Adam C. ELLIS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
No. 01S00-9910-CR-632.
Supreme Court of Indiana.
Oct. 18, 2000.
731 N.E.2d 731
Karen M. Freeman-Wilson, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
SHEPARD, Chief Justice.
Appellant Adam C. Ellis appeals his conviction and sentence for murder, two counts of attempted murder, and burglary. He raises two issues in this direct appeal:
- Whether the trial court properly refused Ellis’ tendered instructions on reckless homicide and criminal recklessness, and
- Whether the trial court erred when it imposed maximum sentences for the convictions and ordered them served consecutively.
Facts and Procedural History
On the evening of August 5, 1998, Ellis was at his parents’ home with a friend, Chris Richardson. Ellis and Richardson played foosball and ate pizza. In anticipation of Ellis’ wife coming over, Ellis told Richardson (who had been smoking marijuana) to leave for a while so that Ellis’ wife would not complain about his company.
At 12:30 a.m., now August 6th, Angie Ellis arrived to pick up their son Alec. Ellis and Angie were married at the time,
Ellis arrived at the home of Angie‘s parents and saw Angie on the couch kissing Matt Bebout. Ellis left and later returned carrying a .22 caliber handgun.1
Ellis entered Angie‘s parents’ home, dressed in all black, and approached Bebout and Angie, who were still seated on the couch. He shot Bebout in the right cheek, and the bullet lodged in Bebout‘s neck. Ellis next shot Angie six times, killing her. Ellis then kicked in the bedroom door of Angie‘s stepfather, Curt Krauss, and shot him in the cheek and hand.
The jury found Ellis guilty of murder, two counts of attempted murder, and burglary. The trial court imposed consecutive sentences of sixty-five years for murder and fifty years for each attempted murder. It also ordered a concurrent twenty-year sentence for burglary. The sentence thus totaled 165 years.
I. Instructions on Criminal Recklessness and Reckless Homicide
Ellis first asserts that the trial court erred when it refused his tendered instructions on criminal recklessness and reckless homicide.2
Ellis’ argument fails because the trial court was not required to instruct the jury on lesser included offenses based upon the analysis set forth in Wright v. State, 658 N.E.2d 563 (Ind.1995).
In Wright, we indicated that a requested instruction for a lesser included offense of the crime charged should be given if the lesser included offense is either “inherently or factually” included in the crime charged, and if, based upon the evidence presented in the case, there existed a “serious evidentiary dispute about the element or elements distinguishing the greater from the lesser offense [such that] a jury could conclude that the lesser offense was committed but not the greater....” Id. at 567.
Ellis asked the trial court to instruct the jury on reckless homicide as a lesser included offense of murder and criminal recklessness as a lesser included offense of attempted murder.
Reckless Homicide. Reckless homicide is an inherently included offense of murder. Wright, 658 N.E.2d at 567. The two charges are distinguished only by the lesser culpability required to prove reckless homicide.3 Id. The remaining question is whether this case presented a serious evidentiary dispute with respect to an element of murder such that a jury could have concluded that the lesser offense was committed but not the greater. Id.
Ellis’ logic confuses the function of an involuntary intoxication defense.
Involuntary intoxication is a defense to the crime charged if, as a result of the intoxication, the defendant was unable to appreciate the wrongfulness of the conduct at the time of the offense.5 An involuntary intoxication defense disputes the existence of intent. If successful, this defense would negate culpability for any offenses Ellis committed.6
This defense does not simultaneously establish the existence of reckless conduct. Rather, a claim that a person acted “recklessly” requires showing that “he engage[d] in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involve[d] a substantial deviation from acceptable standards of conduct.”
Consequently, a mere assertion of an involuntary intoxication defense does not create a serious evidentiary dispute such that a jury could conclude Ellis did not commit murder, but instead committed the lesser included offense of reckless homicide.8 The trial court did not err by refusing to instruct the jury on reckless homicide because no serious evidentiary dispute existed.
Criminal Recklessness. We have consistently held that criminal recklessness is not an inherently included offense of attempted murder. Wilson v. State, 697 N.E.2d 466, 477 (Ind.1998). As for whether criminal recklessness is a factually included offense of attempted murder, Wright, 658 N.E.2d at 567, the answer may be discerned from the charging information.
