Jackson v. State

• Decision Date: 24 July 1991
• Docket Number: No. 49S00-8911-CR-854,49S00-8911-CR-854
• Citation: 575 N.E.2d 617
• Parties: Howard L. JACKSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 617

575 N.E.2d 617

Howard L. JACKSON, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8911-CR-854.

Supreme Court of Indiana.

July 24, 1991.

S. Sargent Visher, Choate Visher & Haith, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

KRAHULIK, Justice.

Defendant-Appellant Jackson was convicted by a jury of attempted murder. He was sentenced to fifty (50) years, enhanced by thirty (30) years by reason of his status as an habitual offender for a total of eighty (80) years. Jackson identifies six issues in this direct appeal. Restated, they are as follows:

I. Sufficiency of the evidence to support the habitual offender finding.

II. Improper admission of videotaped deposition of a witness.

III. Improper instructions.

IV. Improper denial of motion for mistrial.

V. Abuse of discretion in not allowing a continuance to recall a witness.

VI. Ineffective assistance of counsel.

We affirm.

The facts are: In September 1988, Darryl Griffin, the victim, was married to Darlene Griffin, Jackson's ex-wife. During the night of September 19, 1988, Darryl was in the process of leaving his apartment in order to go to work when, as he approached his automobile, he heard footsteps. As he turned, he saw Jackson approaching him. When Jackson was within inches of Griffin, he shot Griffin in the left side of the lower neck. Jackson fled the scene. Griffin lost consciousness temporarily, but regained it and re-entered his apartment where he notified his wife and later the police that Jackson had shot him. Jackson was apprehended later by the police.

I. Sufficiency of Evidence to Support the Habitual Offender Finding

Jackson contends that the evidence was insufficient to sustain his status as an habitual offender. To establish habitual offender status, the State must show that the second offense was committed after the commission of and sentencing upon the first offense; and that the principal offense upon which the enhancement is being sought was committed after commission of and sentencing upon the second offense. See McCombs v. State (1989), Ind., 536 N.E.2d 277, 279.

The record reveals that Jackson committed robbery on September 28, 1962, and was charged with the offense on October 3, 1962. Jackson was sentenced for this crime on April 4, 1963. On December 30, 1985, Jackson was charged with a theft he committed two days earlier. On October 10, 1986, he pled guilty to theft and was sentenced. However, Jackson argues that the second felony was proved only by the introduction of a minute sheet from the Marion Municipal Court and not by a certified copy of a judgment of conviction.

In addition, as to the first felony, he contends that the proof of the felony was defective because it does not recite a conviction and is unsigned by the Judge. Upon review of the record, we find both of Jackson's contentions to be without merit. In both instances, official certified copies of the minute sheets were obtained from the Clerk's office and both recite the felonies committed by Jackson. We find no error in the utilization of these documents to prove the habitual offender status.

Jackson also contends that the evidence is insufficient because of the "staleness" of the 1963 conviction that was introduced by the State. He contends that the Indiana Constitution precludes reliance by the State upon a conviction more than 25 years old to establish his status as an habitual offender. We find nothing in IND.CODE ANN. Sec. 35-50-2-8 (West 1990) or the Indiana Constitution to support this argument. The statute provides only two instances in which a prior conviction may not be used in the proceeding. These are: (1) a prior conviction that has been set aside and (2) one for which the person has been pardoned. The legislature has not included remoteness of the prior conviction as disqualifying the prior conviction. Additionally, the requirement of article I, section 18 of the Indiana Constitution that "[t]he penal code shall be founded on the principles of reformation, and not of vindictive justice" does not require us to re-write the statute.

II. Improper Admission of Videotaped Deposition

Appellant contends that the trial court erred in allowing the State to present a videotaped deposition of a State's witness.

