Means v. State
| Decision Date | 06 May 2004 |
| Docket Number | No. 49A02-0308-PC-742.,49A02-0308-PC-742. |
| Citation | 807 N.E.2d 776 |
| Parties | Danny MEANS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Hilary Bowe Ricks, Indianapolis, IN, Attorney for Appellant.
Stephen R. Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Petitioner-Appellant Danny Means appeals his convictions of attempted murder, a Class A felony (Ind.Code § 35-42-1-1; Ind.Code § 35-41-5-1); kidnapping, a Class A felony (Ind.Code § 35-42-3-2); conspiracy to commit robbery, a Class B felony (Ind.Code § 35-41-5-2; Ind.Code 35-42-5-1); robbery, a Class B felony (Ind.Code § 35-42-5-1); criminal confinement, a Class B felony (Ind.Code § 35-42-3-3); resisting law enforcement, a Class D felony (Ind.Code § 35-44-3-3); and carrying a handgun without a license, a Class A misdemeanor (Ind.Code § 35-47-2-1). Means also appeals the denial of his petition for post-conviction relief.
We affirm.
Means raises four issues for our review, which we restate as:
I. Whether the trial court committed fundamental error in instructing the jury regarding attempted murder and accomplice liability on the issue of specific intent.
II. Whether the trial court erred in refusing to instruct the jury regarding the lesser included offense of criminal recklessness.
III. Whether Means was denied effective assistance of counsel.
IV. Whether the trial court imposed an inappropriate sentence that was unsupported by aggravating circumstances.
On the morning of July 15, 1997, a teller at the Millersville Branch of the First of America Bank in Indianapolis noticed two men squatting by a bank window. The men, who were armed and were wearing clear masks with painting at the lips and eyebrows, entered the lobby and announced to the three customers and three bank employees that they were going to rob the bank. The men ordered everyone to go into the vault area.
One of the men ordered the branch manager to fill a white trash bag with money. The branch manager took too long, and the robber himself scooped cash into the bag. When more than $83,000.00 had been bagged, the man ordered everyone to stay inside the vault. He then left along with his accomplice. Sometime during this altercation, the bank employees activated the alarm and summoned the police.
As the robbers fled the bank, they ran into Donald Edmonds, a bank customer just approaching the bank's front door. One of the robbers continued running while the second robber turned and pointed a gun at Edmonds' face. That robber, later identified as Means, threatened to shoot Edmonds and ordered him to go into the bank. Edmonds backed away and knelt down. The robbers fled to a gray minivan and entered the front seats. The robbers then pulled away from the bank in the van.
Indianapolis Police Officers James Quyle and Steve Butler heard the dispatch regarding the bank robbery and the description of the gray minivan as the getaway vehicle. The officers, in separate cars, saw the van as it proceeded away from the bank. Officer Quyle observed that two black men were sitting in the front seats of the van and that a third person appeared to be sitting in the back. Officer Quyle positioned his police car directly behind the minivan in an effort to stop the vehicle.
The minivan came to a stop, and the driver of the van exited the van and approached the police car in an "aggressive manner." The driver, armed with a silver semi-automatic pistol, fired at least three shots into the police car. Officer Quyle ducked down for safety, and when he rose he saw the driver returning to the van.
Eventually, the van turned into a residential area and pulled into the driveway of a residence where Walter Jones was sitting in his vehicle. Two men leaped from the van and fled. Means, however, exited the van, walked up to Jones' vehicle, and ordered him out the car. Means placed his left hand around Jones' neck, pressed a pistol to Jones' throat, and positioned Jones between himself and police officers who had arrived at the scene.
Means pointed his pistol at Officer Butler, who stood behind a nearby tree. Means discharged his weapon at least two times.
Means then attempted to pull Jones into his house. However, fearing for the safety of his son inside the house, Jones refused to comply. Jones told Means, "You do what you have to do, but you're not going into my home." Means told Jones, When Jones continued to refuse to go with him, Means gave up and laid down his gun with the additional threat to Jones that he would "get Jones and his family."
Means, and his co-defendants, Larry Parks and Ronnie Cox, were charged with numerous offenses. A jury found Means guilty of the offenses listed above and acquitted him of the attempted murder of Officer Butler. The trial court ordered Means to serve an aggregate sentence of 120 years.
On June 3, 1999, after initiating his direct appeal, Means filed a motion to dismiss his appeal and for leave to file a petition for post-conviction relief. This court granted his motion to dismiss, so that Means could raise claims of alleged ineffective assistance of counsel in a petition for post-conviction relief. The trial court denied his petition, and Means now appeals. In this appeal, Means raises issues constituting matters of direct appeal (Issues I, II, and IV) and issues pertaining to the denial of his petition for post-conviction relief (Issue III).
Means was convicted as an accomplice to Parks for the attempted murder of Officer Quyle. The crux of Means' initial argument is that the trial court's instructions failed to inform the jury that a defendant must have had the specific intent to commit murder in order to be found guilty of attempted murder. Means contends that the trial court committed fundamental error when it gave the instruction.
The trial court instructed the jury that:
(R. 106-07).
This attempted murder instruction indicates that a "knowing" mens rea is sufficient to establish guilt of attempted murder. Under Spradlin v. State, 569 N.E.2d 948 (Ind.1991) and its progeny, this mens rea is improper. The instruction later states, however, that the State must show that the defendant acted with the specific intent to kill. The charging information read to the jury, while mentioning that murder may be committed "knowingly," states that the defendant acted with the specific intent to kill Officer Quyle.
The trial court should not have included the word "knowingly" in the attempted murder instruction. See Ramsey v. State, 723 N.E.2d 869, 872 (Ind.2000)
. However, defense counsel did not object to this language, and our supreme court has held under similar circumstances that the use of this type of instruction does not constitute fundamental error. Id. at 872-73 (citing Yerden v. State, 682 N.E.2d 1283 (Ind.1997); Greenlee v. State, 655 N.E.2d 488 (Ind.1995); Price v. State, 591 N.E.2d 1027 (Ind.1992)). The theory of Ramsey and like cases is that the instructions as a whole sufficiently suggested the requirement of intent to kill. See Williams v. State, 737 N.E.2d 734, 737 n. 9 (Ind.2000).
Means contends that the trial court's accomplice liability instruction failed to inform the jury that it was required to find that both the alleged shooter (Parks) and his accomplice (Means) intended the death of the victim. Means acknowledges that trial counsel did not object to the instruction or tender an alternate instruction, but he argues that the trial court committed fundamental error in giving the instruction. He cites Bethel v. State, 730 N.E.2d 1242 (Ind.2000), Hopkins v. State, 759 N.E.2d 633 (Ind.2001), and like cases in support of his argument.
In Bethel, our supreme court held that in order to establish that a defendant aided, induced, or caused a shooter to commit attempted murder, the State must prove that the defendant, with the specific intent that the murder occur, knowingly or intentionally aided, induced, or caused the shooter to commit the crime of attempted murder. Thus, to convict for the offense of aiding an attempted murder, the State must prove: "(1) that the [shooter], acting with specific intent to kill, took a substantial step toward the commission of murder, and (2) that the accomplice, acting with specific intent that the killing occur, knowingly or intentionally aided, induced, or caused the [shooter] to commit the crime of attempted murder." 730 N.E.2d at 1246. The court found that the evidence was insufficient to prove that the accomplice had specific intent to kill the victim or the specific intent that the shooter would kill the victim. Id. In Hopkins, our supreme court held that Bethel error constitutes fundamental...
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