Malek Williams, Appellant/Defendant v. State of Indiana, Appellee/Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] On the evening of August 19, 2022, Malek Williams and three others went to a bar in Muncie. At some point, Williams approached Que'Aundre Johnson outside the bar, with whom he had had some conflict in the previous months. After Williams and Johnson had conversed for approximately one minute, Williams drew a handgun and shot the fleeing and unarmed Johnson seven times in the back, killing him.

[2] The State ultimately charged Williams with murder and sought a sentence enhancement due to his alleged use of a handgun. During trial, Williams sought to elicit evidence from two of the persons who had been with him on the night of the shooting tending to show that Johnson had (1) previously threatened him and (2) had threatened him again on the night of shooting, evidence that, for the most part, the trial court declined to admit. Williams testified himself that Johnson had threatened him, including threatening to kill him.

[3] Williams requested instructions on voluntary manslaughter, which the trial court delivered over the State's objection. After the jury found Williams guilty of murder, the trial court sentenced him to fifty-five years of incarceration and enhanced his sentence by fifteen years due to his use of a firearm. Williams contends that (1) the trial court abused its discretion in excluding certain testimony from his companions, (2) the State failed to disprove his claim of self-defense, (3) the trial court committed fundamental error in instructing the jury on voluntary manslaughter, and (4) his sentence is inappropriately harsh. Because we find all of Williams's contentions to be without merit, we affirm.

Facts and Procedural History

[4] At around 11:00 p.m. on August 19, 2022, Williams, Omar Campbell, Vashon Stewart, and Adrian Leavell went to Brother's Bar & Grill in Muncie. Also at Brother's that night was Johnson, the boyfriend of Alexus Garcia, a woman with whom Williams had previously “hooked up[.]” Tr. Vol. III p. 56. Williams and Johnson had been involved in some sort of conflict regarding money or personal property over the previous few months. After some time inside Brother's, Williams went outside to where a large group was gathering, including Johnson.

[5] As Johnson walked back toward Brother's, Williams stepped in front of him, extended his hand, and brushed up against him. The two exchanged words. At one point, Johnson appeared to try to walk away, but Williams continued talking to him. After the two had spoken for approximately one minute, Williams pulled a handgun from his waistband. Johnson took his hands out of his hoodie and lifted them up, palms open, and Williams took two to three steps toward Johnson and fired. Johnson turned to run, but Williams followed closely behind, shooting Johnson in the back until he collapsed, soon dying from his wounds. All told, Williams shot thirteen rounds, hitting Johnson seven times in the back; Johnson never fired a shot. On August 24, 2022, the State charged Williams with murder and the later-dismissed charge of Level 6 felony criminal recklessness and filed a firearm-sentencing enhancement.

[6] Williams's trial began on July 16, 2024. During trial, Williams attempted to elicit testimony from Campbell about Williams's conflict with Johnson. Campbell testified that he was aware that Williams had been having issues with “some guy” prior to August 19 or 20, 2022, he had seen snapchat and Facebook messages between Williams and that individual, and he was privy to phone calls and conversations between the two. Tr. Vol. II p. 243. Campbell, however, had not personally known the person with whom Williams had been communicating. The State objected to Campbell testifying to the substance of the messages on the basis of hearsay. The court sustained the objection but allowed Campbell to testify as to the tone of the messages.

[7] Williams also attempted to elicit testimony through Campbell regarding the specific nature of the alleged threats Johnson had allegedly made to Williams at Brother's in the presence of Campbell. The State objected on the basis of hearsay, and Williams argued that the testimony “would warrant effect on [Campbell]” because it would show Campbell's reaction to those alleged threats. Tr. Vol. III p. 5. The State argued that testimony regarding the conversation between Williams and Johnson was hearsay and that Campbell's response, which went to Campbell's state of mind, was irrelevant as to Williams's state of mind immediately before the shooting. The trial court sustained the objection but permitted Campbell to testify that Johnson had made threats to Williams, what Campbell was thinking based on the words exchanged between Williams and Johnson, and the tone of the words spoken.

[8] Williams attempted to elicit testimony from Stewart regarding threats that Stewart had allegedly heard Johnson make to Williams over the telephone at some point prior to the shooting. Williams also attempted to admit evidence of a Facebook photograph, purportedly of Johnson, that Stewart had observed “at some point[.]” Tr. Vol. III p. 25. The State objected on the basis that the testimony sought was irrelevant. The trial court sustained the objection because it went to the state of mind of Stewart, not Williams; the picture itself was not being admitted; and there was no evidence of when the picture was taken. The trial court did allow Stewart to testify that he had seen a Facebook profile picture of Johnson.

