Attorney for Appellant
Catherine M. Morrison
Wolf & Morrison
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Priscilla J. Fossum
Deputy Attorney General
INDIANA SUPREME COURT
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below ).
) Supreme Court No.
APPEAL FROM THE MARION SUPERIOR COURT CRIMINAL DIVISION V
The Honorable William T. Robinette, Judge
Cause No. 49G05-9612-CF-191000
ON DIRECT APPEAL
February 15, 2000
Defendant Fairlis Ramsey was convicted of attempted murder for shooting his estranged wife
in the head. He was also adjudicated a habitual offender. He
seeks to have both adjudications set aside on grounds that the jury was
not properly instructed on the intent necessary to be guilty of attempted murder.
While the instruction was defective, it adequately informed the jury of the
law in this regard. As such, we affirm.
This Court has jurisdiction over this direct appeal because the longest single sentence
exceeds fifty years. Ind. Const. art. VII,
' 4; Ind. Appellate Rule
When Marcia Ramsey left her husband, Defendant Fairlis Ramsey, she moved back home
with her father, William Washington. On the evening of December 8, 1996,
Defendant went to Mr. Washington=s home and asked to speak to Marcia Ramsey,
but was told that she was not there. Eventually, Marcia=s father let
Defendant into the house.
Marcia came out of her bedroom to talk to Defendant. Defendant asked
Marcia when she would move back home but Marcia told him it was
too soon to talk. In response, Defe
ndant brandished a handgun, aimed it
at Marcia, and told her she was coming home with him. Marcia screamed
for her father to come into the room and tried to run away.
Defendant fired his handgun and Marcia fell to the floor pretending to
have been shot. Defendant walked over to Marcia, stood over her and
fired another shot at her head. The shot grazed Marcia=s head.
Defendant then left the house.
Police officers were summoned to the house and found Marcia conscious but bleeding
from a gunshot wound to the top of her head. On December
10, 1996, the State charged D
efendant with Attempted Murder,
a Class A felony,
and Carrying a Handgun Without a License,
a Class A misdemeanor. Later,
on April 14, 1997, the State filed an information charging Defendant as a
habitual offender. After finding Defendant guilty of attempted murder and carrying a
handgun without a license, the jury also adjudicated Defendant to be a habitual
Defendant contends that the trial court improperly instructed the jury on the crime
of attempted murder. The trial court
=s instruction was as follows:
A person attempts to commit murder when, acting with the culpability required for
commission of Murder, he engages in conduct that constitutes a substantial step toward
commission of Murder; which is to knowingly or inte
ntionally kill another human being.
The crime of attempted murder is a Class A felony.
To convict the defendant of Attempted Murder under Count I, the State must
prove each of the following elements:
1. The defendant
3. with specific intent to kill
4. engaged in conduct
5. which was a substantial step toward the commission of the crime of Murder;
which is to knowingly or intentionally kill another human be
If the State fails to prove each of these elements, you should find
the defendant not guilty.
If the State does prove each of these elements beyond a reasonable doubt,
you should find the defendant guilty of the crime of Attempted Murder, a
Class A Felony.
(R. at 109-10.)
Two decades ago, we explained the importance of the defendant possessing the sp
intent to kill as a necessary element of attempted murder. Zickefoose v.
State, 270 Ind. 618, 622, 388 N.E.2d 507, 510 (1979). We later
[t]he attempt must be to effect the proscribed result and not merely to
engage in proscribed conduct. An instruction which correctly sets forth the elements
of attempted murder
requires an explanation that the act must have been done
with the specific intent to kill.
Smith v. State, 459 N.E.2d 355, 358 (Ind. 1984) (emphasis added). In
1991, we reaffirmed that attempted murder instructions must include the required mens rea
of specific intent to kill. Spradlin v. State, 569 N.E.2d 948, 950
(Ind. 1991) (holding that to convict a defendant of attempted murder, the defendant
must have intended to kill the victim at the time the defendant took
a substantial step toward committing murder).
Not long ago, we observed that
A[i]t is the higher sentence range for
attempted murder in combination with the ambiguity involved in the proof of that
crime that justifies@ what has become known as the ASpradlin rule@ and Adistinguishes
other types of attempt prosecutions that involve either stringent penalties, or ambiguity, but
not both.@ Richeson v. State, 704 N.E.2d 1008, 1011 (Ind. 1999) (footnotes
omitted). Imposition of the specific intent requirement reduces the risk of a
wrongful conviction. See Abdul-Wadood v. State, 521 N.E.2d 1299, 1300 (Ind. 1988)
(Erroneous attempted murder instruction created a Aserious risk of wrongful conviction.@).
We have recently emphasized that
Spradlin claim presents the potential for fundamental error.
Metcalfe v. State, 715 N.E.2d 1236, 1237 (Ind. 1999) (reversing attempted murder
conviction on grounds of Spradlin error despite defendant=s failure to object to the
instruction at trial). See also Taylor v. State, 616 N.E.2d 748, 749
(Ind. 1993), for a strong statement of this principle.
