Smith v. State

Decision Date06 July 1981
Docket NumberNo. 579S126,579S126
Citation422 N.E.2d 1179
PartiesLeslie Allen SMITH, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Nile Stanton, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Leslie Allen Smith was charged in Putnam Circuit Court with escape, Ind.Code § 35-44-3-5 (Burns 1979 Repl.); attempted murder, §§ 35-41-5-1, 35-42-1-1; attempted kidnapping, §§ 35-42-3-2(a)(3), 35-41-5-1; and kidnapping, § 35-42-3-2(a)(3). Smith was also charged with being a habitual criminal, § 35-50-2-8. After a trial by jury, Smith was found guilty as charged of escape, attempted murder, and attempted kidnapping. In lieu of the kidnapping charge, the jury found appellant guilty of confinement. In the sentencing phase, the jury found that Smith was a habitual offender. The trial court sentenced Smith to a two-year term on the escape charge, and to forty-year terms on the attempted murder and attempted kidnapping charges. The court ordered these terms to run concurrently. Pursuant to the finding of habitual criminality, the court imposed an additional thirty-year term on Smith, to be added to the sentences imposed for the above crimes.

The record reveals that on September 1, 1978, appellant Smith and Andrew Pine were inmates at the Indiana State Farm. On the previous evening, Smith telephoned his girlfriend, Barbara Eikelman, in Anderson, Indiana, and requested her assistance in helping Pine and Smith escape from prison. The two men had unsuccesfully begun a similar escape attempt one day earlier. On September 1, Eikelman drove to a prearranged location on United States Highway 40 adjacent to the prison grounds. After Eikelman picked up Smith and Pine, the trio drove east to State Road 231, and then proceeded south to Interstate 70. Smith and Pine were slumped down in the seats so as not to be seen from the outside.

Indiana State Police Officer Rice began to follow Eikelman's car before it reached the interstate. As her car started up the entrance ramp to eastbound Interstate 70, Officer Rice signalled for Eikelman to pull her car over to the shoulder of the roadway. Upon approaching the car, Rice discovered the other two occupants, and ordered them out of the car. About this time, Indiana State Police Officer Fields arrived on the scene to assist Rice. Each of the officers then began securing the two prisoners. At some point, Smith was able to remove Fields' revolver from its holster, and Pine thereafter obtained Rice's gun. Smith and Pine then ordered Rice and Fields into the trunk of Rice's car.

As this was being accomplished, a third state trooper, Rairdon, arrived at the scene in his patrol car. Smith told Rairdon to get out of his car, threatening to kill Rice and Fields if Rairdon attempted to operate the police radio. Before leaving his car, Rairdon placed an extra revolver in his back pocket. Pine ordered Rairdon to relinquish his service revolver, and Rairdon complied. At that time, appellant Smith was holding Rice and Fields at gunpoint in the trunk of Rice's car. Shortly thereafter, Rairdon disarmed Pine and created a "Mexican standoff" situation with Smith, who continued to threaten to kill Rice and Fields. As Rairdon started for Smith, Smith turned and fired one shot into the open automobile trunk in which Rice and Fields were lying. The shot struck Fields in the arm. Rairdon then bounded for Smith, and, in the ensuing struggle, Rairdon shot Smith once in the back. Rice and Rairdon were then able to gain control of the situation.


Smith first claims the trial court erred in refusing to grant his second motion for a change of judge. The record reveals that the various counts were filed by information in the Putnam Circuit Court on September 1, and 5, 1978. On September 21, 1978, Smith filed his motion for a change of judge. The regular judge of the Putnam Circuit Court, Francis N. Hamilton, granted this motion, and Rexell A. Boyd was thereafter selected as special judge. On November 30, 1978, appellant Smith filed a second motion for a change of judge. The trial court held a hearing on this matter on December 4, and thereafter denied appellant's motion.

Appellant Smith has not shown by evidence found in the record any bias or prejudice on the part of Special Judge Boyd. Appellant's motion alleges that Judge Hamilton, who was no longer involved in the case, had improperly interjected himself into the proceedings in an attempt to influence Special Judge Boyd. Specifically, Smith claimed that Judge Hamilton had taken part in a hearing held on November 22, 1978, and that he advised the prosecutor and the special judge concerning a motion for continuance and a discovery question. Smith concluded that Judge Hamilton's actions reveal his bias and prejudice against him; he further claimed that Special Judge Boyd's bias and prejudice were revealed when Boyd allegedly permitted Judge Hamilton to "participate" in the proceedings. The prosecutor filed a response to Smith's motion, contradicting several of Smith's crucial allegations. Likewise, Judge Hamilton filed a counter-affidavit to Smith's motion, categorically denying that any hearing was held on November 22 and that he had participated in any alleged hearing after Special Judge Boyd assumed jurisdiction of the case.

