Edwards v. State
| Decision Date | 19 August 2002 |
| Docket Number | No. 49A02-0109-CR-628.,49A02-0109-CR-628. |
| Citation | 773 N.E.2d 360 |
| Parties | Scottie R. EDWARDS, Appellant-Defendant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
John (Jack) F. Crawford, Crawford & Devane, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Robin Hodapp-Gillman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Scottie Edwards appeals his conviction for Attempted Murder.1 He presents three issues for our review, which we restate as:
(1) whether the trial court gave an erroneous jury instruction regarding the requisite mens rea for attempted murder;
(2) whether the trial court erred in failing to instruct the jury on the lesser included offense of Battery;2 and
(3) whether defendant's statement to police should have been admitted.
Finding the first issue to be dispositive, we reverse Edwards's conviction. However, as the remaining two issues are likely to resurface upon retrial, we also address the merits of his other claims.
The facts reveal that Lynn Ford, the victim of the stabbing in this case, began dating Edwards's ex-wife in January of 2001. In early February of 2001, witnesses saw Edwards sitting in a vehicle in the apartment complex where Ford lived, watching Ford's apartment by using binoculars. One witness also saw Edwards remove mail from Ford's mailbox.
On February 11, 2001, Ford returned to his apartment following a date with Edwards's ex-wife. As he walked up the sidewalk, he was confronted by Edwards. Both individuals testified to differing versions of what occurred. Edwards claimed that Ford punched him and that he only stabbed Ford in self-defense. Ford claimed that Edwards lunged at him, knocking him to the ground and then stabbed him several times. Ford was taken to the hospital and treated for stab wounds to the back, arm, side, and back of the head, and for a punctured lung.
Edwards asserts that the trial court erred in instructing the jury, over his objection, regarding the requisite level of mens rea necessary to convict him of attempted murder. The instruction given to the jury stated:
2. did knowingly stab with a deadly weapon, that is, a knife at and against the person of Lynn Ford
3. which was conduct constituting a substantial step toward the commission of the intended crime of killing Lynn Ford.
If the State failed to prove each of these elements beyond a reasonable doubt, you cannot [find] the defendant guilty.
If the State did prove each of these elements beyond a reasonable doubt, you may find the defendant guilty of the crime of Attempt[ed] Murder, a Class A felony." Appendix at 118. (emphasis supplied).
In Spradlin v. State, 569 N.E.2d 948 (Ind.1991), our Supreme Court first announced the now well-known standard that a trial court may not instruct the jury that a "knowing" mens rea is sufficient to establish guilt for attempted murder. See Williams v. State, 737 N.E.2d 734, 736 (Ind.2000)
(). Since that time, numerous opinions of both our Supreme Court and this court have held that it is improper to include the term "knowing" in the mens rea instruction, even when the instruction properly states that the "specific intent to kill" is required. See Ramsey v. State, 723 N.E.2d 869 (Ind. 2000); Clay v. State, 766 N.E.2d 33 (Ind. Ct.App.2002); Booker v. State, 741 N.E.2d 748 (Ind.Ct.App.2000); State v. Foster, 733 N.E.2d 534 (Ind.Ct.App.2000). However, as the State correctly asserts, in all of these cases except Foster, it was held that the error did not result in reversal.
While it is true that Indiana courts seldom hold that fundamental error occurs when the correct mens rea is included in the instruction, in addition to the erroneous "knowing" mens rea, we are not presented with a case in which we must address fundamental error. Rather, Edwards properly preserved this issue for our review by objecting to the erroneous instruction. See Ind. Trial Rule 51; Ind. Criminal Rule 8. In Greer v. State, 643 N.E.2d 324, 326 (Ind.1994), our Supreme Court explicitly noted the distinction between preserved errors and unpreserved errors in the context of instructing the jury regarding the mens rea requirement in attempted murder. Chief Justice Shepard, writing for four justices of the Court stated, "Where the defendant objects at trial, giving the trial court an opportunity to correct the instruction, an erroneous instruction on the elements of attempt yields an automatic reversal." Id. And as this court stated in Booker, "a jury instruction on attempted murder should make no mention of the mens rea of `knowingly.'" 741 N.E.2d at 751.
