Tacy v. State

• Decision Date: 13 October 1994
• Docket Number: No. 20A04-9311-PC-413,20A04-9311-PC-413
• Citation: 641 N.E.2d 57
• Parties: Aaron TACY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 57

641 N.E.2d 57

Aaron TACY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 20A04-9311-PC-413.

Court of Appeals of Indiana,

Fourth District.

Oct. 13, 1994.

Transfer Denied Nov. 23, 1994.

Susan K. Carpenter, Public Defender, Kenneth L. Bird, Deputy Public Defender, Indianapolis, for appellant.

Pamela Carter, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee.

STATEMENT OF THE CASE

RATLIFF, Senior Judge.

In 1981, Aaron Tacy was convicted of attempted murder, theft, and burglary, resulting in concurrent sentences of thirty-four (34), two (2), and twelve (12) years. His convictions were affirmed by our Supreme Court on direct appeal. Tacy v. State (1983), Ind., 452 N.E.2d 977. Tacy now appeals from the denial of his Petition for Post-Conviction Relief. We affirm in part, and reverse in part.

ISSUES

I. Did the trial court's instructions on the offense of attempted murder constitute fundamental II. Is the issue whether the juvenile court acquired jurisdiction over Tacy res judicata?

error because they did not instruct the jury on the element of specific intent?

III. Was Tacy denied his constitutional right to effective assistance of counsel at trial and on appeal?

FACTS

As previously described by our supreme court, the following events gave rise to Tacy's charges and convictions:

"At about 9:30 P.M. on April 9, 1980, two officers from the Elkhart Sheriff's Department were dispatched to an Elkhart grocery store parking lot to investigate a truck. The officers found [Tacy] sitting in the truck. While one of the officers was questioning [Tacy] the other ran a radio check on the truck and was told it had been reported stolen. In the meantime a third officer arrived on the scene. While [Tacy] was on the ground and the officers were attempting to handcuff him, he managed to withdraw a concealed handgun and fire two shots. One shot struck one of the officers on the shoulder but caused no injury because the officer was wearing a bulletproof vest. [Tacy] fled into the grocery store. One of the officers fired twice at him as he was running. Both shots struck [Tacy] in the arm. He soon surrendered along with a juvenile companion who had been inside the store during the incident.

At [Tacy's] trial the companion, a cousin named Alan Stamper, testified the boys had run away from home three or four days earlier. He related that during this time the boys had stolen a motorcycle and broken into a residence. They spent a total of two nights and a day in the residence consuming food and liquor they found in the house, stole some guns and other items of personal property, and vandalized the house as well. For a time they separated and Stamper stole the truck from which [Tacy] was apprehended. They had spent all day in the grocery store parking lot on April 9, having driven there in the morning to buy cigarettes and being forced to stay because the truck would not restart."

Id. at 979.

Tacy filed a Petition for Post-Conviction Relief in 1986. He amended the petition on June 16, 1992, and the trial court heard it on September 11, 1992. Both Tacy's trial and appellate counsel testified at the hearing. The court denied Tacy's petition, and he now appeals.

DECISION

I. Jury Instructions

Tacy argues that the trial court's instructions on the offense of attempted murder constituted fundamental error because they did not instruct the jury on the element of specific intent. The State argues that Tacy has waived this issue because he could have raised it on direct appeal and failed to do so. We agree with Tacy.

In general, issues which could have been raised on direct appeal are not available for review in post-conviction proceedings. Weatherford v. State (1993), Ind., 619 N.E.2d 915, 917, reh'g denied. However, a claim of fundamental error can be raised in a post-conviction petition regardless of whether such issue was waived in the direct appeal process. Haggejos v. State (1986), Ind., 493 N.E.2d 448, 450. Fundamental error is blatant error which, if not rectified, would deny the petitioner fundamental due process. Id. Our supreme court has held that failure to instruct the jury on the element of specific intent in the crime of attempted murder is fundamental error. Smith v. State (1984), Ind., 459 N.E.2d 355, 358.

In Smith, the trial court instructed the jury as follows:

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.

Id. at 357. Smith argued that the instruction on attempted murder failed to include an essential element of the offense, namely, that he must have had the specific intent to commit murder in order to be found guilty of attempted murder. The State argued that the instructions, considered as a whole, did inform the jury of the specific intent requirement. Our supreme court agreed with Smith, found fundamental error, and stated as follows:

"Nowhere in these instructions ... 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 [the victim]. 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."

Id. at 358.

Our supreme court reaffirmed Smith in Spradlin v. State (1991), Ind., 569 N.E.2d 948. In Spradlin, the trial court instructed the jury as follows:

"To convict the defendants, the State must have proved each of the following elements: the defendants 1) knowingly or intentionally, 2) strike, stab and cut the body of Robert Grubbs, 3) that the conduct was a substantial step toward the commission of the crime of murder."

Id. at 950-51.

On the Spradlins' direct appeal, the supreme court found that the instructions did not include a requirement that the State prove that, "at the time that the [Spradlins] struck, stabbed and cut the victims, [they] intended to kill such victims." Id. at 951. The court further stated as follows:

"[W]e hold that an instruction which purports to set forth the elements which must be proven in order to convict of the crime of attempted murder must inform the jury that the State must prove beyond a reasonable doubt that the defendant, with intent to kill the victim, engaged in conduct which was a substantial step toward such killing." ¹

In the instant case, the trial court instructed the jury on attempted murder as follows:

The crime of Attempt is defined by statute as follows: 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 towards the commission of the crime. To convict the defendant the State must have proved each of the following elements: the defendant 1) knowingly or intentionally, 2) engaged in conduct which created a substantial risk of death to one Gerald C. Webb, 3) that the conduct was a substantial step toward the commission of the crime of Murder ... (Record, at 866-67).

Applying the Spradlin requirements to Tacy's instructions, ² we find that the instructions failed to advise the jury that in order to convict Tacy of the crime, the State had to prove beyond a reasonable doubt that Tacy intended to kill Webb. Rather, the instructions advised the jury that they could convict Tacy for attempted murder if Tacy knowingly or intentionally engaged in conduct which created a substantial risk of death to Officer Webb, and which was a substantial step toward the commission of murder. Having determined that the instructions were erroneous, we must now determine whether the instructions constituted fundamental error.

Several cases have addressed what constitutes a sufficient instruction on the element of intent to kill in attempted murder, and whether an error in the instructions is fundamental error. In Brown, supra, 587 N.E.2d at 693, we reviewed prior opinions from the Indiana Supreme Court on whether or not the error was fundamental and stated as follows:

"These cases suggest that fundamental error results 1) when the jury instructions on attempted murder completely fail to refer to the element of intent to kill; and 2) when the instructions leave the impression that intent to engage in the conduct leading to the risk of death alone is sufficient to convict on a charge of attempted murder. On the other hand, instructions which imperfectly instruct on the element of intent to kill but which do not affirmatively mislead the jury are erroneous but not fundamental error, and are therefore subject to waiver. An instruction which refers to the element of intent by stating that the defendant must 'attempt to kill', rather than 'intend to kill', the victim appears to be an example of an imperfect but not fundamentally erroneous instruction."

Id. at 696.

In Brown, a...