The attempted murder counts, Count II and Count III, of the charging information stated:
Ellis did attempt to commit the crime of Murder by knowingly or intentionally firing a deadly weapon at and against the person of [the victim], which conduct constituted a substantial step toward the commission of the crime of Murder, contrary to the form of the statutes in such cases made and provided by
I.C. 35-41-5-1 andI.C. 35-42-1-1(1) and against the peace and dignity of the State of Indiana.
II. Was the Sentence Erroneous?
A. No Violation of Article I, Section 16. Ellis first argues that his 165-year sentence violates
In a recent examination of the purpose and scope of
As for the proportionality clause in
The record clearly indicates that the trial judge considered the nature of the offense when he fashioned the sentence.12
B. Mitigating Factor Properly Omitted. Ellis next argues that the trial court erred when it failed to find his “relatively young” age a mitigating circumstance.13 (Appellant‘s Br. at 19.) Ellis was twenty-one years old when he committed the offenses.
The finding of mitigating factors is not mandatory; it rests within the discretion of the trial court. Wingett v. State, 640 N.E.2d 372, 373 (Ind.1994). A court is not obligated “to credit or weigh a possible mitigating circumstance as defendant suggests it should be credited or weighed.” Archer v. State, 689 N.E.2d 678, 684 (Ind.1997). “Only when the trial court fails to find a significant mitigator that is clearly supported by the record is there a reasonable belief that it was improperly overlooked.” Legue v. State, 688 N.E.2d 408, 411 (Ind.1997).
Focusing on chronological age is a common shorthand for measuring culpability, but for people in their teens and early twenties it is frequently not the end of the inquiry. There are both relatively old offenders who seem clueless and relatively young ones who appear hardened and purposeful. Ellis has not persuaded us that the trial court abused its discretion in declining to give mitigating weight to the fact that he was twenty-one at the time of the crime. See, e.g., Johnson v. State, 725 N.E.2d 864, 868 (Ind.2000)(age of twenty does not compel finding of mitigation). Compare Trowbridge v. State, 717 N.E.2d 138, 149-50 (Ind.1999) (trial court abused its discretion in rejecting fourteen-year-old defendant‘s age as a mitigating factor).
C. Consecutive Sentence Exceeded Statutory Limitation. Ellis contends that the court erred in ordering consecutive maximum sentences for murder and two counts of attempted murder.
He relies on
The court may order terms of imprisonment to be served consecutively even if the sentences are not imposed at the same time. However, except for crimes of violence, the total of the consecutive terms of imprisonment, ... to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the presumptive sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.
“Crimes of violence” is a defined term, a straightforward list, including such crimes as murder and aggravated battery. It does not include attempted murder.
The State responds with two arguments. First, the State claims that the limitation of consecutive sentencing does not apply because a lesser included offense of attempted murder, i.e. aggravated battery, is specifically listed in the statute as a crime of violence.
In support of this argument, the State relies on Jackson v. State, 698 N.E.2d 809 (Ind.Ct.App.1998), in which the court determined that even if the crime charged, (there, as here, attempted murder) is not specifically listed in the statute, it may nevertheless be excluded from the sentencing limitation. Id. at 813-14. Relying on Johnson v. State, 464 N.E.2d 1309, 1311 (Ind.1984), the Jackson court decided that
Our Johnson opinion seems ill-suited for this purpose. The issue in Johnson was whether aggravated battery could be a lesser included offense of attempted murder as part of its determination that a jury instruction stating the claim was proper. Johnson, 464 N.E.2d at 1310-11.
A better analysis of the consecutive sentencing statute appears in Ballard v. State, 715 N.E.2d 1276 (Ind.Ct.App.1999). In Ballard, the issue was whether battery as a class C felony was intended to be included as a crime of violence. Id. at 1279. In considering whether the statute was ambiguous and required interpretation, the court stated, “[T]he statute is clear. The legislature delineated the exact crimes by name and citation that were to be considered violent crimes.” Id. at 1280. The court observed that if the legislature had intended to include other crimes, then the offense “would have appeared in [the] Indiana Code section.” Id. We agree.
Second, the State argues that
In Payne, and in Greer v. State, 684 N.E.2d 1140 (Ind.1997), we examined a previous version of the statute in the course of determining whether various convictions fell within the sentencing limitation. The statute then in effect exempted “murder and felony convictions for which a person receives an enhanced penalty because the felony resulted in serious bodily injury” from the limitation. Payne, 688 N.E.2d at 165; Greer, 684 N.E.2d at 1141.14 We applied a multiple step process to facilitate this determination. The second step of inquiry questioned whether any of the consecutively sentenced convictions satisfied the statutory exemption. Payne, 688 N.E.2d at 166.
