*1 811 our technical justice. must examine FRIEDLANDER, J., We concurs. invoking closely appears that when it rules RUCKER, J., opinion. dissents justice; otherwise them would defeat to the technicalities them- slaves become RUCKER, dissenting. Judge, they position of acquire the selves and ques There is no respectfully dissent. I of the means. being the ends instead authority support exists ample case timely filing of a ing the notion that merely appellant at hand the case to an jurisdictional prerequisite praecipe is filing praecipe. The day late in one (1991), See, Ind. v. appeal. e.g., Dizon Appellant Proceedings and Brief of Record of denied; 594, Hughes trans. App., N.E.2d I timely thereafter. also observe were filed (1983), Ind.App., 452 County Morgan v. Invok- appellee did not file a brief. (1982), 447; Bailey Ind. v. Sullivan N.E.2d in this case defeats ing procedural rule However, if this were App., N.E.2d 75. justice. promotes the ends of rather than law, late then the actually the state of the by entertaining prejudice no one We would automatically pre praecipe would filing of a appeal. the merits of this every instance. review appellate clude Therefore I dissent. Rather, this Clearly the case. is not its inherent hesitated to invoke court has not appeal an
discretionary authority to entertain has though time allowed therefore even invoked this be sure we have expired. To intoning mantra "this authority only after only in such discretion court will exercise See, e.g., CNA exceptional cases." rare and (1992), Ind.App., 596 v. Vellucci Ins. Cos. DOUGLAS1, Mark Steven denied; v. trans. Costanzi Appellant-Defendant, Ind.App. Ryan However, timely filing of a either jurisdictional prerequisite to an praccipe ais Indiana, Appellee-Plaintiff. STATE of truly jurisdic If appeal or it is not. it were tional, be un explanation further would then No. 45A05-9212-PC-439. filing praccipe of a necessary. The late Indiana, Appeals of Court authority to court had no would mean this Fifth District. end the appeal and that would entertain an discussion. May out very that we have carved fact filing timely of a exceptions suggests that the Rath jurisdictional matter.
praccipe is not a er, the merits of not to entertain whether or solely to untimely appeal is a matter left not be court. It should discretion of this Supreme Court observed As our
otherwise. ex rel. Ins. Co. v. State in American States 637, 640, Jennings 258 Ind. 529, 531: are ex- Although procedural rules our kept in mind tremely important, must be achieving merely they a means are orderly speedy the ultimate end Douglas, dowe as Mark changed to the defendant his name refer 1. We note that the same here. to Shaka 20, 1992, court order on September appeal Adiyia Because the briefs Shakur. *3 post-conviction 1. Whether relief finding Douglas's court erred in petition by laches; barred post-conviction 2. Whether relief finding court erred in the trial court sufficiently instructed the on the ele- intent; ment of post-conviction 3. Whether relief court erred in that the trial court's failure to instruct on the voluntary defense intoxication was *4 harmless; 4. post-conviction Whether relief court in finding erred that the trial court properly Douglas's admitted evidence of prior School; Boy's incarceration at post-conviction 5. Whether relief finding court erred in the trial court instructed the on the State's proof burden of presumption and the innocence; 6. post-conviction Whether relief court erred in Douglas re- ceived effective ap- assistance of trial and counsel; pellate Douglas 7. Whether received ineffective hearing assistance of counsel at the on his post-conviction petition. relief Douglas's We affirm the petition denial of post-conviction for relief.