[9] Williams also attempted to admit evidence of Facebook messages from Johnson to him through Stewart's testimony. The only information Stewart was able to provide about the messages was that he had seen them. There was no information regarding who the messages had been between or when they had been sent. The State objected on the basis of hearsay, and the trial court sustained the objection.

[10] Williams attempted to introduce, through Stewart's testimony, contents of a conversation Stewart had had with Johnson about Williams “prior to August 19th, August 20th, of 2022[.]” Tr. Vol. III p. 28. Williams argued that the testimony would be relevant to show that Stewart had tried to deescalate matters. The State objected on the basis of hearsay and that Stewart's state of mind based on his conversation with Johnson was irrelevant to Williams's state of mind in a claim of self-defense. The trial court sustained the objection but allowed Stewart to testify that a telephone call had been made and that Stewart had tried to defuse the situation, but not what had been said during the call. Williams also tried to elicit testimony from Stewart about what Williams had told him Johnson had said while at the bar. The State objected on the basis of hearsay, and the court sustained the objection.

[11] During Williams's testimony, he attempted to admit an exhibit containing information from Johnson's Snapchat account. The information had been obtained by Williams, who had personally recorded the social-media post on an undetermined date. The State objected to the exhibit, arguing that the exhibit lacked context, was vague, ambiguous, and contained impermissible character evidence. The trial court sustained the objection but allowed Williams to testify to what he had thought based on Johnson's Snapchat story. Williams testified that the story had made him think that Johnson had access to Glock switches ¹ and that, based on what was at the end of Johnson's story, Williams had connected the information about Glock switches to Johnson.

[12] At trial, Williams testified that on July 11, 2022, he had started receiving what he characterized as “threats” from Johnson on Facebook messenger, Tr. Vol. III p. 61, and the messages were admitted. Williams testified that he had not thought that Johnson's messages were serious and that he had been joking. In the messages, the two exchanged laughing/crying emojis, and Williams appeared to be trying to sell marijuana to Johnson.

[13] Williams also testified that Johnson had called him and made threats, including telling him that he was a dead man for having had a person named Alexus (presumably Alexus Garcia) arrested; Williams was the reason Johnson was going to end up like Johnson's father, who was in prison for murder; and Williams was not safe anywhere. Williams also claimed that Johnson had sent him threats through Snapchat but that the messages had been deleted or unsent. Williams also testified that Johnson had sent messages to him telling him that he was a dead man, Johnson was going to “air it out” (which means “shoot my car up while I was in it”), and Johnson was going to take Williams's life. Tr. Vol. III p. 78. Williams testified that Johnson had unsent all of those messages.

[14] Among other evidence presented was surveillance video footage of the shooting and the deposition testimony of Garrett Phillips, a bystander who had witnessed the shooting from approximately twenty to thirty feet away. Phillips testified that he had heard two to three gunshots fired before seeing Johnson run across the street while being pursued by Williams, who had continued chasing the victim and shooting him in the back until the victim collapsed. Phillips had not seen Johnson confront Williams, nor had he heard or seen any fight prior to the shooting. Phillps had run over to Johnson to render aid but had not observed a weapon on Johnson or in the vicinity of the body.

[15] Williams requested that a final instruction be given on voluntary manslaughter as a lesser offense of murder. The State objected to the instruction on the basis that there was no evidence to establish sudden heat. The trial court agreed to instruct the jury on voluntary manslaughter and did so in language with which both Williams and the State agreed.

[16] After the jury found Williams guilty of murder, he admitted to having used a firearm in the commission of the crime. On August 19, 2024, the trial court sentenced Williams to fifty-five years of incarceration for murder and enhanced that sentence by fifteen years for the firearm enhancement, for a total sentence of seventy years.

Discussion and Decision

I. Exclusion of Testimony

[17] Williams contends that the trial court abused its discretion in declining to admit testimony from Stewart and Campbell tending to show that Johnson and Williams had been in conflict prior to August 19, 2022, and that Johnson had made threats to Williams, including threats to kill him. The decision to admit or exclude evidence is within the sound discretion of the trial court. Alvarado v. State, 89 N.E.3d 442, 445 (Ind. Ct. App. 2017), trans. denied. An abuse of discretion may occur if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Id. The trial court's ruling may be affirmed if it is sustainable on any legal basis in the record, even though it was not the reason enunciated by the trial court. Id.

