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09/24/87 PHILLIP COX v. STATE INDIANA

Filed: September 24, 1987.

PHILLIP COX, APPELLANT,
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM MARION SUPERIOR COURT, CRIMINAL DIVISION ONE, The Honorable John W. Tranberg, Judge, Cause No. CR86-101A

Givan, J., Shepard, C.j., and DeBruler, Pivarnik and Dickson, JJ., concur.

Author: Givan

GIVAN, J.

A jury trial resulted in a conviction of Murder. Appellant received a fifty (50) year sentence.

The facts are: On June 22, 1985, at approximately 11:00 p.m., appellant and other young people were gathered at the Super Shops, on Madison Avenue, in Indianapolis. Parking lots in the area are commonly used as a meeting place after business hours. Several people in the parking lot were playing frisbee when the victim, Jason Kurtz, drove through the lot and ran over the frisbee. An argument ensued between appellant and Kurtz during which some shoving occurred.

Kurtz then left the scene but soon returned with some friends and the altercation between Kurtz and appellant resumed. During this altercation, witnesses testified that Kurtz poked appellant in the chest with his finger, knocked a beer can from appellant's hand and said, "I'm going to whip your ass and call your mom to laugh at you." Appellant then left with Steve Rigdon and Tony Rivera and returned to an apartment he shared with others.

There is some confusion in the evidence as to whether appellant obtained a knife at the apartment or whether he obtained a knife from Rigdon after he left the apartment. How he obtained the knife is of no moment. The fact is: He returned to the scene of the altercation, called Kurtz aside and resumed the "shove fight." He immediately struck Kurtz in the throat with the knife. Kurtz died shortly thereafter. Appellant then ran to his apartment, threw the knife on the roof and was eventually transported to Detroit, Michigan, by friends.

Appellant claims he was told that someone in the Kurtz group of friends had a gun and when he called Kurtz over to talk, Kurtz threatened him and made a quick movement, at which time he stabbed Kurtz.

Appellant claims the trial court erred when it gave Final Instruction No. 33 and refused to give his tendered Final Instruction No. 2. Both instructions concern sudden heat of passion sufficient to reduce a homicide from murder to manslaughter. Final Instruction No. 33 read in part:

"Adequate provocation is meant such as would excite in the mind of a defendant such emotions as either anger, rage, sudden resentment or terror. Ordinarily, mere words alone do not constitute sufficient provocation."

The instruction then continued, giving the standard cooling-off period provision.

Appellant's tendered Final Instruction No. 2 followed the same format except it read in part:

"Ordinarily mere words alone do not constitute sufficient provocation, but personal indignities may be."

Appellant claims the omission of the words "personal indignities may be" in the instruction given by the court ...


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