Perez v. State
| Decision Date | 24 August 2007 |
| Docket Number | No. 20A04-0701-CR-39.,20A04-0701-CR-39. |
| Citation | 872 N.E.2d 208 |
| Parties | Oscar Eduardo PEREZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Kenneth R. Martin, Goshen, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-Defendant, Oscar Eduardo Perez (Perez), appeals his conviction for attempted murder, a Class A felony, Ind. Code §§ 35-41-5-1; 35-42-1-1.
We affirm.
Perez raises two issues on appeal, which we restate as follows:
(1) Whether the trial court properly instructed the jury; and
(2) Whether the State presented sufficient evidence to prove beyond a reasonable doubt that he committed attempted murder.
On February 18, 2006, Perez and others affiliated with a gang known as the Nortenos went to an under twenty-one-year-old night club in Goshen, Indiana. At the club, the Nortenos got into a confrontation with a rival gang, the Surenos. Police officers came to disperse the group. Perez left the club and headed north on U.S. 33, riding in a red Acura with his brother driving. A group of the Nortenos traveled along with the Acura, riding separately in a grey Durango.
While driving on U.S. 33, the Nortenos encountered a group of Surenos riding in a tan Malibu. The Nortenos in the Durango and the Surenos flashed gang signs at each other and at some point a passenger in the Durango fired a paintball gun several times at the Malibu. The Malibu swerved, came up behind the Durango, and rammed it from behind. Perez, riding in the Acura just behind and to the side of the Malibu, grabbed his SKS assault rifle and fired three to five shots out of the window at the Malibu. The Malibu then drifted off the road.
The Nortenos drove on to a residence where Perez dismantled the gun, hid part of it, and left with the remaining parts. Later, Perez returned and bragged that he fired at the Malibu and was certain he had hit it.
Fourteen-year-old Rogelio Reyes, who was riding in the tan Malibu, was hit in the eye by one of the shots. The bullet then passed through the left side of his brain, causing his death. Saul Rodriguez, who was driving the Malibu, was also hit by one of the bullets, and was seriously wounded.
On February 3, 2006, the State filed an Information charging Perez with murder, a felony, I.C. § 35-42-1-1, and criminal gang activity, a Class D felony, I.C. 35-45-9-3. On August 31, 2006, the State filed an amended Information, adding the charge of attempted murder, a Class A felony, I.C. §§ 35-41-5-1, 35-42-1-1, to the aforementioned charges. On September 18, 2006, a jury trial in the matter commenced, and on September 21, the jury found Perez guilty of all charges.
Perez now appeals. Additional facts will be provided as necessary.
Perez contends that the trial court improperly instructed the jury. Specifically, Perez contends that in Final Instruction 2, the trial court read to the jury the charges facing him, and in its reading of the charge for attempted murder, the trial court used the word knowingly, thereby confusing the jury as to the appropriate mens rea standard for that crime.
It is well established by our court that instructing the jury is within the discretion of the trial court. White v. State, 846 N.E.2d 1026, 1032 (Ind.Ct.App. 2006), trans. denied. Jury instructions are to be considered as a whole and in reference to each other; error in a particular instruction will not result in reversal unless the entire jury charge misleads the jury as to the law in the case. Id.
A timely objection is generally required to preserve an issue for appeal. Id. Perez does not deny that he failed to object to the proffered instruction; nonetheless, he claims the error is fundamental, and therefore subject to our review.
Fundamental error is defined as an error so prejudicial to the rights of a defendant that a fair trial is rendered impossible. Id. To be considered fundamental, an error "must constitute a blatant violation of basic principles, the harm, or potential for harm must be substantial and the resulting error must deny the defendant fundamental due process." Spears v. State, 811 N.E.2d 485, 488 (Ind. Ct.App.2004).