[18] Williams does not actually address the bases on which the trial court excluded the evidence at issue, apparently arguing that the evidence should have all been admissible because it was probative and relevant to his self-defense claim. As it happens, almost all of the excluded evidence Williams attempted to elicit from Stewart and Campbell was evidence of out-of-court statements by another offered for the truth of the matter asserted, i.e., hearsay. Indiana Rule of Evidence 801(c) provides, in part, that “hearsay” is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. If the evidentiary purpose of the statement is to prove the existence of a fact asserted, then the statement is only admissible if it fits an exception to the hearsay rule. See Craig v. State, 630 N.E.2d 207, 211 (Ind. 1994). Williams does not explain how any of the evidence at issue satisfies any exception to the hearsay rule.

[19] In any event, errors in the admission of evidence are to be disregarded unless they affect the substantial rights of a party. Wilkes v. State, 7 N.E.3d 402, 405–06 (Ind. Ct. App. 2014). We will consider the likely impact of the improperly admitted or excluded evidence on a reasonable, average jury in light of all the evidence in the case. Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023). As mentioned, the evidence Williams attempted to elicit from Stewart and Campbell would have tended to show that Johnson had threatened Williams prior to August 19, 2022. This evidence, however, would have, at best, been cumulative of Williams's own testimony to that effect, including his testimony that Johnson had threated to shoot his car with him inside and kill him for getting Garcia arrested. See, e.g., Sylvester v. State, 698 N.E.2d 1126, 1130 (Ind. 1998) (“Where the wrongfully excluded testimony is merely cumulative of other evidence presented, its exclusion is harmless error.”). Williams does not explain how the admission of similar evidence from Stewart and/or Campbell would have made the jury more likely to credit his testimony that he had shot Johnson in self-defense. We conclude that any error the trial court may have made in excluding this evidence can only be considered harmless.

II. Self–Defense Claim

[20] Williams contends that the State failed to produce evidence sufficient to rebut his claim that he had shot Johnson in self-defense. “[S]elf-defense is legal justification for an otherwise criminal act.” Gammons v. State, 148 N.E.3d 301, 304 (Ind. 2020). “The self-defense statute provides that an individual has the right to use ‘reasonable force against any other person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force.’ ” Stewart v. State, 167 N.E.3d 367, 376 (Ind. Ct. App. 2021) (quoting Ind. Code § 35-41-3-2(c)), trans. denied. Additionally, a person is justified in using deadly force and does not have a duty to retreat if the person reasonably believes such force is necessary to prevent serious bodily injury to himself or to a third person. Ind. Code § 35-41-3-2(c)(1), -2(c)(2). To prevail on a claim of self–defense involving the use of deadly force, the defendant must show that: (1) he was in a place where he had a right to be; (2) he did not provoke, instigate, or participate willingly in the violence; and (3) he had a reasonable fear of death or great bodily harm. Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002).

[21] When a defendant raises a self-defense claim which finds support in the evidence, the State carries the “burden of negating at least one of the necessary elements.” Hughes v. State, 153 N.E.3d 354, 361 (Ind. Ct. App. 2020), trans. denied. “The State may meet this burden by rebutting the defense directly, by affirmatively showing the defendant did not act in self-defense, or by simply relying on the sufficiency of its evidence in chief.” Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999). If a defendant is convicted despite his claim of self-defense, an appellate court will reverse only if no reasonable person could say that self-defense was “negated by the State beyond a reasonable doubt.” Wilson, 770 N.E.2d at 800–01.

[22] The State produced sufficient evidence to rebut Williams's claims that he did not provoke, instigate, or participate willingly in the violence and had a reasonable fear of death or great bodily harm. Id. at 800. Surveillance video clearly shows Williams initiating a conversation with Johnson; Johnson participating before attempting to withdraw; Williams seemingly preventing Johnson from disengaging; and, finally, Williams pulling a handgun from the waistband of his shorts and shooting Johnson multiple times in the back as he attempts to flee. At no point in the encounter does Johnson make any aggressive motion that seems to be threatening to Williams, and no weapon other than Williams's is ever visible in the video. Williams points to his testimony regarding Johnson's previous alleged threats and his alleged belief that Johnson was armed. The jury, however, was under no obligation to credit any of Williams's self-serving testimony and, apparently, did not. See, e.g., McCullough v. State, 985 N.E.2d 1135, 1139 (Ind. Ct. App. 2013) (providing that the jury, acting as the trier of fact, was under no obligation to credit defendant's statement to police that he had acted without fault or that his actions had been reasonable).