In Payne and Greer, the challenged consecutive sentences were either all covered by the limit or all not covered. Payne, 688 N.E.2d at 166; Greer, 684 N.E.2d at 1142-43. We therefore were not called upon to decide how the statute is applied when less than all of the crimes on which sentencing is being imposed are covered.
Construction of the statute is necessary because it involves some ambiguity as to whether the existence of one crime of violence is sufficient to exempt each of the consecutively sentenced convictions from the statutory limitation.
“[T]he rule of lenity requires that criminal statutes be strictly construed against the State.” Walker v. State, 668 N.E.2d 243, 246 (Ind.1996)(citing Bond v. State, 515 N.E.2d 856, 857 (Ind.1987)). Adherence to this rule requires that we interpret the statute to exempt from the sentencing limitation (1) consecutive sentencing among crimes of violence, and (2) consecutive sentencing between a crime of violence and those that are not crimes of violence. However, the limitation should apply for consecutive sentences between and among those crimes that are not crimes of violence.
Therefore, the trial court erred when it ordered Ellis’ sentences for the two counts of attempted murder to be served consecutively for a total term of 100 years. This portion of the sentence exceeded the statutory limitation. The limitation should have been fifty-five years for
The trial court did not err, however, by ordering the murder sentence served consecutively to the two counts of attempted murder without limitation. Therefore, Ellis may properly be sentenced for sixty-five years for murder, to be served consecutively with a fifty-five year sentence for the attempted murders, resulting in a total sentence of one hundred and twenty years.
Conclusion
We reverse the decision of the trial court in part and affirm in part, and remand for sentencing as indicated.
SULLIVAN and RUCKER, JJ., concur.
BOEHM, J., dissents in part with separate opinion in which DICKSON, J., concurs.
BOEHM, J., dissenting in part.
I concur in Part I of the majority‘s opinion but respectfully dissent from the majority‘s conclusion that the trial court erred in imposing consecutive sentences for the multiple attempted murders.
I do not agree with the majority that the term “crimes of violence” is unambiguous in its omission of attempted offenses. Although this is the first case in which this Court has considered whether attempted murder is a “crime of violence” under
In my view, there is no “plain, ordinary and usual meaning” of this statute without resorting to other rules of construction. Familiar rules are relevant here. The goal of statutory construction is to determine, give effect to, and implement the intent of the legislature. Collier v. Collier, 702 N.E.2d 351, 354 (Ind.1998). The statute is examined as a whole and it is often necessary to avoid excessive reliance on a strict literal meaning or the selective reading of individual words. Id.; Park 100 Dev. Co. v. Indiana Dep‘t of State Revenue, 429 N.E.2d 220, 222 (Ind.1981). The legislature is presumed to have intended the language used in the statute to be applied logically and not to bring about an unjust or absurd result. Riley v. State, 711 N.E.2d 489, 495 (Ind.1999). We conventionally construe penal statutes strictly against the State, Smith v. State, 675 N.E.2d 693, 697 (Ind.1996), but they are not to be read so narrowly that they exclude cases they fairly cover, Cape v. State, 272 Ind. 609, 613, 400 N.E.2d 161, 164 (1980).
The basic purpose of this episode statute seems clear to me. By defining “crimes of violence” as a category of crimes not subject to the consecutive sentencing limit, the legislature demonstrated its intent to differentiate between two kinds of criminal acts—offenses against the person and offenses against property—and to restrict prosecutorial “piling on” as to the latter. Without exception, the defined “crimes of violence” are offenses against the person. Even robbery and burglary, which are essentially offenses against property, are included only when they reach the level of Class A or B felonies, that is, when they are committed with a deadly weapon or result in bodily injury. Of the category of offenses against the person, the only Class A or B felonies that are excluded from the definition of “crimes of violence” are Class A and B vicarious sexual gratification and Class A and B sexual misconduct with a minor. However, those two crimes, if they rise to the level of a Class A or B felony, may be charged as Class A or B rape or criminal deviate conduct, both of which are excepted from the consecutive sentencing statute. As a result, virtually every offense against the person that could result in the conviction of a Class A or B felony is a “crime of violence.” An attempted murder, requiring the specific intent to take a life where the substantial step to that end is itself a battery resulting in severe bodily injury is surely as much a “crime of violence” as many others on the list.
