Blanche v. State

• Decision Date: 29 January 1998
• Docket Number: No. 49S00-9611-CR-700,49S00-9611-CR-700
• Citation: 690 N.E.2d 709
• Parties: Aaron BLANCHE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 709

690 N.E.2d 709

Aaron BLANCHE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 49S00-9611-CR-700.

Supreme Court of Indiana.

Jan. 29, 1998.

Walter E. Bravard, Indianapolis, for Appellant.

Jeffrey A. Modisett, Attorney General, Randi F. Elfenbaum, Deputy Attorney General, Indianapolis, for Appellee.

SELBY, Judge.

Appellant Aaron Blanche was convicted by a jury of attempted murder, resisting law enforcement, and carrying a handgun without a license. The jury also found him to be a habitual offender. The trial court imposed the following sentences to be served consecutively: forty-five years for attempted murder enhanced by thirty years as a habitual offender, eight years for carrying a handgun without a license, and one year for resisting law enforcement.

In this direct appeal, Appellant raises the following issues: 1) Was the evidence insufficient to support the convictions? 2) Was the jury improperly instructed on the specific intent required for conviction of attempted murder? 3) Should the master commissioner have recused himself? and 4) Is the sentence manifestly unreasonable? We answer these questions "no" and affirm.

FACTS

Early in the morning on May 5, 1995, Stacy Reed and his friend stopped at an Indianapolis store to buy a pack of cigarettes. The friend stayed in the car as Reed entered the store. Appellant was already in the store parking lot in another car. Appellant followed Reed into the store. The two men knew each other, and Reed's wife had recently testified against Appellant in another criminal prosecution. In the store that morning, Appellant commented on this testimony in such a way as to frighten Reed. Reed left the store, got into the car and told his friend to drive away. The friend was unable to put the car in gear, however, because in his haste to get in the car, Reed had knocked off the gear shift knob.

Meanwhile, Appellant followed Reed to the car, drew a gun, pointed it directly at Reed's head, and said he was going to kill Reed. Appellant pulled the trigger, but the gun did not fire. After hitting the gun several times against his hand, Appellant then fired it through the car window directly at Reed. The bullet missed Reed, but struck his friend's right thigh. Appellant tried to shoot again, but the gun malfunctioned and no more shots were fired despite Appellant's continued efforts.

When a third car approached, Appellant ran. This third car was driven by an off-duty sheriff's deputy who had been in the parking lot and heard the gun shot. The deputy and other law enforcement officers pursued Appellant by car and on foot. A uniformed Indianapolis patrol officer found Appellant near an apartment complex and ordered him to stop, but Appellant ran away. Ultimately, the officer was able to arrest Appellant.

Police found a gun near the area where the chase had taken place, and Reed identified it as similar to the one Appellant used. Tests showed that the bullet recovered from the scene was fired from this gun. Examination showed that one reason the gun would not fire properly was because it had been loaded with some bullets of the wrong size.

DISCUSSION

I. Sufficiency of the Evidence

Appellant begins this section of his brief with the assertion that the evidence was insufficient to support any of his convictions, but proceeds to support that assertion with argument only on the attempted murder conviction. To the extent that he challenges the sufficiency of the evidence for resisting law enforcement and carrying a handgun without a license, these arguments are waived for failing to make a cogent argument. See Daniels v. State, 683 N.E.2d 557, 559 n. 4 (Ind.1997). Even absent waiver, we find overwhelming evidence to support both of these convictions.

We turn, then, to the evidence of attempted murder. When examining the sufficiency of evidence, we neither reweigh the evidence nor resolve questions of credibility; rather, we consider only the evidence most favorable to the judgment together with all reasonable inferences to be drawn from that evidence. Deckard v. State, 670 N.E.2d 1, 3 (Ind.1996). We affirm if, considering that evidence and those inferences, we find substantial evidence of probative value to support the judgment. Minter v. State, 653 N.E.2d 1382, 1383 (Ind.1995).

To obtain a conviction for attempted murder, the State must prove beyond a reasonable doubt that the defendant, while acting with the specific intent to kill another person, engaged in conduct constituting a substantial step toward the killing. Ind.Code §§ 35-41-5-1(a) & 35-42-1-1 (1993); Greenlee v. State, 655 N.E.2d 488, 492 (Ind.1995).

