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ATTORNEY FOR APPELLANT Patricia Caress McMath Marion County Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

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Indiana Supreme Court
_________________________________ No. 49S04-1110-CR-611 JOHN BERRY,

In the

FILED
Jun 20 2012, 10:49 am
of the supreme court, court of appeals and tax court

CLERK

Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the Marion Superior Court, No. 49G22-0902-FA-024179 The Honorable Carol Orbison, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 49A04-1008-CR-536 _________________________________ June 20, 2012 David, Justice. After a bench trial, the trial court rejected the defendant's insanity defense, finding that the defendant's behavior was the result of his voluntary abuse of alcohol. The Court of Appeals reversed, concluding that the defendant suffered from "settled insanity," a mental disease or defect caused by the defendant's prolonged and chronic abuse of alcohol, which rendered him unable to appreciate the wrongfulness of his conduct. We affirm the trial court because there was credible expert testimony that defendant's behavior was caused by his voluntary abuse of alcohol.

Facts and Procedural History John Berry is a forty-one-year-old man who suffers from alcohol dependence. Berry began abusing alcohol at the age of nine and became a daily drinker by his sophomore year of high school. He also used marijuana, cocaine, methamphetamine, LSD, mushrooms, and

ecstasy, but he stopped using these drugs at age thirty. His drinking, however, continued. Over the years, Berry has received rehabilitation treatment multiple times without success. He also has several convictions related to his alcohol use. In 1999, Berry was diagnosed with bipolar disorder. He has been hospitalized multiple times for a combination of symptoms related to his drug and alcohol abuse and bipolar disorder. He has been treated with mood-stabilizing, psychotropic, antianxiety, and antidepressant medications. On Monday, February 9, 2009, Berry went with his father, John Berry III (Father), to a house Father was helping renovate. Father parked his truck in front of the house. Tony Monday was working on the bathroom ceramic tile when Berry and Father arrived. Father greeted Monday, and Monday told Father that he had borrowed the power drill and claw hammer during the weekend and that those tools were in the bathroom. Father then took Berry into one of the bedrooms where Berry was to do drywall work, and Father told Berry where the drill and hammer were. Berry went into the bathroom and told Monday that he was "going to kill" him. Monday asked Berry why, and Berry told Monday to "shut up" and repeated that he was "going to kill" him. Berry then struck Monday in the head with the claw hammer. Monday pleaded with Berry to stop, but Berry ignored him and continued to strike Monday. During this time, Father was in the living room area with his back to the hallway leading to the bathroom. Eventually, Monday exited the bathroom into the hallway, and Father turned around to see Monday bleeding profusely from his head. Father began attending to Monday's injuries as Monday explained to Father what happened. Father called 911.

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Father then saw Berry in the kitchen, walking back and forth and wiping the hammer with a towel. Father asked Berry, "Did you hit him with the f**king hammer?" Berry responded, "I guess so." Father told Berry to go to the garage. Berry left through the back door, walked to the front of the house, opened Father's truck, and placed the hammer and bloody towel in a chest of drawers located in the covered bed of the truck. Berry then reentered the house and told Father he could not find the garage. Father told Berry where the garage was and that Berry should stay there. Medics and police officers arrived soon after. Father told the officers where Berry was, and they surrounded the garage. Berry initially refused to unlock the door and exit the garage, but Father was eventually able to convince Berry to come out. Police handcuffed Berry and began to question him. They described Berry's behavior as nonchalant and very calm; noted that Berry's speech was clear; and stated that Berry offered no resistance. When asked where the hammer was, Berry told police it was in a drawer in the truck and directed them to the correct truck. When asked why he placed the hammer there, Berry responded that Father told him to do so. Finally, when asked why he hit Monday with the hammer, Berry gave nonsensical answers, including that God told him to hit Monday and that Monday was caught playing with an eagle. Berry was then taken to the hospital, admitted to a mental health center, and discharged several days later. Monday suffered severe injuries. He underwent surgery to repair his nose, his eyes, and his broken jaw. Titanium plates were implanted into his skull, and he also lost sight in one eye. Monday can no longer use his dentures due to the damage inflicted to his jaw. The State charged Berry with Class A felony attempted murder. Berry interposed an insanity defense. A court-appointed psychiatrist and court-appointed psychologist found Berry competent to stand trial. Berry waived his right to a trial by jury. After hearing expert and lay testimony, the trial court found Berry guilty as charged, rejecting his insanity defense. On appeal, the Court of Appeals reversed, finding that "the circumstances of Berry's case fall squarely within the 3

doctrine of settled insanity." Berry v. State, 950 N.E.2d 821, 835 (Ind. Ct. App. 2011). We granted transfer. Insanity Defense The issue before this Court is not whether the State failed to establish beyond a reasonable doubt the elements of attempted murder. See Ind. Code

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