Brown v. State
| Citation | 587 N.E.2d 693 |
| Decision Date | 03 March 1992 |
| Docket Number | No. 49A02-9010-PC-626,49A02-9010-PC-626 |
| Parties | Kelvin T. BROWN, a/k/a Kevin T. Brown, Appellant-Petitioner, v. STATE of Indiana, Appellee. |
| Court | Court of Appeals of Indiana |
Susan K. Carpenter, Public Defender, Victoria Christ, Deputy Public Defender, Indianapolis, for appellant-petitioner.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.
On October 26, 1982, Kelvin Tyrone Brown (Brown) was convicted of attempted murder and robbery. The convictions were affirmed by our Supreme Court on December 14, 1983. 457 N.E.2d 179. Brown filed a petition for post-conviction relief, which was denied on February 22, 1990. In appealing the denial of his petition, Brown addresses eight issues, which we consolidate as follows:
I. whether the jury was inadequately instructed on the element of intent to kill as embraced within the charge of attempted murder;
II. whether judgment and sentence were entered upon a verdict that was not unanimous;
III. whether the trial court erred in denying Brown's request to conduct in-camera questioning of the State's confidential informant whose tip led the police to include Brown's photograph in an array from which he was first identified; and
IV. whether Brown received ineffective assistance of trial counsel.
We vacate the attempted murder conviction and remand; in all other respects we affirm.
Brown challenges the adequacy of the jury instruction on the element of intent to kill with respect to the charge of attempted murder. In order to prevail upon this issue, Brown must show not only that the instruction was erroneous, but also that the error is one that is cognizable in a petition for post-conviction relief. We first examine and characterize the alleged error.
In Zickefoose v. State (1979) 270 Ind. 618, 622, 388 N.E.2d 507, 510 our Supreme Court held that specific intent is a necessary element of the crime of attempted murder. In Smith v. State (1984) Ind., 459 N.E.2d 355, 357-58, the court held that failure to instruct the jury on the element of specific intent in the crime of attempted murder is fundamental error. In Abdul-Wadood v. State (1988) Ind., 521 N.E.2d 1299, 1301, the court explained that it is error for the instructions to leave the impression that the jury may convict if it believes that the defendant intended only to engage in conduct which carries with it the risk of death without actually intending the result of death to the victim. See also Smith, supra at 358.
Several cases have addressed what constitutes a sufficient instruction on the element of intent to kill. In Santana v. State (1986) Ind., 486 N.E.2d 1010, 1011, our Supreme Court held sufficient the instruction that "1. the defendant knowingly or intentionally 2. took a substantial step to accomplish 3. a knowing or intentional killing of another human being" (emphasis supplied). It rejected the notion that the word "knowing" failed to adequately describe the mens rea element of the crime of attempted murder, noting simply that the given instruction focused properly on the proscribed result. Id. See also Worley v. State (1986) Ind., 501 N.E.2d 406, 408.
More recently, in Allen v. State (1991) Ind., 575 N.E.2d 615 and its companion case, H. Jackson v. State (1991) Ind., 575 N.E.2d 617, the court was confronted with instructions which did not state that the defendant must "intend to kill" the victim; rather, the instructions stated that the defendant must "attempt to kill" the victim. The court concluded that these instructions were erroneous and that had defendant objected at trial the convictions would have been reversed. However, the court held that the error was not fundamental, and therefore, was waived by each defendant's failure to object. Allen, supra at 617, H. Jackson, supra at 621. The court reasoned that "by definition, there can be no 'attempt' to perform an act unless there is a simultaneous 'intent' to accomplish such act." H. Jackson, supra, 575 N.E.2d at 621. 1
These cases suggest that fundamental error results 1) when the jury instructions on attempted murder completely fail to refer to the element of intent to kill; and 2) when the instructions leave the impression that intent to engage in the conduct leading to the risk of death alone is sufficient to convict on a charge of attempted murder. On the other hand, instructions which imperfectly instruct on the element of intent to kill but which do not affirmatively mislead the jury are erroneous but not fundamental error, and are therefore subject to waiver. An instruction which refers to the element of intent by stating that the defendant must "attempt to kill", rather than "intend to kill", the victim appears to be an example of an imperfect but not fundamentally erroneous instruction.
