Street v. State

• Decision Date: 07 March 1991
• Docket Number: No. 29S02-9103-CR-175,29S02-9103-CR-175
• Citation: 567 N.E.2d 102
• Parties: John STREET, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 102

567 N.E.2d 102

John STREET, Appellant, v. STATE of Indiana, Appellee.

No. 29S02-9103-CR-175.

Supreme Court of Indiana.

March 7, 1991.

Steven C. Litz, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

PETITION TO TRANSFER

DeBRULER, Justice.

The First District of the Court of Appeals affirmed appellant's conviction for voluntary manslaughter, a Class A felony, I.C. 35-42-1-3. Street v. State (1990), Ind.App., 559 N.E.2d 375. He seeks transfer on the basis of that Court's resolution of his claims that there was error in the jury instruction on the defense of intoxication and in the choice to sentence him for the crime of voluntary manslaughter as a Class A, rather than Class B, felony. That Court held that the instruction was correct. We grant transfer, reverse, and remand for a new trial.

Billy Wilkins and appellant had been drinking together and, while walking along the Luxhaven Bridge, Wilkins threw appellant's puppy dog off the bridge and into Geist Reservoir saying he would teach it to swim. Appellant retaliated by stabbing Wilkins multiple times, at least once in the throat, killing him.

The trial was upon a single count, murder, charging that appellant "did knowingly kill William Wilkins III, by striking, cutting, or stabbing at and against the body ... with a knife ... causing [him] ... to die." The trial court instructed the jury from the statutes defining murder and voluntary manslaughter and the statute defining the knowing state of mind and squarely placed the burden of proof beyond a reasonable doubt upon the elements of those crimes on the prosecution. Convinced that the defense of intoxication had been raised by the trial evidence of appellant's alcohol consumption and behavior on the day of the assault, the court chose to give the State's Final Instruction No. 1, defining the defense of intoxication, over a defense objection. This was the lone instruction on such defense. It provided:

The issue of the defendant's intoxication has been raised in this case. The defense of intoxication is offered to negate the capacity to formulate intent, in that the defendant must lack substantial capacity to either appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.

It is not sufficient that the defendant merely ingested alcohol or controlled substances. Mere intoxication is not sufficient unless there is some mental incapacity resulting therefrom as will render a person incapable of thinking deliberately and meditating rationally. A defendant should not be relieved of responsibility if he could devise a plan, operate equipment, instruct the behavior of others or carry out acts requiring physical skill.

The defendant has the burden of proving that the defendant reached this degree of intoxication.

Appellant argues that the final sentence of the instruction illegally shifted the burden of proof to him on an element of the crime.

The defense of voluntary intoxication is provided for by statute, I.C. 35-41-3-5, and, despite an expression of limited applicability in the statute, may be offered in defense to any crime. Terry v. State (1984), Ind., 465 N.E.2d 1085. The basic presupposition upon which the defense rests is that intoxication can be so severe as to render a person incapable of forming or entertaining the criminal intent required to commit a crime, yet not so severe as to render such person incapable of the conduct required to commit the crime. "Voluntary intoxication ... negates the essential element of intent." Melendez v. State (1987), Ind., 511 N.E.2d 454, 457.

The burden of raising the defense, by asserting it and pointing out the factual predicate for it, rests upon the defendant. The question of whether the defense has been raised so as to require a jury instruction on the subject to be given is a question to be resolved by the trial judge and not the jury, and upon a determination by the judge that the defense has been raised, it is then the judge's duty to give a correct instruction. Williams v. State (1980), Ind., 402 N.E.2d 954. The function of the jury is, having received a correct instruction, to find whether the defendant was so intoxicated that he was incapable of forming the charged intent and, if the determination is made that he was incapable of so doing, to find him not guilty. Melendez, 511 N.E.2d 454.

In Fowler v. State (1988), Ind., 526 N.E.2d 1181, and Powers v. State (1989), Ind., 540 N.E.2d 1225, relied upon by appellant, this Court held that an intoxication defense instruction which placed the burden upon the defendant to prove the defense of intoxication beyond a reasonable doubt was an erroneous statement of the law in that it shifted the burden of proof upon an element of the crime, i.e., intent, to the defendant. The Court of Appeals reasoned that the instruction in this case does not use the phrase, "beyond a reasonable doubt," but instead uses the phrase, "burden of proving," and therefore passes legal muster. Street, 559 N.E.2d at 378-79. That Court was...