III. Jury Instructions on Voluntary Manslaughter

[23] Williams contends that the trial court's instructions on voluntary manslaughter amounted to fundamental error. “Instruction of the jury is left to the sound judgment of the trial court and will not be disturbed absent an abuse of discretion.” Schmidt v. State, 816 N.E.2d 925, 930 (Ind. Ct. App. 2004), trans. denied. We consider whether the tendered instruction is a correct statement of the law, whether there was evidence sufficient to support the instruction, and whether the substance of the tendered instruction was covered by other instructions. Walden v. State, 895 N.E.2d 1182, 1186 (Ind. 2008). “The purpose of a jury instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.” Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001) (citation and quotation marks omitted).

[24] As the State points out, Williams did not object to these instructions below, which restricts our review to whether the trial court giving them amounted to fundamental error. Fundamental error “is an ‘extremely narrow doctrine.’ ” Dean v. State, 222 N.E.3d 976, 987 (Ind. Ct. App. 2023) (quoting Isom v. State, 170 N.E.3d 623, 651 (Ind. 2021)), trans. denied. “An error is fundamental if it made a fair trial impossible or was a ‘clearly blatant violation[ ] of basic and elementary principles of due process’ that presented ‘an undeniable and substantial potential for harm.’ ” Miller v. State, 188 N.E.3d 871, 874 (Ind. 2022) (quoting Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009)).

[25] The instructions given to the jury addressing voluntary manslaughter provided as follows:

Instruction No. 4

The Defendant is charged with Count 1 – Murder, a Felony. Voluntary Manslaughter, a Level 2 Felony, is lesser-included offense of Murder. If the State proves the Defendant guilty of Count 1 – Murder, a Felony, you need not consider the included crime of Voluntary Manslaughter. However, if the State fails to prove the Defendant committed Murder, a Felony, you may consider whether the Defendant committed Voluntary Manslaughter, a Level 2 Felony which the Court will define for you.

You may not find the Defendant guilty of more than one crime for each count.

Instruction No. 5

The crime of Voluntary Manslaughter as a lesser-included offense of Count 1 is defined by law as follows:

A person who knowingly or intentionally kills another human being while acting under sudden heat commits voluntary manslaughter, a Level 2 Felony.

The existence of sudden heat is a mitigating factor that reduces what otherwise would be murder.

Instruction No. 6

Only in the event that you find the Defendant not guilty of Count 1 – Murder, a Felony, you may consider a lesser-included offense. Before you may convict the Defendant in a lesser-included offense of Voluntary Manslaughter, a Level 2 Felony, the State must have proved each of the following beyond reasonable doubt:

1. The Defendant

2. Knowingly or intentionally

3. Killed another human being, to-wit: Que’[A]undre Johnson

4. And the Defendant was acting under sudden heat[.]

Appellant's App. Vol. II pp. 174–76. The jury was also instructed that “[y]ou are to consider all of the instructions together. Do not single out any certain sentence or any individual point or instruction and ignore the others.” Appellant's App. Vol. II p. 172.

[26] Under the circumstances, we cannot conclude that Williams has established fundamental error. Williams first points out that the jury instructions for voluntary manslaughter were erroneous. Instruction No. 4 provides, in part, that “[i]f the State proves the Defendant guilty of Count 1 – Murder, a Felony, you need not consider the included crime of Voluntary Manslaughter.” Appellant's App. Vol. II p. 174. Instruction No. 6 provides, in part, that “[o]nly in the event that you find the Defendant not guilty of Count 1 – Murder, a Felony, you may consider a lesser-included offense.” Appellant's App. Vol. II p. 176. Such instructions have previously been held to be improper. See McWhorter v. State, 970 N.E.2d 770 (Ind. Ct. App. 2012), trans. granted, summarily aff'd in relevant part, 993 N.E.2d 1141 (Ind. 2013) (finding instruction improperly directed the jury to consider the lesser offense of voluntary manslaughter only if the State failed to prove all the elements of murder).