FACTS The succeinetly facts were stated Douglas's court appeal: direct 13, 1982, On appellant November and an accomplice went to Lowell Fitch's home Hych, and asked to see Chris the son of cohabitating Fitch's fiancee. When Fitch responded that Chris did not live there anymore, appellant pulled out a sawed-off Craig Jago IL, Beauchamp, Chicago, shotgun. though John Even Fitch tried to slam Warne, G. Indianapolis, appellant. shut, for appellant the door managed to fire injuries two shots. Fitch received to his Carter, Indiana, Atty. Pamela Gen. of right hand and left shoulder. Black, Gen., Preston Deputy Atty. W. Office 107, v. State 481 Gen., Atty. Indianapolis, appellee. for 109. and co-defendant Kevin Morri- plan son had things discussed a to take from BARTEAU, Judge. Morrison, the Fitch home because a friend of Mark appeals the denial Hych, of his Chris knew Fitch had some "nice petition relief, post for raising things." conviction Douglas's attempted conviction of robbery 6, August following issues: was affirmed on 1985. 19, 1985, transcript September so he on post-conviction petition Douglas filed adequate post-convic- begin "preparing could After several 1986. September, relief The court also found that tion action." PCR peti- amendments, hearing held on the a 25, September 18, petition on post-conviction The filed his May tion on court") ("PCR 1986, attorney petition filed three denied relief 1992, pro- adopting the State's August every issue al- amendments and substituted "Thus, conclusionsof law. findings leged original petition. of fact and posed oral peti- and this court heard from Douglas appealed delay filing petition a has been March R. argument on conviction in 1983 until 1992." tioner's delay court found the 99-100. PCR OF REVIEW STANDARD also found The PCR court unreasonable. post-conviction the rules Under prejudiced by the had been the State relief, must establish petitioner not able to delay the State was preponderance of the grounds for relief Donna Evans and because Lowell locate Rule Sec Ind. Post-Conviction evidence. Fitch had died. 5; Ind.App., 529 St. John v. State relief, must "For laches to bar the State 371, 374, Pursuant trans. denied. evidence, prove by preponderance the PCR court entered Section P-C.R. first, unreasonably de petitioner of law. findings of fact and conclusions *5 second, that the layed seeking in relief and any judgment the on we cannot affirm by delay." prejudiced the State has been rather, basis; we must determine legal (1993), App., Ind. 609 Holland State findings are suffi court's whether the PCR (quoting Perry v. State 430-431 Vanderburgh judgment. support the cient to denied). 841, 848, reh'g v. Ritten County Commissioners Board of 663, 665, (1991),Ind.App., 575 N.E.2d house neglect is the for an unreasonable [Laches] reviewing judgment, the trans. denied. time, per- cireamstances length of under evi whether the we must first determine in mitting diligence, to what law should do second, findings supports the and dence implied It is an waiver have been done. judgment. findings support the whether the existing condi- arising knowledge of from only judgment will be reversed Id. The them, the acquiescence tions and erroneous, i.e., judg the clearly when when in con- neglect right, a as taken to assert by findings of fact unsupported the ment is time, or junction lapse the of more find of law entered the and conclusions caus- great, and other cireumstances less (1991), Ind.App., v. DeHaan ings. DeHaan party and thus ing prejudice to the other 1315, 1320, Find trans. denied. equity. acting in a court of as a bar clearly the ings fact are erroneous when Twyman v. State in any or reasonable record lacks evidence (quoting Frazier v. State support them. from the evidence ferences 624-625). 614, 616-617,335 N.E.2d Ind. findings or whether Id. To determine erroneous, clearly we consider judgment are concluding court erred The PCR judgment Douglas's peti relief on only the evidence favorable laches barred month of the tion. Within one flowing there all reasonable inferences and from, or reweigh affirming not the evidence direct and we will decision court's credibility. transcript so Douglas requested Id. a appeal, witness assess peti begin preparing a PCR could he
LACHES him to months for tion. It took several transcript still filed finally and he receive the issue whether Douglas first raises petition his year that his his convic petition a mere one court erred after PCR The PCR court had been affirmed. by barred laches. The PCR for relief was relevant, and the State appeared to find Douglas post- was aware court found on, delay between argument focused oral and the Public Defender's conviction relief hearing on filing petition and the Douglas wrote a let- Office cases, no petition. have found copy of his We requesting ter to the trial none, weapon, felony us to that consider A if the State directs a Class it results delay filing petition bodily injury bodily between the in either or serious hearing petition on the as the rele injury any person. and the other period purposes vant time of laches. INSTRUCTION NO. 4 court found that
The PCR
right
post-conviction
aware of his
relief
person engages
A
in conduct "intention-
requested
transcript.