The historical evolution of
(a) Except as provided in subsection (b), the court shall determine whether terms of imprisonment shall be served concurrently or consecutively. The court may consider aggravating and mitigating circumstances in
IC 35-38-1-7.1(b) andIC 35-38-1-7.1(c) in making a determination under this subsection. The court may order terms of imprisonment to be served consecutively even if the sentences are not imposed at the same time. However, except for murder and felony convictions for which a person receivesan enhanced penalty because the felony resulted in serious bodily injury if the defendant knowingly or intentionally caused the serious bodily injury, the total of the consecutive terms of imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8 andIC 35-50-2-10 , to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the presumptive sentence for a felony which is one (1) class higher than the most serious of the felonies for which the person has been convicted.
In 1995, the legislature amended the statute to its current form. It changed the description of crimes that are excepted from the limitation on consecutive sentencing to “crimes of violence” and created the list of those crimes. In doing so, the legislature significantly broadened the exception to permit consecutive sentences for many crimes that were not excepted by the 1994 language. Many of the crimes added to the excepted list do not necessarily result in serious bodily injury, or may be committed with a lesser degree of mens rea. It seems obvious to me that the legislature‘s 1995 changes, which greatly expanded the crimes excepted from the limit on consecutive sentencing, did not simultaneously intend to remove the exception for attempted murders resulting in serious bodily injury.
In analyzing the 1994 version of the statute, we noted that:
It appears to us that the legislature‘s intent with the statute here was to limit the use of consecutive sentences except where serious bodily injury occurred. Because the crime of attempted murder will at times involve serious bodily injury (as here) and at times not (as where a defendant fires a weapon at the victim but misses), we think it more consistent with the legislature‘s intent to treat attempted murder as a felony distinct from murder.
Greer, 684 N.E.2d at 1142 n. 7. We thus recognized that many attempted murders are also aggravated batteries, i.e. batteries resulting in serious bodily injury. Aggravated battery is included in the list of “crimes of violence.” If an aggravated battery is “factually included,” to borrow a phrase from Wright v. State‘s explanation of the right to an instruction on lesser included offenses, 658 N.E.2d 563, 567 (Ind.1995), I would find an attempted murder to be a “crime of violence“.
It is true, of course, that the list of “crimes of violence” does not include “attempted murder.” But each of the crimes identified in the “episode” statute as a “crime of violence” is in turn defined by the statute that lists its elements. No
Perhaps equally importantly, the majority‘s construction seems to me to produce results that cannot have been intended and appear to be unconstitutional. It could not have been the legislature‘s intent not only to treat attempted murder more leniently than other violent crimes, but also to punish a series of severely aggravated attempted murders within a single episode at the presumptive fifty-five year term for murder, which is only slightly more than the maximum for a single severely aggravated but isolated act of attempted murder. Other even more bizarre results flow from the majority‘s conclusion. Multiple attempted murders stemming from a single episode, if charged as counts of aggravated battery, produce unlimited consecutive sentences because aggravated battery is plainly a “crime of violence.” But if charged as the more serious attempted murders, they are capped by the statute.
I am a supporter of and an adherent to the rule of lenity in construing criminal statutes. Ross v. State, 729 N.E.2d 113, 116 (Ind.2000). But I would not construe statutes to produce upside-down or absurd results. Cf. Sales v. State, 723 N.E.2d 416, 421 (Ind.2000). Indeed, although the contention is not advanced by the parties, the majority‘s construction seems to me to run afoul of the proportionality requirement of
In short, I agree with the reasoning of the Court of Appeals in Jackson, which resolves the issues that I have with the majority‘s construction of the statute and prevents the upside-down result that I believe flows from the majority‘s interpretation. For all of the foregoing reasons, I would interpret
DICKSON, J., concurs.
Notes
Included in the crime of Attempt Murder, charged in this case, is the offense of Criminal Recklessness. Criminal Recklessness is defined as follows: A person who recklessly inflicts serious bodily injury on another person commits criminal recklessness, a Class D felony. However, the offense is a Class C felony if committed by means of a deadly weapon.(R. at 124.) The instruction on reckless homicide stated, in part: Included in the crime of Murder charged in this case is the offense of Reckless Homicide. Reckless Homicide is defined as follows: A person who recklessly kills another human being commits reckless homicide, a Class C felony. (R. at 128.)