Guyton v. State

• Decision Date: 25 July 2002
• Docket Number: No. 49S00-0002-CR-105.,49S00-0002-CR-105.
• Citation: 771 N.E.2d 1141
• Parties: Dominique GUYTON, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
• Court: Indiana Supreme Court

771 N.E.2d 1141

Dominique GUYTON, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).

No. 49S00-0002-CR-105.

Supreme Court of Indiana.

July 25, 2002.

Teresa D. Harper, Bloomington, Indiana, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

SHEPARD, Chief Justice.

Dominique Guyton was found guilty of numerous offenses arising out of a shooting incident on the streets of Indianapolis. His appeal provides an occasion to recapitulate our recent decisions on Double Jeopardy.

Facts and Procedural Background

On April 23, 1998, Indianapolis police officers found the body of Pax Larrimore lying in the street in the 4300 block of Norwaldo Avenue. He had died from two gunshot wounds to the chest and abdomen. As the investigation unfolded, Guyton became a suspect. Guyton and Larrimore had had several encounters in which Larrimore had shot at Guyton from a car. On April 28, police interviewed Guyton. He admitted to running into Larrimore on the day of the murder and claimed that Larrimore had approached his car on foot and put his hand in his pocket. Guyton, thinking Larrimore was about to pull out a gun, drove away. Guyton denied shooting Larrimore.

Guyton was charged with murder, two counts of attempted murder, and carrying a handgun without a license. At trial, Guyton had a different account. He claimed that on the day of the shooting he went to visit friends at 43rd and Norwaldo. After talking with his friends for awhile, he left when a group of men, including Larrimore, Anthony Butts, Tonio Walker, and Damon Jackson, approached. Guyton next visited Sherry Akers and made plans for later that evening. According to Guyton, after he left Akers, he was driving down Norwaldo when he saw Larrimore flagging him down. When Guyton saw Larrimore's hand on the grip of a gun, he panicked, grabbed his own gun, and fired three or four times.

Butts testified to a third version. According to Butts, Guyton drove up to the group, held his hand out of his car, and fired four shots, one at each of Larrimore, Butts, Walker, and Jackson. He then fired a final shot at Larrimore before driving off. Butts identified Guyton as the shooter from a photo array. According to Jackson, Larrimore did not have a gun that day.

The jury found Guyton guilty of murdering Larrimore, attempting to murder Jackson, and carrying a handgun without a license. He was sentenced to fifty-five years for murder, thirty years for attempted murder, and one year for the handgun violation, all to be served concurrently.

I. Double Jeopardy Recited

Guyton claims that his convictions for murder and carrying a handgun without a license violate the Double Jeopardy provisions of the Indiana Constitution, citing Richardson v. State, 717 N.E.2d 32 (Ind.1999).

We held in Richardson that the Double Jeopardy clause is violated if there is "a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense." Id. at 53. As we recently explained, "[U]nder the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense." Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002). In addition to the instances covered by Richardson, "we have long adhered to a series of rules of statutory construction and common law that are often described as double jeopardy, but are not governed by the constitutional test set forth in Richardson." Pierce v. State, 761 N.E.2d 826, 830 (Ind.2002) (citing Richardson, 717 N.E.2d at 55 (Sullivan, J., concurring), 57 (Boehm, J., concurring in result)).

Justice Rucker recently pointed out that one of these rules prevents enhancing one conviction for robbery by using a death for which the defendant is also being punished. Gross v. State, 769 N.E.2d 1136 (Ind.2002). This comes under the category described by Justice Sullivan as "[c]onviction and punishment for an enhancement of a crime where the enhancement is imposed for the very same behavior or harm as another crime for which the defendant has been convicted and punished." Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring).

The list of five categories from Justice Sullivan's concurrence in Richardson includes one category presumably covered by constitutional Double Jeopardy (an analysis we recently reaffirmed in Spivey, 761 N.E.2d at 833), described by Justice Sullivan then as "[c]onviction and punishment for a crime which is a lesser-included offense of another crime for which the defendant has been convicted and punished." Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring).

