Clay v. State
| Decision Date | 11 April 2002 |
| Docket Number | No. 79A02-0107-CR-488.,79A02-0107-CR-488. |
| Citation | 766 N.E.2d 33 |
| Parties | Larry E. CLAY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Steven Knecht, Vonderheide & Knecht, P.C., Lafayette, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Larry E. Clay ("Clay") was convicted of two counts of Class C felony battery,1 aggravated battery, as a Class B felony,2 and attempted murder,3 a Class A felony, in Tippecanoe Superior Court. The trial court merged the two C felony battery convictions and the B felony aggravated battery conviction into the attempted murder conviction and sentenced Clay to serve thirty-five years in the Department of Correction, with five years suspended, and five years to be served on supervised probation. He appeals arguing that the trial court committed fundamental error when it instructed the jury that the State had to prove that Clay had the "conscious purpose of killing" the victim before Clay could be found guilty of attempted murder.
We affirm.
Clay was married to Renee Clay ("Renee"), and they lived in an apartment in Lafayette, Indiana with their three children. Renee also had two children from previous relationships who resided with them. On July 12, 2000, Renee returned to their apartment after spending the afternoon at the library. Upon her return, an argument ensued, and Clay proceeded to strike Renee in the head with two cordless telephones. He then grabbed Renee by her hair and dragged her into the kitchen.
While in the kitchen, Clay grabbed a knife and stabbed Renee. He also told her that he was going to kill her, and then he was going to kill himself. Clay hit Renee repeatedly and stabbed her again. After repeating his threat to kill her, Clay began choking Renee and stabbed her for a third time. Renee was eventually able to get away from Clay, and she ran to a downstairs apartment for help after telling her children to follow her. The downstairs neighbor let Renee and her children into the apartment and called 911. The neighbor then watched as Clay went out to his car and drove away. Renee was taken to the hospital and surgery was performed, which revealed three deep abdominal stab wounds.
Clay was charged with attempted murder, a Class A felony, battery with a deadly weapon, a Class C felony, battery resulting in serious bodily injury, a Class C felony, and aggravated battery, a Class B felony. On June 6, 2001, after a two-day jury trial, Clay was found guilty of all four charges. A sentencing hearing was held on July 17, 2001. At the hearing, the trial court merged the two Class C battery convictions and aggravated battery conviction into the attempted murder conviction and ordered Clay to serve thirty-five years in the Department of Correction with five years suspended and five years to be served on supervised probation. Clay appeals. Additional facts will be provided as necessary.
Clay argues that the trial court committed fundamental error when it instructed the jury that the State had to prove that Clay had the "conscious purpose of killing" Renee before Clay could be found guilty of attempted murder. At trial, Clay affirmatively stated that he had no objection to the attempted murder instruction. Appellant's App. p. 208. Failure to object to an instruction at trial results in waiver of the issue on appeal. See Brown v. State, 691 N.E.2d 438, 444 (Ind.1998).
However, to avoid waiver of this issue, Clay argues that the given instruction constitutes fundamental error. Fundamental error is a substantial, blatant violation of due process. Taylor v. State, 717 N.E.2d 90, 93 (Ind.1999). To qualify as fundamental error, an error must be so prejudicial to the rights of the defendant as to make a fair trial impossible. Barany v. State, 658 N.E.2d 60, 64 (Ind.1995).
In Spradlin v. State, 569 N.E.2d 948, 950 (Ind.1991), our supreme court determined that an attempted murder instruction "which purports to set forth the elements which must be proven in order to convict of the crime of attempted murder must inform the jury that the State must prove beyond a reasonable doubt that the defendant, with the intent to kill the victim, engaged in conduct which was a substantial step toward such killing." A jury should not be instructed that a "knowing" mens rea is sufficient to establish guilt of attempted murder, and our supreme court has found fundamental error and reversed attempted murder convictions where the jury was instructed that it could convict of attempted murder based on a "knowing" mens rea. See Metcalfe v. State, 715 N.E.2d 1236, 1237 (Ind.1999); Wilson v. State, 644 N.E.2d 555, 557 (Ind.1994); Beasley v. State, 643 N.E.2d 346, 348 (Ind. 1994); Greer v. State, 643 N.E.2d 324, 326 (Ind.1994); Simmons v. State, 642 N.E.2d 511, 513 (Ind.1994). However, error in an attempted murder instruction does not rise to the level of fundamental error where either 1) the instructions as a whole sufficiently inform the jury of the requirement of intent to kill; and/or 2) the intent of the perpetrator was not a central issue at trial. See Ramsey v. State, 723 N.E.2d 869, 872-73 (Ind.2000); Metcalfe, 715 N.E.2d at 1237; Yerden v. State, 682 N.E.2d 1283, 1286 (Ind.1997); Swallows v. State, 674 N.E.2d 1317, 1318 (Ind.1996).
In this case, the following attempted murder instruction was given to the jury:
3. which was conduct constituting a substantial step toward the commission of the intended crime of killing Renee Clay.
Appellant's App. p. 34 (emphases added). The State argues that "[a]lthough the phrase, `specific intent to kill' is not included [in the instruction], the words, `conscious purpose of killing' details the same intent to kill[,]" and therefore, no fundamental error has occurred. Br. of Appellee at 5.
The instruction at issue reflects Indiana Pattern Jury Instruction 2.01(a), which reads in pertinent part as follows:
1. acting with the conscious purpose of killing [name victim]
2. did [set out conduct charged as substantial step]
3. which was conduct constituting a substantial step toward the commission of the intended crime of killing [name victim].
Ind. Pattern Jury Instruction (Criminal) 2.01(a) (2nd ed. 1991 & Supp.1999). In the comments to the pattern jury instruction, the drafters acknowledged our supreme court's decision in Spradlin and stated:
Recently, this court suggested that parties dealing with this issue refer to this pattern instruction because of the "continuing confusion over how to properly instruct a jury with regard to attempted murder." Booker v. State, 741 N.E.2d 748, 754 n. 7 (Ind.Ct.App.2000). However, our supreme court has suggested that a more straightforward version of this instruction might read, "the defendant, acting with intent to kill a human being, did...." Williams v. State, 735 N.E.2d 785, 789 n. 4 (Ind.2000).
The American Heritage Dictionary defines "conscious" as "intentionally conceived or done; deliberate." American Heritage Dictionary of the English Language (4th ed. 2000). Purpose is defined as "a result or effect that is intended or desired; an intention."...
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