Swallows v. State

Decision Date31 December 1996
Docket NumberNo. 03S01-9612-PC-00740,03S01-9612-PC-00740
Citation674 N.E.2d 1317
PartiesMitchell SWALLOWS, Appellant, v. STATE of Indiana Appellee.
CourtIndiana Supreme Court

Susan K. Carpenter, Public Defender of Indiana and Linda G. Nicholson, Deputy Public Defender, Indianapolis, for Appellant.

Pamela Carter, Attorney General of Indiana and Priscilla J. Fossum, Deputy Attorney General, Indianapolis, for Appellee.

SELBY, Justice.

Defendant was convicted of two counts of Attempted Murder, four counts of Criminal Confinement while armed with a deadly weapon, and two counts of Attempted Criminal Deviate Conduct while armed with a deadly weapon. This is an appeal from the post-conviction court's affirmance of these convictions. The Court of Appeals reversed the post-conviction court solely on the issue of the attempted murder instruction. Judge Najam, writing for a unanimous court, found that the trial court committed fundamental error by failing to instruct on the specific intent element of attempted murder. We grant transfer in order to address this issue.

FACTS

The facts as relayed by the Court of Appeals are as follows: On February 5, 1985, Defendant attempted to rape Dinah Durham who escaped and pressed charges. Two days later, Defendant and Marvin McCall forced Doyle Hoskins, at gun point, to drive them to Durham's home. Susie Carmichael, Durham's roommate, answered the door. The men forcibly entered the apartment, and Defendant demanded that Durham drop the charges against him, to which she agreed.

Defendant, not believing her promise to drop charges, forced Durham and Carmichael into the bedroom. McCall followed Defendant's order to lock Carmichael, and a visitor, in the closet. During this time, Hoskins escaped from the apartment. Then, while McCall held the gun, Defendant attempted and failed to perform anal intercourse on Durham and then forced her to engage in

vaginal intercourse. Afterwards, Defendant took the gun and shot Durham in the head and then the back. Defendant next dragged Carmichael from the closet into the living room and beat her with a bedpost. After Defendant and McCall left the apartment, Durham managed to contact a neighbor who called the police.

DISCUSSION AND DECISION

The State raises the sole issue of whether the trial court committed fundamental error by failing to instruct on the specific intent element of attempted murder. We hold that the postconviction court properly found that the original trial court did not commit fundamental error by failing to instruct on specific intent.

The instruction on attempted murder given at Defendant's trial reads as follows:

To convict the defendant, the State must have proved each of the following elements. The Defendant:

1. Knowingly or intentionally

2. Engaged in conduct to kill another human being and

3. That the conduct was a substantial step toward the commission of the crime of murder.

If the State failed to prove each of these elements beyond a reasonable doubt, you should find the defendant not guilty.

(R. at 506.)

The court clearly erred in giving this instruction because it fails to advise the jury that in order to find a defendant guilty of attempted murder, they must find the defendant acted with the specific intent to kill. Clark v. State, 668 N.E.2d 1206, 1210 (Ind.1996); Spradlin v. State, 569 N.E.2d 948, 950 (Ind.1991). Defendant, however, failed to object to this instruction at trial. The issue, then, becomes whether the failure of the court to give the instruction constitutes fundamental error for which a post-conviction court must reverse although the defendant registered no objection to the instruction.

We have found that, in cases on direct appeal where intent is not in issue, instructions which fail to advise the jury that specific intent to kill is required to convict a defendant of attempted murder do not necessarily constitute fundamental error. Clark, 668 N.E.2d at 1210 n. 3; Jackson v. State, 575 N.E.2d 617 (Ind.1991). Likewise, in this case we do not find that the trial court committed fundamental error by using language that said "to kill" rather than "intended to kill." The intent of the Defendant was not in issue, as the theory of defense revolved around proving the State could not show "beyond a reasonable doubt that my client, Mitch Swallows, is the one who had done all of these things." (R. at 623-24.) Thus,...

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28 cases
  • Canaan v. Davis, Cause No. IP 97-1847-C H/K (S.D. Ind. 1/10/2003)
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • January 10, 2003
    ......The State of Indiana sentenced him to death. In this action for a writ of habeas corpus, Canaan seeks relief ...Id. The Indiana Supreme Court reached essentially the same conclusion in Swallows v. State, 674 N.E.2d 1317, 1318 (Ind. 1996) (finding instruction erroneous but denying ......
  • Goudy v. State, 48S00-9604-CR-296
    • United States
    • Supreme Court of Indiana
    • November 26, 1997
    ...that specific intent to kill is required to convict a defendant of attempted murder do not necessarily constitute fundamental error." 674 N.E.2d 1317, 1318 (Ind.1996). In this case, there was no evidentiary dispute about the issue of intent. Defendant's defense was that someone else did the......
  • Ramsey v. State
    • United States
    • Supreme Court of Indiana
    • February 15, 2000
    ...of this sort was not fundamental especially when the intent of the perpetrator was not a central issue at trial, see Swallows v. State, 674 N.E.2d 1317 (Ind.1996), or if the wording of the instruction sufficiently suggested the requirement of intent to kill, Jackson v. State, 575 N.E.2d 617......
  • Baxter v. State, 57A03-9701-PC-17
    • United States
    • Court of Appeals of Indiana
    • December 15, 1997
    ...the fundamental fairness which the doctrine seeks to protect. See, e.g., Goudy v. State, 689 N.E.2d 686 (Ind.1997); Swallows v. State, 674 N.E.2d 1317 (Ind.1996) (holding no fundamental error arose despite trial court's failure to instruct on the specific intent element of attempted murder ......
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