Terry v. State
| Decision Date | 09 July 1984 |
| Docket Number | No. 483S109,483S109 |
| Parties | James B. TERRY, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Edward Chosnek, Pearlman & Chosnek, Lafayette, for appellant.
Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was convicted by a jury of attempted murder, a Class A felony. He was sentenced to a term of thirty (30) years imprisonment.
The facts are these: Appellant was visiting the apartment of Mr. Shockey and his girlfriend Michelle Lopez. These three and various other friends were sitting in the apartment drinking. The victim came to the apartment in an attempt to find Trudy Cross, his current girlfriend.
Appellant, Shockey and the victim were all acquainted with one another because of the intimate relationships they shared with the same women. Cross was the former wife of Shockey and had recently slept with the appellant. In addition the victim's ex-wife had lived with the appellant and had a child by the appellant.
The victim was invited into the apartment and offered a drink. The victim then spent several hours in the apartment drinking and talking. Over the course of time, the talk varied from pleasant to threatening. Eventually a scuffle broke out between Shockey and the victim. Shockey landed several blows before the victim broke a coffee table and took the wooden leg of the table as a weapon. Appellant then took out a knife he had brandished earlier and attacked the victim. The three struggled until the victim was so badly wounded that he could no longer continue.
Appellant, Shockey and some of the girls took the victim to the hospital. They left the victim in the emergency room and fled. Later the appellant exchanged his bloodied clothes for others and had those clothes burned.
Appellant contends the information failed to allege an essential element of the crime of attempted murder. The information read:
"On or about the 2nd day of May, 1981, in Tippecanoe County, Indiana, James B. Terry did attempt to commit the crime of murder by knowingly and intentionally stabbing and cutting Ferris Orange, Jr., about the head and chest, with a knife, causing serious bodily injury to Ferris Orange, Jr., which conduct constituted a substantial step towards the commission of the crime of murder."
Appellant maintains the information did not contain an allegation that the stabbing was done with an intent to kill. He argues the required intent in an attempted crime situation is the intent to commit the underlying crime. Thus, the information must have used the phrase "with an intent to kill." The information as filed, according to the appellant, sets forth a charge of battery or criminal recklessness but not attempted murder.
Appellant did not raise the issue until his motion to correct error was filed. Ind.Code Sec. 35-34-1-4 [Burns 1983 Supp.] provides motions for dismissal, based upon a defective information, must be filed twenty days prior to the omnibus date. The omnibus date is provided for in Ind.Code Sec. 35-36-8-1 [Burns 1983 Supp.]. The State maintains the issue was waived. Appellant argues the issue is one of fundamental error and was not waived by a failure to timely file.
Nelson v. State, (1980) Ind., 409 N.E.2d 637, 638.
In the case at bar the information filed used the term murder on two occasions. Appellant was sufficiently apprised of the allegation to offer self-defense as a defense. It cannot be said the error, if any, was blatant and the potential for harm to this defendant was substantial.
Appellant claims the trial court erred in its refusal to give appellant's Tendered Jury Instruction on voluntary intoxication. The questions presented are whether attempted murder is a crime within the scope of Ind.Code Sec. 35-41-3-5(b) so that voluntary intoxication would be an offerable defense and whether Ind.Code Sec. 35-41-3-5(b) is violative of the Constitution of the United States and the State of Indiana. The statute provides that: "(b) Voluntary intoxication is a defense only to the extent that it negates an element of an offense referred to by the phrase 'with intent to' or 'with an intention to.' " [I.C. Sec. 35-41-3-5, as added by Acts 1976, P.L. 148, Sec. 1; 1977, P.L. 340, Sec. 11; 1980, P.L. 205, Sec. 1.]
Appellant contends attempted murder is a specific intent crime of the type covered by the statute even though the language of Ind.Code Sec. 35-41-5-1, the attempt statute, and Ind.Code Sec. 35-42-1-1, the homicide statute, do not contain the phrases "with intent to" or "with an intention to." He cites Norris v. State, (1981) Ind., 419 N.E.2d 129 and Zickefoose v. State, (1979) 270 Ind. 618, 388 N.E.2d 507 to support the contention that attempted murder is a specific intent crime.
He argues the purpose of Ind.Code Sec. 35-41-3-5(b) was to limit the defense of voluntary intoxication to those cases requiring specific not general intent. The State maintains the defense is not available for cases involving murder or attempted murder as the statutes defining these crimes do not contain the proper phrases to invoke the application of Ind.Code Sec. 35-41-3-5(b).
In Sills v. State, (1984) Ind., 463 N.E.2d 228, Justice Givan, in a concurring in result opinion, discussed at length the rationale behind Ind.Code Sec. 35-41-3-5(b) and concluded the statute would be unconstitutional. We incorporate the rationale of that opinion here. We call particular attention to the following passages of the Sills concurrence.
"The murder statute, the same being IC Sec. 35-42-1-1, reads in pertinent part as follows:
'A person who:
(1) Knowingly or intentionally kills another human being; ....'
To hold that this statute does not contain the language required in the voluntary intoxication statute, to me is a strain of statutory interpretation. The murder statute clearly requires an intentional act on the part of the perpetrator. To interpret the statute to require the specific language that is contained in the quotes of the statute is to make the statute ludicrous indeed.
* * *
* * *
"Likewise, if intoxication, whether it be voluntary or involuntary, renders that individual so completely non compos mentis that he has no ability to form intent, then under our constitution and under the firmly established principles of the mens rea required in criminal law, he cannot be held accountable for his actions, no matter how grave or how inconsequential they may be." Id. at 242.
Any factor which serves as a denial of the existence of mens rea must be considered by a trier of fact before a guilty finding is entered. Historically, facts such as age, mental condition, mistake or intoxication have been offered to negate the capacity to formulate intent. The attempt by the legislature to remove the factor of voluntary intoxication, except in limited situations, goes against this firmly ingrained principle. We thus hold Ind.Code Sec. 35-41-3-5(b) is void and without effect.
A defendant in Indiana can offer a defense of voluntary intoxication to any crime. The potential of this defense should not be confused with the reality of the situation. It is difficult to envision a finding of not guilty by reason of intoxication when the acts...
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