Clark v. State
| Decision Date | 04 August 1992 |
| Docket Number | No. 49A02-9111-CR-521,49A02-9111-CR-521 |
| Citation | 597 N.E.2d 4 |
| Parties | Edward F. CLARK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Richard D. Gilroy, Indianapolis, for appellant-defendant.
Linley E. Pearson, Atty. Gen. of Indiana and Geoff Davis, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.
Appellant Edward F. Clark appeals his convictions for Attempted Murder 1, a Class A felony, Criminal Recklessness 2, a Class D felony, and the habitual offender determination 3 which led to a thirty-year sentence enhancement.
The facts most favorable to the judgment reveal that at approximately 11:30 p.m. on the evening of February 23, 1989, Portia Bledsoe (Portia), her brother Joseph Bledsoe (Joseph), and Clark went to the apartment of Dorisene Tate (Dorisene). The three intended to pick up Portia's 2-year-old daughter Brykeesya from Dorisene's son Brian Tate (Brian), who was Portia's boyfriend. Brian and Brykeesya were not there at the time, so Dorisene invited Portia, Joseph, and Clark inside the apartment to wait for them. While they were waiting, Clark accused Brian of kidnapping Brykeesya, and an argument ensued. The loud voices awakened John Jackson (Jackson), Dorisene's son-in-law, who was spending the night at the apartment. Jackson asked Clark to leave. As Portia, Joseph, and Clark were walking out the door, Clark announced that they would be back.
Shortly after midnight, Brian arrived at the apartment with Brykeesya and put her to bed in an upstairs room. A few hours later, Dorisene heard a loud banging on the front door. When she opened the door, she found Portia, Joseph, Portia's sister Lisa Bledsoe (Lisa), Portia's friend Theresa Hartley (Hartley), and Clark standing on the porch between the storm door and the front door. Dorisene told Portia that she alone could come inside, but when Portia entered the apartment, the others began shoving against the door. Again awakened by the noise, Jackson went downstairs and attempted to shut the door, but Clark pulled a gun from his pocket and jammed it between the door and the frame. Jackson pushed Clark's arm toward the ceiling, and Clark fired a shot. Before Jackson could shut the door, Clark fired another shot into the room. Momentarily thereafter, he fired a shot outside the house which went through the window of Brykeesya's bedroom. Clark left the premises at that point and was arrested by the police later in the morning.
Upon appeal, Clark presents eight issues which we restate as follows:
(1) Whether the trial court adequately instructed the jury with respect to the intent element of attempted murder;
(2) whether the trial court gave the jury an impermissible "Allen" charge in responding to jury questions during deliberations;
(3) whether the court's failure to follow the prescribed procedure for responding to jury questions constituted reversible error;
(4) whether certain statements by the prosecutor during final argument constituted prosecutorial misconduct;
(5) whether Clark received ineffective assistance of trial counsel; and
(6) whether the evidence was sufficient to sustain the conviction for criminal recklessness and the habitual offender determination.
We reverse and remand.
Clark first challenges the adequacy of the jury instructions with respect to the intent element of the charge of attempted murder. Clark admits that he failed to object to the trial court's final instructions and failed to tender any instructions of his own to correct the alleged error. However, he asserts that this issue has not been waived because the trial court's error is fundamental.
Specific intent is a necessary element of the crime of attempted murder. Zickefoose v. State (1979) 270 Ind. 618, 622, 388 N.E.2d 507, 510. The specific intent necessary to convict upon a charge of attempted murder is intent to achieve the result of death; not merely intent to engage in conduct carrying with it the risk of death. Abdul-Wadood v. State (1988) Ind., 521 N.E.2d 1299, 1301; Smith v. State (1984) Ind., 459 N.E.2d 355, 357-58. An attempted murder instruction is infected with fundamental error when it leaves the jury with 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. Brown v. State (1992) 2d Dist.Ind.App., 587 N.E.2d 693.
In relevant part, the jury here received the following instructions:
" 'A person who knowingly or intentionally kills another human being ... commits murder, a felony.' ... '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.'
* * * * * *
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.
A person engages in conduct 'intentionally' if, when he engages in the conduct, it is his conscious objective to do so."
(Emphasis supplied.) Record at 104-05, 107. 4
These instructions are substantially identical to the instructions found to be fundamental error in Brown, supra. In substance, both sets of instructions recite the statutory definitions of Murder 5, Attempt 6, and Knowing 7. As in Brown, the instructions here constitute fundamental error because they clearly and erroneously provide that the required intent is intent to engage in the conduct rather than intent to accomplish the result of killing another human being.
Because the instructions upon the charge of attempted murder are infected with fundamental error, we must reverse the conviction upon the attempted murder charge and remand the cause for further proceedings not inconsistent with this opinion. Accordingly, we need consider the remaining issues only to the extent that they are relevant to the criminal recklessness conviction and the thirty-year enhancement of the sentence imposed for that offense. 8
Clark asserts that the trial court gave the jury an impermissible "Allen charge" in responding to a question sent to the trial court during its deliberations. The record reveals that the jury sent to the trial court the question "[h]ow long are we given to deliberate?", to which the court answered Supplemental Record at S-6F. Approximately three and one half hours later, the jury returned its guilty verdict.
An Allen charge is a supplemental instruction suggesting to an apparently deadlocked jury that it should reach a verdict, or a similar admonishment which might encourage the jury to unduly compromise the verdict. Fultz v. State (1985) 4th Dist. Ind.App., 473 N.E.2d 624, trans. denied. See Lewis v. State (1981) Ind., 424 N.E.2d 107, 109. We carefully scrutinize Allen charges in order to assure that a deadlocked jury is not coerced by the trial court into reaching a verdict which is not truly unanimous. See Lewis, supra, at 109; Fultz, supra, 473 N.E.2d at 629. This danger is not present, however, when the trial court has no reason to believe that the jury is deadlocked. Therefore, we conclude there can be no Allen violation in the absence of some evidence suggesting that the jury was deadlocked when an alleged Allen charge was read.
The record does not support Clark's theory that the jury was deadlocked. The jury's question "[h]ow long are we given to deliberate?", standing alone, expresses only the jury's inability to agree upon a verdict at the time the question was asked, but not the jury's expectancy that it would be unable to reach a verdict. See Maxwell v. State (1970) 254 Ind. 490, 260 N.E.2d 787, 791, cert. denied, 402 U.S. 930, 91 S.Ct. 1525, 28 L.Ed.2d 863. 9
Clark urges us to conclude, however, that the question demonstrates the jury's deadlock when considered in light of the three requests for clarification of the attempted murder instruction which preceded it. The questions and answers were as follows:
Supplemental Record at S-6A.
Supplemental Record at S-6C.
We are not persuaded that the questions indicated an inability to reach a verdict. The fact that the jury showed some confusion regarding the attempted murder instruction suggests that it needed time to work its way through the elements of the charge, and that at the time of the last question, it had not yet reached a verdict. In addition, the jury asked the last question at 5:05 p.m., which suggests that it wanted to know whether it would be allowed to leave and reconvene or whether it would be required to continue its deliberations until it reached a final verdict. 10 At the least, the juror's questions demonstrate confusion with respect only to the attempted murder charge, which is reversed. There is no evidence that the jury had any reservations regarding the criminal recklessness conviction.
Clark challenges the procedure employed by the trial court in responding to the jury's questions. He claims that the trial court did not call counsel into open court nor was he ever notified of the jury's written questions and the trial court's responses.
The proper procedure is for the court to call the jury into open court in the presence of all of the parties and their counsel, if they desire...
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