Here the first sentence of the trial court
=s instruction is erroneous. It
says: A person attempts to commit murder when, acting with the culpability required
for commission of Murder, he engages in conduct that constitutes a substantial step
toward commission of Murder; which is to knowingly or intentionally kill another human
being. (R. at 109.) While the syntax makes the sentence difficult
to follow, it indicates that a knowing mens rea is sufficient to establish
guilt of attempted murder. This error is compounded when the court twice
includes the word Aknowingly@ in its enumeration of the elements of the State=s
burden of proof. We have found fundamental error and reversed attempted murder
convictions in a host of cases where the jury has been instructed that
it could convict of attempted murder based on a Aknowing@ mens rea.
Metcalfe, 715 N.E.2d at 1237; Wilson v. State, 644 N.E.2d 555 (Ind. 1994);
Beasley v. State, 643 N.E.2d 346 (Ind. 1994); Greer v. State, 643 N.E.2d
324 (Ind. 1994); Simmons v. State, 642 N.E.2d 511 (Ind. 1994); Taylor, 616
N.E.2d 748; Woodcox v. State, 591 N.E.2d 1019 (Ind. 1992).
The trial court should not have included the word A
knowingly@ in either the
first sentence or the enumerated elements. But this language was not objected
to and we narrowly conclude that no fundamental error has been established.
First, despite the instruction=s defects, the trial court enumerated Aspecific intent to kill@
among the elements that the State was required to prove beyond a reasonable
doubt. Second, the trial court read the jury the charging information which
contains the proper mens rea.
Because the correct mens rea was enumerated
both as an element in the charging instrument and as an element that
the State was required to prove beyond a reasonable doubt, we believe that
the jury instructions, taken as a whole, sufficiently informed the jury of the
State=s burden of proving that the Defendant specifically intended to kill the victim.
And while the presence of the Aknowingly@ language is highly problematic, this
result does comport with three of our post-Spradlin decisions: Yerden v. State, 682
N.E.2d 1283 (Ind. 1997); Greenlee v. State, 655 N.E.2d 488 (Ind. 1995); and
Price v. State, 591 N.E.2d 1027 (Ind. 1992).
Ramsey also argues that the 30-year habitual offender enhancement imposed upon him should
be vacated because the
Spradlin error asserted supra renders the underlying attempted murder
conviction invalid. Because we find no reversible error in that regard and
because Defendant makes no other viable argument concerning the habitual offender enhancement, the
enhancement is affirmed.
We affirm the judgment of the trial court.
SHEPARD, C.J., and BOEHM and RUCKER, JJ., concur.
DICKSON, J., concurs in result without separate opinion.
Ind. Code ' 35-41-5-1 (1993).
Id. '' 35-47-2-1 and 35-47-2-23 (Supp. 1995).
The trial court also read Instruction No. 15 to the jury:
A person engages in conduct
Aintentionally@ if, when he engages in the conduct,
it is his conscious objective to do so.
A person engages in conduct
Aknowingly@ if, when he engages in the conduct,
he is aware of a high probability that he is doing so.
You are instructed that knowledge and intent, which are essential elements to be
proved herein, may be inferred from the facts or circumstances as shown by
Id. (R. at 123.)
Metcalfe did point out that
Spradlin error are not per se reversible. Indeed, we have held
in some cases, typically postconviction relief appeals, that error of this sort was
not fundamental especially when the intent of the perpetrator was not a central
issue at trial, see Swallows v. State, 674 N.E.2d 1317 (Ind. 1996), or
if the wording of the instruction sufficiently suggested the requirement of intent to
kill, Jackson v. State, 575 N.E.2d 617, 621 (Ind. 1991).
Metcalfe, 715 N.E.2d at 1237. As in Metcalfe, Defendant=s intent in this
case is squarely at issue.
The charging information read: AFairlis G. Ramsey, on or about December 8,
1996, did attempt to commit the crime of Murder which is, with intent
to kill, Fairlis G. Ramsey did shoot a handgun at and against Marcia
Ramsey, resulting in gunshot wounds to the head of Marcia Ramsey, which constituted
a substantial step toward the commission of said crime of Murder.@ (R.
In Yerden v. State, 682 N.E.2d 1283 (Ind. 1997), we found that
while the enumerated elements were erroneous, there was no fundamental error. The
last two sentences of the attempted murder instruction required that the defendant Amust
have had specific intent to commit murder.@ Id. at 1285. On
this basis we found that, taken as a whole, all instructions informed the
jury that defendant had to have the intent to kill the victim.
In Greenlee v. State, 655 N.E.2d 488 (Ind. 1995), we also found no
fundamental error. There the charging information essentially included intent to kill as
an element. Coupled with the fact that defendant=s instructions mentioned intent to
kill, intent to commit murder, and specific intent at three different points, we
found that the jury was adequately informed of the Spradlin rule. In
Price v. State, 591 N.E.2d 1027 (Ind. 1992), the jury was read the
charging information which included intent to kill language. Again we found no
fundamental error on grounds that the instructions taken as a whole succeeded in
informing the jury that intent to kill is an element of the crime
of attempted murder.