Smith v. State
465 N.E.2d 702
Ind.
1984
Check Treatment

*1 prior basis for that he convictions a sufficient was advised provide must record mean- appellant was would increase his sentence. Failure the conclusion that § rights and law strictly comply informed of with Ind.Code 35-4.1-1- ingfully § (Burns 3(d) prereq- 35-4.1-1-3 an detailed in Ind.Code is a failure to meet absolute 271 Ind. 1979); acceptance guilty plea. v. Turman uisite to the of 483, Boykin v. 332, (1983) Ind., 487. See 453 N.E.2d Johnson 238, 243, 89 Alabama, (1969) S.Ct. appellant’s plea 395 U.S. 975. We find that the of 274, 280. guilty knowingly, intelligently 23 L.Ed.2d was not entered; voluntarily therefore this case is guilty plea his of Appellant claims that remanded to the trial court with instruc- intelligently and volun- knowingly, was not permit appellant to withdraw tions to did the trial court tarily entered because plea. require- him properly advise of § 34-4.1-l-3(d) set out in Ind.Code ments GIVAN, C.J., PREN- and HUNTER and accept- prohibits judge the trial from which TICE, JJ., concur. plea addressing without first guilty appellant PIVARNIK, J., opinion. dissents without “informing possible him of the maximum and minimum sentence for the sentence charged any possible and of in-

offense sentence reason of the fact of

creased convictions, or and of prior conviction imposition

any possibility of the of con- sentences....”

secutive compliance

While strict with the required, terms of the statute is German (Defendant SMITH, Appellant Mark (1981) Ind., (Givan, below), Pivarnik, J., dissenting), the exact C.J. used, language of the statute need not be Indiana, Appellee McCann STATE of (Plaintiff below). Laird v. N.E.2d 452. The record indicates that No. 483S141. judge appellant the trial advised the that if Supreme Court of Indiana. parole, probation any he was on or under suspended withheld or sentence it could July 1984. length of the How affect sentence. Rehearing Aug. Denied 1984. ever, satisfy this will not alone the terms of because, respect the statute to the convictions,

impact prior it leads to contrary Appellant implications.

two could

reasonably penalties that satisfied conclude prior convictions would not increase the sentence, or he could reason

length of his only penal unsatisfied

ably conclude that prior convictions would increase the

ties of

length of his sentence. An advisement promotes ambiguity such an cannot be meaningfully ap

said to have informed

pellant rights. of his The record also does appellant

not disclose that the was aware

that his convictions could result in an

increased sentence. There is no indication *2 Cotner, Cotner, R. Chap-

James Mann & man, Bloomington, appellant. for Pearson, Gen., Linley Atty. E. John D. Shuman, Deputy Gen., Atty. Indianapolis, appellee. for HUNTER, Justice. defendant, Smith, Mark was convict by jury attempted murder,

ed a Class §§ felony, 35-41-5-1, A Ind.Code 35-42-1- 1(1) (Burns Repl.). He was sentenced Department to the Indiana of Correction thirty years. for a term of He raises the following appeal: three issues in this direct 1. Whether it was reversible error to overrule the defendant’s motion to dismiss bleeding. gave She charg- stop internal inadequate gery to allegedly upon the based hospital. police at the information; statement to error to reversible 2. Whether it was recording of the tape into evidence

