Land v. State
| Decision Date | 07 November 1984 |
| Docket Number | No. 1182S459,1182S459 |
| Citation | 470 N.E.2d 697 |
| Parties | William (Billy) LAND, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Barrie C. Tremper, Fort Wayne, for appellant.
Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.
This is a direct appeal from a conviction of attempted murder, a class A felony, Ind.Code Sec. 35-41-5-1 and a determination that appellant is a habitual offender, Ind.Code Sec. 35-50-2-8. The case was tried before a jury. Appellant was sentenced to forty years for attempted murder and thirty years, to run consecutively, for being a habitual offender.
Appellant raises four issues on appeal: (1) whether the information for attempted murder was defective in that it did not allege specific knowledge or intent to kill, (2) whether the trial court improperly refused appellant's instruction on the defense of abandonment, (3) whether State's exhibits A, B, and C were properly admitted into evidence at the habitual offender proceeding over appellant's objection, (4) and whether the sentence of forty years for attempted murder and the sentence of thirty years for being a habitual offender, separately imposed and consecutive thereto are contrary to law.
These are the facts that tend to support the determination of guilt. From sometime in 1980, through the early part of 1981, the appellant had a romantic relationship with Phyllis Kennedy, who is the step-daughter of the victim, Sherman D. Painter. Miss Kennedy became pregnant with appellant's child. She decided to have an abortion, and, without telling appellant, she borrowed seven-hundred dollars from Painter toward that end.
On the evening of January 15, 1981, Kennedy admitted to appellant that she had had an abortion. Appellant spent the next day drinking with a friend. The friend accompanied appellant when he borrowed a rifle from a third man. In the evening, appellant left his friend and drove to Painter's home in Fort Wayne. When Painter refused to admit him into the house, appellant raised the rifle and fired. A struggle ensued, and appellant beat Painter with the butt of the rifle, yelling "I'm going to kill you, "I'm going to kill you". Appellant then shot Painter once in the abdomen and fled from the scene.
Appellant was charged with attempted murder; Count I, in an Information which read, in pertinent part:
On or about the 16th day of January, 1981 ... William Billy Land, did attempt to commit the crime of Murder by knowingly and intentionally using a rifle to shoot Sherman D. Painter causing serious bodily injury which conduct constituted a substantial step toward the commission of the crime of Murder.
Immediately before the State made its opening statement, appellant objected to the submission to the jury of the case as charged in Count I. On appeal, he argues that the trial court erred in overruling his objection in that the information failed to adequately inform him of the charge against him.
A defendant may be charged with a crime in a written information which must set forth the "... nature and elements of the offense in plain and concise language without unnecessary repetition." Ind.Code Sec. 35-3.1-1-2 upon a proper motion by the defense, a trial court may dismiss such an information, but Ind.Code Sec. 35-3.1-1-4(b) requires that the motion must be made prior to arraignment and plea. A motion made thereafter may summarily be denied. Goodner v. State (1978), 178 Ind.App. 312, 382 N.E.2d 968; McChristiam v. State (1979), 272 Ind. 57, 396 N.E.2d 356. In the absence of a timely attack on the sufficiency of an information, appellate review is foreclosed. Howard v. State (1982), Ind.App., 431 N.E.2d 868.
Appellant's objection challenged the sufficiency of the charging instrument. That issue was required to be included in a proper motion to dismiss.
The record is clear that he did not object to the charge until the jury was sworn and until the State was ready to make its opening statement. This demonstrates that appellant was not prevented from preparing an adequate defense. His failure to comply with the time constraints of Ind.Code Sec. 35-3.1-1-4 justifies the trial court's overruling of his objection.
Appellant claims that the trial court erred in refusing his tendered jury instruction on the defense of abandonment. In determining whether an instruction has been properly refused, the Supreme Court will determine whether the tendered instruction correctly states the law, whether the substance of the instruction is adequately covered by other instructions which are given, and whether the evidence in the record supports the giving of the tendered instruction. Williams v. State (1979), 271 Ind. 656, 395 N.E.2d 239, Davis v. State (1976) 265 Ind. 476, 355 N.E.2d 836.
Abandonment is a legal defense with respect to a charge of aiding or inducing another to commit a crime, attempting to commit a crime, or conspiracy to commit a felony. Ind.Code Sec. 35-41-3-10. A crime of attempt, that with which appellant was charged, occurs when one having the state of mind required for a particular substantive offense conducts himself so as to take a substantial step towards commission of that offense. Ind.Code Sec. 35-41-5-1. Appellant's tendered instruction correctly defined the abandonment defense, and its substance was not covered by other instructions. This leaves the absence of evidence to support the abandonment theory as the remaining possible basis for rejection.
Appellant contends that evidence of abandonment is presented in the testimony that both men were angry as they fought, that the shot entered a "non-fatal area of the body", and that appellant walked away in a deliberate fashion after the shooting. There is no rational inference to be drawn from this evidence that appellant abandoned his efforts to shoot and kill Painter. His acts of raising the loaded rifle in response to the refusal of...
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