Scott v. State, 180S5
| Decision Date | 31 December 1980 |
| Docket Number | No. 180S5,180S5 |
| Citation | 413 N.E.2d 902,274 Ind. 687 |
| Parties | Steven R. SCOTT, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Curtis B. Eskew, Corydon, for appellant.
Theodore L. Sendak, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was charged by an information with two counts of attempt to commit murder, Ind.Code § 35-41-5-1, Ind.Code § 35-42-1-1.
After a jury trial, he was convicted of one count of battery with a deadly weapon for which he was sentenced to five years' imprisonment, and one count of attempted murder for which he was sentenced to thirty years' imprisonment, the terms to run concurrently.
This is a direct appeal from the conviction for attempted murder. Appellant raises two related issues:
(1) Was there sufficient evidence on the element of culpability to prove an attempt?
(2) Did the trial court err in sustaining prosecutor's objection to defense counsel's final argument?
The facts of the case most favorable to the State reveal the following:
Appellant was employed at the Paoli Chair Company factory in Orange County. On October 25, 1977, while working on a bore machine, he was observed to have been operating the machine dangerously. A supervisor ordered him off the bore machine and assigned him to the cleaning detail. Appellant became angry, left the factory, and went to his parents' house to get a shotgun and a pistol. He returned to the factory intending to shot two people and first approached Linial Stancombe, aimed the shotgun at his head and fired, hitting his victim in the cheek. Appellant next approached Morris Strange from behind and shot him in the back with the pistol.
Because the issues are interrelated we will discuss them together.
Appellant argues that his defense in the trial was based on the theory that in order to prove an attempt to commit murder, the State had the burden to prove not merely that he shot Morris Strange in the back with a .22 caliber pistol but also that this act was done with "knowledge or intent that he was attempting to kill another person." Appellant claims that when his trial counsel attempted to explain this theory to the jury in sur-rebuttal final argument, the prosecution's objection that defense counsel was misstating the law was improperly sustained.
Appellant is indeed correct that a specific intent is required to prove an attempt. Zickefoose v. State, (1979) Ind., 388 N.E.2d 507. This is not, however, the theory that he argued to the jury.
His sur-rebuttal argument was as follows:
Appellant also argues in his brief that "if a person knowingly shoots another in the back with a .22 pistol and the victim dies, those facts could sustain a verdict of guilty" of murder, but "if the victim lives, an additional burden is placed on the State to prove Defendant attempted to knowingly or intentionally kill another."
This theory is wrong. The murder statute and the attempt statute provide:
"Murder.-A person who:
(1) Knowingly or intentionally kills another human being; or
(2) Kills another human being while committing or attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape, or robbery; commits murder, a felony." Ind.Code § 35-42-1-1.
"Attempt.-(a) 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.
(b) It is no defense that, because of a misapprehension of the circumstances, it would have been impossible for the accused person to commit the crime attempted." Ind.Code § 35-41-5-1.
Appellant concedes that had the victim died, he would have been liable for murder. In order to be liable for murder, rather than for a less culpable form of homicide such as voluntary manslaughter or reckless homicide, one who kills another human...
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