admit I. police; and victim’s statement the trial contends that Defendant first *3 the dis- denying denied motion to erred in his defendant court 3. Whether did charging counsel. information of miss because the effective assistance necessary ele- adequately out the not set facts from the summary the of A brief argues murder. He ments of the crime of shows to the state favorable record most that the did not state that the information Jack- Diana that on June [Smith] intent done with the acts of defendant were husband, the from her separated son was omitted an kill the victim and therefore to parents her defendant, living with and was murder. of the crime of essential element Bloomfield, Diana was nine- Indiana. in part: in relevant The information stated custody of the cou- had years old and teen 14th E. on or about the “that Mark Smith a stu- She was nine-month old son. ple’s Junej 1982, County in day at and said of Bloomington, in Indiana. Ivy Tech dent at attempt to com- and aforesaid did her State Diana at defendant called June On knowingly mit the crime of murder be explained he would parents’ home and and striking, cutting stabbing and at support payment making his late with a against body the of Diana Smith joint their He also asked whether week. knife, in the hands of closed and then and there held had been checking account Smith, hearing E. which conduct have a final the said Mark they had to whether proceedings. step Diana toward the constituted substantial on the dissolution to him. Defendant then went crime of murder.” hung up on commission of said school and wait- parking lot of Diana’s informa It well settled that an in, her drive he her. When he saw ed for in words of the must state the crime tion opened the door on the car and approached convey a similar statute or words her side. He asked about the driver’s However, words of the meaning. the exact wearing why she and clothes she employed. statute need be wedding ring. wearing her wasn’t 998; Ind., State, (1983) N.E.2d Askew 445 choked Diana until she Defendant then Ind., 1350; regained she consciousness. When lost Ind.App., 403 Brown consciousness, apologized and defendant accused must be suffi N.E.2d 901. The they go someplace where asked her to apprised of the nature of the ciently and defendant talk. Diana refused could may antici charges against him so that he said, “Mark, again. her Diana choked in prepare a defense pate proof me,” and defendant to kill you’re going §1, 13; trial. Ind. Const. art. advance of kill going I’m to right, “That’s responded, § (Burns Supp.); 1984 Ind.Code 35-34-1-2 conscious- pretended to lose you.” Diana Ind., State, (1982) N.E.2d 44. 443 Head v. stopped when defendant again, and ness wording of a Minor variances from her, car and ran. got out of the choking she not make an information defec statute do her her and stabbed ran after words, accord long tive so as the construed kitchen the back with a times in several usage, do not mislead to their common tripped and fell and defend- Diana knife. essential or do not omit an accused in the more times her several ant stabbed element of the crime. Johnson bystanders pulled and chest. Some side 932; (1983) Ind., 455 N.E.2d Williams v. defendant away from Diana and defendant 239; State, (1979) him, they might well kill too. Po- said State, 403 N.E.2d at 908. Brown v. at the scene. Di- lice arrested defendant language in the informa and a col- Here suffered six stab wounds ana charged emergency tion stated that defendant was lapsed lung required sur- “the attempting to commit crime of It is well settled that the rule Patterson preferable murder.” While it would be for allows the use of the out-of-court attempted murder present an information for statements of a declarant iswho phrase “knowingly or contain the intention- and available for cross-examination as sub- ally being,” the com- merely impeaching kills another human stantive and not evi- meaning the word “murder” is to mon dence. Watkins v. State, (1982)

intentionally being. Ind., kill another human Lewis v. element was also intentional covered N.E.2d Patterson v. language “by knowingly.” here Ind. 324 N.E.2d 482. specific