The instruction as given was clearly improper. As has been mandated by both our Supreme Court and this court, "knowingly" should not be used in an instruction on attempted murder.3 While the correct mens rea was included in the jury instruction, we have no means of determining whether the use of the term "knowingly" may have impacted the jury's determination of Edwards's guilt.4 Accordingly, we reverse Edwards's conviction for attempted murder.
Be that as it may, our reversal of Edwards's conviction does not preclude his retrial. As our Supreme Court held in Robinette v. State, 741 N.E.2d 1162, 1168 (Ind.2001), double jeopardy does not bar retrial when there is sufficient evidence to support a conviction. In this case, there is no dispute between the parties that Edwards stabbed Ford. Rather, the jury's duty was to determine which version of events to believe in determining the innocence or guilt of Edwards.
Even though we have reversed Edwards's conviction, we are compelled to address his remaining issues, as they are likely to resurface at his retrial.
In Wright v. State, 658 N.E.2d 563 (Ind.1995), our Supreme Court clarified the law regarding when a trial court must give an instruction, at a party's request, on a lesser included offense. The Supreme Court established a three-part test, consisting of the following questions: (1) is the lesser offense inherently included in the crime charged, (2) is the lesser offense factually included in the crime charged, and (3) if the lesser offense is inherently or factually included, is there a serious evidentiary dispute about the element or elements distinguishing the greater offense from the lesser and could a jury conclude that the lesser offense was committed but not the greater. Id. at 566-67. If the trial court determines that a jury could conclude that the lesser offense was committed but not the greater with which the individual was charged, then the trial court must give the instruction on the lesser included offense. Id. at 567.
Edwards asserts that the trial court erred in failing to give the jury his tendered instruction on what he claims was the lesser included offense of battery. Edwards also asserts that the trial court erroneously failed to determine whether there was a serious evidentiary dispute, but rather, determined that battery was not a lesser included offense of attempted murder. When the trial court fails to make a finding upon whether a serious evidentiary dispute exists, but rather rejects the tendered instruction on its view of the law, appellate review is de novo. Brown v. State, 703 N.E.2d 1010, 1019 (Ind.1998).
The trial court's statements indicate the trial court believed that battery could not be a lesser included offense of attempted murder. Both the State and Edwards agree that battery is not an inherently included lesser offense of attempted murder. See Johnson v. State, 464 N.E.2d 1309, 1310 (Ind.1984)
(). However, both parties also agree that battery is a factually included lesser offense of attempted murder as charged in this case. We agree.
The charging information stated that Edwards "knowingly stab[bed] with a deadly weapon ... at and against the person of Lynn Ford." Appendix at 24. Battery as a Class C felony, as defined by statute, is the (1) knowing or intentional, (2) touching, (3) of another person, (4) in a rude, insolent, or angry manner, (5) by the use of a deadly weapon. Ind.Code § 35-42-2-1 (Burns Code Ed. Supp.2002). See also Porter v. State, 671 N.E.2d 152, 154 (Ind.Ct.App.1996),
trans. denied. The act as alleged in the charging information establishes all five of the listed elements of battery as a Class C felony. Therefore, battery is a factually included lesser offense of attempted murder under the facts of this case. See Noble v. State, 725 N.E.2d 842 (Ind.2000); Porter, 671 N.E.2d at 154. As such, the trial court erred in failing to make a determination of whether the jury could conclude that Edwards committed the act of battery but did not commit the crime of attempted murder. Therefore, we make the de novo determination of whether the instruction should be given.
When determining whether a serious evidentiary dispute exists which warrants the giving of a lesser included offense instruction, we must focus upon the evidence as presented in the case by the parties. See Wright, 658 N.E.2d at 567
. If the evidence does not support the giving of a...
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