Typically, the culpability requirement for the attempt of a crime is that of the specific crime attempted. I.C. § 35-41-5-1. However, our supreme court has emphasized the importance of requiring specific intent to kill before a defendant can be convicted of attempted murder, despite that the culpability requirement for murder includes the lesser standard of "knowingly." Booker v. State, 741 N.E.2d 748, 751 (Ind.Ct.App.2000) (citing Zickefoose v. State, 270 Ind. 618, 388 N.E.2d 507 (Ind.1979)). Thus, it is reversible error for a trial court to instruct a jury that a "knowing" mens rea is sufficient to establish guilt of attempted murder. Booker, 741 N.E.2d at 751 (citing Williams v. State, 737 N.E.2d 734, 736 (Ind.2000)). This principle has become known as the "Spradlin rule," named after the judicial opinion which explained, "[h]enceforth ... an instruction which purports to set forth the elements which must be proven in order to convict of the crime of attempted murder must inform the jury that the State must prove beyond a reasonable doubt that the defendant, with intent to kill the victim, engaged in conduct which was a substantial step toward such killing." Spradlin v. State, 569 N.E.2d 948, 950 (Ind.1991).
Nevertheless, our supreme court has clarified that attempted murder convictions need not be vacated despite a clear Spradlin rule violation when: (1) the intent of the defendant was not a central issue at trial; (2) the instructions as a whole sufficiently suggested the requirement of the intent to kill; or (3) both. Williams, 737 N.E.2d at 737. Indeed, cases where no fundamental error was found despite the mention of a "knowing" mens rea requirement include: Ramsey v. State, 723 N.E.2d 869 (Ind.2000); Greenlee v. State, 655 N.E.2d 488 (Ind.1995); Price v. State, 591 N.E.2d 1027 (Ind.1992); Means v. State, 807 N.E.2d 776 (Ind.Ct. App.2004); Clay v. State, 766 N.E.2d 33 (Ind.Ct.App.2002); Booker v. State, 741 N.E.2d 748 (Ind.Ct.App.2000). However, where intent was a contested issue and/or the instructions did not sufficiently inform the jury on specific intent, the error may rise to the level of fundamental. Jones v. State, 868 N.E.2d 1205, 1210 (Ind.Ct.App. 2007).
In reviewing the record before us here, we find that the jury instructions contained a Spradlin rule violation. Perez contends, and the State does not dispute, that intent was a contested issue at trial; therefore, our analysis focuses on whether the jury instructions as a whole sufficiently suggested the requirement of intent to kill as a part of attempted murder.
The trial court stated to the jury during final instructions:
In this case the State of Indiana has charged the defendant with Count I, Murder, a felony; Count II, Criminal Gang Activity, a[C]lass D felony; and Count III, Attempted Murder, a[C]lass A felony. The charges read as follows:
(Transcript p. 976) (emphasis added). Although this mention of knowing culpability was expressed to the jury as being a part of the charges filed by the State, we conclude that when read by the trial court amongst other jury instructions, this erroneous statement of the law can be considered an improper jury instruction which may rise to fundamental error if not cured by appropriate jury instructions. See Price v. State, 591 N.E.2d 1027 (Ind.1992) ().
Nevertheless, moments later the trial court instructed the jury properly regarding the required culpability for attempted murder by stating:
The crime of attempted murder is defined as follows:
A person attempts to commit murder when, acting with the specific intent to kill another person, he engages in conduct that constitutes a substantial step toward killing that person.
Before you may convict the defendant of attempted murder, the state must have proved each of the follow[ing] elements beyond a reasonable doubt:
1. the defendant, Oscar Edwardo [sic] Perez
2. acting with specific intent to kill Saul Rodriguez
3. did discharge a deadly weapon, to wit: a loaded firearm at Saul Rodriguez
4. which was conduct constituting a substantial step toward commission of the intended crime of killing Saul Rodriguez.
If the [S]tate failed to prove each of these elements beyond a reasonable doubt, you must find the defendant not guilty of the crime of attempted murder, [a][C]lass A felony, charged in Count III.
(Tr. pp. 980-981) (emphasis added).
We find when reviewing the jury instructions as a whole that the jury instructions sufficiently suggested the requirement of intent to kill. First, we note that the violative language came from the charges filed by the State against Perez, and was expressed to the jury as being such. We find that when the trial court thereafter instructed the jury using its...
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