Wells v. State, 49A02-8807-CR-288

• Decision Date: 09 July 1990
• Docket Number: No. 49A02-8807-CR-288,49A02-8807-CR-288
• Parties: Quanardel Latez WELLS, Appellant (Defendant Below), v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 1366

555 N.E.2d 1366

Quanardel Latez WELLS, Appellant (Defendant Below), v. STATE of Indiana, Appellee.

No. 49A02-8807-CR-288.

Court of Appeals of Indiana,

Second District.

July 9, 1990.

Rehearing Denied Aug. 21, 1990.

Howard Howe, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Wendy Stone Messer, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Quanardel Latez Wells (Wells) appeals his conviction for battery, a class C felony. We affirm.

The facts disclose that in the early morning hours of April 19, 1987, Corey Thomas and several other friends were walking home from a skating rink in Indianapolis. While they were walking, a black Monte Carlo pulled up beside them and stopped. After the car stopped, the driver got out and asked the boys why their hats were turned to the right. When the boys did not respond, the driver of the car reached into the car and said "give me that thing." Record at 270. The boys started to run because they thought the driver was talking about a gun. Corey Thomas testified that when he turned around he saw the driver holding a little black gun. Several shots were fired, and one bullet struck Corey Thomas' brother in the back. Later in the evening, the police stopped a black car matching the description of the black Monte Carlo. The police found a hand gun in the car. Corey Thomas and another boy identified Wells as the driver of the car.

Juvenile jurisdiction was waived, and Wells, age 17, was charged with attempted murder, a class A felony. The court permitted Wells to waive his right to a jury trial. During trial on February 10, the court determined that Wells had fired the gun. However, the court was concerned that proof of intent was insufficient to convict Wells of attempted murder. The court therefore requested counsel to prepare arguments concerning lesser included offenses. On March 9, the court heard additional argument from counsel and found Wells guilty of "aggravated" battery, a class C felony, and sentenced him to eight years.

Wells presents the following issues, which we restate:

(1) Whether the trial court erred in failing to consider criminal recklessness as a lesser included offense of attempted murder;

(2) Whether the trial court erred in prohibiting Wells from impeaching a State's witness with evidence of a prior juvenile adjudication;

(3) Whether the trial court erred in allowing James Hamby to testify as an expert with reference to gunshot residue;

(4) Whether Wells' conviction for aggravated battery was not supported by sufficient evidence; and

(5) Whether the court improperly enhanced Wells' sentence on the basis of incorrect facts.

I

Wells argues that the court erred in failing to consider criminal recklessness as a lesser included offense of attempted murder. ¹ In Humes v. State (1981) Ind., 426 N.E.2d 379, our Supreme Court held that criminal recklessness is not a lesser included offense of the crime of attempted murder. The court there stated:

"It is well settled that the test for determining whether it was error to refuse instructions on lesser included offenses is embodied in a two-step analysis. It must be determined by looking at the language of the statute and the indictment or information whether the lesser offense is necessarily included within the greater and also whether there has been evidence introduced at trial to which the included offense instruction was applicable." Id. at 382.

Applying that test, the court compared the statutes governing attempted murder and criminal recklessness and considered the charging instrument involved in that case. The court then found that there was no element of recklessness in either the charging information or our general attempt statute, I.C. 35-41-5-1 (Burns Code Ed.Repl.1985). The conclusion that our general attempt statute has no element of recklessness was based upon earlier holdings that our general attempt statute can have application only to specific intent crimes. Id. Analyzing the crime of recklessness, the court held

"it is clear that the offense of recklessness in the present statutory scheme must include the essential element of reckless behavior and is a general intent offense." Id. at 383.

The court then concluded:

"Since we have clearly held that our attempt statute can have application only to specific intent crimes, and there is no element of specific intent in the offense of recklessness, we hold that the offense of recklessness is not a lesser included offense of the crime of attempted murder and, further, that there can be no crime of 'attempted recklessness' ". Id. at 383.