It is somewhat difficult to reconcile the newer cases with traditional concepts regarding the duty of the court to give instructions. As noted in Rodriguez v. State (1979) 4th Dist., 179 Ind.App. 464, 385 N.E.2d 1208, 1211, it is the duty of the trial court to correctly and completely present the applicable law to the jury so that the jurors may clearly comprehend the case. And, of course, in the seminal Smith v State, supra, 459 N.E.2d at 357, our Supreme Court observed: "When an instruction purports to set forth all of the elements of a crime necessary to a conviction, the instruction is fatally defective if a necessary element is omitted." Furthermore, it may be noted that mandates continue to exist both in the form of Indiana Supreme Court rule, and in statutes concerning the subject matter. Ind.Rules of Procedure, Criminal Rule 8(F) clearly requires that "the court shall instruct in writing as to the issues for trial ..." (emphasis supplied), and I.C. 35-37-2-2(5) (Burns Code Ed.Supp.1991) specifies that "In charging the jury, the court must state to them all matters of law which are necessary for their information in giving their verdict." 2
In the instant case, the following instructions were given:
A PERSON ATTEMPTS TO COMMIT A CRIME WHEN, ACTING WITH THE CULPABILITY REQUIRED FOR COMMISSION OF THE CRIME, HE ENGAGES IN CONDUCT THAT CONSTITUTES A SUBSTANTIAL STEP TOWARD COMMISSION OF THE CRIME. AN ATTEMPT TO COMMIT A CRIME IS A FELONY OR MISDEMEANOR OF THE SAME CLASS AS THE CRIME ATTEMPTED. HOWEVER, AN ATTEMPT TO COMMIT MURDER IS A CLASS A FELONY.
TO CONVICT THE DEFENDANT THE STATE MUST PROVE EACH OF THE FOLLOWING ELEMENTS: The Defendant 1. Knowingly 2. Engaged in conduct that constituted a substantial step to accomplish 3. The crime of Murder[.]" (Emphasis supplied) Trial Record at 157-58.
* * * * * *
"A PERSON ENGAGES IN CONDUCT 'KNOWINGLY' IF, WHEN HE ENGAGES IN THE CONDUCT, HE IS AWARE OF A HIGH PROBABILITY THAT HE IS DOING SO. YOU ARE INSTRUCTED THAT KNOWLEDGE MAY BE INFERRED FROM THE FACTS OR CIRCUMSTANCES PRESENTED IN EACH CASE." (Emphasis supplied) Trial Record at 174.
These instructions clearly and erroneously provide that the required intent is intent to engage in the conduct rather than intent to accomplish the result. Therefore, the case falls squarely within Smith's fundamental error rule and is not subject to any of the court's recently imposed limitations.
Brown was convicted in 1981, and his conviction was affirmed by our Supreme Court in 1983. Brown v. State (1983) Ind., 457 N.E.2d 179. The Smith case was not decided until 1984. Thus, we must determine whether Brown may enjoy retroactive application of Smith and its progeny upon review of his petition for post-conviction relief.
We note initially that the State has waived its potential objections to considering this issue upon the merits. The State responded to Brown's arguments on the merits without objecting to their applicability in post-conviction proceedings. Burris v. State (1990) Ind., 558 N.E.2d 1067, 1070. See Also Mickens v. State (1991) 1st Dist. Ind.App., 579 N.E.2d 615, 617. Even were it otherwise, and had the State claimed that Brown's argument comes too late, the merits of the instructional error issue would be considered.
The present appeal requests us to apply retroactively the rule established in Smith and Abdul-Wadood. In this regard, we note that the post-conviction petition under review is Brown's first and that the case-law upon which he relies was published after his direct appeal. Accordingly, there is no basis to conclude that the issue has been waived by failure to present it when first available. See Bailey v. State (1985) Ind., 472 N.E.2d 1260, 1263. But see Perkins v. State (1989) Ind., 541 N.E.2d 927, 929, which held that the "unavailability" factor is irrelevant because the error alleged "is fundamental and also falls within that class of claims specifically sanctioned by Post-Conviction Remedy Rule 1, Section 1(a)1." The latter section embraces a claim that the conviction was in violation of the U.S. Constitution or the constitution or laws of Indiana. In this regard, it is interesting to note that the Perkins court cited Bailey for this proposition. 3
In any event, we hold that retroactive application of Smith and Abdul-Wadood is indicated, if not required by Rowley v. State (1985) Ind., 483 N.E.2d 1078, and subsequent cases. In Rowley, our Supreme Court adopted federal guidelines for retroactive application. The seemingly controlling factor which led to retroactive application in Rowley was that the evidence there challenged was a substantial part of the State's case and had likely impact upon the verdict.
In Daniels v. State (1990) Ind., 561 N.E.2d 487, our Supreme Court modified somewhat the retroactivity test and in doing so relied...
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