Head v. State

CourtSupreme Court of Indiana
Citation443 N.E.2d 44
Docket NumberNo. 780S209,780S209
PartiesCurtis Lee HEAD, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
Decision Date14 December 1982

Page 44

443 N.E.2d 44
Curtis Lee HEAD, Appellant (Defendant below),
STATE of Indiana, Appellee (Plaintiff below).
No. 780S209.
Supreme Court of Indiana.
Dec. 14, 1982.

Page 47

Steven C. Smith, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Curtis Lee Head, was convicted by a jury of attempted felony-murder, Ind.Code Sec. 35-42-1-1 (Burns 1979 Repl.) and Ind.Code Sec. 35-41-5-1 (Burns 1979 Repl.), as well as robbery, a class A felony. Ind.Code Sec. 35-42-5-1 (Burns 1979 Repl.). He was sentenced to consecutive terms of fifty and thirty years for his respective crimes. In his direct appeal, he presents the following issues for our review:

1. Whether the trial court erred in overruling defendant's motion to dismiss the attempted felony-murder charge and in instructing the jury on that count;

2. Whether the trial court erred in permitting the state to charge defendant with both attempted felony-murder and robbery, the underlying felony;

3. Whether the trial court erred in denying defendant's motion to suppress the victim's pretrial and in-court identifications;

4. Whether the trial court erred in permitting the state to introduce "mug shots" from a photographic array into evidence;

5. Whether the trial court erred in permitting the state to introduce impeachment evidence of defendant's alibi witnesses;

6. Whether references by the state's witnesses and prosecutor to particular evidence was improper and denied defendant a fair trial; and

7. Whether the trial court erred in sentencing defendant.

The record reveals that at approximately 12:45 a.m. on August 22, 1979, Ronald Koger suffered a gunshot wound to the head while on duty as cashier at the Village Pantry food store at 25th Street and Raible Avenue in Anderson, Indiana. According to Koger, his assailant entered the store, requested two cartons of cigarettes, and revealed a handgun he had concealed on his person. Koger testified the man ordered him to kneel on the floor, struck him, fired the nonfatal gunshot, and fled. A subsequent examination of the premises by the store supervisor, Ronald Ferguson, revealed that two cartons of cigarettes and $45.46 in U.S. currency were missing. Based on Koger's description of the perpetrator, a police investigation ensued and culminated in defendant's arrest and convictions for the crimes at issue.


In count one of the information, the state charged that defendant "did knowingly and intentionally attempt to kill another human being" while "in the commission of a robbery." Defendant's alleged conduct, the state charged in the title of count one, violated the provisions of Ind.Code Sec. 35-42-1-1(2), supra, and Ind.Code Sec. 35-41-5-1, supra.

Detailed in the latter statutory section is the definition of "attempt":

"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. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted. However, an attempt to commit murder is a Class A felony." Ind.Code Sec. 35-41-5-1, supra.

Embodied within subsection 2 of Ind.Code Sec. 35-42-1-1, supra, is the felony-murder rule:

"A person who:

* * *

* * *

"(2) kills another human being while committing or attempting to commit arson,

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burglary, child molesting, criminal deviate conduct, kidnapping, rape, or robbery:

"commits murder, a felony."

Defendant maintains that "attempted felony-murder" is not defined as a crime in Indiana. He argues the trial court erred in failing to grant his motion to dismiss count one of the information; concomitantly, he asserts the court erred when, over his objection, it instructed the jury on the crime of attempted felony-murder.

The question presented--whether the crime of "attempted felony-murder" exists--is one of first impression. Its resolution requires resort to the principles underlying the felony-murder doctrine.

Our statutory definition of the felony-murder rule embodies the general principles which prompted the common law inception of the doctrine; recognition of the doctrine was predicated on the proposition that inherent to the commission of felonies which were dangerous to life or malum in se was the likelihood that death would occur. Consequently, when a death did occur in the course of the commission of an inherently dangerous felony, the common law deemed that the malice or intent necessary to support a conviction for murder could be inferred from the commission or attempted commission of the dangerous felony. Ex parte Moore, (1868) 30 Ind. 197; see also, People v. Aaron, (1980) 409 Mich. 672, 299 N.W.2d 304, 13 A.L.R. 4th 1180; Perkins, Criminal Law Sec. 1, p. 37 (2nd Ed. 1969); LaFave & Scott, Criminal Law Sec. 71, p. 545 (1972).

