and again said "I do want to talk." Id. At that point, Douglass responded to the officers' questions without asking for his attorney or asserting his rights.
[¶33] Because Douglass requested the interview, understood his rights, and answered the questions, the trial court did not abuse its discretion when it admitted the jail interview as evidence. We affirm the trial court on this issue.
Issue Two: Jury Instruction
[¶34] Douglass next asserts that the trial court abused its discretion when it declined to instruct the jury on voluntary manslaughter as a lesser-included offense to murder. "Instructing the jury is a matter within the discretion of the trial court, and we'll reverse only if there's an abuse of that discretion." Cardosi v. State, 128 N.E.3d 1277, 1284 (Ind. 2019).
[¶35] Further,
[w]hen a defendant requests an instruction covering a lesser-included offense, a trial court applies the three-part analysis set forth in Wright v. State, 658 N.E.2d 563, 566-67 (Ind. 1995). The first two parts require the trial court to determine whether the offense is either inherently or factually included in the charged offense. Id. If so, the trial court must determine whether there is a serious evidentiary dispute regarding any element that distinguishes the two offenses. Id. at 567; see also Brown v. State, 703 N.E.2d 1010, 1019 (Ind. 1998).
Wright held that, "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." Wright, 658 N.E.2d at 567. Where a trial court makes such a finding, its rejection of a tendered instruction is reviewed for an abuse of discretion. Brown, 703 N.E.2d at 1019.
Wilson v. State, 765 N.E.2d 1265, 1271 (Ind. 2002) (footnote omitted). "In our review, we accord the trial court considerable deference, view the evidence in a light most favorable to the decision, and determine whether the trial court's decision can be justified in light of the evidence and circumstances of the case." Leonard v. State, 80 N.E.3d 878, 885 (Ind. 2017) (quotation marks omitted).
[¶36] Voluntary manslaughter is an inherently lesser included offense of murder. Isom v. State, 31 N.E.3d 469, 485 (Ind. 2015). However,
[t]his is not a typical example of a lesser included offense in that what distinguishes voluntary manslaughter from murder is the existence of sudden heat, which is not an element of murder, but rather a mitigating favor in conduct that would otherwise be murder. Sudden heat occurs when a defendant is provoked by anger, rage, resentment, or terror, to a degree sufficient to obscure the reason of an ordinary person, prevent deliberation and premeditation, and render the defendant incapable of cool reflection. Thus, an instruction on voluntary manslaughter as a lesser included offense to a murder charge is warranted only if the evidence reflects a serious evidentiary dispute regarding the presence of sudden heat.Id. at 485-86 (quotation marks and citations omitted).
[¶37] On appeal, Douglass contends that the evidence supported giving the instruction because he "believed that a man told him that he and his friend were 'f**king with my wife," he "had thoughts of infidelity in his head," he believed that he and his wife "were being followed by drones," he believed that people were "'messing with' his wife sexually," and he believed that Brandee was "signaling people following him using a code." Appellant's Br. at 32. However, as the trial court found, that evidence "is solely . . . a result of [Douglass'] own state of mind which he repeatedly indicated . . . was the result of drugs[.]" Tr. Vol. 5 at 18. And our Supreme Court has concluded that a defendant's intoxication has no bearing on the presence or absence of sudden heat. See Smedley v. State, 561 N.E.2d 776, 782 (Ind. 1990)
[¶38] Further, to the extent Douglass contends that sudden heat existed when he shot Brandee because she was cheating on him, the record demonstrates that Douglass was aware of this possibility prior to these offenses. Indeed, during his interview at the jail, Douglass told officers that, on the night before he shot Brandee, people were "playing mind games" with him and "talking about how this guy had been with" Brandee. Appellant's App. Vol. 3 at 108. Thus, the evidence shows that Douglass previously believed that Brandee was cheating on him and, as such, he had the opportunity to deliberate and cool off. In addition, Bradee's son testified that Douglass had previously stated that he should kill Brandee and previously pointed a gun at Brandee. Based on the evidence presented, we hold that there was no serious evidentiary dispute and that the trial court did not abuse its discretion when it declined to instruct the jury on voluntary manslaughter as a lesser-included offense to murder for Brandee's death.
[¶39] As for Yelle, there is no evidence that Douglass knew Yelle or that there was any interaction between the two prior to their encounter at the gas station that day. Rather, the evidence shows that Yelle exited the store, saw Douglass with a gun, put his hands up, and turned around. Douglass then shot Yelle once. There is no evidence that Yelle did anything to provoke Douglass other than Douglass' own drug-induced thoughts that Yelle was having an affair with Brandee. After he was shot the first time, Yelle turned back around and threw something at Douglass, at which time Douglass shot Yelle two more times. While Yelle threw something in Douglass' direction after having been shot the first time, having an object thrown toward a defendant does not provoke a reasonable person to anger to such a degree that he would fire a weapon.
