Babbs v. State, 45A03-9209-PC-288

Decision Date07 September 1993
Docket NumberNo. 45A03-9209-PC-288,45A03-9209-PC-288
PartiesMichele BABBS a/k/a Ivory Young, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
CourtIndiana Appellate Court

Susan K. Carpenter, Public Defender, Kathleen Littell, Deputy Public Defender, Office of Public Defender, Indianapolis, for appellant-petitioner.

Pamela Carter, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-respondent.

HOFFMAN, Judge.

Michele Babbs a/k/a Ivory Young appeals the denial of his petition for post-conviction relief following his convictions for robbery, a Class B felony, and battery, a Class C felony.

As restated, Babbs raises three issues for review:

(1) whether the trial court committed fundamental error in giving an instruction on the defense of voluntary intoxication to the jury;

(2) whether Babbs received effective assistance of trial counsel; and

(3) whether the trial court was justified in imposing enhanced consecutive sentences.

The facts relevant to this appeal disclose that after a jury trial in 1981, Babbs was convicted of the offenses of robbery while armed and battery by means of a deadly weapon. The charges arose from Babbs and his accomplice's robbery of a shoe store in Gary, Indiana. During the course of the robbery, Babbs shot a police officer grazing the officer's arm. Our supreme court affirmed the convictions in Babbs v. State (1983), Ind., 451 N.E.2d 655.

In Babbs' statement to the police and his trial testimony, Babbs stated that he had consumed a half a pint of whiskey one-half hour prior to the robbery and was "tipsy" at the time the offenses were committed. Babbs, however, was able to give a detailed account of the robbery to both the police and the jury. After the completion of the evidence, the trial court showed the parties its proposed final instructions. The jury instructions included an instruction on intoxication as a defense. Babbs' trial counsel did not object to the giving of the intoxication instruction and did not offer any instruction of his own.

On July 28, 1986, Babbs filed a petition for post-conviction relief. The State filed an answer to the petition on August 27, 1986. On April 3 and June 2, 1989, Babbs amended the petition. A post-conviction hearing was held on May 2, 1989. Thereafter the court issued Findings of Fact and Conclusions of Law denying Babbs' petition for post-conviction relief. Babbs now appeals.

Under the rules of post-conviction relief, the petitioner must establish the grounds for relief by a preponderance of the evidence. Ind Post-Conviction Rule 1 Sec. 5; St. John v. State (1988), Ind.App., 529 N.E.2d 371, 374, trans. denied. Thus, to succeed on appeal from the denial of his petition, Babbs must show that the evidence is without conflict and leads only to a conclusion opposite that of the trial court. See id. A post-conviction proceeding is not a "super-appeal" which allows the rehashing of prior proceedings regardless of the circumstances surrounding them. Terry v. State (1990), Ind.App., 563 N.E.2d 1301, 1303. Absent a showing by the post-conviction petitioner an issue was unascertainable or unavailable at the time of trial and direct appeal, allegations of error arising therefrom may not be raised in post-conviction proceedings unless they rise to the level of fundamental error. P-C.R. 1(8); Capps v. State (1992), Ind.App., 598 N.E.2d 574, 577, trans. denied.

Fundamental error is error that if not corrected would deny a defendant fundamental due process. Jackson v. State (1991), Ind., 575 N.E.2d 617, 621. An issue not properly raised and preserved will be reviewed only when a blatant violation of basic and elementary principles has occurred, and the harm or prejudice cannot be denied. Ward v. State (1988), Ind., 519 N.E.2d 561, 562.

Babbs contends that fundamental error occurred in the giving of Final Instruction No. 13 concerning intoxication as a defense. Instruction No. 13 reads as follows:

"The defense of intoxication is defined by law as follows:

It is a defense that the person who engaged in the prohibited conduct did so while he was intoxicated, if the intoxication resulted from the introduction of a substance into his body, without his consent or when he did not know that the substance might cause intoxication.

Voluntary intoxication is a defense only to the extent that it negates an element of the offense referred to by the phrase 'with intent to' or 'with an intention to.'