his
1985 when he
Less
if,
conduct,
ally"
engages
when he
in the
year
receiving
transcript
than a
after
objective
is his conscience
to do
A
so.
petition.
his
From that
filed
PCR
person engages
"knowing-
in that conduct
by
represented
until
time
if,
conduct,
ly"
engages
when he
in that
he
the State Public Defender's Office. After
high probability
is aware of a
that he is
waiting
years
than four
for action on
more
doing so.
petition, Douglas
private
hired
counsel to
proceed
petition.
pe-
with his
We refuse to
INSTRUCTION NO. 5
delays
for the
nalize
caused
person attempts
ATTEMPT: A
to com-
Public Defender's Office. One arm of the
when, acting
culpabili-
mit a crime
with the
(the Prosecutor) may not
take advan-
crime,
ty required for commissionof the
he
tage
delay
of a
created
another arm of the
engages in conduct that constitutes
sub-
(the
Defender) to
Public
the detriment
step
stantial
toward commission of the
recognize
of the defendant.
While
attempt
crime. An
to commit a crime is a
burdensome caseload of the Public Defend-
felony or misdemeanor of the same class as
high
attorneys
er's
and the
Office
turnover
charged.
the crime
delays,
resulting in
as between a defendant
State,
and the
the defendant will not be
Douglas argues
Trial R. 55-57.
penalized for the
The PCR court's
delays.
was not instructed that
in order to convict
*6
findings
support
do not
the conclusion that
attempted robbery,
him of
he must have
Douglas unreasonably delayed seeking relief.
specific
acted with the
intent
to rob Fitch.
Because we determine that the PCR court
objection
To avoid waiver because no
was
finding
erred in
laches on the
of an
basis
made
no
alternative instructions were
delay,
unreasonable
need not discuss
trial, Douglas argues
tendered at
that
the
correctly
whether the PCR court
found that
argues
error is fundamental and also
that his
prejudiced by
delay.
the State was
the
appellate
trial and
counsel were ineffective
failing
preserve
to
the issue.
INTENT INSTRUCTION
Specifically, Douglas argues:
"Since the
argues
next
that
the PCR
'culpability'
term
in
used
Instruction No. 5
court
in
erred
the trial court
require 'specific
does not
intent' but allows a
adequately
jury
instructed the
on the ele
upon
knowingly
conviction based
acts
com
trial,
jury
given
ment of intent. At
the
was
mitted,
jury
the court failed to instruct
the
following
the
instructions:
attempt
on an essential element of an
crime
proving
which the State had the burden of
NO. 8
INSTRUCTION
beyond a
Appellant's
reasonable doubt."
Robbery
by
is defined in Indiana
statute
Brief, p.
Although
all of the cases cited
as follows:
by Douglas
support
in
argument
of his
ad
person
knowingly
intentionally
A
who
or
specific
dressed the
intent
instruction issue
property
person
takes
from another
or
murder,
in
attempted
the context of
the
presence
person:
from the
of another
Indiana
court addressed the neces
(1) by using
threatening
or
the use of
sity
specific
of a
intent
instruction for at
any person;
force on
burglary
tempted
Alexander
(2)
by putting any
person in fear com-
jury definition was instructed introduced There was some evidence burglary proof attempted in an glary, that during indicating that the defen- the trial "acting the person was required that the may for commission of the dants have been intoxicated culpability required charged of the offense the Informa- defendant, time crime," convict and that tion. proven beyond a rea- must have the State following voluntary ele- intoxi- doubt each of the You are instructed that sonable § charge of is not a defense to the
ments: cation Attempted Robbery or the lesser included (1) defendant That felony. Battery, a class C offense of (2) knowingly intentionally (3) as engaged conduct described T.R. 62. conduct the Information and such Douglas argues that it was error for the step toward the com- was a substantial give this instruction and Burglary. mission of the crime given jury an intoxi court should have jury also instructed that
Id. The
was
At the time the
cation defense instruction.
prove every element of each of
must
trial, July
was instructed
in
concluded: "When all
fense. The court
trial court
given
instruction
whole,
can
are taken as a
there
be
structions
At that
a correct statement of the law.
fully
that in
informed
no doubt
85-41-8-5(b)
time,
provided that
Ind.Code
burglary
guilty
attempted
order to be
"only to
voluntary intoxicationwas a defense
specific
had
intent
appellant must have
of an
negates
an element
the extent
burglary." Id. Justice DeBru-
commit the
phrase
'with intent
offense referred
dissented, pointing out that in Smith v.
ler
*7
Pavey v.
to."" See
to' or 'with an intention
(1984), Ind.,
355, the court
459 N.E.2d
State
(1986), Ind.,
1196.