The proposition that our general attempt statute has application only to specific intent crimes was in past years stated repeatedly. See e.g., Yeagley v. State (1984) Ind., 467 N.E.2d 730, 736; Conley v. State (1983) Ind., 445 N.E.2d 103, 105; Smith v. State (1981) Ind., 422 N.E.2d 1179, 1185; Rhode v. State (1979) 1st Dist., 181 Ind.App. 265, 391 N.E.2d 666, 668. However, the cases stating the proposition do not define "specific intent." Recently, our Supreme Court endeavored to clarify the proposition. In Henderson v. State (1989) Ind., 534 N.E.2d 1105, the court signaled that the terms "specific intent" and "general intent" are no longer accurate terms with respect to culpability. After noting the different ways in which courts have used the terms, and the resultant confusion, the court stated,

"In order to promote greater clarity and precision, the 'specific intent'--'general intent' terminology was abandoned in the Model Penal Code. [Citations omitted]. Indiana substantially implemented this approach with revision of its criminal code in 1976 and the statutory designation of 'intentionally,' 'knowingly,' and 'recklessly' as specific terms denoting degrees of culpability. Ind.Code Sec. 35-41-2-2.

Subsequent cases holding that the Indiana attempt statute can have application only to specific intent crimes resulted from discussions reviewing whether the Indiana attempt statute applies to crimes requiring a culpability of mere 'recklessly,' rather than 'intentionally' or 'knowingly.' [Citations omitted.] As used in this line of cases, the term 'specific intent' was utilized to exclude application of the attempt statute to crimes requiring 'recklessly' as the prerequisite culpability." ² Henderson, 534 N.E.2d at 1107-1108.

Therefore, it is no longer correct to say that our attempt statute only applies to "specific intent" crimes. It is only correct to say that the attempt statute is not applicable to crimes requiring "recklessly" as the prerequisite culpability. It is understandable why one cannot attempt to engage in reckless conduct or attempt to bring about a result which is heedlessly uncontemplated. However, it is somewhat less understandable how the Court in Humes made the transition from this basic concept to a determination that a crime with a culpability of "recklessly" could not be a lesser offense of an attempt charge, such as attempted murder. Our interpretation of Humes and Henderson leads to the conclusion that, by charging a prospective defendant with an attempt crime, the State must prove that defendant's conduct was purposeful. Under this analysis, if the State fails to do so, it is not entitled to a conviction on the basis of conduct which is merely "reckless."

The defendant argues that Humes stands for the proposition that, to constitute a lesser offense of attempted murder, the lesser offense must itself be an attempted crime. However, Wells argues that in some circumstances a criminal defendant, in the course of taking the substantial step leading to the attempt charge, actually engages in specific conduct which constitutes a lesser offense. In the present case the record shows that the trial court found the defendant guilty of firing the revolver, but found that the intent was not sufficient to constitute attempted murder. Wells argues that because the trial court found that Wells fired the revolver, the only element in dispute was the defendant's culpability when he did so. Therefore, Wells concludes, in this case, the court should have considered whether his specific conduct in firing the gun was merely reckless, thereby constituting criminal recklessness.

Wells acknowledges that even if we were to find that criminal recklessness could, in some instances, be a lesser included offense of attempted murder, recklessness would not be a "necessarily" included offense. Furthermore, as we have stated, attempted murder requires a culpability allegation of knowingly or intentionally. This eliminates inclusion of recklessness as within such crime as charged. Wells, however, suggests that under an attempted murder charge if the evidence permits reasonable doubt as to whether he acted recklessly rather than knowingly or intentionally the court may convict of the reckless act. This assertion is a reference to the doctrine of "related offenses."

Indiana has not yet adopted the doctrine of related offenses. However, our Supreme Court discussed the doctrine in Mahla v. State (1986) Ind., 496 N.E.2d 568. In Mahla, the court said:

"the 'related' offense doctrine holds that if the evidence demonstrates the defendant may have committed a lesser offense in the course of acts that led to the greater charge, even if such offense is not inherently included in the greater charge nor in the prosecutor's factual allegations of the means by which the greater crime charged was committed, and if the defendant so requests, the trier of fact should be given the opportunity to consider the 'related' lesser offense." Id. at 573-574.

We need not decide whether a criminal recklessness conviction might be appropriate in some circumstances under a charge of attempted murder, nor whether the related offense doctrine should be adopted in Indiana. Wells was not convicted of criminal recklessness. He was convicted of aggravated battery, an offense included in the...