Smith v. State

Decision Date08 February 1984
Docket NumberNo. 1181S333,1181S333
Citation459 N.E.2d 355
PartiesDell Ray SMITH a/k/a Dell Ray Watford, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Following a trial by jury, Defendant (Appellant) was convicted of Attempted Murder, a class A felony, Ind.Code Secs. 35-41-5-1 and 35-42-1-1 (Burns 1979) and sentenced to thirty (30) years imprisonment. His direct appeal presents seven (7) issues for review, one of which compels us to reverse the judgment of the trial court.

In an amended Information the Defendant was charged as follows:

"On or about the 31st day of July, 1980, in St. Joseph County, State of Indiana, DELL RAY SMITH a/k/a DELL RAY WATFORD did attempt to commit the crime of murder by knowingly striking, cutting, and stabbing at and against the body of Vanessa Frison with a knife, then and there held in the hand of the said DELL RAY SMITH a/k/a DELL RAY WATFORD with the intent to kill the said Vanessa Frison and did thereby cause serious bodily injury to the said Vanessa Frison, which conduct constituted a substantial step toward the commission of the said crime of Murder.

All of which is contrary to the form of the Statute in such cases made and provided, to-wit: Ind.Code 35-41-5-1 and Indiana Code 35-42-1-1(1), and against the peace and dignity of the State of Indiana."

Following the presentation of evidence, the court gave, among others, the following instruction:


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."

Defendant contends, and we agree, that the instruction, which purports to state the essential elements of the crime of attempted murder, fails to include an essential element of the offense, namely, that the Defendant must have had the specific intent to commit murder in order to be found guilty of attempted murder.

We note initially that the record states that there were no objections to the instructions given and that a timely objection to the giving of an instruction is generally required to preserve error on appeal. Bonds v. State, (1982) Ind., 436 N.E.2d 295, 300; Henderson v. State, (1979) 271 Ind. 633, 637, 395 N.E.2d 224, 228. However, when the record reveals blatant violations of basic and elementary principles, and the harm or the potential for harm cannot be denied, we will review an issue which was not properly raised and preserved. Webb v. State, (1982) Ind., 437 N.E.2d 1330, 1332; Nelson v. State, (1980) Ind., 409 N.E.2d 637, 638. This case is one in which the error rises to what is known as fundamental error, one which, if not rectified, would deny the defendant fundamental due process. Nelson v. State, 409 N.E.2d at 638.

The general attempt statute, Ind.Code Sec. 35-41-5-1 (Burns 1979) provides in pertinent part:

"(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."

The murder statute, Ind.Code 35-42-1-1 provides in pertinent part:

"A person who: (1) Knowingly or intentionally kills another human being; ... commits murder, a felony."

In Zickefoose v. State, (1979) 270 Ind. 618, 622, 388 N.E.2d 507, 510, this Court held that there are two necessary elements of the crime of attempted murder: "First, the defendant must have been acting with a specific intent to commit the crime, and second, he must have engaged in an overt act which constitutes a substantial step toward the commission of the crime." Accord Scott v. State, (1980) Ind., 413 N.E.2d 902, 904.

When an instruction purports to set forth all of the elements of a crime necessary to a conviction, the instruction is fatally defective if a necessary element is omitted. Duling v. State, (1976) 170 Ind.App. 607, 613, 354 N.E.2d 286, 292 (and cases cited therein). The State contends that the instructions, considered as a whole, do inform the jury of the "specific intent" requirement. The State is correct in noting that instructions are to be considered as a whole and in reference to each other. Green v. State, (1982) Ind., 438 N.E.2d 266, 268. In the case at bar, the trial court read, as part of the instructions, the charging Information with the added statement that the State has the burden to prove all of the material allegations of the Information beyond a reasonable doubt. The court also read the attempt and murder statutes noted above as well as Defendant's Instruction No. 4, which reads as follows:


Statutes of this State were in effect on July 31, 1980, which defined the basis for criminal liability. Among those statutes are the following:

A person commits an offense only if he voluntarily engages in conduct in violation of the statute defining the offense.


(a) A person engages in conduct 'intentionally' if, when he engages in the conduct, it is his conscious objective to do so.

(b) A person engages in conduct 'knowingly' if, when he engages in the conduct, he is aware of a high probability that he is doing so.

(c) A person engages in conduct 'recklessly' if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct.

(d) Unless the statute defining the offense provides otherwise, if a kind of culpability is required for commission of an offense, it is required with respect to every material element of the prohibited conduct."

Nowhere in these instructions, however, is there any statement to the effect that if the Defendant is to be found guilty of attempted murder, there must first be a finding that when he engaged in the conduct proscribed, he intended to kill Vanessa Frison. Nor did any of the instructions modify, explain, or nullify the erroneous instruction which was given. Thus, we are left with instructions which would lead the jury to believe that the Defendant could be convicted of attempted murder if he knowingly engaged in conduct which constituted a substantial step toward the commission of murder. Although one may be guilty of murder, under our statute, without entertaining a specific intent to kill the victim, he cannot be guilty of attempted murder without entertaining such intent. The attempt must be to effect the proscribed result and not merely to engage in proscribed conduct. An instruction which correctly sets forth the elements of attempted murder requires an explanation that the act must have been done with the specific intent to kill. Here, the instruction does not, and the jury might infer from the instructions given that they could find the Defendant guilty of attempted murder even if there was no intent to kill the victim at the time he acted.

In Clemons v. State, (1981) Ind., 424 N.E.2d 113, the appellant contended that an instruction on the elements of the crime of attempted murder was incomplete because it did not set forth the element of specific intent to kill. This Court found his argument to be without merit inasmuch as the court also instructed the jury on the definition of murder, and the necessary element of specific intent was correctly set out therein. The case at bar, however, contains no instruction on specific intent; therefore, we are compelled to reverse the judgment of the trial court and remand this cause for a new trial.

An additional issue raised by the Defendant warrants our attention here, inasmuch as the question of his waiver from juvenile court to the St. Joseph Superior Court will arise on retrial.

The Defendant was waived from the jurisdiction of the St. Joseph Probate Court to the St. Joseph Superior Court pursuant to Ind.Code Sec. 31-6-2-4(d) which provides in pertinent part:

"(d) Upon motion of the prosecutor and after full investigation and hearing, the juvenile court shall waive jurisdiction if it finds that:

(1) The child is charged with an act that, if committed by an adult, would be:

(A) A class A or class B felony, except a felony defined by IC 35-48-4;

* * *

* * *

(2) There is probable cause to believe that the child has committed the act; and (3) The child was sixteen (16) years of age or older when the act charged was allegedly committed; unless it would be in the best interests of the child and of the safety and welfare of the community for him to remain within the juvenile justice system."

Defendant argues that the waiver from the juvenile court was invalid in that (1) the statute placed an unconstitutionally vague burden of proof on him; (2) no probable cause existed that he committed an act which would be a class A felony if committed by an adult, and (3) it was not in the best interests of the child and the community for him to be waived out of the juvenile system.

With respect to the question of whether the statute placed an unconstitutionally vague burden of proof on the Defendant, the Indiana Court of Appeals, responding to an earlier version of the statute and the applicable standards, has held that the standard of "the child's welfare and the best interests of the state" is a sufficient guideline, saving the statute from being void on its face for vagueness, and provides sufficient notice to the juvenile to enable his preparation for the waiver hearing. In addition, the court found that the...

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