Najam, J.
Billy Brantley appeals his conviction for Voluntary Manslaughter, a Level 2 felony. …
In July 2014, Brantley lived in a home in Indianapolis with his sister, Martha Gunn (“Martha”), her husband, Bruce Gunn (“Bruce”), and the couple’s eight year old son, Sean. …
Bruce was a fifty-eight year old retired Eli Lilly chemist who suffered from both physical and mental health problems. … Bruce had sometimes kept knives under the cushion of the recliner in which he usually sat.
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Bruce and Martha had a history of verbally fighting with each other. …
Brantley was employed as a locksmith but, on the morning of July 14, 2014, he woke up at approximately 9:00 a.m. to prepare for a 10:00 a.m. job interview for a better-paying job. …
Brantley arrived back home at about 11:00 or 11:30 a.m. … Bruce and Martha were arguing loudly …
The argument continued to escalate between Martha and Bruce, with both of them yelling at each other. … Bruce began yelling at Brantley, too, and stated as he rose from his recliner that he was going to “take care of all of his problems.” Brantley and Martha both saw Bruce holding something in his clenched fist as he rose from his chair. …
Brantley drew his gun and fired it once at Bruce. … It was a fatal wound. … Martha and Brantley each separately placed calls to 9-1-1 almost immediately after the shot. In her 9-1-1 call, Martha was frantic and crying and repeatedly stated that her brother had shot her husband when her husband had tried to attack her and was coming at them. Brantley, who had military and law enforcement training, was more composed in his 9-1-1 call and told the operator Bruce had tried to attack him and he had to shoot him. It was later discovered that the item Bruce had been holding in his hand was not a knife but his glasses.
The State charged Brantley with voluntary manslaughter. … Both Brantley and Martha testified that Brantley had remained calm during the entire incident on July 14, 2014. …
The trial court gave the jury the following instruction on the charged offense:
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A person who knowingly or intentionally kills another person while acting under sudden heat commits Voluntary Manslaughter, a Level 2 felony.
The existence of sudden heat is a mitigating factor that reduced what otherwise would be Murder to Voluntary Manslaughter. The State has conceded the existence of sudden heat by charging Voluntary Manslaughter instead of Murder.
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… The court also instructed the jury as follows on the term “sudden heat”:
The term sudden heat, as applied to the crime of Voluntary Manslaughter, means an excited state of mind. It is a condition that may be created by strong emotion such as anger, rage, sudden resentment, or jealousy. It may be strong enough to obscure the reason of an ordinary person and prevent deliberation and meditation. It can render a person incapable of rational thought.
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The jury found Brantley guilty of voluntary manslaughter, and the trial court sentenced him accordingly. This appeal ensued.
… We need not consider the correctness of the jury instructions because the Due Process Clause of the United States Constitution protects every defendant against conviction except upon proof beyond a reasonable doubt. In Re Winship, 397 U.S. 358, 364 (1970). If there is no evidence of sudden heat in the record, the State has not met its constitutional burden of proof.
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… We hold that the State was required to prove sudden heat when it charged Brantley with voluntary manslaughter.
… We hold that the State failed to produce any evidence, let alone prove beyond a reasonable doubt, that Brantley acted under “sudden heat” when he knowingly killed Bruce.
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Certainly, from our remote vantage point, the reason for the prosecutor’s decision not to charge murder is not obvious. Nonetheless, the State is not entitled to a mulligan. …
Although the jury was instructed on the definition of “sudden heat,” the State failed to provide any evidence of it. Instead, the State asserted that it had “conceded” sudden heat by not charging murder. But a party with the burden of proof on an issue may not meet that burden by “conceding” it when the other party has not also conceded the issue. Nor may the State avoid its burden of proof by “conceding” sudden heat when there is no evidence of sudden heat in the record. Watts, 885 N.E.2d at 1233.
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Reversed.
May, J., concurs.
Bailey, J., dissents with separate opinion.
Bailey, Judge, dissenting.
I agree with the majority that the State did not properly obtain its conviction. Article 1, Section 19 of the Indiana Constitution protects the province of the jury in criminal trials, allocating to the jury the right to determine the law and the facts. Keller v. State, 47 N.E.3d 1205, 1208 (Ind. 2016). Here, the province of the jury was invaded by a fundamentally erroneous instruction attempting to relieve the State of its burden of proof. However, unlike the majority, I believe that retrial is permissible, in light of the evidence of sudden heat.
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As there is evidence of provocation and a sudden killing, there is evidence from which the jury could have concluded that Brantley acted in sudden heat. I would find fundamental error in the giving of the erroneous, invasive instruction, find sufficient evidence to permit retrial on the charge of voluntary manslaughter, and remand to the trial court.