Jackson v. State

Citation544 N.E.2d 853
Decision Date11 October 1989
Docket NumberNo. 71S00-8610-CR-864,71S00-8610-CR-864
PartiesRobert JACKSON, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

Susan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Following a jury trial in the St. Joseph Superior Court, Defendant-Appellant Robert Jackson was found guilty of the crime of Attempted Murder, a Class A felony. The trial court sentenced him to the presumptive term of thirty (30) years which was enhanced by thirty (30) years pursuant to an habitual offender finding, for a total term of sixty (60) years.

Several issues are presented for our review but since we find the first issue presented by Jackson requires reversal and the order of a new trial, we decline to consider the remaining issues.

Jackson claims the trial court failed to adequately instruct the jury on the element of specific intent for the crime of attempted murder. He cites this Court's holding in Smith v. State (1984), Ind., 459 N.E.2d 355. In Smith, the trial court instructed the jury that the essential elements of the crime of attempted murder which the State of Indiana was required to prove beyond a reasonable doubt were 1) that the defendant knowingly, 2) engaged in conduct that constituted a substantial step toward the commission of murder. Id. at 357. It was noted that the attempt statute, Ind.Code Sec. 35-41-5-1 provides in pertinent part:

(a) A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engaged 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.

Id.

Smith held that elements of attempted murder are that the defendant was acting with the specific intent to commit the crime of murder and that he engaged in an overt act which constituted a substantial step toward the commission of that crime. Id. (citing Zickefoose v. State (1979), 270 Ind. 618, 622, 388 N.E.2d 507, 510). The shortcoming this Court found in the instruction given in Smith was that the court was instructing the jury they need find only that the defendant knowingly took a substantial step toward the commission of murder. The court failed to instruct the jury that the defendant must take the substantial step with intent to kill the victim. Smith, 459 N.E.2d at 358. In Smith, as in the case at bar, no objection was made by the defendant at the time the instruction was given. This Court noted, however, that when an instruction purports to set forth all of the elements of the crime necessary in a conviction, the instruction is fatally defective if a necessary element is omitted. This is considered fundamental error. See Duling v. State (1976), 170 Ind.App. 607, 613, 354 N.E.2d 286, 292.

In Santana v. State (1986), Ind., 486 N.E.2d 1010, this Court held it is entirely correct to use the word knowingly as well as intentionally, to describe the mens rea element of the crime of attempted murder. Santana acknowledged that the error in Smith was that the second portion of the instruction focused on the proscribed conduct and not on the proscribed result. The instruction given in Santana for attempted murder was approved in the following form: "(1) the defendant knowingly or intentionally (2) took a substantial step to accomplish (3) a knowing or intentional killing of another human being." This instruction advised the jury the defendant had the intention to kill another human being and took a substantial step to accomplish that result.

The instruction given in the case at bar was: "A person who knowingly or intentionally kills another human being commits a murder, a felony. To convict the defendant of attempt, the state must have proved each of the following elements: 1. The defendant, Robert Jackson; 2. knowingly; 3. attempted to kill; 4. Allen Smet." This instruction fails to meet the requirements of Smith or Santana. The instruction uses the language "attempted to kill" rather than defining the elements of an attempt to kill. Although it does use the language "knowingly attempted to kill" it does not inform the jury of the elements of attempted murder, namely that defendant with intent to kill Allen Smet, took a substantial step to accomplish that end. Since this was fundamental error, Jackson's conviction is reversed and a new trial is ordered.

We do note two problems that may reappear on retrial and find it advisable to resolve them here.

Throughout the entire record of this case, the charge and conviction of Jackson is referred to as the crime of Attempt, a Class A felony, rather than Attempted Murder, a Class A felony. The charging information was captioned "Information For Attempt, Class A Felony," although the body of the charging instrument did contain allegations of all of the elements of attempted murder. However, the jury verdict was "We, the jury, find the defendant, Robert Jackson, guilty of Attempt, a Class A felony" and the judgment of conviction entered by the trial court adjudged Robert Jackson to be guilty of Attempt, a Class A felony. Jackson was sentenced to a term of thirty (30) years for a conviction of Attempt, a Class A felony, to which was added thirty (30) years for the habitual criminal finding.

There is no crime of attempt. The crime being charged is the one Jackson allegedly attempted to commit. The suspect charged must have had the intention to commit the crime charged and must have taken a substantial step toward commission of that crime. An attempt to commit that crime is of the same class as the crime attempted. The charge here was attempted murder and was a Class A felony by the terms of the attempt statute. IC 35-41-5-1.

The second problem concerns the prior criminal history of witness Sean Hughes. Hughes was an accomplice in the shooting of Allen Smet. Hughes accompanied Jackson to Smet's home but fired no shots at Smet. Hughes entered into a plea bargain with the State and testified as a State's witness. Hughes testified he entered a plea of guilty to a charge of assisting a criminal as a Class C felony which had been reduced from a Class A felony. He denied he made any agreements to testify which resulted in a reduced term for him but did admit he assumed it was understood he would testify in favor of the State. During...

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12 cases
  • Brown v. State
    • United States
    • Court of Appeals of Indiana
    • 3 Marzo 1992
    ...will discern even without instruction. The reasoning is particularly troublesome in light of the court's decision in R. Jackson v. State (1989) Ind., 544 N.E.2d 853. R. Jackson holds that the instruction "1. The defendant, Robert Jackson; 2. knowingly; 3. attempted to kill; 4. [the victim]"......
  • Simmons v. State
    • United States
    • Supreme Court of Indiana
    • 3 Noviembre 1994
    ...demonstrating the vitality of Smith after Santana and Worley, see, for example, Hurt v. State (1991), 570 N.E.2d 16, Jackson v. State (1989), Ind., 544 N.E.2d 853, and Abdul-Wadood v. State (1988), Ind., 521 N.E.2d ...
  • Douglas v. State
    • United States
    • Court of Appeals of Indiana
    • 31 Mayo 1994
    ...appreciation of that risk at the time of the cooperative conduct. Abdul-Wadood, 521 N.E.2d at 1300-01. In like fashion in Jackson v. State (1989), Ind., 544 N.E.2d 853, our supreme court reversed the defendant's conviction for attempted murder because of a faulty jury instruction. Again cit......
  • Stewart v. State, 49A02-8904-PC-154
    • United States
    • Court of Appeals of Indiana
    • 7 Marzo 1991
    ...instructions failed to require the jury to determine that the accused took a substantial step toward accomplishing the intended result. 544 N.E.2d at 854. In the present case the jury was instructed that to be guilty of attempted murder Stewart must have knowingly engaged in conduct that co......
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