State
as this be
"condemned an instruction such
trial,
Subsequent
Douglas's
to
to
the elements of
purported
cause it
define
35-41-3-5(b)
"void
was
court held that I.C.
attempted felony charge and failed to
an
effect,"
a defendant
without
and that
include,
element,
accompaniment of
as an
voluntary intoxication
could offer a defense of
the intent
to commit the
step
taken with
(1984), Ind., 465
any
Terry
crime.
v. State
to
Alexander,
at
specific felony."
520 N.E.2d
Pavey,
ap
the court
1088.
(DeBruler,
dissenting). However
J.
retroactively
holding
Terry
plied the
DeBruler,
might agree with
much we
Justice
where
conviction
reversed the defendant's
opinion. Find
majority
we are bound
voluntary intoxi
trial court refused a
the in
ing
significant
no
difference between
supported
defense and the evidence
cation
and the in
given
structions
Alexander
at 1197.
498 N.E.2d
giving the instruction.
here,
given
we must conclude that
struction
here.
Douglas asks for the same treatment
Doug
adequately instructed at
was
trial,
introduced
minimal evidence was
At
specific intent.
trial on the element of
las's
In an at
Douglas's intoxication.
regarding
at the
tempt to introduce additional evidence
argu
to
Douglas appears
make
his coun
hearing, Douglas argued that
PCR
that
evidence at trial indicates
ment
Douglas
specific
introducing evi
have the
intent to
did not
not
sel was ineffective for
The PCR
However,
Douglas's intoxication.
robbery.
Douglas's
di
dence of
commit
evi
Douglas
present
to
further
court allowed
appeal
supreme court found that the
rect
that the evidence did not
found
dence and
could not create a reasonable doubt
voluntary
giving
Douglas
requisite
a
intoxication in
entertained the
intent.
support
struction.
vein, Douglas argues
In a related
allowing
court erred in
The PCR
that the trial court erred in not
Douglas
present
to
the evidence. Trial coun
mitigating
at
his intoxication was
factor
failing
object
to
was not ineffective for
to
sel
However,
sentencing.
argument
this
was not
failing
court's instruction and
to
the trial
argued
Douglas's
petition,
raised in
PCR
nor
of intoxication at trial
present the evidence
hearing.
at
the issue has
the PCR
because at that time the defense was not
(1983), Ind.,
been waived. Badelle v. State
attorney
required
available. An
is not
to
(defendant
na. Morrison testified that Juvenile records are not admissible staggering slurring speech, they and but impeachment purposes. Boyko at trial for Ind.App., all In were able to walk to Fitch's house.