The record reveals that a hearing was held on this motion on December 4, 1978, and the trial court thereafter denied Smith's motion. Smith now alleges this was error. The record simply does not support appellant's claim. Smith has neglected to include in the record any transcript of the December 4 hearing. Thus, the record before this Court contains only the allegations and counter-allegations of the parties. It was incumbent upon Smith, as appellant, to present a sufficient record to permit an intelligent review of the issue. State v. Irvin (1973), 259 Ind. 610, 613, 291 N.E.2d 70, 72; Johnson v. State, (1972) 258 Ind. 648, 654, 283 N.E.2d 532, 536; Burns v. State, (1970) 255 Ind. 1, 5-6, 260 N.E.2d 559, 562. Thus, error which is alleged but not disclosed by the record is not a proper subject for review. State v. Irvin, supra; Cooper v. State, (1972) 259 Ind. 107, 112, 284 N.E.2d 799, 802; Turner v. State, (1972) 259 Ind. 344, 348, 287 N.E.2d 339, 342. Because the record before us contains merely allegations of bias, prejudice and improper influence, and no evidence to support these allegations, we cannot conclude that the trial court erred in denying Smith's second motion for a change of judge.


Appellant Smith next argues the trial court erred in refusing several of his tendered instructions. These instructions defined offenses which are, allegedly, included offenses in the charge of attempted murder. Tendered instruction number four reads in its entirety as follows:

"The statutes of Indiana define battery as it may apply to this case as follows:

'A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery ...

(1) A Class A misdemeanor ... if it is committed against a law enforcement officer ...

(2) A Class D felony if it results in bodily injury to such an officer ..., and

(3) A Class C felony if it results in serious bodily injury to any other person or if it is committed by means of a deadly weapon.' "

Record at 485. Smith argues that battery of a law enforcement officer is a lesser-included offense of attempted murder, and, therefore, that the jury should have been so instructed.

In Goodpaster v. State, (1980) Ind., 402 N.E.2d 1239, this Court explained the analysis to be used in determining whether an offense is an included offense of the charged crime. We must first examine the statutes creating the two offenses. Id. 402 N.E.2d at 1242; Lawrence v. State, (1978) 268 Ind. 330, 337, 375 N.E.2d 208, 212. The offense of battery Ind.Code § 35-42-2-1 (Burns 1979 Repl.), as Smith would have had the jury instructed, contains the following elements: (1) a knowing or intentional (2) touching of (3) a law enforcement officer (4) in a rude, insolent or angry manner. These elements constitute a class A misdemeanor. The offense becomes a class D felony if the attack results in bodily injury to a law enforcement officer. Under Ind.Code §§ 35-42-1-1(1) and 35-41-5-1, the elements of attempted murder are: (1) the knowing or intentional (2) taking of a "substantial step toward" (3) the killing of (4) another (5) human being.

It is clear, then, that the battery described in that portion of the statute quoted in Smith's tendered instruction is not an inherently included offense of attempted murder. Obviously, the murder and attempt statutes do not require that the intended victim be a law enforcement officer. On the other hand, under the offense defined in § 35-42-2-1 and Smith's tendered instruction, the victim must be a law enforcement officer. Thus, it is possible to prove the offense of attempted murder without necessarily proving the offense of battery on a law enforcement officer.

We must next determine whether a battery was an included offense of the attempted murder alleged in this case. Goodpaster v. State, supra, 402 N.E.2d at 1243. This requires an examination of the factual allegations contained in the charging instrument "to determine if the elements of the lesser offense, by virtue of the manner and means allegedly employed in the commission of the charged crime, are alleged to have been committed." Id., quoting Roddy v. State, (1979) Ind.App., 394 N.E.2d 1098, 1107. See Lawrence v. State, supra.

The charging information in the case before us alleges:

"that Leslie Allen Smith ... on or about the first day of September, 1978, ... did then and there attempt to commit the crime of murder by knowingly attempting to kill Richard Rice and Lanny Fields by shooting at (their) bodies ... with a certain gun loaded with gunpowder and metal bullets, then...

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