Opinion
Rehearing Denied Oct. 28, 1975.
Page 883
Ferd Samper, Jr., Grant W. Hawkins, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., John R. O'Bryan, Deputy Atty. Gen., Indianapolis, for appellee.
LYBROOK, Judge.
Defendant-appellant W. Dale McDonald appeals his conviction of voluntary manslaughter for which he was sentenced to imprisonment for not less than two nor more than twenty-one years.
IC 1971, 35-13-4-2, Ind.Ann.Stat. § 10-3405 (Burns Supp.1974).
We affirm.
The facts most favorable to the State reveal that on the night of July 26, 1973, Gary Rodman was a passenger in an automobile being driven by Larry Moore in Owen County, Indiana. Another passenger in the car, Clyde Phillips, had at one time been married to defendant's wife, and ill will between defendant and Phillips existed. On that night, as defendant's auto passed Moore's on State Road 43, Phillips urged Moore to sound his horn to notify defendant to stop. After both vehicles pulled off the road, defendant got out and approached Moore's car with a knife in his hand. Defendant then demanded that everyone get out of the car. At this time Rodman exited from his right-hand passenger seat and progressed toward the back of the car. Defendant was then seen walking to the rear of the car from the other side, in pursuit. While standing behind the car Rodman hurled a bottle at defendant which struck but caused no injury. Shortly thereafter, a fight ensued and Rodman was fatally stabbed.
On August 29, 1973, defendant was indicted for second-degree murder. A jury trial resulted in a finding of guilty of voluntary manslaughter, thereby prompting this appeal.
Three issues are presented for review:
(1) Whether the trial court erred in giving State's Tendered Instruction No. 3.
(2) Whether opinion testimony of a police officer was proper.
(3) Whether the jury verdict was supported by sufficient evidence.
I.
Initially, defendant argues that the court committed reversible error by giving State's Tendered Instruction No. 3, which reads as follows:
'You are instructed that if you find from the evidence and the reasonable inferences to be drawn therefrom, the defendant, Dale Wilford McDonald (sic) started the fight with the victim, the effect of defendant's fault in instigating the combat would preclude him from raising the defense of self-defense.'
Defendant claims that the initiator of a fight is not always precluded from raising a claim of self-defense and that an instruction which so states erroneously forecloses the possibility that a jury may find that the aggressor was acting in self-defense. Defendant argues that this instruction is erroneous because it does not embody the principle that self-defense may be claimed by one who, although an aggressor instigating combat, attempts to withdraw, and is then forced to defend himself against further attack. See, Coryell v. State (1891), 130 Ind. 51, 29 N.E. 369; LaFave and Scott, Criminal Law (1972), § 53, p. 394. This argument, however, overlooks the fact that State's Tendered Instruction No. 8 reads as follows:
'A person may be justified in killing in self-defense if he has no opportunity to retreat or if he has attempted unsuccessfully to withdraw from the conflict.'
In light of the well settled proposition that instructions are not to be considered separately, but as a whole, in determining whether a defendant has been prejudiced, Loftis v. State (1971), 256 Ind. 417, 269 N.E.2d 746; Sankey v. State (1973), Ind.App., 301 N.E.2d 235, we find no reversible error in the technical deficiency of State's Tendered Instruction No. 3, supra. Any error in the instruction, as it relates to the issues and facts in the case at bar, is cured by State's Instruction No. 8, supra, and Defendant's Instructions Nos. 9, 10, and 11, which collectively instruct the jury properly on self-defense.
II.
Defendant next asserts that the trial court committed reversible error by allowing a State Police Officer to render an opinion as to the propriety of defendant's self-defense claim. Lt. Shumaker stated on redirect examination that he had not witnessed the altercation between defendant and the decedent, but based upon personal knowledge of the parties involved and defendant's actions throughout the interrogation proceedings, it was his opinion that defendant's claim of self-defense was meritless.
As the following colloquy indicates, Lt. Shumaker's opinion regarding a possible self-defense issue was first sought on cross-examination by defense attorney:
'Q. Did you also suspect there may have been an issue about self-defense here, from what Mr. McDonald told you?