Therefore voluntary intoxication is not a defense to Robbery, Count I, or Attempted Murder, Count II or the included offenses in Count II of Battery or Criminal Recklessness."

Babbs did not object to the instruction at trial nor was this challenge raised in his direct appeal. In fact, at the time Babbs was tried, this instruction was a correct statement of law.

See IND.CODE Sec. 35-41-3-5(b) (1982 Ed.); Poe v. State (1983), Ind., 445 N.E.2d 94, 98 (defense of voluntary intoxication applicable only to offenses with either the phrase "with intent to" or "with an intention to" contained within the statutory definition of the crime charged); Smith v. State (1982), Ind.App., 441 N.E.2d 984, 985-986 (voluntary intoxication not available as defense to robbery, since robbery contains the word "intentional," not the phrase "with intent to" or "with an intention to"). Babbs, nevertheless, asserts that giving the instruction constituted fundamental error due to the Indiana Supreme Court's decision in Terry v. State (1984), Ind., 465 N.E.2d 1085. In Terry, our supreme court held that "[a] defendant in Indiana can offer a defense of voluntary intoxication to any crime." 1 Id. at 1088. The court also declared that IND.CODE Sec. 35-41-3-5(b) (1982 Ed.), which provided that "[v]oluntary intoxication is a defense only to the extent that it negates an element of an offense referred to by the phrase 'with intent to' or 'with an intention to,' " was void and without effect. Id. In 1986, our supreme court further ruled that the holding in Terry was applicable retroactively. See Pavey v. State (1986), Ind., 498 N.E.2d 1195.

The giving of the voluntary intoxication instruction, however, does not necessarily constitute fundamental error. See Hibshman v. State (1985), Ind.App., 472 N.E.2d 1276, 1278-1279; see also Cheney v. State (1985), Ind., 486 N.E.2d 508, 512-513 (insufficient evidence of intoxication to warrant giving instruction, thus, error in the voluntary intoxication instruction given was harmless). Babbs' contention that the giving of the intoxication instruction constitutes fundamental error assumes that he was entitled to such an instruction. The post-conviction court correctly determined that Babbs was not entitled to an intoxication instruction. Although evidence was introduced at trial that Babbs had been drinking whiskey prior to the offenses and that he was "tipsy," there was no evidence presented that the whiskey impaired his ability to think and function. In fact, the evidence showed that Babbs had enough foresight, dexterity and coordination to obtain a rope, tie up the victim, commit the robbery in a secluded area of the store, search for money, warn his accomplice when the police arrived and effectuate an escape. Babbs was also able to give a clear account of the incident in both his voluntary statement to the police and his trial testimony. Under the evidence presented above showing his ability to think and act, Babbs was not entitled to an intoxication instruction; thus, error in the voluntary intoxication instruction given was harmless. See Hubbard v. State (1984), Ind., 469 N.E.2d 740, 742.

Moreover, the other instructions given by the trial court properly informed the jury of the elements of intent which the State was required to prove to convict Babbs. In Hibshman, the trial court instructed the jury that voluntary intoxication was not a defense to the charge of robbery. Despite specifically disapproving the instruction, this Court found that the giving of the instruction did not rise to fundamental error when there was no objection to the instruction, and the jury was instructed on the elements of the offense charged, the definition of knowing and intentionally, and the State's burden of proof to show intent. Hibshman, 472 N.E.2d at 1279. Here, like in Hibshman, the intoxication instruction when considered with the court's other final instructions, might reasonably have been understood by the jury to mean that Babbs could not excuse his conduct simply by evidence that he was to some degree intoxicated when the offenses were committed. See id. Despite Babbs' contentions otherwise, his counsel was free to argue to the jury under the evidence and the instructions given by the trial court that Babbs was not guilty because he was incapable of forming the necessary intent. Id. In Babbs' case the reading of the instruction did not constitute a clearly blatant violation of such fundamental principles as to result in the denial of due process.

Babbs next contends that he was denied effective assistance of trial counsel by his counsel's failure to object to the intoxication instruction, tender an...

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