Terry v. State, No. 483S109

Docket NºNo. 483S109
Citation465 N.E.2d 1085
Case DateJuly 09, 1984
CourtSupreme Court of Indiana

Page 1085

465 N.E.2d 1085
James B. TERRY, Appellant,
v.
STATE of Indiana, Appellee.
No. 483S109.
Supreme Court of Indiana.
July 9, 1984.

Page 1086

Edward Chosnek, Pearlman & Chosnek, Lafayette, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

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

Page 1087

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.

"We have rejected numerous claims of fundamental error, notwithstanding that the alleged errors would have borne upon constitutional rights, because the violation did not appear to be inherently wrong nor the consequences clear and dire. A mere nexus between the right and the error is not sufficient. To be categorized as fundamental error and thus to transcend our procedural requirements, the error must be blatant, and the potential for harm must be substantial and appear clearly and prospectively. Johnson v. State, supra; Perry v. State, (1979) 270 Ind. 558, 387 N.E.2d 1315; Richard v. State, (1978) 269 Ind. 607, 382 N.E.2d 899, cert. den., (1979) 440 U.S. 965, 99 S.Ct. 1515, 59 L.Ed.2d 781; Phillips v. State, (1978) 268 Ind. 556, 376 N.E.2d 1143; Webb v. State, (1972) 259 Ind. 101, 284 N.E.2d 814." 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...

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109 practice notes
  • Sanchez v. State, No. 92S03-0009-CR-518.
    • United States
    • Indiana Supreme Court of Indiana
    • June 26, 2001
    ...intoxication as a defense to crimes that required "with intent to" or "with intention to." Four years later, in Terry v. State, 465 N.E.2d 1085, 1088 (Ind.1984), this Court held that, "[a]ny factor which serves as a denial of the existence of mens rea must be considered by a trier of fact b......
  • State v. Campos, No. 21429
    • United States
    • New Mexico Supreme Court of New Mexico
    • May 30, 1996
    ...able to devise a plan, operate equipment, instruct the behavior of others, or carry out acts requiring physical skill." Terry v. State, 465 N.E.2d 1085, 1088 (Ind.1984). 59. Intoxication may negate a specific subjective state of mind. Part of the confusion in our common law regarding when i......
  • Miller v. Anderson, No. 3:99 CV 258 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • June 19, 2000
    ...Court's analysis of ineffective assistance of counsel claims is led more by its own pre-Strickland law in cases like Terry v. State, 465 N.E.2d 1085 (Ind.1984) and Hollon v. State, 272 Ind. 439, 398 N.E.2d 1273 (1980), in which it requires that the "defense as a whole must be inadequate." M......
  • Bazzle v. State, No. 89
    • United States
    • Court of Appeals of Maryland
    • May 22, 2012
    ...which is inconsistent with the assertion that he was unable to form any specific intent that night. 12[426 Md. 558]See Terry v. State, 465 N.E.2d 1085, 1088 (Ind.1984) (holding that the defendant's ability to give directions and make “decisions on a course of action for himself” was inconsi......
  • Request a trial to view additional results
109 cases
  • Sanchez v. State, No. 92S03-0009-CR-518.
    • United States
    • Indiana Supreme Court of Indiana
    • June 26, 2001
    ...intoxication as a defense to crimes that required "with intent to" or "with intention to." Four years later, in Terry v. State, 465 N.E.2d 1085, 1088 (Ind.1984), this Court held that, "[a]ny factor which serves as a denial of the existence of mens rea must be considered by a trier of fact b......
  • State v. Campos, No. 21429
    • United States
    • New Mexico Supreme Court of New Mexico
    • May 30, 1996
    ...able to devise a plan, operate equipment, instruct the behavior of others, or carry out acts requiring physical skill." Terry v. State, 465 N.E.2d 1085, 1088 (Ind.1984). 59. Intoxication may negate a specific subjective state of mind. Part of the confusion in our common law regarding when i......
  • Miller v. Anderson, No. 3:99 CV 258 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • June 19, 2000
    ...Court's analysis of ineffective assistance of counsel claims is led more by its own pre-Strickland law in cases like Terry v. State, 465 N.E.2d 1085 (Ind.1984) and Hollon v. State, 272 Ind. 439, 398 N.E.2d 1273 (1980), in which it requires that the "defense as a whole must be inadequate." M......
  • Bazzle v. State, No. 89
    • United States
    • Court of Appeals of Maryland
    • May 22, 2012
    ...which is inconsistent with the assertion that he was unable to form any specific intent that night. 12[426 Md. 558]See Terry v. State, 465 N.E.2d 1085, 1088 (Ind.1984) (holding that the defendant's ability to give directions and make “decisions on a course of action for himself” was inconsi......
  • Request a trial to view additional results

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