[¶40] It was the trial court's prerogative to consider "the weight and credibility of the evidence" in "determining the seriousness" of any evidentiary dispute for purposes of deciding whether to instruct the jury on voluntary manslaughter as a lesser-included offense to murder. Leonard, 80 N.E.3d at 885. On this record, we cannot say that the trial court abused its discretion when it declined to instruct the jury on voluntary manslaughter on either count. We affirm the court's denial of Douglass' proffered instruction.
Issue Three: Admission of Prior Conviction
[¶41] Finally, Douglass contends that the trial court abused its discretion when it indicated that it would permit the State to introduce evidence of his prior robbery conviction as impeachment evidence should he choose to testify. As our Supreme Court has stated:
Generally, a trial court's ruling on the admission of evidence is accorded "a great deal of deference" on appeal. Tynes v. State, 650 N.E.2d 685, 687 (Ind. 1995). "Because the trial court is best able to weigh the evidence and assess witness credibility, we review its rulings on admissibility for abuse of discretion" and only reverse "if a ruling is 'clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.'" Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014) (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013)).Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015).
[¶42] We first note that the parties discuss whether Douglass waived any argument on this issue by failing to testify-a question that has not been answered by the Indiana Supreme Court or this Court. However, we need not decide whether Douglass waived this issue. Rather, we hold that, even if Douglass has not waived this issue, his argument on the merits must fail.
[¶43] On appeal, Douglass contends that the court abused its discretion when it indicated that it would allow the State to present evidence of his prior robbery conviction should he testify in his defense because that evidence violated Indiana Evidence Rule 609. Indiana Evidence Rule 609 provides, in relevant part:
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime must be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, or criminal confinement; or (2) a crime involving dishonesty or false statement, including perjury.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than ten (10) years have passed since the witness's conviction or release from confinement for it, whichever is later. Evidence of the conviction is only admissible if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use so that the party has a fair opportunity to contest its use.
[¶44] Douglass argues that his prior robbery conviction is outside of the ten-year time frame and that the "prejudicial value of the Armed Robbery conviction far outweighed any probative value." Appellant's Br. at 36. The State responds and asserts that Douglass' prior conviction is admissible because it had not been more than ten years. Specifically, the State contends that "Douglass was not released from prison until 2018[.]" Appellee's Br. at 51. However, we note that the State conceded to the trial court that more than ten years had elapsed since Douglass was released. Indeed, in its amended brief in support of its request to admit Douglass' prior conviction, the State acknowledged that "[u]pon further review," Douglass' release date was not January 2018 as the State had alleged in its initial brief but was March 20, 2012, which was "approximately 11 years and 3 months prior to when he would be anticipated to testify." Appellant's App. Vol. 2 at 221. In addition, during a discussion with the trial court regarding the admissibility of the prior conviction, the State again admitted that Douglass' conviction was "one year and three months outside the 10-year range[.]" Tr. Vol. 4 at 243. For the sake of argument, we will assume the State was correct when it amended its brief and asserted a 2012 release date.
[¶45] A conviction older than ten years may be admitted if the trial court determines that the probative value supported by specific facts and circumstances substantially outweighs the prejudicial effect. Ind. Evidence Rule 609(b). As this Court has stated:
There is a broad range of factors that a trial court may consider in determining whether the probative value of a prior conviction substantially outweighs its prejudicial effect. Such factors may include the nature of the prior crime, the length of the person's criminal record, the witness's age and circumstances, the likelihood that the person would not testify, the degree of remoteness of the prior crime, the witness's subsequent career, the centrality of the credibility issue, the need for the person's testimony, and (if the witness is the defendant) the crime's similarity to the crime charged.Whiteside v. State, 853 N.E.2d 1021, 1029 (Ind.Ct.App. 2006).
[¶46] As the trial court found, the prior conviction the State sought to introduce was the same as one of the crimes charged in the instant offense-armed robbery. Further, Douglass has an extensive criminal history, and he committed several offenses between the commission of the prior armed robbery and the instant offenses. See Appellant's App. Vol. 3 at 183-85. In addition, while Douglass' prior conviction was outside of the ten-year range, it was only outside of that range by just over one year, so its degree of remoteness was minimal. We cannot say that the court abused its discretion when it agreed to admit Douglass' prior testimony if he decided to testify.
Conclusion
[¶47] The trial court did not abuse its discretion when it admitted as evidence any of Douglass' four pretrial statements to police because those statements were given voluntarily. In addition, the court did not abuse its discretion when it declined to give Douglass' proffered jury instruction because there was no serious evidentiary dispute as to sudden heat. And the court did not abuse its discretion when it agreed to allow the State to introduce evidence of Douglass' prior conviction if Douglass chose to testify. We therefore affirm the trial court.
[¶48] Affirmed.
Altice, C.J., and Mathias, J., concur.