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ATTORNEY FOR APPELLANT Marce Gonzalez, Jr. Merrillville, Indiana

ATTORNEYS FOR APPELLEE Steve Carter Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 45S03-0611-CR-452 ANDREW LEE WATTS,

FILED
May 13 2008, 3:58 pm
of the supreme court, court of appeals and tax court

CLERK

Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the Lake Superior Court, No. 45G01-0308-MR-00008 The Honorable Salvador Vasquez, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 45A03-0506-CR-249 _________________________________ May 13, 2008 Sullivan, Justice.

Having charged Andrew Watts with murder in a tavern shooting, the State sought at trial to have the jury also instructed on the lesser-included offense of voluntary manslaughter. It was reversible error for the trial court to give the instruction over defense counsel's objection because there was no evidence of sudden heat.

Background Andrew Lee Watts visited the Face to Face Lounge in Gary, Indiana, on August 23, 2003. While there, he and two companions were approached by Roy C. Atkins, Jr., who "[got] in their face" and "talk[ed] like he was mad at them or something . . . trying to get a reaction." (Tr. at 437.) Atkins addressed Watts and his companions individually, and also addressed in the same manner a plain-clothes police officer who happened to be nearby. As Atkins walked away, four to five shots were fired. Atkins died the next day of three gunshot wounds to the back.

Roshonda Crump, who was also present at the lounge, was shot in the knee. The plain-clothes police officer, Crump, and another person identified Watts as the shooter.

Watts was charged with the murder of Atkins, battery of Crump, and criminal recklessness. At trial, Watts requested jury instructions on involuntary manslaughter and criminal recklessness as lesser-included offenses. The State requested an instruction on voluntary manslaughter, to which Watts's counsel objected. The trial court provided the jury with instructions on all three offenses. Watts was convicted of voluntary manslaughter and criminal recklessness and sentenced to consecutive 47 and six-year prison terms.

Watts raised two issues before the Court of Appeals: first, that the trial court had erred when it gave the jury a voluntary manslaughter instruction; and second, that the trial court had erred in imposing aggravated and consecutive sentences. The Court of Appeals affirmed. Watts v. State, No. 45A03-0506-CR-249, slip op. (Ind. Ct. App. September 7, 2006). Watts petitioned for, and we granted, transfer. Watts v. State, 860 N.E.2d 597 (Ind. 2006) (table). On transfer, Watts raises only the issue of whether the trial court erred when it provided the jury with a voluntary manslaughter instruction. Discussion Indiana's voluntary manslaughter statute codifies the crime: (a) A person who knowingly or intentionally: (1) kills another human being ...

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while acting under sudden heat commits voluntary manslaughter, a Class B felony. However, the offense is a Class A felony if it is committed by means of a deadly weapon. (b) The existence of sudden heat is a mitigating factor that reduces what otherwise would be murder under section 1(1) of this chapter to voluntary manslaughter. Ind. Code

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