Buie v. State

Decision Date11 April 1994
Docket NumberNo. 68S00-9202-CR-00109,68S00-9202-CR-00109
Citation633 N.E.2d 250
PartiesJason R. BUIE, Appellant, v. STATE of Indiana, Appellee
CourtIndiana Supreme Court

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Pamela Carter, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Justice.

On August 28, 1991 a jury convicted Jason Buie of Murder, 1 Conspiracy to Commit Murder, 2 and Arson 3 in the Randolph Circuit Court. 4 On September 25, 1991, Judge Stohler sentenced Mr. Buie to sixty years on the murder count, twenty years on the conspiracy count, and twenty years on the arson count. He also ordered that the sentences be served consecutively for a total term of imprisonment of one hundred years. Mr. Buie now appeals all three convictions.

The Supreme Court of Indiana has exclusive jurisdiction of this direct appeal because the longest single sentence imposed on any count was greater than fifty years. 5

Facts

The facts in the record most favorable to sustaining the convictions show that during 1989 Buie and John Sheets had been committing burglaries and fencing the proceeds with Scott McCord. McCord at some point told Buie that he wanted a woman killed and that he would pay $4000 to have it done. On the evening of January 25, 1990, Buie and Sheets visited McCord. McCord gave Buie a twelve-gauge shot gun, after which Buie and Sheets together drove to Etta Alexander's trailer. Buie entered the trailer and shot Etta Alexander twice. Buie and Sheets returned to McCord's house, where McCord took the gun and paid Buie part of the money owed for the killing. After they had left McCord's house, Buie gave Sheets some of the money.

It was Buie's defense at trial that 1) McCord had approached him in early January of 1990 with the murder proposal but that he had refused; 2) it was Sheets whom McCord had hired to kill Etta Alexander; and 3) Buie thought that Sheets and he were going to burglarize the trailer and knew nothing about the planned murder until Sheets came into the trailer with a gun and shot Alexander. We shall recite additional facts as necessary.

On appeal, Buie raises issues concerning instructions given and refused, the admission of testimony that he argues is hearsay, and the admission of a statement he gave police after being arrested. He also raises a double jeopardy claim.

I.

This case presents several issues involving the principle that we read jury instructions not in isolation, but as a whole and in reference to one another. Daniel v. State (1991), Ind., 582 N.E.2d 364, 370, reh'g denied, cert. denied, 506 U.S. 838, 113 S.Ct. 116, 121 L.Ed.2d 72 (1992); Bieghler v. State (1985), Ind., 481 N.E.2d 78, 96; Richey v. State (1981), Ind., 426 N.E.2d 389.

A. Murder Instructions

In this case, the jury was given two distinct instructions on the elements of Murder (Instructions Nos. 6 and 11). Whether Buie's conviction for Murder need be set aside depends on the way in which these instructions are read.

Those instructions read as follows:

Instruction No. 6

To convict the defendant of the crime of Murder as charged in Count I of the information in this case, the State must prove each of the following elements:

That the defendant

1. knowingly or intentionally

2. either

(a) himself killed, or

(b) aided, induced, or caused another person to kill

3. Etta Alexander.

(R. 964.)

Instruction No. 11

If you find that the State has proven beyond a reasonable doubt that the defendant:

1. agreed with Scott McCord and John C. Sheets to commit the crime of Murder

2. with the intent to commit the crime of Murder

3. and that either John C. Sheets or the defendant, Jason R. Buie, killed Etta Alexander in furtherance of such agreement,

you should return a verdict finding the defendant guilty of Murder, a felony, as charged in Count I of the information.

(R. 969.)

We conclude that Instruction No. 11 improperly confuses the elements of Murder with the elements of Conspiracy to Commit Murder. While correctly stating the elements of Conspiracy to Commit Murder, 6 Instruction No. 11 did not correctly state the elements of Murder. 7

In particular, Instruction No. 11 permitted the jury to find Buie guilty of Murder without finding the requisite mens rea, i.e., without finding beyond a reasonable doubt that Buie knowingly or intentionally either killed the victim or aided Sheets in the killing. 8 A mens rea of either knowledge or intent is an essential element constituting the crime of Murder in Indiana. Vance v. State, 620 N.E.2d 687, 690; Abdul-Wadood v. State (1988), Ind., 521 N.E.2d 1299, 1300. "[T]he Due Process Clause [of the Fourteenth Amendment] protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). See also Bellmore v. State (1992), Ind., 602 N.E.2d 111, 126; Smith v. State (1984), Ind., 459 N.E.2d 355, 357. When an instruction relieves the government of its burden of proof with respect to an element of the crime charged, 9 that instruction is constitutionally defective. Sandstrom v. Montana, 442 U.S 510, 521, 99 S.Ct. 2450, 2458, 61 L.Ed.2d 39 (1979).