The information set out the acts of Here, extrajudicial the victim’s “striking, cutting stabbing” awith properly statement was admitted as sub steps knife which were the substantial nec- interroga stantive evidence. She had been essary prove attempted murder. De- concerning subject ted matter *4 actually fendant does not show that he was subjected statement and had been to cross- by phraseology employed. misled the We necessary examination. It was not for the language find the in the information was specifically victim to identify tape the at charge sufficient to defendant with at- the time it was introduced since it was tempted satisfy murder and did the re- properly by police identified the officer who quirement that defendant be informed of previ had recorded it and the victim had charge against the nature and cause of the ously testified about this statement. The him. subject matter was relevant to show the crime, victim’s immediate reactions to the II. time, her identification of defendant at that Defendant next contends that it was re- and her assessment of defendant’s motives tape versible error to admit into a evidence for the attack. recording po- of the victim’s statement to It is well settled that evidence in gave hospital lice which she the immedi- light which throws or to tends throw on the ately following argues the incident. He guilt or innocence of a defendant is rele recording highly prejudicial that this was vant. The trial court has wide latitude in background to him because of the sounds ruling admissibility on the of evidence and emergency “urgency” of the room and the determining in relevancy. its Grimes deputy in the voices of the and the nurses State, (1983)Ind., White v. they tried to make sure that the victim State, (1981)Ind., 425 N.E.2d 95. Relevant stayed questions. awake to answer the He merely evidence is not inadmissible because taped also that contends statement was prejudicial. Bryan it is hearsay since it specifically was not identi- Ind., Meredith fied the victim. 214 N.E.2d 385. The The record shows that the victim did tape-recorded victim’s statement here was testify gave that she a short statement to relevant and was as substantive admissible police being while she was first treated evidence. There was no error. hospital emergency in the room. She also police testified about what she had told the III. at that time. The recorded statement was long than three finally less minutes and essential- Defendant that he contends ly covered her identification of defendant was denied effective assistance of counsel person as the who stabbed her and the fact because his counsel failed to raise de unhappy insanity. that he was their divorce. about fense of The record shows that hospital by psychologist, One of the nurses testified that the defendant was examined a Widom, . being given victim was a blood transfusion Dr. who was the head of the foren given any being department University. but was not medication at sic at Dr. Indiana gave time she statement. Widom talked with defendant three differ- find, that presented, ten hours. from the evidence of about times for a total ent inadequate. of test representation the basis concluded on counsel’s The doctor defendant her with here. results and interviews There no error that admits that he was sane. reasons, foregoing there For of the all possibility discussed he and his counsel judgment error was no trial court and the and decided having other evaluations trial court should be affirmed. light good in of Dr. any that it wouldn’t do Judgment affirmed. that fact conclusions Widom’s would not court-appointed psychiatrists GIVAN, C.J., PI- and DeBRULER and Dr. much time with defendant as spend as JJ., VARNIK, concur. also admits that had. Defendant Widom .possible defenses his counsel discussed J., PRENTICE, in concurs result strategies with him and and alternative opinion. put to together they decided not on that try insanity get Justice, defense of but PRENTICE, in re- concurring Re on a included offense. verdict lesser sult. counsel, it competency of has been garding by the I concur in the result reached frequently than stated this Court more majority. presumption is that there is counsel I, is respect question With to Issue strong convincing competent in similar to the one addressed required presump to rebut the evidence *5 v. 459 a/k/a Watford (1983) Ind., Howell 453 tion. v. (Givan, 355, N.E.2d which we reversed C.J. 241; Lindley v. Pivarnik, upon faulty a dissenting) J. v. 426 N.E.2d Rinard was as instruction which follows: 588, Incompeten 271 Ind. 394 N.E.2d 160. particu around the “STATE’S INSTRUCTION NO. cy of counsel revolves case; requirement of each lar facts the essential You are instructed that adequate legal representation one of which attempted the crime of Mur- elements of thoroughly explained in recent has been der the State of Indiana must which of this Court and the cases United States prove are the beyond a reasonable doubt Supreme Court. Strickland Wash following: —(1984) U.S. -, 2052, ington, S.Ct. (sic) knowing- 1. That the Defendent State, (1984) 80 L.Ed.2d Lawrence ly, Ind., 464 N.E.2d This Court not 1291. will Engaged 2. in conduct that constitut- speculate may as to have been the what step com- ed a toward the substantial advantageous particular strategy most in a mission of Murder.” poor inexperience, strategy, case. Isolated however, believe, I that the information necessarily do or bad tactics not amount adequate because “mur- the word unless, taken as a ineffective counsel implies der” intent but because the word whole, inadequate. Hol defense “attempt” implies accomplish an a intent to (1980) 272 Ind. lon v. information, particular there- result. N.E.2d 1273. fore, adequate have been had the would Here, shows that coun the record “knowingly” word been omitted. investigation sel made reasonable II, Upon ad- Issue the evidence was not insanity of an defense. He dis possibility missible under Patterson v. strategies with defend alternative cussed 263 Ind. 324 N.E.2d 482 and other cases presented a reasonable calcu case ant majority. cited Rule The Patterson on a lesser includ to obtain verdict lated determining is not much a rule for himself so testified ed offense. hearsay circumstances, admissibility of it is one for mitigating includ as show evidence, good determining the use of ing the fact he had been father such evidence, history. had no criminal do substantive once it has been ad- We exception hearsay mitted under some to the State,

rule. Samuels v.

676, 678-79, 1186, 1187; State, (1983) Ind.,

60. “To the extent that it has [Patterson] support

... been used to the admission of

out-of-court statements as a mere substi-

tute for testimony, available in-court it has misapplied.” Samuels,

been 267 Ind. at

679, 372 N.E.2d at 1187. The evidence was

improperly admitted, I but believe that De-

fendant was not harmed its admission.

Perry ELLIOTT, Appellant, Michael Indiana, Appellee.

STATE of

No. 683S226.

Supreme Court of Indiana.

July 1984.