A. I knew that Mr. McDonald was emulating self-defense. However, I know Gary Rodman. I know his size, and I knew
Q. Now
MR. PETRI: Wait a minute. Let him finish now. You asked the question.
MR. ZINMAN: The question required a yes or no.
MR. PETRI: No it didn't.
Q. I asked you whether or not you didn't feel also
A. No, I did not feel there was self-defense involved.
Q. That was your judgment based on your investigation up to that point?
A. That was my judgment to the fact that I was looking at
Q. Just yes or no. Up to that point of the investigation, you didn't feel that
MR. PETRI: I think he has a right to explain his answer.
COURT: You may re-examine him on any matter that he opens up, if he doesn't go far enough, but I don't think it's fair for one counsel to set the style of another counsel's examination. So, objection will be overruled.
A. Okay, Sir would you please restate it now?
Q. Okay, at that point in your examination you said, did you not, that you felt a question not in issue some question as to whether or not self-defense may be an issue there?
MR. PETRI: Yes or no. At that point in the investigation. Q. Did it occur to you?
A. Yes, I thought self-defense would probably be an issue.'
When the prosecutor attempted to focus his redirect examination on Lt. Shumaker's opinions defendant promptly objected, claiming that such testimony was highly prejudicial.
Generally, the scope and intensity of redirect examination are matters within the discretion of the trial court. Madison v. State (1971),256 Ind. 353, 269 N.E.2d 164. In view of defendant's solicitation of Lt. Shumaker's opinions as to a possible claim of self-defense, we conclude that the trial court did not abuse its discretion by allowing the State to amplify the opinions on redirect examination. Madison v. State, supra.
III.
Defendant lastly contends that the evidence was insufficient to sustain a conviction of voluntary manslaughter and that the State failed its burden of disproving the claim of self-defense beyond a reasonable doubt.
Initially, we find that Indiana has long held to the principle that either voluntary or involuntary manslaughter is treated as a lesser included offense of murder. Gatchett v. State (1973), Ind., 300 N.E.2d 665; Landers v. State (1975), Ind.App., 331 N.E.2d 770; Hopkins v. State (1975), Ind.App., 323 N.E.2d 232. Thus, if sufficient evidence is presented to the jury by which it could find murder in the first or second degree, the jury may also return a verdict of guilty of voluntary manslaughter, notwithstanding the absence of proof of 'sudden heat'. Landers v. State, supra; Hopkins v. State, supra.
In the instant situation, defendant voluntarily stopped his vehicle in order to confront the occupants of a following car. The testimony revealed that defendant had in his possession a drawn knife as he first exited his car. When decedent opened the passenger door and began walking toward the rear of the car, defendant, on the driver's side, immediately set out in pursuit. Decedent then threw the bottle, and the fatal conflict followed.
We conclude from the above that sufficient evidence was presented establishing that defendant purposely and maliciously took the life of another, IC 1971, 35-1-54-1, Ind.Ann.Stat. § 10-3404 (Burns Supp.1974); Adkins v. State (1975), Ind., 324 N.E.2d 817; Jethroe v. State (1974), Ind., 319 N.E.2d 133, and that such determination sustains a conviction of voluntary manslaughter. Hopkins v. State, supra.
In regard to defendant's argument that the State failed to disprove his claim of self-defense, we note that such claim may either be rebutted directly or the State may rely upon the sufficiency of its evidence in chief. Jennings v. State (1974), Ind., 318 N.E.2d 358. Whether the State has successfully borne its burden is a question of fact to be decided by the jury. Suffice it to state, without recapitulating the facts, that the jury heard sufficient evidence of probative value to conclude beyond a reasonable doubt that defendant was not free from fault when he fatally stabbed Larry Rodman.
Finding no reversible error, defendant's conviction of voluntary manslaughter is hereby affirmed.
Judgment affirmed.
ROBERTSON, C. J., and LOWDERMILK, J., concur.