[27] The problem with these instructions is that they contradict the reality that one cannot be found guilty of voluntary manslaughter without first being found to have committed all of the elements of murder. It is erroneous to instruct a jury that it may only consider voluntary manslaughter if it finds the defendant not guilty of murder when, in fact, it must find that defendant knowingly or intentionally killed another person, i.e., all of the elements of murder, before it may consider the lesser charge ² of voluntary manslaughter. The concern here, of course, is the chance that the jury may have found that Williams had killed Johnson knowingly or intentionally and then stopped, declining to even consider Williams's evidence of sudden heat.

[28] We conclude that the instructions above, incorrect statements of the law that they are, still do not amount to fundamental error. Instruction No. 5 clearly defines voluntary manslaughter as “[a] person who knowingly or intentionally kills another human being while acting under sudden heat” and makes it clear that “[t]he existence of sudden heat is a mitigating factor that reduces what otherwise would be murder.” Appellant's App. Vol. II p. 175. According to this instruction, the jury does not even have a reason to consider the existence of sudden heat unless it first concludes that a murder has occurred, one that might be reduced by the mitigating factor of sudden heat. Despite the incorrect instructions, the jury certainly could have taken this correct statement of the law to heart, which is enough for us to conclude that fundamental error did not occur. In the context of Williams's claim, “[a]n error is fundamental if it made a fair trial impossible[,]” and that did not happen here. Miller, 188 N.E.3d at 874 (emphasis added).

[29] Williams also contends that the jury instructions constituted fundamental error because they “instruct[ed] the jury that the State had [․] the burden of proving the existence of sudden heat.” Appellant's Br. p. 17. Instruction No. 6 does seem to instruct the jury that sudden heat is an element that the State must prove. That said, the Indiana Supreme Court, while noting repeatedly that sudden heat is not an element of voluntary manslaughter, Isom v. State, 651 N.E.2d 1151, 1152 (Ind. 1995); Bane v. State, 587 N.E.2d 97, 100 (Ind. 1992), has also held that listing sudden heat as an element of voluntary manslaughter does not warrant reversal if the jury is also instructed that sudden heat is a “mitigating factor.” Isom, 651 N.E.2d at 1153; Bane, 587 N.E.2d at 101. As mentioned, Instruction No. 5 correctly advised the jury that the existence of sudden heat is a “mitigating factor that reduces what otherwise would be murder” to voluntary manslaughter. Appellant's App. Vol. II p. 175. Consequently, Williams has failed to establish fundamental error on this basis either.

IV. Appropriateness of Sentence

[30] We “may revise a sentence authorized by statute if, after due consideration of the trial court's decision, [we find] that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). “Although appellate review of sentences must give due consideration to the trial court's sentence because of the special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied.” Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006). (citations and quotation marks omitted), trans. denied. “[W]hether we regard a sentence as appropriate at the end of the day turns on our sense of the culpability of [Williams], the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). In addition to the “ ‘due consideration’ ” we are required to give to the trial court's sentencing decision, “we understand and recognize the unique perspective a trial court brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). (quoting Ind. Appellate Rule 7(B)). Here, the trial court sentenced Williams to fifty-five years of incarceration for murder (the advisory sentence) and enhanced that sentence fifteen years by his use of a firearm (out of a range of from five to twenty years). Ind. Code §§ 35-50-2-3; 30-5-2-11(g). In other words, Williams received more than the minimum possible sentence of fifty years but less than the maximum possible of eighty-five.

[31] In evaluating the nature of Williams's offense, we consider “the nature, extent, heinousness, and brutality of the offense[,]” Dean v. State, 222 N.E.3d 976, 990 (Ind. Ct. App. 2023), trans. denied, and, in so doing, we find it to be moderately heinous. In what seems to have been, at worst, a simple property dispute, Williams's solution was to confront, corner, and finally open fire on the unarmed Johnson, shooting him seven times in the back as he fled.

[32] Williams's character also justifies the length of his sentence. In evaluating a defendant's character, we consider “the defendant's age, criminal history, background, past rehabilitative efforts, and remorse.” Wilson v. State, 221 N.E.3d 667, 680 (Ind. Ct. App. 2023) (citing Harris v. State, 165 N.E.3d 91, 100 (Ind. 2021), and McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020)). While it is true that Williams had no prior criminal history, we think that it is worth noting that Williams's very first offense was the most serious of all. Williams's response to a simple property dispute was to kill, which does not speak well of his character. Williams has also had substantial disciplinary issues while in jail, including two reports resulting in lockdowns, and did not attend any of “many” classes or programs offered to him. Tr. Vol. III p. 221. Finally, Williams's apology to Johnson's family and friends was somewhat blunted by his claim that “I just thought it was him or me[.]” Tr. Vol. III p. 208. In the end, Williams's purported mitigators do not rise to the level of “substantial virtuous traits or persistent examples of good character” necessary to overcome the deference given to the trial court's sentencing decision. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[33] We affirm the judgment of the trial court.