That list also includes:

—"Conviction and punishment for a crime which consists of the very same act as another crime for which the defendant has been convicted and punished." Id. (giving the example of a battery conviction vacated because the information showed that the identical touching was the basis of a second battery conviction).

—"Conviction and punishment for a crime which consists of the very same act as an element of another crime for which the defendant has been convicted and punished." Id. (giving the example of a confinement conviction vacated because it was coextensive with the behavior necessary to establish an element of a robbery conviction).

—"Conviction and punishment for the crime of conspiracy where the overt act that constitutes an element of the conspiracy charge is the very same act as another crime for which the defendant has been convicted and punished." Id. at 56-57 (giving the example of a conspiracy in which the overt act is no more than the crime itself).

As for Guyton's claim, it does not succeed under any of the above. As we said recently, "Carrying the gun along the street was one crime and using it was another." Mickens v. State, 742 N.E.2d 927, 931 (Ind.2001).

II. Attempted Murder Instruction

Guyton challenges the trial court's instruction on attempted murder, which said:

A person who knowingly or intentionally kills another human being commits murder.

A person attempts to commit a murder when, acting with the culpability required for commission of the crime of murder, he engages in conduct that constitutes a substantial step toward commission of the murder. The crime of Attempted Murder is a Class A felony.

To convict the Defendant of Attempted Murder, the State must have proved each of the following elements:

The Defendant Dominique Guyton:

1. Acting with the specific intent to commit murder that is by knowingly or intentionally, shooting a deadly weapon, that is a handgun } [sic] at and against the person of Damon Jackson and/or Anthony Butts.

2. Which was conduct constituting a substantial step toward the commission of intended crime of Attempt Murder.

If the State failed to prove each of these elements beyond a reasonable doubt, you should find the defendant not guilty.

If the State did prove each of these elements beyond a reasonable doubt, you should find the defendant guilty of the crime of Attempted Murder, a Class A felony.

Guyton objected to the instruction on the ground that this instruction failed to meet the standard set forth in Spradlin v. State, 569 N.E.2d 948 (Ind.1991). In Spradlin, this Court held that attempted murder requires a specific intent to kill, and is not supported by "knowing" actions. Id. at 950. Spradlin held that the failure to instruct correctly on this point is reversible error.

In reviewing a trial court's decision to give or refuse tendered jury instructions, this Court considers: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions which are given. Cutter v. State, 725 N.E.2d 401, 408 (Ind.2000). "An instruction which correctly sets forth the elements of attempted murder requires an explanation that the act must have been done with the specific intent to kill." Smith v. State, 459 N.E.2d 355, 358 (Ind.1984). The instruction in this case does not meet this requirement, and is therefore an incorrect statement of the law. It begins by telling the jury that it can convict if the defendant acted with the culpability required for murder, which just one paragraph before is described as "knowingly or intentionally." "Knowingly" is described in another instruction as engaging in conduct when a person "is aware of a high probability that he is doing so." The instruction did refer to the "specific intent to commit murder," but the "specific intent to commit murder" was described as "knowingly or intentionally, shooting a deadly weapon." Guyton is correct that this instruction could be understood by a jury to permit conviction on a knowing killing. It was at best confusing because of its circular reference to "specific intent to commit murder," which leads to the knowing or intentional definition for murder, as well as the other references to "knowingly."

Guyton objected to the instruction on the ground that it did not refer to a specific intent to kill. This was a valid objection. Because Guyton objected to the instruction and it does not correctly state the law, it was error and his conviction for attempted murder is reversed. See Allen v. State, 575 N.E.2d 615, 617 (Ind.1991)

("Had appellant objected to this instruction at trial, giving it would have been error because it does not inform the jury that the State must prove the defendant acted with intent to kill.").

III. Juror Misconduct

Guyton finally claims that the trial court abused its discretion in refusing to conduct a hearing on his...