light Douglas Boyko, permitted of the fact that was able to the State was to knock on Fitch's door and ask for Chris introduce several letters written the de Hych, juvenile planned, as off two shots at fendant to a friend he had met at a to fire attempted Fitch while Fitch to close the facility. detention One of the letters made a door, presence and then to have the of mind reference to the defendant going to court shotgun way to hide the and make his back with his parole officer and a counselor from examination, home, correctly Boys During to direct Morrison's the PCR court School. concluded that the evidence of intoxication friend was asked why if he knew the defen facility following and defendant. The the detention he instructions were dant was given jury: that did not know. This court responded he of the evidence was not held that admission
improper it was not introduced for INSTRUCTION NO. impeachment purposes; the letter was intro case, Information in To the this the De- it contained admissions re duced because plea guilty fendants have entered a of not garding the crime for which defendant upon which makes it incumbent the State say to that if being tried. We went on even prove your Indiana to to of satisfaction improper, the admission of the evidence was doubt, beyond every a reasonable each and inde error was harmless because substantial allegation of material said Information supported the conviction pendent evidence constituting particular charged, crime and there was no substantial likelihood or the lesser included offense therein. questioned evidence contributed proof The burden in a criminal case of It indi conviction. Id. at 1068. was never upon alone the State and it never shifts why cated the defendant was the detention to the Defendant. Further, facility Boys or School. from the emphasis.] our [TR. evidence, jury could have concluded facility in the detention the defendant was INSTRUCTION NO. being for the offense for which he was tried Boys only in and the reference to Schoolwas fact that an information has been passing. charging filed the Defendants with the give commission of a erime does not rise to Here, Douglas the fact had any presumption guilt of and is not to be Boys merely pass been in School was not Jury any considered as evidence of ing it had reference and was clear he guilt. contrary, On the it is a fundamental Boys before the commission been School concept in our law that the Defendants being for which he was tried. crime presumed come into court to be innocent of Thus, although being the evidence was not charge, presumption and this remains impeach Douglas, it admitted to was errone throughout the trial the case until and ously admitted because it left the by competent proof is overcome unless it impression the clear had com guilt beyond a doubt. reasonable prior mitted crimes. Nor do we believe the presumed Since Defendants are properly part admitted evidence was as [sic], they required be innocence are not gestae significant of crime. It was the res present any prove evidence to their inno- and Morrison had discussed cence, prove explain anything. or to or If advance; planned the crime added at the conclusion of the trial there remains nothing to know where the dis for the your mind a reasonable doubt concern- However, had occurred. the PCR cussions guilt, you ing the Defendants' must find found that the error was guilty. Every them not reasonable doubt only harmless. Not did both Fitch and Ev evidence, arising the lack evi- from identify person ans as the who shot dence or a in the evidence in this conflict Fitch, Morrison also identified case must be construed in favor of Douglas himself confessed a statement Defendants. police Any at trial. that was admitted error emphasis.] our [TR. referring in the admission of evidence Boys School was harmless. *9 INSTRUCTION NO. 18
PRESUMPTION OF INNOCENCE You, jury, judges the are the sole of the credibility weight
Douglas argues that the PCR court and of witnesses given testimony. You should finding in that the trial court's instruc to be to their erred upon in the jury reconciling the evidence reconcile the evidence this case tion the theory every has presumption did not undermine the of inno that each and witness truth, reasonably spoken you if can do proof cence nor shift the burden of the AND TRIAL ASSISTANCE OF disregard testimo- the not so. You should a reason and APPELLATE COUNSEL any without ny witness of without whom you cannot you find a "k you careful consideration. will "k conflict reconcile, you may choose not believe. in the "k testimony that If, [*] however, #k The PCR court in not show that his counsel assistance of trial and finding that he was argues concluded that that the PCR not denied effective appellate had been ineffec- court erred counsel. did TR. 70. appellate nor coun- tive because neither trial hearing. sel testified at the PCR that Instruction No.
Douglas contends ac- not establish that counsels's did mandatory evidentiary presump- created a strategy decisions. were other than tions "the over- of the State because favor of court also concluded each of were state The PCR whelming number witnesses meritless, an instruction also under- Such witnesses. were and complained-of the errors appellate inno- were not presumption of trial and counsel mined the defendant's thus unreasonably shifts the burden and ineffective. cence jury the defendant. The the from interpreted instruction to have the
could for ineffective assis Reversal long as the witnesses that as State's only mean appropriate is cases tance of counsel and unless the defense sound 'reasonable' both that counsel's where a defendant shows otherwise, prove presents some evidence objective performance standard fell below Appel- jury authorized to convict." the is per that the deficient of reasonableness and Brief, Douglas's trial counsel p. 42. lant's prejudiced the defendant as to formance so 18; thus, to object to Instruction No. did not deprive him fair trial. Bellmore v. State of a waiver, Douglas argues also that his avoid (citing appellate counsel were ineffective trial and Washington 466 U.S. Strickland preserve error. 674). failing to A 80 L.Ed.2d 104 S.Ct. identify of ineffective assistance must claim given. in the instructions find no error We particular claimed errors. It shall be based on the Indiana instructions Similar strongly presumed that counsel rendered ad approved Jury Instruction have been Pattern significant equate and made all assistance court, v. State by our St. John pro of reasonable decisions the exercise and this court. judgment. scrutiny fessional Judicial (1989), Ind.App., 542 N.E.2d Adams v. State performance highly deferential John, counsel's fact, in almost the St. where through should not be exercised and given and the trial identical instruction poor hindsight. Isolated strat distortions that the State court also instructed tactics do not nec egy, inexperience, or bad prove all elements of the crime be had essarily amount to ineffectiveness of counsel. yond doubt and that the State a reasonable Id. presumption of inno had to overcome doubt, beyond a reasonable the court cence
stated,
finding
together
The PCR court erred
"These instructions
taken
derogate Douglas
appellate
to show his trial and
correctly
law
do not
failed
state the
and
merely
they
Id. at 1358.
