Wilson v. State
| Decision Date | 29 March 1993 |
| Docket Number | No. 09A05-9206-CR-203,09A05-9206-CR-203 |
| Citation | 611 N.E.2d 160 |
| Parties | Jerry C. WILSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
John F. Ittenbach, Sheeks, Ittenbach & Johnson, Indianapolis, Courtney B. Justice, Logansport, for appellant-defendant.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.
Jerry C. Wilson appeals his convictions following a jury trial of two counts of attempted murder and one count of possession of an explosive. We consolidate and restate the issues he raises as:
1. Whether Wilson is entitled to a new trial because the trial court erroneously instructed the jury on the elements of attempted murder;
2. Whether the evidence is sufficient to support Wilson's conviction of attempted murder of Stephanie Whitmore;
3. Whether the trial court erroneously admitted State's Exhibits 27, 28, 31, 32 and 33;
4. Whether the trial court erroneously entered judgment and sentenced Wilson for his conviction of possession of an explosive because it is a lesser included offense of the attempted murder charge; and
5. Whether the sentences imposed by the trial court are manifestly unreasonable.
We affirm in part and reverse in part.
Viewed most favorably to the State, the facts are as follows. On August 23, 1991, Bill McKay and 15 year-old Stephanie Whitmore drove to the roller skating rink in Logansport, Indiana, to determine whether it would be a suitable place for a church youth outing. McKay and Whitmore were members of the Bible Tabernacle Church in Monticello, Indiana. While McKay and Whitmore were in the skating rink, Jerry Wilson, pastor of the Bible Tabernacle Church, attached a homemade bomb under McKay's car on the gas tank. The bomb was rigged such that it would explode when the car was backed out of its parking place adjacent to the skating rink. The bomb was discovered shortly after it was attached and was removed by Indiana State Police explosives experts without incident. Wilson's fingerprints were discovered on the bomb and tape used to make the bomb came from rolls of tape found in Wilson's garage.
Wilson had had an affair with Kim McKay, Bill's wife and a secretary at the church. When Kim wanted to terminate the relationship in June of 1991, Wilson told Kim that he would tell the church congregation, as well as her husband, about their relationship. The day or two before going to the skating rink with McKay, Stephanie Whitmore had discussed with Wilson going to the rink with McKay, but did not tell him exactly when the two were planning to go. Other facts will be presented where necessary.
Wilson first argues that the trial court erroneously instructed the jury on the elements of attempted murder. We note that Wilson did not object to the instructions given at trial. To get around this obstacle to review, Wilson claims that the error was fundamental and that his trial counsel was ineffective for failing to object to the instructions.
In order to rise to fundamental error, the error must constitute a clearly blatant violation of basic and elementary principles, and the prejudice therefrom must be so substantial that the defendant was denied a fair trial. Kremer v. State (1987), Ind., 514 N.E.2d 1068, 1072, reh'g denied; Solomon v. State (1991), Ind.App., 570 N.E.2d 1293, 1297. To determine whether fundamental error occurred, we must consider the effect of the error on the trial as a whole. Kremer, 514 N.E.2d at 1072.
Similarly, when claiming that counsel has been ineffective, the defendant must show not only that counsel's performance was deficient, but also that the deficient performance prejudiced the defense. May v. State (1991), Ind.App., 578 N.E.2d 716, 721. A mere assertion of error, absent evidence of prejudice, will not support a claim of ineffective assistance of counsel. Isom v. State (1992), Ind.App., 585 N.E.2d 1347, 1350. Appellate review under the prejudice prong for determining ineffective assistance of counsel is fact sensitive. The reviewing court must consider the totality of the evidence. Morrison v. State (1992), Ind.App., 588 N.E.2d 527, 531.
Thus, under both the fundamental error doctrine and an ineffective assistance of counsel claim, the defendant will not be entitled to a new trial unless counsel failed to object to an error at trial that resulted in prejudice to the defendant. With this standard in mind, we turn to Wilson's claim. Wilson was charged with two counts of attempted murder. Count I alleged that he attempted to kill Bill McKay and Count II alleged that he attempted to kill Stephanie Whitmore. The trial court's preliminary instruction to the jury stated:
The statute defining the offense of Attempt to Commit Murder with which the Defendant is charged reads in pertinent parts:
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 toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted. However, an attempt to commit murder is a Class A Felony.
