King v. State, 985S347
| Citation | 517 N.E.2d 383 |
| Decision Date | 05 January 1988 |
| Docket Number | No. 985S347,985S347 |
| Parties | Shedrick KING, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Supreme Court of Indiana |
Belle T. Choate, Choate, Visher & Haith, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.
Shedrick King appeals his conviction for burglary, a class A felony, Ind.Code Sec. 35-43-2-1 (Burns 1985 Repl.); attempted murder, a class A felony, Ind.Code Secs. 35-41-5-1, 35-42-1-1 (Burns 1985 Repl.); and murder, Ind.Code Sec. 35-42-1-1 (Burns 1985 Repl.). The trial court sentenced King to forty years on the murder conviction and thirty years for each of the other two convictions. All the sentences are to run concurrently.
On direct appeal, King presents three issues.
1) Whether the instruction on the elements of attempted murder amounted to fundamental error for failing to require specific intent;
2) Whether the trial court erred when it admitted King's shoe over his chain of custody objection; and
3) Whether the trial court violated double jeopardy by sentencing King to burglary as a class A felony on the grounds of serious bodily injury, when the murder and attempted murder convictions already punished King for those injuries.
The evidence showed that in the early morning hours of December 26, 1984, King kicked down the door to the apartment of his former girlfriend, Cassandra Jefferson. James Patterson was also in the apartment that morning. A struggle ensued. Jefferson received a fatal gunshot wound to the head and Patterson sustained a wound to the abdomen. King then fled, dumping the gun on the way to his sister's apartment. He confessed these crimes to his sister.
King argues the trial court erred when it instructed the jury on the elements of attempted murder. Specifically, he claims the instruction lacked the element of specific intent to commit murder. He cites Smith v. State (1984), Ind., 459 N.E.2d 355. Although King did not object to the instruction at trial, the Smith decision recognized the error as fundamental and addressed the issue even though Smith had not objected at trial.
The instruction held inadequate in Smith read:
You are instructed that the essential elements of the crime of attempted Murder which the State of Indiana must prove beyond a reasonable doubt are the following:
1. That the Defendent (sic) knowingly,
2. Engaged in conduct that constituted a substantial step toward the commission of Murder.
Id. at 357. The Court held that an instruction setting forth the elements of attempted murder must include the specific intent to kill. For example, the purchase of a gun could be attempted murder under the faulty instruction.
The instruction in this case states:
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.
To convict the Defendant the State must prove each of the following elements:
The Defendant
(1) knowingly
(2) engages in condut (sic) that constituted a substantial step to accomplish
(3) the crime of murder
Murder is defined as, a person who knowingly or intentially (sic) kills another human being.
We find support for this instruction in Worley v. State (1986), Ind., 501 N.E.2d 406. In Worley the instruction on attempted murder defined murder, included an explanation on attempt, and listed the same three elements enumerated above. The Court in Worley distinguished Smith and held the jury was much more clearly apprised of specific intent. Id. at 408.
The challenged instruction is more similar to the instruction in Worley than the one in Smith. The instruction informs the jury that murder is the knowing or intentional killing of another human being. It would have been preferable for the trial court to give explicit instructions on specific intent to murder, but implicit within the instruction is the element that King intended to kill Patterson.
King contends the trial court erred by overruling his objection and admitting Exhibit 19, one of his tennis shoes. The shoe had the same pattern as a shoe print found on an air conditioner below Jefferson's apartment. King argues the State failed to establish a chain of custody.
The purpose of the chain of custody rule is to avoid claims of substitution, tampering, or mistake. Wolfe v. State (1978), 270 Ind. 81, 383 N.E.2d 317. Non-fungible items do not require the high degree of scrutiny that must be applied to fungible items. Boyd v. State (1986), Ind., 494 N.E.2d 284, cert. denied (1987), --- U.S. ----, 107 S.Ct. 910, 93 L.Ed.2d 860.
Sergeant Smilko testified that Lieutenant Spencer recovered the shoe from King. They placed the shoe in a brown paper bag and filled out an evidence card giving the time, date and place of recovery. Sergeant Beasley took the shoe out of the brown bag at trial. He said he had seen King with the shoe on. The chain of custody was adequate.
King argues the trial court erred in imposing a class A felony conviction for burglary. He claims the injuries which elevated the burglary to a class A felony were the same injuries used to sustain the murder and attempted murder convictions. This is an argument which rests on article 1, section 14 of the Indiana Constitution and the Fifth Amendment of the United States Constitution. These provisions prohibit multiple punishment for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Thompson v. State (1972), 259 Ind. 587, 290 N.E.2d 724, cert. denied (1973), 412 U.S. 943, 93 S.Ct. 2788, 37 L.Ed.2d 404.
Count I of the information alleged that King...
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