counsel were ineffective
presumption
of innocence."
testify
hearing,
did not
at the PCR
but the
Douglas's trial the
also was instruct
At
correctly
that counsel were
proof
found
had the burden of
PCR
ed
on each element
beyond a reasonable doubt
Douglas did not show
not ineffective because
alleged ineffec
prejudiced
that he was
and that the burden never shift
of the crime
above, Douglas
As
discussed
persuaded
are not
tiveness.
to the defendant. We
ed
any prejudice
alleged fail
did not show
from
by Douglas's argument
that the instructions
preserve
issues re
ings
counsel
derogated
presumption
of innocence or
instruction, voluntary
specific
garding
intent
proof
to the defendant.
shifted the burden
instruction,
record,
juvenile
intoxication
court did not err
The PCR
presumption of inno
jury.
proof
burden
trial court
instructed
*10
trial nor
set forth in
instruction.
neither
standards
Strickland v. Wash
cence
668,
2052,
ington
were ineffective on those
466 U.S.
104 S.Ct.
appellate counsel
points.
Douglas also Waters v. State 574 N.E.2d (1989),Ind., (quoting Baum v. State failing trial ineffective for to sever his sel was Morrison, 1201). or to at Moreover, from that of co-defendant because we from the state least "redact the information Douglas preju have concluded was not given by eross- ments both the defendants by any might diced errors his trial counsel Brief, p. implicating Appellant's the other." made, say have we cannot counsel PCR presenting was ineffective for not the testi Douglas has not shown how he was by prejudiced implicating information mony Douglas's trial counsel to show that Douglas impli Morrison's statement where trial counsel made errors. Indeed,
cated himself his own statement. appeal opinion in the on Morrison's direct CONCLUSION supreme court found no reversible error We reverse the court's PCR the consolidation of the trials or in introduc Douglas's petition post-conviction for relief is ing implicating statement of the co-defen laches, by barred and we affirm the PCR dant where the defendant's own statement court's denial of on relief the merits. made the same admissions. Morrison v. 15-16. BAKER, J., opinion. concurs in result with Thus, although practice the better would for trial to have the state have been counsel RUCKER, J., opinion. dissents with redacted, Douglas shown he ment has not prejudiced by counsel's failure to do so. BAKER, Judge, concurring. correctly Douglas The PCR court found that majority opinion I concur in on all of deprived was not of effective assistance of except involving Douglas' the issues for those appellate trial or counsel. 818-819, juvenile supra, pp. record. See First, any 820-821. waived error EFFECTIVE PCR COUNSEL failing object to the admission of the evi Lastly, Douglas that he re contends waiver, Notwithstanding post- dence. ceived ineffective assistance of counsel at his conviction court admitted the evi present hearing PCR because counsel did not Boys dence that had been School testimony from trial counsel gestae exception. gestae under the res Res trial ineffective. show counsel was statements that are so includes acts and right post-conviction to counsel in closely part connected to the erime as to be proceedings guaranteed neither (1992), Ind.App., of it. Allen v. State Sixth Amendment the United States un 282. Admission of evidence § nor art. 1 13 of the Consti- Constitution gestae der res is within the trial court's petition post of Indiana. A for con- tution ruling relevancy discretion. Id. generally regarded as a viction relief is not evidence, the trial court must balance the proceeding criminal and does not call for a probative against value of the evidence its public meaning trial within the of these prejudicial impact. Hunter provisions.... constitutional apply therefore a lesser standard We Here, responsive more to the due course of law the evidence was not introduced improper purposes, process principles impeachment or due of law which are and was planning relevant to relate the of the com- post-conviction the heart of the civil remedy.... appeared counsel in fact mission of the crime which occurred while [I]f Boys proba- proce was at the School. The represented petitioner in a outweighs durally setting fair resulted in a tive value of this evidence which court, judgment necessary prejudice arising from the fact that it is not nominal judge performance by rigorous learned that had been *11 822 attempted jority language The evi- to seize prior actions. for his