On June 16, 1989, the State filed a notice to take a videotaped deposition of a witness on June 20, 1989, for the purpose of introduction into evidence at trial. The State indicated in the notice that the witness would be unavailable to testify in person on June 22, 1989, due to health problems. Jackson's attorney attended the deposition and conducted a thorough cross-examination. At trial, Jackson objected to the use of the videotaped deposition claiming the witness was not "unavailable medically." Following arguments on this issue, the trial court overruled the objection. Jackson contends the State did not meet its burden of demonstrating the unavailability of the witness and thus contends he was denied his right to confront the witness.

The decision whether to allow the admission of a deposition is within the trial court's discretion. Johnston v. State (1988), Ind., 517 N.E.2d 397, 399. Pursuant to Ind.Trial Rule 32(A)(3)(c), the deposition of a witness may be used by any party for any purpose if the court finds that a witness is unable to attend and testify because of age, sickness, infirmity, or imprisonment. During her deposition, the witness testified about her inability, because of her physical ailments and limitations, to attend the trial in order to testify. In considering this evidence, the trial court exercised its discretion and allowed the videotaped deposition to be introduced into evidence. We cannot say that the trial court abused its discretion.

III. Instructions

Appellant contends that the trial court erred in the giving of various instructions and contends fundamental error occurred in the giving of Instruction No. 5 concerning the elements of attempted murder. Instruction No. 5 reads as follows:

The crime of attempt[ed] murder is defined by statute as follows:

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.

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

The Defendant

1. did knowingly

2. engage in conduct to-wit: attempt to commit the crime of murder by attempting to kill Darryl A. Griffin

3. another human being

4. by knowingly shooting at and against the person of Darryl A. Griffin by means of a deadly weapon to-wit: a handgun

5. that the conduct was a substantial step toward the commission of the crime of 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.

Jackson did not object to this instruction, but on appeal claims fundamental error occurred, citing Abdul-Wadood v. State (1988), Ind., 521 N.E.2d 1299 and Smith v. State (1984), Ind., 459 N.E.2d 355, asserting that the instruction failed "to require the finding of proof beyond a reasonable doubt of specific intent to commit murder." We agree that the element of "intent to kill" as required by Abdul-Wadood, Smith and, more recently, by Spradlin v. State (1991), Ind., 569 N.E.2d 948, is lacking in the instruction. We further agree that while reversible error may have followed had an objection to the instruction been overruled and a tender of a proper instruction been refused, neither of these two events occurred. Reversal in this case must be based on a determination of whether the giving of the instruction constituted fundamental error. We conclude that fundamental error, requiring reversal, did not occur.

Fundamental error is error that, if not corrected, would deny a defendant fundamental due process. Smith, 459 N.E.2d at 357. In Smith, as in the instant case, no objection was made to an instruction setting forth the elements of attempted murder. Nevertheless, we reversed the conviction because the instruction constituted fundamental error. We said:

[W]hen the record reveals blatant violations of basic and elementary principles, and the harm or the potential for harm cannot be denied, we will review an issue which was not properly raised and preserved.

Id. In reviewing this case, we hold that no fundamental error occurred for two reasons.

First, the instruction required that the State prove that, when the defendant fired his pistol at Griffin, he was "attempting to kill" him. While "attempting to kill" is not synonymous with "intending to kill," we believe that no significant potential for harm resulted from the substitution of "attempting" for "intending" in this case. As we stated in Spradlin, "by definition, there can be no 'attempt' to perform an act unless there is a simultaneous 'intent' to accomplish such act." 569 N.E.2d at 951. Here, by finding that the defendant was attempting to kill Griffin when he shot him, it was logically necessary for the jury to find that he intended to kill him.

Secondly, the evidence in this case was that a gunman approached Griffin and shot him in the neck from a distance of inches. The issue at the center of the trial was whether Jackson was the gunman, not whether the gunman intended to kill Griffin by shooting him at such close range. For both of the above reasons, we hold that the giving of that instruction neither constituted a blatant violation of basic and elementary principles nor posed a potential for harm. Thus, the instruction does not...