[34] I concur with the majority's holding that the trial court's erroneous jury instructions did not constitute fundamental error, and I concur fully with the majority's opinion in all other respects. However, I write separately because I disagree with the majority's reason why Williams did not demonstrate fundamental error. I believe fundamental error did not occur because the evidence did not support a jury instruction on the lesser offense of voluntary manslaughter. See, e.g., Hileman v. State, 224 N.E.3d 321, 329 (Ind. Ct. App. 2023) (holding defendant who claimed self-defense was not entitled to jury instruction on lesser offense of voluntary manslaughter).

[35] Commission of voluntary manslaughter requires proof that a defendant acted under “sudden heat.” Ind. Code § 35-42-1-3. “ ‘Sudden heat’ is characterized as anger, rage, resentment, or terror sufficient to obscure the reason of an ordinary person, preventing deliberation and premeditation, excluding malice, and rendering a person incapable of cool reflection.” Suprenant v. State, 925 N.E.2d 1280, 1282 (Ind. Ct. App. 2010) (quoting Dearman v. State, 743 N.E.2d 757, 760 (Ind. 2001)), trans. denied. “Words alone do not constitute sufficient provocation to warrant a jury instruction on voluntary manslaughter, especially when the words were not intended to provoke the defendant, such as fighting words.” Hileman, 224 N.E.3d at 328. In addition, “any alleged provocation must be such that it would obscure the reason of an ‘ordinary man,’ which is an objective as opposed to a subjective standard.” Id. (quoting Suprenant, 925 N.E.2d at 1283). Williams's consistent claim at trial was not that he became so angry he acted without thinking. It was that he acted in self-defense. Williams explained he shot Johnson because he “was in fear for [his] life and [he] panicked.” (Tr. Vol. 3 at 87.) Williams claimed Johnson threatened to kill him, and he “was in fear for [his] life.” (Id. at 88.) The surveillance footage of the shooting does not show any acts of aggression that would obscure the reason of an ordinary person prior to the shooting. It shows Johnson and Williams talking to each other before Williams pulled out a gun and shot Johnson.

[36] Trial courts and counsel should take care to ensure that juries are correctly instructed regarding the offense of voluntary manslaughter and avoid perpetuating the errors the trial court made here. See Eichelberger v. State, 852 N.E.2d 631, 639 (Ind. Ct. App. 2006) (petitioner entitled to post-conviction relief because of ineffective assistance of counsel when his trial attorney tendered an instruction that listed sudden heat as an element the State was required to prove), trans. denied. Nonetheless, I do not think it was necessary for the trial court to instruct the jury on the offense of voluntary manslaughter because there was not a serious evidentiary dispute regarding whether Williams acted in sudden heat when he shot Johnson. See, e.g., Massey v. State, 955 N.E.2d 247, 257 (Ind. Ct. App. 2011) (holding petitioner was not entitled to post-conviction relief on basis of erroneous voluntary manslaughter instruction because no serious evidentiary dispute existed regarding presence of sudden heat). Therefore, I concur in result with respect to the majority's resolution of the jury instruction issue, and I fully concur with the majority opinion in all other respects.

FOOTNOTES

1.   “Glock switches” are one variety of devices more generally known as “auto switches” or “auto sears[,]” which are “capable of transforming semi-automatic weapons into machine guns in a matter of moments[.]” Scott Glover & Curt Devine, A device that can turn a semi-automatic weapon into a machine gun in moments is wreaking havoc on American streets, CNN (August 30, 2022, 9:05 p.m.), https://web.archive.org/web/ 20230416034511/https://www.cnn.com/2022/08/30/us/automatic-machine-gun-fire-invs/index.html.

2.   Our use of the word “lesser” instead of “lesser-included” is not accidental, for, while voluntary manslaughter is a lesser crime than murder, it is not included in it, actually requiring more proof for the lesser offense.

Bradford, Judge.

Altice J., concurs. May, J., concurs in result with opinion.