Boys School That is burglary apply case and here. admitted. denee was supreme our court has especially true when re- argument that he Douglas' related thorough analysis specif- of undertaken of counsel on assistance ceived ineffective con- of a crime in another ic intent element Because the admis- fails. likewise this issue text, involving attempted mur- namely: cases indicating Douglas' juve- sion of the evidence my are better In view those cases der. gestae, his as res proper nile record was appropriate provide a more reasoned and object failing was not deficient counsel before us. analogy to the case objected to the Had counsel evidence. 618, (1979), 270 Ind. In v. State record, juvenile the ob- Douglas' of evidence Zickefoose 507, held that our 388 N.E.2d jection have been denied. would necessary in the elements there are two majority's analysis disagree I with also first, attempted the defen- of murder: crime juvenile on the of counsel of ineffectiveness acting specific been with a dant must have issue, first it fails to consider in that record second, crime, and he to commit the intent was deficient. performance whether counsel's engaged in an overt act which must have competent. Fugate counsel was presume We step toward the constitutes a substantial (1993),Ind., v. State crime. Id. at 510. When commissionof the juvenile record evi If the admission purports to set forth all of the an instruction erroneous, counsel was not had been dence conviction, necessary to a elements of a crime object more attention required to and draw if fatally defective a neces- the instruction is juvenile record. Counsel Douglas' prior Duling sary is omitted. v. State element hearing; testify post-conviction did not at Ind.App. N.E.2d 286. thus, counsel would not may infer that we foregoing authority, our su Citing the allegations. Douglas' See corroborated have convic preme court reversed the defendant's 533 N.E.2d Dickson State attempted v. State tion for murder Smith speculate about a more will not 589. We (1984), Ind., the trial have advantageous strategy that could been jury it must to instruct court failed Fugate, I would not employed. at 1373. specific in find that the defendant had the to be sub Douglas' counsel's omission find murder in order to be found tent to commit inadmissible. had the evidence been standard specific guilty attempted murder. reasons, I concur in For the above-stated was as jury instruction at issue Smith ju- concerning Douglas' result on the issues "You are instructed the essen follows: venile record. attempted Mur tial of the erime of elements prove Indiana must der which the State of RUCKER, dissenting. Judge, following: beyond are the a reasonable doubt majority's disagree I with the I dissent. knowingly, En [Defendant] 1. That the jury properly in- conclusion gaged in conduct that constituted substan I specific intent. on the element of structed commission of Murder." step tial toward the majority's disagree conclusion also in the instruction was Id. at 357. Nowhere to an instruc- Douglas was not entitled if the a statement to the effect there of intoxication. on the defense attempt guilty found defendant were be murder, be a then there must first ed I. engaged proseribed con that when he duct, to kill the victim. Id. he intended position its support 358. The court observed: robbery ade- attempted instruction on which are left with instructions majority v. State quate, cites Alexander lead the to believe would involving a case attempted Defendant could be convicted burglary. Although there are no attempted engaged in con- knowingly murder if he concerning specific intent cases in Indiana step cases, constituted a substantial robbery I duct which attempted instructions An murder.... the commissionof the ma- toward principled no reason for can discern *12 correctly instruction which sets forth the the court noted that when an instruc attempted requires of an purports elements murder tion to set forth all of the elements explanation conviction, the act must have been necessary of the crime