At Appellant's trial, two eyewitnesses testified that Appellant pointed the gun directly at Reed, that Appellant said he was going to kill Reed, and that Appellant pulled the trigger several times, and discharged the gun in close proximity to Reed. In view of this evidence, Appellant's argument that there is no direct or circumstantial evidence that he intended to kill Reed fails. Not only was there evidence that Appellant expressly stated he would kill Reed, Appellant's actions manifested that intent when he aimed and fired the gun in Reed's direction. See Taylor v. State, 681 N.E.2d 1105, 1111 (Ind.1997) (intent to commit murder may be inferred from the intentional use of a deadly weapon in a manner likely to cause death). Appellant's intention was also demonstrated by his repeated, though mostly unsuccessful, attempts to fire the gun at Reed. See Parks v. State, 513 N.E.2d 170, 171 (Ind.1987). That Appellant's aiming and shooting the gun directly at Reed was a substantial step toward the killing is obvious.

Appellant provides no citation to support his contention that there was no evidence of his intent to kill Reed merely because the bullet struck Reed's friend instead, and the doctrine of "transferred intent" provides to the contrary. Under the doctrine, a defendant's intent to kill one person is transferred when, by mistake or inadvertence, the defendant kills a third person; the defendant may be found guilty of the murder of the person who was killed, even though the defendant intended to kill another. White v. State, 638 N.E.2d 785, 786 (Ind.1994). This doctrine also applies to the intent necessary for attempted murder. Straub v. State, 567 N.E.2d 87, 90-1 (Ind.1991) (establishing that state need not introduce evidence that the defendant intended to kill the actual victim, but only that the defendant intended to kill someone). The conviction for attempted murder was supported by sufficient evidence.

II. Attempted Murder Jury Instruction

Appellant contends that his conviction for the attempted murder of Stacy Reed must be reversed because the trial court gave an erroneous instruction on attempted murder. ¹ Appellant argues that the instruction was erroneous because it did not adequately instruct the jury that it must find that Appellant intended to kill Reed as explained in Spradlin v. State, 569 N.E.2d 948, 950 (Ind.1991).

It is now well established that an instruction setting forth the elements of attempted murder must inform the jury that the State is required to prove that the defendant, with intent to kill the victim, engaged in conduct that was a substantial step toward such killing. Id. By the Spradlin standard, the instruction given here fails to clearly inform the jury that Appellant must have intended to kill Reed when he discharged the gun.

Normally, when the defendant timely objects to an erroneous instruction on the elements of attempted murder and the trial court fails to correct the instruction, the conviction will be reversed. Yerden v. State, 682 N.E.2d 1283, 1286 (Ind.1997). Here, however, because Appellant failed to object at trial, the trial court was deprived of an opportunity to promptly correct the error, and Appellant has failed to preserve this issue for our review. Ind.Criminal Rule 8(H); Hodges v. State, 524 N.E.2d 774, 787 (Ind.1988); see also State v. Daniels, 680 N.E.2d 829, 835 (Ind.1997).

Appellant seeks to avoid this procedural forfeiture on the ground that the defective instruction constitutes fundamental error which deprived him of his right to a fair trial, and, on occasion, we have concluded that an erroneous attempted murder instruction resulted in fundamental error. See, e.g., Clark v. State, 668 N.E.2d 1206, 1210 (Ind.1996), cert. denied --- U.S. ----, 117 S.Ct. 1438, 137 L.Ed.2d 545 (1997).

However, not every defective attempted murder instruction results in fundamental error. Where, for instance, the primary issue at trial was not the defendant's intent, but the defendant's identity, we have found no fundamental error. Goudy v. State, 689 N.E.2d 686, 693-694 (Ind.1997); Jackson v. State, 575 N.E.2d 617, 621 (Ind.1991); see also Swallows v. State, 674 N.E.2d 1317, 1318 (Ind.1997) (on post-conviction).

Such is the case here. Appellant's defense was one of innocence and mistaken identity; indeed, Appellant has maintained throughout that he was not the person who shot a gun at Reed. Appellant's cross examination of the witnesses at trial clearly demonstrates that this was the defense strategy, and this defense was expressly stated at the sentencing hearing. Therefore, no fundamental error occurred. See Jackson, 575 N.E.2d at 621.

III. Recusal of Trial Judge

Appellant claims the trial court committed reversible error when the master commissioner who presided over trial denied Appellant's last minute motion for change of judge. Ind.Criminal Rule 12(B). Appellant first moved for a change of judge on the morning of the sentencing hearing while the parties and the trial court reviewed the pre-sentence report. Appellant's counsel noted All defendants in a criminal prosecution have a due process right to trial before an impartial tribunal. See Harrington v. State, 584 N.E.2d 558, 561 (Ind.1992). Under our current rule, a request for change of judge due to bias or prejudice...