Instruction No. 6, however, correctly states the law under our murder statute, 10 including the mens rea element. Can, as the State argues, Instruction No. 6 be read in conjunction with Instruction No. 11 so as to provide the missing mens rea element in Instruction No. 11? We conclude that it cannot.

Because each of the two murder instructions stood alone as a separate instruction to the jury on the elements of murder, there were two independent ways for the jury to find Buie guilty of Murder. From the language of the two murder instructions, a juror might reasonably have understood a guilty verdict to be justified by satisfaction of either all the elements in Instruction No. 6 or all the elements in Instruction No. 11., but not necessarily all the elements contained in both Instructions No. 6 and No. 11. Because Instruction No. 11 lacked the required mens rea element, and because a reasonable juror could have found Buie guilty on the basis of Instruction No. 11 alone, a conviction based on Instruction No. 11 alone would have violated Buie's right not to be deprived of liberty without due process of law. U.S.CONST. amend. XIV, § 1. " '[W]hen a case is submitted to the jury on alternative theories[,] the unconstitutionality of any of the theories requires that the conviction be set aside.' " Sandstrom, 442 U.S. at 526, 99 S.Ct. at 2460 (quoting Leary v. United States, 395 U.S. 6, 31-32, 89 S.Ct. 1532, 1545-46, 23 L.Ed.2d 57 (1969)) (citations omitted). The theory that Buie was guilty of Murder because he was guilty of conspiracy was unconstitutional. We therefore reverse Buie's conviction for Murder.

B. Other Instructions

At trial, Buie objected to Instruction No. 16, which read:

Criminal intent, being a mental state of the actor, is not susceptible to direct proof. In deciding the issue of criminal intent, the jury must resort to reasonable inferences from the evidence. In deciding the question of criminal intent, the jury should consider all of the evidence given in the case.

(R. 974.) Buie objected that this instruction was mandatory in nature. (R. 2219.) Buie urges the same argument on appeal: that the instruction was mandatory and invaded the province of the jury by unduly emphasizing certain evidence. As authority for this argument, Buie relies on Tawney v. State (1982), Ind., 439 N.E.2d 582. In Tawney, we held that it was proper for the trial court to have refused an instruction proposed by the defendant. Id. at 587. That instruction would have directed the jury to consider specific factors such as age, training, sex, and education in determining whether a pretrial statement had been made knowingly. Id. There we said, "Instructions that single out particular evidence and exhorts [sic] the jury to receive it with caution or indicate an opinion of credibility or weight invade the province of the jury and should be refused." Id.

Unlike the disapproved instruction in Tawney, Instruction No. 16 did not single out any specific kind or piece of evidence. It did quite the opposite by specifically telling the jury to consider all the evidence. We cannot agree either that the instruction was or would have been understood as mandatory. The use of "must" in the instruction merely recognized certain epistemological limitations inherent in every attempt to divine human intent after the fact and from without. The giving of Instruction No. 16 was not error.

Buie also argues on appeal that it was reversible error for the trial court to refuse his tendered Instruction No. 3. That proposed instruction read:

The informations name several Defendants. In reaching a verdict, however, you must bear in mind that guilt is individual. Your verdict as to the Defendant, Jason R. Buie, must be determined separately with respect to him, solely on the evidence, or lack of evidence, presented against him without regard to the guilt or innocence of anyone else.

(R. 954.). Although the giving of jury instructions is largely within the discretion of the trial court, Nichols v. State (1992), Ind., 591 N.E.2d 134, 139, when we review a trial court's refusal of tendered final instruction, we employ a three part analysis. We determine 1) whether the instruction correctly stated the law; 2) whether there is evidence in the record that would have made the tendered instruction relevant to the issues tried; and 3) whether other instructions actually given cover the subject matter of the tendered instruction. Williams v. State (1985), Ind., 481 N.E.2d 1319, 1322.

We agree with Buie that his tendered Instruction No. 3 is at least arguably a correct statement of the law. See INDIANA PATTERN JURY INSTRUCTIONS (CRIMINAL) # 1.23 ...

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