for a the specific to kill. done with the intent fatally necessary instruction is defective if a element is omitted. Id. at 854. The instruc offending instruction in that is Id. The case given was, person tion in that case "A who essentially the same as the one before us. knowingly intentionally or kills hu another (1988), Ind., In Abdul-Wadood v. State 521 murder, being felony. man commits a To denied, 1299, reh'g supreme N.E.2d our court attempt, convict the of defendant the state also reversed the defendant's conviction for proved following must have of each the ele attempted murder because the trial court defendant, Jackson; ments: 1. The Robert jury specific failed to instruct the intent kill; knowingly; attempted to 4. [the vie- requisite to kill is a element of the crime of noting The court tim]." reversed attempted The instruction involved murder. jury instruction did not inform the of a nee- in charge that case dictated: "To sustain the essary crime, namely: element of the murder, attempted prove of the State must victim, the defendant with intent to kill the following propositions: First: That step accomplish took a substantial to knowingly engaged Defendant in conduct end. Id. at 854. against [the victim]. Second: That the De against fendant's conduct consti [the victim] Underscoring significance informing step tuted a substantial toward the commis jury on the intent element in crimes of sion of the crime of murder." Id. at 1300. attempt, supreme "By our court has held: (1984),Ind., Citing v. Smith State 459 N.E.2d definition, 'attempt' per- there can be no giving the court held that of the form an act unless there a simultaneous foregoing instruction was fundamental error accomplish Simply 'intent' such act. stat- thereby and a conviction obtained would be a ed, crime, in order to commit a one must gross miscarriage justice. holding In so taking intend to commit that crime while the court observed: step substantial the commission of toward
The error in the
Spradlin
instruction creates a seri-
the crime."
v. State
wrongful
ous risk of
in-
(reversing
conviction. This
569 N.E.2d
a conviction
purports
complete
attempted
struction
to set out the
murder because the instruc-
prosecution.
burden of the
It is an in-
jury
tions did not inform the
the state
prove beyond
cre- must
a reasonable doubt that
struction,
trial,
given
which when
at a
defendant,
victim,
special
ates a moment of focus and
atten-
with intent
to kill the
judge
special
engaged
tion. The
takes
care
read-
in conduct which was a substantial
step
killing).
toward the
ing
loudly
distinctly.
jury per-
it
special
ceives its
and crucial character.
justifying
The rationale
reversal
for
Armed with the information in this instruc-
going
compelling
cases is no less
here. The
tion,
rationally
could
deem itself
essentially
instructions are
the same and the
authorized to convict
was con-
result reached should be the same as well.
beyond
vinced
a reasonable doubt that the
The law is clear that it is fundamental error
deliberately engaged
coopera-
accused
to fail to instruct
on an essential
conduct,
developing
tive
a series of
murder,
attempted
element
of the erime
events, which
enterprise
culminated
an
namely,
kill
an intent
the victim. Wood
risk,
carrying
though
the death
even
there
Ind.,
(1992),
cox
these additional and remand this cause for a new trial. MOORE, Appellant-Defendant, James W. *14 Indiana, Appellee-Plaintiff. STATE of No. 29A04-9310-CR-365. Indiana, Appeals Court of Fourth District.
May Tudor, Noblesville,
David F. appellant. for Carter, Atty. Gen., Pamela Lisa M. Paunic- ka, Gen., Deputy Atty. Atty. Gen., Office of Indianapolis, appellee.
CHEZEM, Judge. Summary
Case ("Moore") appeals James W. Moore battery, convictions for a class B misdemean- or, intoxication, public A class misde- meanor. in part We affirm and reverse part.
Issues presents
Moore two issues for review: I. Whether the evidence was sufficient to sustain battery Moore's conviction for where and; he raised the issue of self-defense II. Whether the evidence was sufficient to sustain public Moore's conviction for intox- ication.
Facts History and Procedural 22, 1992, August On parked Moore his car driveway in the of the residence of his former wife, Regina Rice and her husband Brent