Attorneys for Appellant
Attorneys for Appellee
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
Mario Joven Richard C. Webster
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
In the case before us, it appears that there was a fair amount
of imprecision at trial over whether Thomas was being tried for Knowing or
Intentional Murder or for Felony Murder. In this collateral attack on his
conviction, Thomas essentially contends that he was denied his Sixth Amendment right to
the effective assistance of trial and appellate counsel because his counsel did not
rectify the imprecision.
We find it unnecessary to set forth the underlying facts of the crime
of which Thomas was convicted. The interested reader is referred to the
opinion of the Court of Appeals in this regard. Thomas, 803 N.E.2d
at 1220-21. It is enough for our purposes to say that the
charging information in this case alleged that Thomas was guilty of Felony Murder
because he had knowingly or intentionally kill[ed] another human being, namely Sheldon Byrd
while dealing in cocaine or a narcotic drug (Ind. Code 35-48-4-1). . .
. Tr. at 79.
The imprecision in the charging instrument should be apparent. While it alleges
that Thomas was guilty of Felony Murder, it sets forth all of the
elements necessary to convict a person of Knowing or Intentional Murder, in addition
to including a felony that would support a conviction for fFelony mMurder.
Put differently, while proving either the elements of Felony Murder alone or the
elements of Knowing or Intentional Murder alone would be enough to convict him
of the crime of Murder, by charging Thomas in this way, the State
took upon itself not just the burden ofsuggested that it would attempt to
proving prove him guilty both of Felony Murder but and also of Knowing
or Intentional Murder. See State v. Griffin, 717 N.E.2d 73, 85 (Ind.
1999) (noting thatwhere a Felony Murder jury instruction that misstates misstated the law
by adding language requiring specific culpability obligates the State to prove not only
that the defendant participated in the underlying felony, but also that defendants participation
in the killing was knowing or intentional).
This imprecision carried through to the instructions given to the jury at Thomass
trial. It was given both a preliminary and a final instruction that
read as follows:
The statute defining the offense of Murder, which was in force at the time of the offense charged reads (in part) as follows:
A person who: knowingly or intentionally kills another human being; while committing or
attempting to commit: (A) dealing in cocaine or a narcotic drug (Ind. Code
35-48-4-1), commits murder, a felony.
Tr. at 27.
The jury returned a verdict of guilty and the trial court sentenced Thomas to 40 years in prison, the standard sentence for Murder at the time. Thomas, 803 N.E.2d at 1221. Neither the jurys verdict nor the trial courts judgment of conviction or sentencing order distinguished between Knowing or Intentional Murder and Felony Murder.
In its opinion, the Court of Appeals resolved this ambiguity by concluding that
Thomas was charged and convicted of Felony Murder. Thomas, 803 N.E.2d at
1221. Our reading of the record, however, compels us to conclude otherwise.
While the jury verdict, court judgment, and sentencing order were silent as
to whether Thomas was convicted of Knowing or Intentional Murder or Felony Murder,
both the charging information and jury instructions contain each of the elements of
Knowing or Intentional Murder. We therefore conclude in light of the jurys
unanimous verdict, that the State met its burden of proof on the charge
of Knowing or Intentional Murder. Our discussion and analysis continues with this
finding in mind.
While it is bedrock law that a defendant in a criminal case is
entitled to have the jury i
nstructed on all of the elements of the
charged offense, In re Winship, 397 U.S. 358, 373-74 (1970), we perceive no
harm to Thomas from the fact that his jury was not instructed on
all of the elements of the offense of dealing in cocaine. This
is because the jury was instructed on all of the elements of the
offense of Knowing or Intentional Murder, with respect to which the reference to
dealing in cocaine was mere surplusage. When the jury found him guilty
of Knowing or Intentional Murder, that is to say, that the State had
met its burden of proof on each and every element of the offense
of Knowing or Intentional Murder, it simply did not matter how completely the
jury was instructed on the offense of dealing in cocaine
An individuals Sixth Amendment right to the effective assistance of counsel is not violated unless there is prejudice from counsels deficient performance. Strickland v. Washington, 466 U.S. 668, 691 (1984). Given that the omission of the elements of dealing in cocaine from the jury instruction was totally harmless, trial counsels failure to seek an instruction on the elements of dealing in cocaine and appellate counsels failure to claim that the trial judges failure to give such an instruction constituted fundamental error did not constitute ineffective assistance of counsel. See Neder v. United States, 527 U.S. 1, 10 (1999) (holding that the omission of an element is subject to harmless-error analysis).
It is important to note that part of the reason why there is
no harm here from the failure to instruct on the specific elements of
dealing in cocaine is that, even though the charging instrument may have referred
to the offense as Felony Murder, Thomas was in fact charged with all
of the elements of Knowing and Intentional Murder and each of those elements
was contained in the jury charge as well. It would have been
a different case entirely if Thomas had been charged with only the elements
of Felony Murder; in that circumstance, it would have been necessary to provide
the jury with the specific elements of the underlying felony.