From its inception in sixteenth-century English common law, the doctrine has been the subject of confusion and criticism amongst both courts and commentators, as fully discussed by the Supreme Court of Michigan in People v. Aaron, supra. Universally, the source of that consternation has rested in the doctrine's fictionally-based supposition that the perpetrator of an inherently dangerous felony, as a matter of law, necessarily acts with the culpability from which the mens rea requisite to a murder conviction can be inferred. Debate has centered on the validity of that presumption in light of the basic premise of criminal law that liability for an act must be commensurate with the culpability or mental state of the perpetrator. Perkins, supra; LaFave & Scott, supra.

For this reason both Lord Coke and Blackstone suffered a certain ignominy for their early statements of the felony-murder doctrine. Each had defined the doctrine as applicable to a killing of another in the course of any felonious act: "And if one intends to do another a felony, and undesignedly kills a man, this is also murder." Perkins, supra at 39, citing 4 Bl.Comm. 200-201. The courts of nineteenth-century England concluded the doctrine's application should be narrowed for the reason that its presumption was untenable as applied to all felonious acts. In its ultimate English common law form, the doctrine was deemed to embrace only those deaths which resulted from any felony committed in a dangerous manner. Perkins, supra at 41; People v. Aaron, citing Regina v. Serne, (1887) 16 Cox.Crim.Cas. 311. Continued criticism of the doctrine, however, culminated in its abrogation by Parliament in 1957. Homicide Act, 1957, 5 & 6 Eliz. 2, c. 11 Sec. 1. In England, malice aforethought is now required to sustain any conviction for murder, regardless of whether the killing occurred in the course of an inherently dangerous felony. Perkins, supra; People v. Aaron, supra; see generally, Preverzer, The English Homicide Act: A New Attempt to Revise the Law of Murder, 57 Colum.L.Rev. 624 (1957).

The historical development of the felony-murder rule in this country has followed a similar course. Troubled by the doctrine's legal presumption of the mens rea necessary to support a murder conviction, this nation's jurisdictions also have limited the applicability of the doctrine. Typical of the concerns which have prompted the legislatures and courts of our states to narrow the doctrine's scope is the commentary to Hawaii's murder statute, wherein the felony-murder rule was abolished:

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" 'Even in its limited formulation the felony-murder rule is still objectionable. It is not sound principle to convert an accidental, negligent, or reckless homicide into a murder simply because, without more, the killing was in furtherance of a criminal objective of some defined class. Engaging in certain penally-prohibited behavior may, of course, evidence a recklessness sufficient to establish manslaughter, or a practical certainty or intent, with respect to causing death, sufficient to establish murder, but such a finding is an independent determination which must rest on the facts of each case.

* * *

* * *

" 'In recognition of the trend toward, and the substantial body of criticism supporting, the abolition of the felony-murder rule, and because of the extremely questionable results which the rule has worked in other jurisdictions, the Code has eliminated from our law the felony-murder rule.' " People v. Aaron, supra, 409 Mich. at 703, 299 N.W.2d at 314, 13 A.L.R. 4th at 1196, quoting 7A Hawaii Rev.Stat. Sec. 707-701, Commentary, p. 347 [footnote omitted].

Kentucky's legislature has followed Hawaii's lead, abolishing outright the felony-murder doctrine. Ky.Rev.Stat., Sec. 507.020. Other legislatures have limited the doctrine by reducing the degree of murder and punishment therefor. See, e.g., Alaska Stat. Secs. 11.41.110, 11.41.115; La.Rev.Stat.Ann., Sec. 14:30.1; Minn.Stat.Ann. Secs. 609.185, 609.195; N.Y.Penal Law Sec. 125.25 (McKinney); Ohio Rev.Code Ann., Sec. 2903.04 (Page); Pa.Cons.Stat.Ann., tit. 18, Sec. 2502 (Purdon); Utah Code Ann., Sec. 76-5-203(1); Wis.Stat.Ann. Secs. 940.02(2), 939.50(3)(b).

Various other limitations have also been imposed by legislative rule. Three states require proof of mens rea beyond the intent to commit the underlying felony. Ark.Stat.Ann. Sec. 41-1502; Del.Code, tit. 11, Sec. 636; N.H.Rev.Stat.Ann. Sec. 630:1 I(a), (b). Many jurisdictions have limited the rule by restricting its applicability to deaths caused by the perpetrator of the underlying felony, or by requiring that the decedent be someone other than a co-felon. See, e.g., Ala.Code, Sec. 13A-6-2; Ill.Ann.Stat., ch. 38, Sec. 9-1 (Smith-Hurd); Colo.Rev.Stat., Sec. 18-3-102.

Where legislatures have not preempted the subject, courts have moved to abrogate or limit the common law doctrine. Michigan and New Mexico have dispatched the doctrine altogether. People v. Aaron, supra, 409 Mich. at 727, 299 N.W.2d at 326, 13...

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