To convict Defendant of Count I, Attempt to Commit Murder, the State must prove each of the following essential elements beyond a reasonable doubt:
That Jerry C. Wilson
(1) did engage in conduct that constituted a substantial step toward the commission of the crime of Murder
(2) by knowingly or intentionally attaching a bomb to the car being utilized by William McKay
(3) in an attempt to kill him
* * * * * *
To convict the Defendant of Count II, Attempt to Commit Murder, a Class A Felony, the State must prove each of the following essential elements beyond a reasonable doubt:
That Jerry C. Wilson
(1) did engage in conduct that constituted a substantial step toward the commission of the crime of Murder
(2) by knowingly or intentionally attaching a bomb to the car being utilized by William McKay
(3) wherein Stephanie Whitmore was a passenger
(4) in an attempt to kill her
* * * * * *
(R. 140-141).
Wilson's counsel tendered a final instruction to the jury that stated that the State must prove that the defendant, with intent to kill the victim, engaged in conduct which was a substantial step toward such killing. The trial court incorporated this instruction into its final instructions to the jury as follows:
The statute defining the offense of Murder, I.C. 35-42-1-1, reads in pertinent parts:
(1) A person who knowingly or intentionally kills another human being ... commits murder, a felony. I.C. 35-41-1-14 defines "human being" to mean "an individual who has been born and is alive."
The statute defining the offense of Attempt to Commit Murder with which the Defendant is charged reads in pertinent parts:
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 toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted. However, an attempt to commit murder is a Class A Felony.
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.
To convict the Defendant of Count I, Attempt to Commit Murder, the State must prove each of the following essential elements beyond a reasonable doubt:
That Jerry C. Wilson
(1) did engage in conduct that constituted a substantial step toward commission of the crime of Murder
(2) by knowingly or intentionally attaching a bomb to the car being utilized by William McKay
(3) in an attempt to kill him
If the State fails to prove any of the elements for Count I, Attempt to Commit Murder, a Class A Felony, beyond a reasonable doubt, you should find the Defendant not guilty of Count I, Attempt to Commit Murder, a Class A Felony.
If the State proves each of the elements beyond a reasonable doubt, you should find the Defendant guilty of Count I, Attempt to Commit Murder, a Class A Felony.
To convict the Defendant of Count II, Attempt to Commit Murder, a Class A Felony, the State must prove each of the following essential elements beyond a reasonable doubt:
That Jerry C. Wilson
(1) did engage in conduct that constituted a substantial step toward commission of the crime of Murder
(2) by knowingly or intentionally attaching a bomb to the car being utilized by William McKay
(3) wherein Stephanie Whitmore was a passenger
(4) in an attempt to kill her
If the State fails to prove any of the elements for Count II, Attempt to Commit Murder, a Class A Felony, beyond a reasonable doubt, you should find the Defendant not guilty of Count II, Attempt to Commit Murder, a Class A Felony.
If the State proves each of the elements beyond a reasonable doubt, you should find the Defendant guilty of Count II, Attempt to Commit Murder, a Class A Felony.
(R. 162-163). The jury was also instructed that it must continue to believe the defendant is innocent "unless the State proves the defendant is guilty beyond a reasonable doubt of every essential element of the crime charged." (R. 169)
Wilson argues that the instructions do not adequately inform the jury that the specific intent to kill is a necessary element of attempted murder and that, at best, the instructions are confusing and misleading. In order to convict a defendant of attempted murder, the trial court is required to inform the jury that it must find that the defendant had the specific intent to kill the victim and the failure to so instruct the jury is fundamental error. Woodcox v. State (1992), Ind., 591 N.E.2d 1019, 1023. It is not necessarily fundamental error, however, if the trial court fails to use the...
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